on the morning your honor and may i please the court more than thirty years ago the supreme court held in broward that a violation of the th amendment requires an intentional acquisition of physical control for there to be a seizure there needs to be a governmental germination of freedom of movement through means intentionally applied with that framework it was of no surprise that the supreme court employing all of hell but that an officer shooting into a vehicle and killing the driver was subject to th amendment scrutiny could i ask if it was their fault is it your concept of this case because it seems to be a difference between the way judge step miller saw it in the way you're portraying it do you think that mr ortiz was aiming for any person or was he just trying to stop the vehicle if you could try to stop a vehicle by shooting the tires out for example me so i want to know what it is he was trying to seize a into the house were already seeds they weren't seized as a product of the use of the pepper spray it was a seizure by show of the sort when those folks complied and went into the house that is where the seizure  which is distinct from this case does in this case the plate disposition would be that a seizure occurs at the time of the use of force at the time of the shooting which would be consistent with what the court ruled in portray it to be you know like when does the shooting happened when's car moving when your tires squealing and obviously as you correctly say in your brief we've got to you know we're not here to based on plume off an argument based on the torres case which is pending in the supreme court neither of those arguments are dependent on any of the purported factual disputes ok the bloom off decision that we're really focused on the road that officers were st vehicle away hands on davis so that so that point i think st and foremost those factual issues go to the reasonable this which we devalue it under the th amendment if the  perhaps not clearly however what the issue is is the point of his relying on b deposition testimony of packet who is one of the officers who was there but he's next door is that is that the fire station so he can't see anything he hears the gunshots eater's tires we were he puts the order of events as gunshots st and then tires squeal which given the point of their version of facts and all that these facts are important they go to the reasonableness of the use of force so a very get on the issue the legal issues that are before the court regarding formula and regarding torah as these facts are of no consequence but the to that there is no version of facts that have this vehicle at a complete standstill at the time the shots are fired thank you judge that are you have course here's my question for you i want i want to make sure that i understand your your main point he what you're saying is go ahead go ahead and exercise jurisdiction here because i'm not reliant my qualified immunity argument does not rely upon disputed facts but rather what my client faced was a car that was approaching him at a speed at least at a precise level we don't know but a car that was driving at him trying to leave this particular  parking lot and it was reasonable under the circumstances for him to deploy lethal force in those circumstances because a car can be a deadly weapon it was coming at him and as you would not you know as you say you know he was on the u s supreme court in specifically said that the claim that the passenger had that not make it to the u s supreme court that that claim there i quote there is some disagreement among lower courts as to whether a passenger in a situation can recover under a th amendment here we express no view of that question ok so let me ask you this question let me ask you this i want to change the facts ever so slightly i want to have the exact same encounter occur behind a high school at twelve midnight on a friday night in response to multiple reported problems in unfortunate incidents involving high school kids drinking so then a lot of problems in a community kids are gathering behind the high school there's a nice quiet spot back there it sat or etc and so a call comes in it twelve o'clock on friday night the kids are gathered pick up trucks are back there they're drinking away the same exact thing happens a radio car pulls up somebody sees it the pickup truck backs up heads towards the exit of a police officer with all the facts here ok to deploy lethal force the only difference the reason i'm asking that question and is because one argument that's not being made here i think for understandable reasons is that somehow the drug caught the drug deal cont of this is making all the difference in the world i'm not seeing that argument anywhere not on your side on the other side so i think while we may as well make it the high school drinking fact pattern and i'll just say for my part it troubles me greatly to think th from a distance of thirty feet or fifty feet in a scenario like that that an officer could deploy a lethal force and i guess and i'm not understanding the distinction but let me try to answer that question just change the fact pattern in one way it's not a drug to keep everything the same it's not a drug deal that officer or t shows up to sure it's high school drinking you're on or if  of the facts are the same except it's just a different context my position would be the same this is not a fork in that case it's not a th amendment seizure that does not mean that your concerns over the shooting and in the implications of that are completely and i think judge scudder's hypothetical is looking at the question of whether this is an on reasonable effort at a seizure because of the fact that it's lethal force and whether  are being posed posed to go to the reasonable miss of the use of force you know if the grandstand well our argument to the court is and i think what the supreme court was getting as we don't get to that question this is  as you put it earlier aiming at the hands of a driver on a steering wheel i mean that's awfully close to a head ok that's and if and if the shot would have hit the driver it would have aligned with the officers intact and therefore there would have clearly been a seizure but the officer missed and he hit a passenger in the head definitely sees the passenger and i mean in any fair sense of that but but mean because he missed his target there was no seizure if the driver had been shot in the head and killed then it's clear from that we have a seizure it's clear from broward that there's a seizure but because the passenger was  police officers are thinking that they're going to shoot somebody in the middle of the crowd and they aim but they happened to hit somebody else has that other person been c s i george what i'm going to i know it's not a know who was in the car if they did not know how many they knew there were at least one drug dealer mr nguyen is because he was communicating with a confidential informant the had no idea whether it was one or five or more but the plan according to all of the officers who were there was to do now of the car and people and so yes he was a suspect until they made a determination that they had been successful that he was involved didn't have knowledge or they let him go so yes he was a suspect now does it make any difference as mr hall is urging that when ortiz lifted up his gun and pointed toward the car ortiz said i was really you know with surgical precision aiming only at the driver of the car let's think about that if the driver is driving away in all you can see is hands because it's up there that would suggest either the driver is the biggest idiot in the world that's how they're going to drive or the st shot has occurred which is how both  nebulous and large will testify or his driver as well as hackers and the reason that hack it is so important mr hall indicates well he couldn't see anything that's perfect because now all you can hear and i've got three citations to as hack it or do we give credibility to what he says that he was under the impression his intense his thought process means nothing it's what does a reasonable officer in that situation in getting back to judge scudder's opinion i would agree that you use the issue of high school doing alcohol here we have drugs not we're not talking drug kingpins we're talking eight ball an th of an ounce of cocaine reportedly is being delivered that's a minor offense in the scheme of things it's not a violent crime all of the case law that talks about th amendment seizures in the use of force right they've got three things a they've got to determine whether  the officer is at risk that's a disputed issue whether or tease it risks we have charming whether another officer is at risk or the community there's no evidence of that either in finding you have to consider the crime in  how is it any different then if it was alcohol or if it was someone selling you know whether it's just high school students whether someone has a case of vodka and they're selling to students maybe that's a felony but is that something that gives versus garner in garner as the district court pointed out the court said quote the use of deadly force to prevent the escape of all felony suspects whatever the circumstances is constitutionally unreasonable how does  garner or not in your view i don't think hof itself changes garner the issue with regards to pull off if you don't more with a person who was also in the vehicle that person is not was not a suspect that person was not a criminal or anything else the office fire shot we have a different situation here where davis is a suspect until the police know otherwise they're doing hoff the the passenger did not file suit and i think the court was very clear they did not want to get to the point of no they did not want to turn around and say well definitely she has an argument or doesn't have an argument i it's not before us and all of the talk of of the madrid tours versus madrid that doesn't apply here because mr district we have at least hell are you at least i should say that shooting of a suspect is a seizure the issue in the tourist case which tries it ducked off if you had a suspect who was shot and then subsequently escaped took herself to the hospital had extensive injuries and then subsequently was continuation we don't have it here because we clearly have a seizure because he was shot himself physically davis was physically touch in fact i noted in the appeal brief the justice department even agrees with that theory that if you fire a shot at someone and you hit them a suspect you have seize them whether or not you can turn around and arrest them subsequently or whether it's been an hour or two days they have been see for a minute purposes so so you're it seems to me critical to your argument is the notion that this is all an object of test and so it doesn't really matter what we see officer ortiz's mind he took an action which objectively was capab seizing anybody who was in the car so that's correct that's correct in fact the case law in this district is we don't look at what the officer thought we look at what a reasonable officer are and if in fact this harm was dangerous we know that we have an officer standing a foot foot in half away with his gun drawn who did not fire the shot but we have more keys who says he's you know there's a discrepancy as to how far away he is and that's important mr hall this correct bet both experts opine that the cars traveling at a certain rate of speed but in order for both of them to opine that it was traveling at that rate of speed we have to use math in order to use  the wisconsin department of justice says we're definitely standing here in the vehicle was definitely there they could be off six inches they could be off six feet in soho mathematically we know that the vehicle what's  only one who said it was coming at a high rate of speed is ortiz getting back to my point how does that take you to johnson against jones and just say there's too much in the way of disputed facts for this right now to be resolved on qualified immunity obviously whenever johnson gets jones applies the best the officer can hope for is what i think of sometimes as qualified immunity tonight you know they do have to go through a good bit of the proceeding although they certainly may prevail in the fire only jose mar as opposed to firing at the vehicle itself the threat we have to dispute as to where it works he's was did he was he directly in front of the car or was he moved you know he was moving because he testified that we also know that he's moving because of the angles of the of the of the bullets it's not as if he was directly in front of ninety degrees and he reaches out and shoots and you can see on the windshield gun marks the very  shot is actually at less than a thirty degree angle it's from the sock and nd shot is right by the driver's mirror in that a frame will area the rd shot blew out the driver's window the  shot hit the rear driver the passenger door the rear door so for t s to say i had to move that's a disputed issue because he wasn't directly head on and no one has testified yet it was aimed directly at him other than or tease at the end of the day what i think ultimately happened here is worse he's had tunnel vision or cheese knew the idea was doing takeout and so they were going to stop the vehicle and he was going to do it no matter what and he's there you get the adrenaline going and the vehicle starts movie he starts shooting that's a lot i mean i a jury's an actor determine whether my argument is correct or not but no one says yeah it was going right and we have other cases where you have a vehicle that's only going you know six feet and the court has found that qualified immunity does not apply that's the state of stark's in that case you have an officer who is behind a telephone pole jumps out in front of the  whole year we know ortiz says he was in one spot he then moves and then moves it again because he claims the vehicle was coming out only a jury or jury can determine exactly where in the scene or the school cade let me ask you this question is just the do you think the fairest reading of judge stat miller's opinion is i mean if there is a qualified immunity ruling here it is barely barely ok and the reason i say that is because it comes on page sixteen the st mention of qualified immunity and in substance what i'm reading him to say is look i i know what qualified immunity is i got it it's a two part test there's just no way if i accept the facts in the light most favorable to the plaintiff that i can confer qualified immunity we need a jury trial here i'm not even sure i know fully what happened i would say that's correct in fact i would point you to page one second judge page ten of that opinion where he says teaches ortiz's argument wretches both the facts and the law beyond their limit so i think i'm asking you that and maybe mr maybe this is for mr hall but you know there's a back and forth in the jurisdictional statements which you understand in a case like this is that whether we have jurisdiction or not but mr hall on behalf of a tease describes the court's ruling in terms of of the court district court deciding what was clearly a stablished as a february two thousand and sixteen i don't see judge step either talking about clearly established law in any direction whatsoever i think literally all he says about qualified immunity unless i've read it too fast is on page sixteen and you aren't one hundred percent you are correct judge what he said clear what occurred i thirty on ventura sixty terms of what caused him to fire super that he did i had a seizure had taken place and it's up to the jury to make that each and then he can where i based gov the st step is to identify the appropriate constitutional standard to evaluate the case the discussion about the reasonableness of what happened assumes the th amendment applies our position as a purely legal question our point with that your honor this court and same for vs spoke rule that the th amendment does not apply to a hostage being shot there's no there's no way to draw a distinction between a bystander a hostage  or somebody that maybe has already been seeds in determining whether or not the th amendment would apply to the point being is davis wasn't in control of the vehicle at the time ortiz opened fire and there's really no