michelle horn and i represent sergeant justin dodge approximately three seconds into an encounter that lasted only six seconds and total joseph val verity pulled a gun out of his waistband as he was being arrested for a serious crime when mr val verity pulled the gun out sergeant dodge who was part of the ranch team made the split nd decision that mr bell there he was a threat and shot him dead this is not a violation of the th amendment regardless of whether as the district court found mr bell there he was complying or in the process of complying with an order to put his hands up when he was shot nor is it clearly established that under these extremely time convinced circumstances an officer could not use deadly force even if he may have been mistaken as to the level of threat posed by mr da barrett is gone the district court erred in finding otherwise and sergeant dodge is entitled to qualified immunity for purposes of this appeal we accept as we must that mr vaile berti was in the process of complying with the police order to put his hands above his head when he was shot however the district court failed excuse me erred when it failed to apply well established law that police officers considering they are forced to make split nd decisions under tense and rapidly evolving circumstances as these circumstances certainly were are not always required to be correct and their estimates as to the danger posed by the situation as long as they are reasonable good lead force is justified in a reasonable officer in defendant's position would have probable cause to believe that there was a threat at harry's harm to himself or others a reasonable police officer on the scene would have believed that an  individual pulling out a gun from his waistband during the arrest for a serious crime was a threat and that deadly force was a reasonable response and the other conclusion requires the use of and permissible tw back up from sergeant well i think that that actual finding is blatantly disputed by the video which guys show him taking at least one or two steps backward appeal what we are saying that they did not make a difference in the th amendment analysis that sergeant dodge was forced to make a split nd decision and was reasonable in his determination that just about parity was a threat when he pulled the gun out are at that point in time when he no longer has the gun in his hand if we could go back in time and back the circumstances that way at that millisecond no he was not a threat however the point of view has to be from a reasonable officer on the scene and it was not unreasonable for sergeant dodge to believe he was still a threat once he'd seen the gun and the quick ti is factually analogous to having a compressed time span but what's your best case well you're on a st i would point out that it is the plaintiffs obligation under thought initially and i'm asking i'm asking you have you got a good reasonable force and unreasonable force i think the longer the time that elapses the more you get past the hazy boarded but once you're in the hazy border that's qualified immunity land and under this very sad restricted undercover operation there is no indication of the record that anyone noted a gun in his pocket or in the way this man ok so he's not pulling the gun out because he was ordered to do so there is nothing in the record indicating that he until the time that the st shot is fired it's right around one second and sixty seven sergeant dodge did not say in his initial interview well he reached in his waistband for the gun so i made the decision to fire at that point but then i could see what he was doing and  have been mistaken that i saw them if you read what dod says in his initial interview he is very clear he said this individual pulls a gun out the muzzle of the gun is coming up dean pointed at me i begin to fire the individual false begins to fall to the ground and falls to the ground and after falling to the ground the gun pops out and at that point i realize that he's not it that this whole thing about well he decided to shoot and then he couldn't change his mind that's something that was st introduced in two thousand eighteen over four years after this incident had st done so i just wanted to clarify that that that is what not was initially said in his initial interview which is somewhat surprising considering he had the opportunity to view the video prior to giving the interview and  show he was taking advantage of the fact that the individual most likely to contradict the story had been killed there so i wanted to reiterate that this was a plan concocted by then and so it made the following of the tactical plan all that more important now the analysis doesn't begin and end with simply reaching for a gun in the waistband under the totality of the circumstances analysis you need to take everything into consideration you need to take into consideration that they had expected this individual to be armed during this transaction he had told them that he had a weapon when he previously sold them some of thought what the ins and outs on automatic weapons and they expected that he would be armed during this incident it is not uncommon for individuals to try to discard drugs or discard guns and officers are trained for such occurrence and in fact dodge himself had previously indicated that he has people in his past these card weapons another thing that i would like to point to is during dodger deposition to under you know there's case law and i think this is what you're getting at there's case law that says you know they do not have to wait for the glint of the steel d or they do not have to wait for the gun to be pointed at them or they do not have to wait to be shot at but that those lines the cases are when an individual is still has the gun on them or is reaching for a gun i would submit to your your honor that those line of cases do not apply when an individual has already there's a lot of line of cases that specifically hold that having a weapon does not make it reasonable per se to shoot an individual there's a lot of minute cases and there cited in the brief for example there's cases where if an individual has a shock and but it's pointed at the  ground and you don't give in commands to drop the weapon and you shoot him with it without warning that it would be reasonable to shoot him under those circumstances there's other line of cases that say if you're armed at some point but then you discard the gun in your surrendering and complying that it would be unreasonable to would be a different analysis i want to be very clear that mr val verity was not shot while he was reaching for his waistband mr val verdi was not shot while he was removing the gun from his waistband mr val verity was not shot prior to you that the action of removing the gun from the waistband of discarding the down to the ground was one single action your honor he did not remove the gun from the waistband hold it in his hand and hesitate what do i do do i toss it you know and deliberate for a moment know the removing the gun and discarding it on the ground was in one single motion and under those circumstances now the analysis is supposed to be what would a reasonable officer on scene have done we know what a reasonable officer on scene would have done we had five reasonable officers who were on at the times we don't need to speculate as to this there were five additional officers who were reasonable who were facing the same to circumstances and they did not fire a single shot now i think it's important to reiterate that the officer sergeant dodge's own recklessness is part of what precipitated his mistaken belief for needing to use deadly force now this is you know there was a well designed tactical plan and as part of the tactical plan sergeant dodges primary assignment with either driver and the less than lethal forty millimeter there were four additional officers that were the actual contact office disregard for the tactical plan jumping out of the van and running directly at hand when they pull up in an unmarked van when they're wearing uniforms that are not your traditional officer uniforms when they never identify themselves as police officer when he fires without supports you with a similar compressed time span i would submit that in the district court's finding that officer does not entitle the qualified immunity that they focus on the  weight of authority from the sister circuit that that was the focus of the analysis i have not seen the supreme court of the th circuit case where an individual voluntarily discard his gun on the ground the officers tell him to put his hands up and get o complies and the shot i haven't seen that effect loaf well counsel one the one thing you left out of that description again was the whether we're talking about three seconds one second six seconds we are talking about a very brief period to time and i think that that that was really driving the palettes argument this morning i kind done need to hear what you have to say that i wouldn't disagree your honor that it was a very short period of time that this would be my response it was enough time for event to perceive that he had discarded the gun and wasn't trying to shoot anybody or injure anybody with that and the reason i come to that conclusion is because there was five other people who were on scene that were able to to make that perception that he was in trying to injure anybody so i would submit to you that yes it was a brief amount of time but it was enough time to come to the conclusion that he wasn't trying to harm anyone or shoot anybody which is supported at least reasonable to infer and circumstantially by the fact that no other officer on scene had fired and i believe the jury could also recall whose and based on the evidence including the really ok let me let me make sure i understand the argument  then based on what you just said i take it you would argue that that shows the officer acted on reasonably under the graham factors and that would give you probably want constitutional that's walker vs city of or in where they discuss the i think in the allen case the individual even pointed a gun at the officers and they found that it was their reckless behavior leading up to it that precluded them from finding that the use of force was reasonable and the walker case that discussed be in the fake asked whether somebody is armed with a gun or not the boxcutter but i have not seen a case within the th circuit that specifically addresses this but there is a whole weight of authority from the outside circuits that has addressed with including i anticipate that the question will be asked well what's your best case most actually similar and i would point to the court to the health of the shock case which is out of the nd circuit in which  individual that was published in one thousand and ninety eight dollars and that is a case where an individual was specifically asked to put his hands up and he was shot under those circumstances and they found that that would clearly be on reasonable that would be i think the case that i came across that was most actually similar to what we hear congress saying oh i don't think i have any questions thanks that if you see someone with the weapon you're supposed to give a command and give them opportunity to comply with the command here it's undisputed he was given the command to put his hands up and to get on the ground and if you look at that video you can clearly see him put his hands up before he shot and you also see him going to the ground and he shot while he's going to the ground and while he's on the ground it's no coincidence that the officer commanded him to put his hands up and get on the ground and that the video shows him putting his hands up and going to the ground when the shooting begins so i would say that they have to take every single shot into consideration and clearly from specially the enhanced video some of those shots are occurring well he's going to the ground and already on the ground and based on the distance between the officer and the deceit in and being broad daylight out he should have been able to perceive that the individual would been no longer had a weapon in and out the other offices and the fact that the other officers didn't even know that he had gotten out of the van or who was shooting i th arrested that in another child gauge and of these circumstances gave sergeant dodge probable cause to believe he was a strat to ham and the other officers surrounding him the two opposing counsel as argument that the other officers not shooting proves that sergeant dodge was unreasonable in his decision to shoot if you look at the video only sergeant dodge was in the exact position he was the fact that the other officers didn't shoot considering that they are in other positions inside and dodge doesn't give a fact to the fact that you're supposed to consider these cases from the viewpoint of a reasonable officer of the scene and counting the same circumstances around depending on which officer you're talking about they're coming around different cards from different directions there is evidence in the record that wasn't taken into account by the district court that the other on some other officers didn't fact see the