it's it's interesting that the counsel in the previous argument brought up the issue of the court's recent decision monday's the supreme court's this monday decision in westby because i discovered that case in preparing for this argument as well  admitted lee it is a fourth amendment case related to arrest in not an excessive force case such as this one but it does highlight a point that was also reaffirmed by this court on december twenty seventh two thousand seventeen and a case called lad it's l a t i t ass and i apologise for not having a specific case number i do have the date december twenty seventh two thousand and seven and it was authored by judge strange both of those cases start with the issue of are basically irrelevant in this case for the issue of qualified immunity which permeates pretty much most of the cases that are the one issue the the use of force issue with respect to officer mickeys third use of force in this case it actually affects all the uses of force spot and the denial of medical care claim but i wanted to stress the on the notion that in order to stat that is the plaintiff's burden to establish i clearly have to show that a right was clearly established on the date that the alleged right was deprived and that in order to do that the core of the plaintiff needs to provide this court with either a case on point or a robust i don't have a case that says that it's ok or reasonable but i would argue the record doesn't establish that mr white was incapacitated on the ground mr white wise and we're jumping to mickey's mckee's third use of force which immediately preceded his second use of force so that you really need to be discussed in close proximity to one another after making the second use of force which were two double tap rounds officer our jason white fell to the ground and immediately began getting back up still with the knife still train star still trained on officer mckee officer mckee within a second fired two more shots and normally under the segmented alice's we have to break those up and treat them as two separate incidents all together but if we look at the rushed decision decided by this court in two thousand and sixteen when two uses of force follow that closely one from the other the justification for the first carries over into the second it's a from an academic point of view it's an exception to the segment of  be when the result of the of the the here the second the first let's call it the previous use of for fair enough when when the result of that previous immediately behind him and they arrived almost at that moment and he was some distance away not within the reach of a knife not within a confined space but don't you think that help me understand what law would say that if you could choose the first time and all of these consequences result then the first shootings privilege extends to the second because i don't think that's the law i would  that's exactly what rush stands for because in that particular let me ask a question so that i'm clear on what it is the two of you are arguing about are you saying under rush the second use of force the rationale for that extends to the third or are you saying under russian the two shots in the third use the first one and the second one are indistinguishable and so the reason for shooting in the first time in the third use of force is the same as the second time which which argument are you making because i think they're distinct academically and i don't see the distinction between the two because the the argument for and i'll answer both questions intimate the rush decision basically was that given the totality the circumstance the traditional notions of officers being required to make split second decisions that the first question is do the two uses of force do the two separate uses of force occur so close together that it really could whatever the justification is the results the same whether we view it as the first the justification for the first use of force carrying over to the second use of force or we treat them all as the same the logic employed is the same the reason we have the russian reach the conclusion it did is the same it's because of the fast but second decision making that's going on in a deadly force situation to go back to explaining to judge strengths how it is that the second use of force and the third use of force here are really analogous to what went on in russia what happened in russia was the first use of force was a shot to i believe the head of the suspect there was a conflict in the testimony that the officer was in the very by thing door of the closet and the majority determined that that the first shot in which she'd been fell forward with still within the range of the weapon just analyzing mickey's third set of shots on their own merit there's no case law that says we the totality of the circumstances facing the key during the third set of shots is based on everything that had come before we have a suspect who has been shot and still doggedly for reasons that are reasonable officer would suspect is harmful intent on keeping this night he's getting back up he's still staring the dogged determination to maintain the knife to get back up gave an officer an officer mickey's position every reasonable belief that their attack was still going going the threat was still ongoing again combine that with the short time between the two we're still talking about a split second decision the idea that officers were coming he's in an open field he could have done a variety of things is the basic definition of the hindsight cello on behalf of the family of jason white in the state of jason white recently as recently as two thousand and sixteen this court repeated in withers verse city of cleveland quote qualified immunity in cases involving claims of excessive force is difficult to determine on summary judgment because a police officer is a liability turns upon the fourth amendment reasonable in this test and it cited cases then i'd indicate quote reasonable this under the fourth amendment should frequently remain a question for the jury this was not an active shooter situation where these twenty or thirty officers were responding with shoot to kill this was a young man with a kitchen knife  you don't let him go your honor there's twenty to thirty officers surrounding this they have the area in perimeter secure once he's on the ground they converge on him within seconds they can't stop him if  you want to be stopped i think what you're saying you can't round him but you can judge the law for it with individuals with knives and individuals who are fleeing on foot is clearly established has long been clearly established in this circuit and it states that until and unless that individual with a knife not a gun this is very different than a gun case judge i would submit until unless that individual with a knife poses in imminent immediate threat of death or serious visible injury the constitution protects that individual from the use of deadly force ok reasonable officer in the position of officer mickey who knew that the guy keeping in mind that since we can't use hindsight we don't know the mental condition of this guy so reasonable officer in mickey's position knowing that this guy has has a knife has everyone thinks tried to break into an apartment in fact perhaps has broken into apartment with a knife and now has been doing whatever it took to escape being captured and refused repeatedly to put down the knife and has been shot and still is going and refusing to put down the knife a reasonable officer should understand that that guy there's just no way he's going to be able to get up off the ground and charge fast enough to force somebody to stop him he could but until and unless he presents that type of immediate threat deadly force is not authorized i guess the question is how do we just side why do we decide in this case that he didn't present that threat that he clearly didn't present that threat when it does seem to me from the evidence that although he was down again down and clearly had been shot he was trying to get up because judge in a way to address an issue you brought up earlier there is evidence in the record that the dispatch broadcast that this individual who's got no shirt on at five thirty in the morning in forty plus fifty degree weather was out of it and was talking but made no sense so i appreciate the officers don't know exactly what's going on with him but there is some evidence in the record that he's mentally unstable and the case law would say lopez  don't i don't think i have a clear picture of this from the record what is the evidence in the record that key himself was aware of that aspect of these hearing all the radio transmissions your honor all the officers are it's being broadcast out to all of them i'm on call you know the dispatch that's reporting the nine one one call to the officers who are responding says that and that is in the record but ricin ski chapel roads lopez all these cases addressing people with knives all indicate in the lower court's decision is predicated for at least the use of force by friends when this individual is basically hiding behind this large fenced in instruct enclosure is that until unless that person with a knife moves toward the officer make some type of threatening gesture gets within proximity where he poses that type of the media threat deadly force is not authorized when he turns after having stopped running agreed on he stopped running but he stopped running but his back was to me he ran through the breezeway maccie lost sight of him when mickey breaches the breezeway he sees jason white just standing there well with a knife in his hand and mckee slows down and has to make gun point he makes no movements from the key second use of force he makes no movements so now this lower court has said it's reasonable to shoot a man with a knife from fifteen feet away who's not moving making any threats at all and that is that odds with the case law that this circuit set forth up to nine correct as as the other cases in this circuit court have  people refused to drop the knife difficulty here obviously it was a concern situation when you had a call that was concerning but to me the issue that's been brought up by your opposing counsel is how do you handle the three exercises deadly force officer mickey the the lower court agreed that the first use of deadly force was  a qualified immunity from the very first use and that was after the flight from france and and because of the knowledge of the earlier felony he also granted qualified immunity to the officer for the second use of deadly force where white was running mark and is the third here of deadly force because of the because that was the use district court you do not get qualified immunity for and that's the use when you're white it's been shot in the shoulder shot in the back i believe by mickey with the other approved use of force and now mickey is being ten to fifteen feet away while he's fallen on the grail and he is moving and he says he can see that the naacp has not been dropped off the third round him my question to you is support the general proposition that a suspect who is not moving towards or in close proximity of an officer doesn't present an imminent threat there's at least a question of fact that needs to go to a jury whether that's presents an immediate threat i do want to address friends is use of force because i don't think we've discussed that and this is a situation where there are a number of erroneous factual findings by the lower court the lower court found that that fence this is where jason white is powering hiding behind this fenced in enclosure and the position the court notes in footnote six that friends his position is unclear friends his position relative to jason white is critical to evaluate whether that is a reasonable shoot submitted in the testimony don't support that friend's own diagrams and weeks afterwards there's a genuine issue of material fact here absolutely judge and let me set forth a couple additional the lower court found that that fence was two feet tall and in feet tall in their brief ok and they they say that he's six to eight feet away in a straight line will jason white can't get through that fence he can't step over it as the lower court indicated so to go around a judge we're talking about twenty plus twenty plus feet he turns to the left to run away and that's when he shot sergeant friends testify jarana judge nor sergeant french testified that he does not and cannot know if from jason white was coming at him and the lower court's opinion is entirely predicated on a finding that there is no dispute that jason white was coming at sergeant friends and there is a dispute in the record as to whether he was coming at him he could retreat there was room this case is is much like lopez where a man with a machete there's a question of fact whether he turns toward his sister or he doesn't his sisters in very close proximity to him and this court found in lopez that that's an issue of fact the jury needs to determine if he's turning towards the sister it's reasonable as a matter of law if he is not moving toward his sister shooting him is potentially unreasonable we have that same issue in this case with friends and i would invite the court to review the briefs and the exhibits very carefully because the positions of these two individuals is disputed the movements immediately before the shooting are disputed and under plaintiff's facts sergeant friends has substantial cover r is an underlying constitutional violation and at that point there is no jurisdiction to hear the mo nel claim and that should be sent back to the court for further proceedings with respect to the mono claim that does exist that did survive summary judgment it's not  immediately appealable final order the lower court did not certify it as a final appealable order and so there is no jurisdiction to hear that is well that's a jury issue that goes to the jury i want to address of first use of force quickly and the law has been clearly established that regardless of the previous felony committed this is in the alex littlejohn verse city of cleveland case a recent case regardless of the previous felonies committed an individual who is running away from the police has a clearly established constitutional right not to be shot in the back until and unless he presents an imminent threat of death or serious physical injury the lower court found that he presented no threat to mickey at the time mckay shot him in the back and that there was no one in the vicinity so how then can this court say it's reasonable as a matter of law that does that jason white posed an immediate threat to people who are not in his vicinity my time is up and most there's any other questions i'll be back for my three minutes thank you john jason white was not hiding or cowering behind the fence jason white officer white sergeant friends far to shots in response to a quick and sudden movement to the eastern opening of the enclosed area which is exactly where he needed to go if he was going to attack with the knife defendants have not conceded that the fence was five feet tall the defendants have conceded that the fence is four feet tall it is four feet tall and the height of the fence doesn't matter except to the extent that it was short enough that friends could see what white was doing what it was doing with his knife and where where it was going the fact that point speculated that white's intent was actually to flee based on what he did after the shooting is  speculation in that light during the confrontation with alderman it's just as likely that mickey abandoned his attacker that abandon his attack on friends after he was shot but second his subjective intent white subjective inten doesn't matter the quick and sudden movement to the eastern opening of the fence while brandishing a knife would to a reasonable officer be perceived as a potential threat as a reasonably perceived threat of deadly force in the record i'm thinking for bring me back to the point at the time of the shooting the record evidence is not disputed that friends and make friends in white were sixty feet apart through the fence and that which friends i'm sorry it's friends shooting is only shooting for which he was going to qualify yes friends in white were six feet apart sixty feet apart through the fence the fence added only about four feet we have had in the record there is no alumina needs any reasonable perception of threat in fact to the contrary chapelle specifically rejects that notion true in chapell it was a mattress that could easily stepped over but here it's a fence that can easily be gone around jurisdiction to for further consider the training with the cross appeal which is based on fifty four b certification we have every issue before this court except the second half of them and no claim was discussed the substantive merit below the defendants didn't oppose plaintiffs request for fifty four b certification on the on so long as the whole issue would come before the court the court acknowledge that request but then certified only the plaintiff's issues but it seems eminently unfair and the doctor dependent jurisdiction would almost be turned on its head if everything is appealable to this court now except that half sliver of the final trying to get up he was getting up and prior use prior conduct it's been the theme admitted to by point of by plenty of experts prior conduct prior bad acts prior violent behavior is indicative of future behavior that's the distinction in lopez that's the distinction in almost every case cited by playing the threat created by jason white at little at large in our large residential complex with a knife where he argued tack to officers he already go hunting to somebody else's apartment with that knife prior bad acts indicate a willingness for prior future violence that is the threat there is nothing in the case law that says the officers need to see jason be within striking distance of another human being did but i think we're playing a word game on what it constitutes an attack whether we call it an attack whether we call it an attempted yet unsuccessful attack what we have is two incidents where he's been were jason was confronted by uniformed officers result in a confrontation w a there is a use of deadly force by the officers office law enforcement officers are allowed to assume and should assume that there are other officers behave reasonably what we know then is we have to parse it to asians known to friends known to mickey were jason white has at least demonstrated a willingness to use his knife in a violent manner to avoid escape  couple quick points before i do want to revisit friends use of force with respect to jason which position on the ground for the final lethal shot to the chest the killed this young man officer crocked was present he had his gun trained on jason jason was standing up his testimony as he saw jason fall down which we know was in response to mickey's second use of force and he testified under oath that he never saw jason try to get back up but it's evidence in the record from which a jury but it's evidence in the record from which a jury conclude that he wasn't trying to get up you have an officer with his gun trained on a suspect who says he didn't see him try to get up so i would suggest that issue effect crocked k k r a c h t officer crocked with respect to whether or not jason white attacked anyone this record is full of factual disputes and whether or not he ever attacked anyone the officers have testified they never witnessed jason attack anyone in back to sergeant friends which i think is is the most critical because i do think that once the court really studies the case is shooting him in the back while he's twenty five feet away and nobody's in his vicinity is is unreasonable shooting him while he's just standing still making no threatening movements is not permitted under this court's case law but sergeant friends the shooting there's just too many disputed issues in fact as to whether he posed an imminent threat this fence enclosure is substantial it's significant sergeant friends is using it as cover while they're six to eight feet away draw a triangle that goes outside the fence around the front of the fence through two cars to get to sergeant friends that that's a much longer much longer than adding two feet i don't know how you could the geometry just doesn't stack up but that's only two more feet and so there's evidence in this record as there was in lopez that the suspect is turning away from sergeant friends not toward him sergeant friends is near the middle of this fence and he's using it as cover and when jason turns to his left to go out of the entrance a jury could find that that suspect is turning away from the officer and if you believe sergeant friends any movement that he makes warrants him to be shot dead and the case law doesn't permit that because we're sergeant friends his argument is i don't need to wait to see if he's going to come at me if he makes any movement at all he could i understand the situation these officers are in and we all do but just because an officer is fearful in any situation has every right to be fearful does not lower the requirements of the fourth amendment jason white was in total not to be shot dead until he moved toward sergeant friends in a threatening manner and there's evidence in this record that he did not do so thank you thank you counsel the case will be submitted the next case