a good morning brenda wood for the officer blake frost and the st thing i want to say is that i certainly recognize that this is a tragic case i don't want anyone to believe that our appeal here or this court has said when you this is a tough task for the court when the court is asked to draw lines on split nd decisions made by officers as to shoot or not shoot and so because this is a denial of qualified immunity i'm not going to repeat the briefs i think they summarize the facts but i do want to emphasize though that this was a build up of facts to in a vince that a situation suddenly turned into something very different and then became a shooter don't shoot decision in a batter eleven second or even less than one second so we know that these officers were out the investigating what they understood to be a very serious felony a man had been stabbed in the arm you've seen the pictures on the record that he literally has a seven or eight inch knife sticking out of bicep the officers investigated go to the hospital time passes and they have information this person that they're looking for is in a certain area that he's going from one place to another so they're searching this area in the middle of the night and as officer goes up this country road he sees a black pickup truck which is what he's looking for and then i go there looking for though it was pulling a trailer right so but by this time doesn't have a tree correct but but by this time many minutes had passed you know this man had who had been stabbed had gone into town he'd gone to the hospital had received treatment the officers had come out interviewed him taken pictures taken report now they've gone down a different highway there or working them by the way up to this would be sorry so supposedly has a very loud extremely loud exhaust right true no evidence that he observed out about this pick up from a sickly you have about the only connection you have is a dark pick up right dark pickup truck and we don't know even now if it was an early ninety's pick up which was also in the description we don't know if there was a child in the back know he did not see and really didn't have the opportunity to you know inspect the inside of the truck i presume we didn't think there was a child in the back because he shot through the back of the yes which makes me wonder if he ever thought this was the right vehicle to begin with well how he certainly thought that it could be and so it was a series of events that are happening at this point where he's seeing suspicious multiple terms multiple changes of direction to the point that he's going to stop this truck and so he sees the truck go down the road the the truck sees the other officer coming up the road with lights on he turns around and then stops directly in front of our officer who has his lights on and then he steps out and so he's going to stop this truck and investigate and then at that point in time things change very very sudden but from from the district court's findings we have these factors of the suspicious activity not following commands accelerating the truck towards towards the officer moving within inches of aiding the arrest and the shots fired over a matter back window on so the focus of the district court was on whether the officer was in imminent danger at the moment he fired those shots isn't that  analysis well it gets into the very fine point when you say well you know the precise moment in time how precise do you get and if we look at the case law my thought is with the case law kind of either points both ways or many different ways or certainly to the extent that you can say where the situation is that an officer could be justified in shooting when the truck is coming out him but then when he leaps out of the way makes the decision to shoot and by the way all of this happens with one point six seconds or so you know you can surmise that the truck is accelerating so we're talking about the movement of an officer and a vehicle from the front of the vehicle to the side mirror which is would read that it's clearly established that if the officer has enough time to perceive that the threat has passed that the officer cannot use deadly  challenging the district court's facts i don't challenge the facts but i think you are because the district court said here there was no immediate danger to other officers or civilians and the only risk at the moment the gun was fired was that created by mr cole fleeing from the stop and yet you're suggesting that wasn't the only risk well and we don't have jurisdiction if you're challenging those facts findings i don't have jurisdiction my view of it would be this that the facts are as the district court found you know the movement of the truck but i do think that it's appropriate for the court to then weigh the conclusion to be drawn from those facts and i think in many cases this court has in fact engaged in that analysis to say ok under these facts were there was there truly a imminent threat of harm such as to justify the well but the district court said a reasonable jury could definitely find that there was no risk and so it's not up to us to reweigh well that i think the courts though do look at as as it could be a legal issue where we're trying to decide is this a sufficient time past such that we can say that the case would create an issue of fact or would open the door to it to a discussion but i would say that there's cases though say that under similar situation where officers are the the car has passed the officer is a shooting in a rapid rapidly evolving situation and the court said that's ok under these circumstances they weren't saying we have to be bound by that conclusion drawn by the just record they were evaluating the is a situation where an officer frost could look at that case and i will yeah that was a case where the the lincoln had passed now we have situation everything's a little different i mean they all of them in the car actually  ok the officer fired two shots he's hit rolls over the hood comes back and he fires two more shots after the car after the paris passed so there's you know there's things both ways there are what the court could look at an officer frost would look at but i think there was another number of comments there you know that the court was saying if you're threatened by a weapon which you conclude that a car or a vehicle you can use deadly force the closeness of the officer is a factor the closeness of officers to the projected path of the vehicle authorizes the use of deadly force the agents use of deadly force two seconds after the st shots was still justified and that's after the car has passed it was a split nd decision they review that from the perspective of the officer not the driver and force in a lot of these cases we have to sense going both ways so this is a situation where i think courts do have to look at this very carefully and sometimes just to court said a jury should conclude that was seemed to be the standard that it applied is that an appropriate standard well i think on and on an appeal from a denial of qualified immunity we can say is that i'm not questioning the facts determined by the court but i think the court can say do these facts support the possible inference that there was an unreasonable use of force then deferring to our gram factors not other factors but if we kind of look at them the cases cited by the district court i'm sorry i'm running out of time but you know the court said well the decision that the court makes is justified by fancher and by the wrong key ok's and rokia was decided after this event but maybe don't looks like a factor that the courts look at in judging propriety of the of the use of force is we've got a situation where that that guy's out of the picture he's been shot he's incapacitated to the moment in time measured district court is that still good law well it's repeated a lot is good law hell whenever i think that our the supreme court is telling us two things number one be more precise telling us all be more precise in our statement of what is the standard of law that we're trying to apply here and i think and in some of our past cases has been a fairly broadly applied standard and also saying let's let's avoid an excessively technical dissection so to plead an advocate on behalf of the officer i would say he's put in a position where is he and other officers going to be told if you are valid in shooting at the front of the car at the end dodge out of the way and shoot some point six seconds later maybe you're maybe you're wrong and that puts them in a very difficult situation so i'll reserve the  think your honour's injure casey on behalf of the apple league joe katherine rebus for the estate of james cole counsels write this is an undeniably tragic case it's also an undeniably preventable case and it's an undeniable case where an officer has been warned under decades of laws about but how it is that we are firing weapons suspects as they're fleeing away from us we we apply the graham factors how do those apply here the district court did a thorough analysis of the three gram factors obviously articulating the nd factor immediacy of harm happens to take a much higher prevalence on the set of facts here the district court announced whether or not there was an act of commission of a crime and i need to distinguish this moment of the facts from the idea that what officer frost is looking for is a violent stabbing suspect the record is very clear from officer frost deposition that at the time that he got out of his patrol truck he did not know that the suspect was the stabber and he knew that the suspect that the person he was pulling over could just be an ordinary citizen he did not know that that person that he had stopped for that traffic stop was a dangerous criminal he didn't know whether he wasn't either right and that is isn't that always the case he he's he believes or parents believe that this is the same and they have the right guy yeah and it's an interesting part because we live in a time where there is a lot of fright about every time i pull somebody over it might be the time when somebody pulls that go and isn't the question whether that was a reasonable belief on his part and assuming it was didn't he have a reasonably for that he may he might have someone who had just stabbed someone as well as who had just attempted to apparently attempted to hit him with their vehicle and that's why i think it's important for the rules to really key fact there i mean he doesn't know that he's not the guy they're looking for and we do have a severe crime and that's the measure under graeme i mean this this follows a lot of cases we've had where they are looking police are looking for someone following a violent crime and we have that here i would i would encourage this court to pay attention to the point of view that the officer testified about which in the records whether it's at forty tw and ninety i said he didn't know yet exactly and he made it very clear that he could be entirely mistaken at that time of course and i think that is important jettisoned whether or not he was making an arrest at that time and i think that he wasn't making an arrest he was investigating exactly was totally it's totally appropriate he was doing a traffic stop at that moment and the problem with that next step that then he took is you know what is it that you actually have that you can confirm you can't assume from an off from a reasonable officers perspective that literally everyone might be a violent criminal trying to assault you you have to judge it by the facts that are there and at that moment all that we have in the light most favorable even to the moving party is that there's a misdemeanor of asian being committed he saw you and the case law doesn't require that he just go by what he observed it's by what he recently suspects and so in the district court found that against you so make your best argument that even with that factor being against you you still come out on top on the gram factors well i'm in the best arguments it's no secret is that the nd prong of the gram factors prevails in a situation like this especially when the immediacy of harm has past and has abated at this situation the officer has had time to get out of the way and he has moved out of the path of danger he then pulls up his weapon and he investigation is showing gunshots into the back of a windshield and it doesn't show into the side of a car it doesn't show that it's the mac of the windshield or  i'm sorry under the back glass of the pickup although interestingly the trajectory of the boards do hit the front of the windshield as well which also helps identify that when he's shooting he's behind this and how i mean we have a very as council pointed out your opposition has pointed out we have a very fast moving development of facts here the truck is moving the officers moving he doesn't know who he's dealing with the truck is coming at him what's he supposed not shoot  honor and i disagree over shoot i disagree plainly with two things said by counsel number one is i think counsel is is trying to impress upon the court the idea that this is happening over a zero six milliseconds i think exaggeration what we have is a car that has passed an officer has raised the gun and started firing into the back of the weapon do we know which shot kill him because this trajectory think this trajectory you're speaking of it shows and i'm looking at it it shows at least one shot going through the side the rear part of the passenger side and then it shows four other shots going through the back window i don't know if this do you do we know which shot killed him i don't know if this picture is in the record for the appeal but it was certainly there for the district court judge when there's a picture where the officer takes a pencil and shows through that one that kind of looks like it's angled off to the side and that points in a direction not at the driver all the bullets in the back windshield are very clearly coming at the driver that it was well it was all firing that was instantaneous want to have their right yeah i believe that all seven or so shots of file and so the st firing is occurring we think when the side mirror is approximately where the officer is about this if you look at the record on about five hundred and forty as well you have another picture that shows scattering of the actual placements and you have about four bullets fired from the area of the officers pick up and then another four off of the side so it looks like he took four shots from in front of his pickup and moved around to the left side for a different vantage point because there are just t and i think that's what's important and whether this case is very recently decided it's a february th decision judgment whew i think that you were a part of this decision and it goes into a thing that i want to be remembered for determining jury question which is that this court should be cautious and nd guessing a motion for summary judgment on qualified immunity grounds to ensure that a defendant officer is not taking advantage of the fact that the witness most likely to contradict his story the person shot dead is unable to testify that's a state of smart versus city of wichita and then in this case we don't have body cam which was available to the officer we don't have videos to show you what's happening we have one officer's testimony and beggin your pardon but there's so much evidence about these shots that don't add up to a i have a car that is threatening me that i'm actively firing we also have an officer with a history of dishonesty what's that clearly established law that we should be lived i think that there's precedent that sets over several decisions leading up even to the two thousand and nine cordoba decision about shooting and not shooting about the immediacy harm of a vehicle coming at you it almost seems simple to say this but every case is there on it you have a case is spread throughout the record of officers having cars coming at them when shots are being fired and the court aragon and i think that does it's a lengthy opinion i think it really goes into depth about the timing because it even breaks up and says there are moments in shots happening at a time with a car coming at you which is ok but after it has passed and abated no longer do we have something in that is you know a justification or a reasonable th amendment seizure and when was that ruling issued to two thousand nine case it was seven years before this shooting in this case and it the language of cordova i mean it's very powerful language and it fits way into a fusty county policy very clearly and the facts of it and this is something i really want the court to take hold of the facts of cordova are so much worse than this case the facts in cordova include a driver who is driving recklessly he's running red lights he's trying to ram police cars he's on the wrong side of the highway here the district court rules and even this officer admits there's nobody on this dirt road in front of this granting of qualified immunity is something that we should do more not less and i think you know that we have been too stringent in our application to find unreasonable force and split  nd decisions by officers mullen x is a case that we hear repeatedly cited to by the supreme court so i'd like to talk about moolah next for a nd because i feel that fear sort of speak or that direction coming from the supreme court and i think that this is something that is a dramatically different case than what we're dealing with here and no nicks you have on a suspect who has called dispatchers threatened to hurt officers he is driving at extremely high rates of speed he is he's got weapons on him he's got a with a warrant for a felony arrest everything tells the officers this is absolutely a dangerous person there's no mistake of fact there's no question about what is there and the officers are gearing up for spike strips and an officer who has a head and can see that there's a person driving erratically wanting to her officers could hit the person manning the spike strips and he fires about six shots down into the vehicle as it's coming at him and the other officer the court there he's up on the bridge and he's up on a bridge right he's i think is i think a collision coming at you know the  that sotomayor had focused a lot on the training of the officer that they've been told not to do x y or z which are different than the case law perspectives that we have here and at the time they said hey we don't have a rule about whenever there's somebody in front whenever there is a threat coming at somebody and you're ahead of it and can try to stop it that you have to use strips st that's something that i think there were a buchannan a decision like that here i don't think that we overreact to the moment x decision by trying to stringently wreak raphe all those history as a case is going back to graham we can realize through the several cases ups leading up to mullen ex but there's still a very strong rule out of those graham factors we don't fire into people fleeing away unless we know that there's an immediate threat in front of them or at least a substantial threat in front of them and it's not a question of hoping for the best as james cole leaves that part of the area because the language that has been decided in all those cases is talking about you know driving into another officer driving in another officer vehicle into a highly populated area here this is a country rose in the middle of the night nobody in the world is out there and the threat has passed the officer when the officer is fired and that's that's the key question where the threat has passed and the only way they are and when they're in your pleadings stablished it's clearly established law that this officer should have known not to shoot him respectfully the only entity that can answer that question is a jury of peers and that's something that i think that on now it's a really it's one of the clue is that what i'm talking about the facts of is he in they measure at that moment and that's at what the officer should have known and how he should have measured his conduct in that situation and i think that this circuit has taught officers effectively that you are in immediate harm with a vehicle coming at you and that there are others in immediate harm on a vehicle coming at them and that justifies a deadly force but for the use of that most deadly force in the operation of a seizure once a threat a subsided we have protections under the th amendment for our citizens to prevent tragic situations like this where they get the wrong person and they kill somebody who didn't need to be killed thank you and frankly your honour's  close by referring to that it is a situation where i think even if you look at the qualified immunity analysis if you look at the line of cases even going back to court over this is a situation that's not close to i've just a couple of minutes i just want to emphasize a couple of points st of all i think judge shrader did take into account of that and was mindful of the fact that you know mr mr cole was not there to testify so i think the judge was cautious of that and was careful about crafting the findings of fact but i want to clarify one point and i think the court has has hit on this is that officer frost did not know the person they were looking for so when he saw this person in the truck he did not know whether this was or was not the person they were looking for but also from his perspective and i think it needs to be evaluated from his perspective he was investigating a violent crime not just somebody that was going to commit a misdemeanor of evading a stop it was something much more than that to him potentially the cordova case was a case where the court actually granted qualified immunity to the officer because when you get into this line drawing area it's it's difficult and they were think maybe i'm getting this wrong you know i'm sorry he was fatally one and i polish eyes it is similar in that respect but the difference is i think that there was a half suspected or some suspicious driving which is not what our situation is here and i want to also emphasize that cordova was followed the very next year by thomas versus door salty so it's it's muse a range of cases that the court needs to consider so i thank you for your time thank you thank you