good morning judge black and i are are very happy to welcome here this first second day this week of sitting with us judge kathleen williams as some of you who follow the eleventh circuit my know we are a very busy court and we depend heavily on the services of judges who are willing to come and sit with us and visit and judge williams is on the such service on the southern district of florida's district court since two thousand and eleven she comes with a lot of experience before that for many years she was the federal defender in miami and as you can imagine that's quite a busy job she also has nationally recognized for her proficiency in that arena i know that because i was chair of the criminal law committee for the judicial conference of the united states and judge williams who was selected to be the liaison for all the defenders in the united states to that committee and judge black are both long time district judges ourselves and we particularly appreciate the insights and experience of our first line responders our district court judges they bring a lot of wisdom and a lot of experience in the issues that we deal with so we the probably the key question that was before the trial court had to do with which police officer shot for well or that's what she said but and let me preface before we get into the legal arguments obviously life was lost in a very sad and clearly we're all very sorry about the loss of mr hammond's law i don't want that to go unsaid before we get into all the legal requirements but my understanding was that whether whoever fired first was not that material the question was whether in the in the fast moving events that happened it was officer whitner off the other officer that fired first was whether or not either of them under that set of circumstances objective lay reasonable for them to use force and you disagree that that is the issue here that that is the issue but i think the findings of fact that the trial court made that the court said a jury could find in favor of the plaintiff and that contradicted the stories or the justification claimed that the defendants made can have two diametrically different results as far as whether or not there was justification i mean we all know that there were that a bit didn't move fast but you have to go through step by step what each of you claimed and what the judge the trial judge said a jury could find because if you read off your horse's testimony his entire defense for justification he's the officer that the defendant claim shot for in the first together our best argument would be that mr hammond had come to a stop and was that he was listening and following the commands that were given to him which was stop and show your hands because his hands are fifty go ahead it's simplest terms of players position is if the shot about also hoarsely was to the back it completely negates the testimony that they went to base to face combat situation because if he was showing his hands and we think a jury could fin we we can find that there was nothing in his hand from the fact the case i believe you can find that he stopped showed his hands and because the second shot was to the back it telling the gaze of your horsley's testimony that he shot that killed him ok show me shot in the back he was turned around facing the other one yes ok well if the evidence showed that he wasn't facing the other way and that the  et went into his the side of his back and went down to the front of his right side would that be consistent with your view of the evidence yet because we agree the shots  one pounds and the shot lies eight centimeters to the left of the midline and that would be about three point one five inches  of and then it went and to the right it didn't exit the body that is not it it went in downward and so you can you can take that description and sort of figure out where the shot where and then how he was standing could well i think it certainly shows that he was not where all support was which is the entire basic or says it was which is the entire basis of the and but just trying to figure out the facts as as you view them and so i read that frankly it i read the autopsy report trying to because it's a piece of evidence that i think everyone would agree  accurate and trying to figure out what happened so it didn't really go into the middle of his back went into his side and went to the right front in a downward proje that's undisputed testimony it is unspirited testimony but that does not mean it's undisputed fact because you can look at the testimony they offer that was behind as far as who shot in what order and where the bullets entered and there's physical evidence that a jury could look at and say they could completely know if that definitely because the officers testimony itself is conflicting they don't know they don't know who shot what first because rutherford gives a different version and hoarse wiener rod they don't know what was in his hand because at first they said pepper spray then they found pepper spray in the sun said that looks like my dad's pepper spray but nobody's now saying it's pepper spray because that would be inappropriate use of force if that's all he had in his hand so there seems to be looking a like most reasonable and favorable to you the reasonable inferences there's just some conflicts i think the position i'm hearing from you that he raised his hand in was in was it looked like he was taking aggressive action toward hoarsely none of none of what you've said contradicts that particular piece of testimony well i think you have to look at the three different versions of i can tell you a great trial here and you're making at a really really forceful argument but that i'm just trying to look at the un contradicted testimony not not of and the evidence and i just i'm trying to figure out what the facts are that would let me just go through they have sort of listed the facts that that seemed to be uncontr d it was very dark inside all of the windows were taped and it was that night the police announce their presence multiple times on executing the search warrant daniel approach the officers in the object and then one shot to graze daniel finger and then the other shot went into his torso and down and lodged and to i think the rubber upper right quadrant of the stomach and  i understand your theory understand your argument but i would like but for you to tell me the facts that support your argument  either freeze or you could you could turn but if that happened then also hoarsely testimony can be completely ignored and if if the judge said that the jury could buy that off shortly shot second time and so we will add some time to the other side tonally what we will give you back four more minutes when you come back  good morning your honour's my name is terry williams and i represent the deputies hoarsely and whitener and paulding county the district court properly granted summary judgment based on qualified immunity because the use of deadly force under the facts of circumstances was objectively reasonable and did not violate the fourth amendment the district court properly held that these officers had an objective lay reasonable basis to believe their lives were in peril based upon the undisputed facts that showed that the officers properly identified themselves upon reaching the house upon entering the house they announced multiple times that they were law enforcement and they were there for a search warrant and in the midst of that as they went through the house nobody responded and then danny daniel hammett came out of a bedroom in a darkened hallway and  began approaching the officers it was also undisputed the officers again announce their presence and deputy horsley in particular said sheriff's office show me your hands that's totally undisputed the plaintiff wife testified to that and his son testified they heard that and that situation daniel had that refused to show his hands refused to comply with the officers command hands are fifty two inches above the ground what's happening there is he's thrusting his hands it's undisputed from the officers testimony it's thrust in his hands toward officer horsley he has swat down the side and that's undisputed both whitener and testified that they saw him approaching he's refusing to show his hands he's kind of hugging the side of the hallway and then suddenly as he gets close to horsley comes up with his hands with the black object in his and that is not pepper spray even it and it turned out to be pepper spray but i did not know at the time it was pepper spray oh it's undisputed that no officer ever testified no it wasn't pepper spray they didn't know what it was they figured it was a gun because it was a black metal object concealed by his hands because it's so once the sale by his hands and remember it's dark inside the hallway so they can just as they can see dimly ok and in that rapidly developing dangerous situation hoarsely when you haven't made that move he sort of lurched backward to avoid the attack and fired his testimony is unequivocal that he fired the first shot it was a response to that but they were rapid fire shots  how do you explain the district court's statement in an order granting summary judgment to your client that there may still be questions of material fact i thought that exactly what summary judgments were not allowed to venture into credibility determinations the science here in the light most favorable to the plaintiff is his hands are up he's shot he he turns to run away he shot again that may not be what happened but in the light most favorable to mr hammett the science says that is a reasonable inference and the judge says there may still be a question of material fact how then do we get to a grant of summary judgment can first of all you i don't think there is any evidence that he raised his hands in any type of surrender or show me your hands but it's undisputed the officers so it doesn't matter if they're fifty two inches or fifty eight inches all that's consistent with a man five foot six bringing his hands up so if there is not another witness other than the police then there's always going to be undisputed facts and we don't give any reasonable inference to the science so there's got to be some evidence i mean unfortunately he's fast but the only testimony about hammocks actions is the officers testimony that the science that his hands were fifty two inches that doesn't prove anything that doesn't disprove any aspect of the deputy's testimony and why is it that they can't figure out who gun shot the fatal house that well with a glock forty is it's very difficult to match up the bullets as my understanding from having handled these type cases in the past i don't think that the g b i actually i don't know if they attempted to do that or not because it was pretty much undisputed horsley testified him said he shot at his hands because that's what he was reacting to so east it was pretty clear that his shot is the one that his finger although rutherford said i heard a shot i turned around i saw a vest i saw illumination and then it was hoarsely as he went down suggesting that the first shot came from officer whitener is that not that's pure speculation or rather he's a witness on the scene you want me to  have witnesses on the scene giving you evidence i'm not saying it's the way it happened but isn't that a conflict no i don't think it is at all right for testified he heard the first shot as he said look in that direction first of all you hears forces say show me your hands show me your hands that's perfectly consistent with what hoarsely end wotton are said is he lurch back fired then as a second shots go and he falls to the ground there's a difference between falling away to the ground and being in the process of falling so rather first testimony is not inconsistent with the other deputies it is not to know which which gun which gun expelled which bullet that could help with the c d s and he could and rather for couldn't tell you so i don't know i just heard the shots and even thought you know that there state as she's in the process of firing which takes a little bit of mental process to pull the trigger saw him twist and believes that her shot hit him in the lower left side of the back as he twisted  there was no real genuine dispute that that is what happened believe the shots were fired in that order but ultimately as i think one of the judges already mentioned it doesn't matter and that split second they're both reacting to the attack who was unarmed when he had a black metal object is saying that he's thrusting at the officer a reasonable officer in that situation and those split seconds could believe that that was a weapon it turned out to be pepper  spray and doesn't your training manual say clearly that if someone is coming at you an officer with pepper spray that does not rip what choir is inappropriate to use deadly force in that situation that's correct if they had known it was only pepper spray they did not know it was pepper spray at the time how do you and i'm sorry keep but by keep going back to the judge's statement there may still be a question of material fact what did that mean to you and your just that he's assuming facts and that in plaintiff and there may be other facts that would be in dispute but he doesn't find that those facts are necessary for him to make the ruling so we believe that judge murphy's decision was very well reasoned and it's based upon the undisputed facts what the plaintiffs continue to argue is speculation based upon what they contained is some dispute like it's speculation as to whether he would have held his hands up and  there's no evidence to support that whatsoever in fact that is perfectly consistent with him holt you know holding up his hands and the rush and thrusting something toward  what is your distinction between speculation and a reasonable inference from fact so if he says his his argument is i had my hands up i turned i was shot in the back and officer rutherford says i turned around and this is what i saw and in both instances he said well that's conjecture that speculation what's the difference between that and a reasonable inference from the facts well i mean it would depend upon the facts and there's got to be some sort of facts that of holding up his hands in surrender and was turned in and retreating i mean that just would be pure speculation based upon what physical evidence was developed and what testimony was developed in the case  and the two reenactments there was one what they were trying to find out what happened to officer mayfield shot because they could account for two bullets which they believed was hoarsely and whiteners so when they couldn't figure out where that shot went to they had the officers come back and walk through it to basically try to get the positions of where mayfield would have been relative to these other officers to find out where it went what ultimately turned out to be the case as months later whitener noticed in her bulletproof vest that there was a defective tear in the bottom of it and it turned out that they believe that actually mayfield shot hit her in the back and that that was the explanation for you know what happened that because they could find a bullet hole anywhere did he say that video without a reenactment of all the and the going down the hall is that no they didn't attempt to do that they didn't put anybody in hammocks position they didn't do time mean time frame it was just less walk through and get to the positions approximately where the officers were ok so then we can look and see if we can find a bullet hole somewhere on this bullet lodged somewhere and so we believe the district court got this correct in granting a summary judgment and we would ask the court to affirm thank please the court harvey gray on behalf of the city of dallas and one of its police officers joe mayfield totally extricated from the argument about who shot for the plaintiff has conceded that mayfield fired the third shot the shot did not hit mr hammett mr hammett could not possibly have been aware of it it did not terminate his movement in any way and so from mayfield's perspective there's just no fourth amendment seizure at all and there's no case law that we've found anywhere that would suggest that this would be a fourth amendment seizure secondly from his perspective they also have to get over the hurdle as to whether his conduct was objective lee reasonable now he's not in the room he can't see hammett he knows that too fellow officers from falling county are saying show your hands somebody obviously approaching he hears two shots and then he sees one of his fellow officers fall to the ground he makes the assumption a reasonable assumption turns out to be wrong that coarsely had been shot and he fires towards where he perceives the threat to be but the bullet didn't strike camera so first there's no fourth amendment seizure and secondly his actions were objective lee reasonable he also would have qualified immunity this is certainly a discretionary decision whether to fire a weapon and under what circumstances so the burden shifts to the plaintiffs to establish that the law was clearly established and as   court knows in the eleventh circuit you only look to eleventh circuit precedent the u s supreme court precedent or georgia supreme court precedent and there is no there's some discussion of a six circuit some six circuit decisions i think the i support the position that we have advanced the only case from the sixth circuit that said well shooting in missing can be a fourth amendment seizure if there is a terminations of movement which is what you're trying to effectuate so they had some fleeing suspect cases and said well where they didn't stop and you missed them that's not a fourth amendment seizure and so that's that's really what happened here and when they did the briefing on this because it was based on an undercover buy two days before that correct in the by happened actually at the front door but the officers decided to go in it wasn't discussed was this that while there it was discussed that there isn't they didn't think there would be any guns or violence and mr hammett wasn't a target wasn't thought to be a meth lab meth lab call he knew from his perspective is that these other officers at down a control drug by had gotten a warrant issued on probable cause he was not the first in the stack he did make the decision to go into the residence they went in the residence he went into the kitchen to clear the kitchen to see if there were any people in there he remained in the kitchen he never left the kitchen he had no line of sight with regard to mr hammett so he's in the kitchen and he hears show your hand show your hand show your hand see some shots and an officer falls to the ground may not have been the brightest thing to do to fire through the wall towards a perceived threat but it's not a fourth amendment seizure and i think he would clearly be entitled to qualified immunity even if the court were to assume which the court can do either can assume that you can say there's no constitutional violation or say there was he still would be entitled to qualified immunity because under ashcroft  every reasonable officer would have to know that their conduct was unlawful and there's no case like that in this circuit or supreme court georgia or federal the state law claims have obviously been abandoned the issues framed by the in this case however the judge went on after finding that and said but even if they did it wasn't an assault because there was no apprehension by the plaintiff about mr hammond and it wasn't a battery because the bullet didn't hit miss to have it and that even if it did ga last sell the verses harrison says that to overcome official immunity there has to be actual malice actual intent to injure that is equi to a deliberate intention to do wrong so i don't believe there's any state law claims so however the court decides the issue with regard to mr williams clients and the plaintiffs we believe that judge you know i talk about officer may i would like to talk about the shooting by the two officers with the the two bullets that hit mr hammett first and then i would like to address the question of how she might feel i believe that mr williams judge blast but that ask a question given the give me your best case scenario the plaintiff and i believe mr williams may have done a slightly better job of explaining a key aspect than i did on that when i asked the question he claiming that he shot the first shot it is highly unlikely you have to remember not only did the bullet hit the left index finger it wound up on the left sound opposite side of the wall so you almost get into the famous john kennedy magic where a jury could say that we don't think this happened this way we think that the it's so rapid if each bullet was almost instantaneous i think fired first i don't know but officers testified that the firing whoever fired first and who fire immediately after that was because they thought they were under the horsley was under attack by your client and we're talking as if now and the john kennedy situation we can all do those zapruder tape and we can freeze frame and i think that's there now not that's there but the case law is clear that in a fast moving situation sometimes people will make reactions that later if you look at the video you'd say well you didn't have to do this or you didn't have to do that and don't we have to factor into this that this was a very fast moving and immediate situation with officers who up to that point had been dealing with a person who had been aggressive walking toward them wouldn't stop walking wouldn't couldn't wouldn't put his hands up and i don't know if your theory that just in cold blood there was think that that everything was going they were not under attack by him they were not nervous about what he was doing and they just decided to shoot for no good reason is that your position you're i mean that would put a murder tendered which is a totally different standard they overreacted they panicked is that right that the theory would be they panicked they don't remember who shot first no one can say who shot first officer mayfield shot through a wall because he blindly as the judge said got involved in sign for something to go bad something usually has to happen i mean if you're just standing there and you're helpfully going to put handcuffs on typically one would think human nature before somebody she something's happened to make and she didn't your position is maybe nothing happened at us together and you know if you try to isolate it's kind of like that game where you got that you know you pull this piece and the whole thing might come down but you have to build this base don't we can't dispute that that too often i think we have your time we can use more time what would circuit but the camera case even though they said in that case the fleeing suspect jumped over fans and ran into traffic well obviously that's that they didn't seize him if he chose that chose to run out to traffic but that case even recognizes that if i was sort of coming in together as a group shouting commands which they say they were taking control of the situation trying to control make it making showing their authority and really that's what can you tell us about if there's a show of authority which includes gun power then it is not limited to those people those police officers that actually hit the suspect it's explain one who was participating in that state and that's pretty much what i want