to as i know it never quite works out but our position in short is that the district court did not accept all busy the plaintiff's facts as true and take all reasonable inferences of those facts and if they would have there would be tribal issues of fact with respect to the constitutional claims and the state law claims  and then the nd part is assuming what facts this quarter dops we think with respect to qualified immunity the law was sufficiently  factor that i struggled most with was whether this stick was sharp can you help me with whether there was any evidence submitted by plaintiffs that the stick was not sharp well yes there were two estimates st of all no one described the stick as sharp except that one of the officers jackson did a read actually it might have been thomas let me see i think jackson said that he didn't know if it was sharpened down and he was just the other way around but we could be wrong ok either way i could be wrong also i'm looking at my notes one of the officers thought he described it in a certain way as a sharp and down that was the implication the other officer said he didn't see it as sharp and down and none of the percipient witnesses saw it as sharp and down when did it where you were they asked so what i'm trying to figure out is it seems like the only testimony i could find was that the stick was sharpened down and i didn't see anyone else saying i saw the stick and it was not sharpened down and i didn't see that many people being asked i mean it seems like you took depositions of people who were there and didn't ask about whether the stick correct in that regards judge freelon but i can tell you that i believe from the record there's at a minimum a factual dispute the reason it's important what creates the factual dispute if the only a testimony is that it was sh because the i believe if i have it right the officer who shot st and we believe both volleys the shots have to be looked at independently but the officer who shot st did not see it as sharp and down i think that  critical is it well now we need to maybe we do need to sort out which one isn't jackson the one who shot st yet is correct and i think it's jackson who said it was sharp and down so let me  n you tell us where that assured i'm trying to find that right now sharp no acquitting to this if this is correct he didn't know whether it was sharp and down ok so let's assume that's correct and let me ask you this both the officers w they in the best position other than seeding to be able to determine whether or not it was sharp probably yes and if that the officer who would initiate the shooting did not see it as sharp and down i think that's a very important fact beyond that which we think is very important is that the evidence is at least if you take it in our light he didn't swing the stick at anyone prior to approaching the bleachers or in the bleachers he went directly around the woman whether child and we are sensitive to that and to the top of the bleachers turned around and was shot without making any threatening movement at all two witnesses said that now i understand the officers are trying to say well we felt he made a threatening movement and one of the officer conceded based on his training whatever we was holding however you want to describe it they could not shoot without a threatening movement from our perspective he wasn't close enough to strike here mr yob said he tried to climb over the bleachers he turned around he was just standing there he was stationary he was he didn't do anything with the stick but she did say that she feared and she said the reason why she felt comfortable was because she knew that the police officers who were there and she covered her son and the officers i don't know that you have any evidence that they didn't see that they were seemed to me they were concerned about that there's no question judge silver and rightfully so that there was a concern a general concern for safety and i could understand that completely but from our perspective the doesn't rise to killing someone this young man was they thought he might be mentally ill what she and they thought he was and he may be intoxicated either it was later determined i think by the mother that she said that he was perhaps mentally disabled excerpts of record two or three to forty four into forty five jackson considered the possibility that he was mentally ill but i agree with you sometimes it was one or the other and or both i get it but what are saying what we're saying is not that the officers or the public didn't have a reason to be concerned a lot of issues arise to a concern for safety in general it doesn't rise to killing someone well you have to take all the facts in context so you started with which is so critical at the district court level and certainly more at the court of appeals when we look at the record why don't you tell us what are all the undisputed admissible facts that would establish not only excessive force but that would establish that there was some get to the law and whether there was a clear clearly established right yes i because i would start with the heard because in reviewing everything that i could review there was a substantial disagreement between you and counsel as to what the admissible facts were i think there are but let me go through mine i'll tell you what's disputed and what's does it mean for from your perspective so that we can determine whether or not this matter should go to trial it's essentially whether at the end of your case this court would grant a rule fifty so you need to give us the perspective of what is undisputed admissible evidence not credibility right admissible evidence i'm happy to do it st of all they were not responding to serious crime they had no information he had injured anyone had threatened to injure anyone they see but it isn't the really critical issue whether he was an immediate threat i mean all of those other things are secondary factors so i think we need to focus on the that moment when he was potentially threatening a good mother and kid it is but i just if you just give me thirty seconds i think what leads up to that is also important because of the circumstances he didn't swing this stick at anyone in fact they were swinging sticks that him the soccer dads now if we're going to say swinging a stick at someone is deadly force so that you can kill someone then i know it's silly but some can argue are we going to start shooting the soccer dance for swinging a stick at him so i found the sharp end to down testimony it is jackson it's that as the are eighteen so i'm not sure how you can make the argument that the officer shot st isn't the one who said it was a sharpened down stick ok you're looking at an entry that says he thought it was sharpened ok i apologize and i have that backwards and he's the one that shot st ok ok so let me continue because i do agree with you who the ultimate thinks so he gets into the bleachers he runs right by a misdemeanor and then the child there on the nd level he goes to the top it appears he's trying to climb over he turns around he's stationary there's no threatening movement and he shot that's our facts that i believe you have to assume as true because can you find a witness that counters another witness yes but for purposes a summary judgment you have to assume are facts he stationary during all the shots doesn't swing it doesn't make any type of motion with it is just standing there who is the witness who says that is what begob multiple entries in the record by her he should goes he goes it is her her words i'm paraphrasing he goes to the top of the bleachers it looks like he was going to try to climb over he turns around and he's shot he was just standing there he didn't do anything with the stick ok what about ms martinez who ran and what did she say concerning the threat or concern about the woman who was sitting there she ran away but the woman who was sitting in there had a child that she had to cover yes i will address that but again i want to i want to emphasize is that part of the admissible facts here but the  i'm disputed but we can't weigh the evidence you know but it's not be in terms of whether or not you're entitled to a jury finding you know there weren't and that there is enough for excessive force we have to take everything that's just that is undisputed don't we know what we have to do is take all of the plaintiff's facts whether they're disputed or not in plaintiff's favor and then say is there enough for the jury decide all they have to be i agree that they have to be admissible admissible and then but don't we take in context the entire situation we don't we don't over lock what the what at this point what the what the defendant would offer well here's the thing no i think no i don't think we can consider that for purposes of summary judgment i think judge freelon is correct we have to look at that if there was an immediate threat of death or serious bodily injury then and did not pose a threat and that one could say after hearing everything there was no threat but the question for us i think is what for purposes of immunity at least is what would apparent to a reasonable officer on the scene that that is what is troubling thank you judge roeder so let me address that because i even if this court decides qualified immunity should apply and i don't think it should we would ask this court to reinstate the state claims because qualified immunity is not applied to the battery negligence and being there so we have to decide because they're the state claims are we don't not have to decide under the state claims whether or not there was a clearly established right so we have to look at excessive force and whether or not correct the st issue is whether or not there's facts we think there's clearly facts not that you would necessarily decide if you were trying the case that it was excessive force but there are facts from which are jury if they believe them could find that and i want to go to judge schroeder's question but and martinez just so you know she said he was just standing there not advancing in her statement he made no movement at all in her deposition she said he lowered it two inches she didn't say that understatement but she said he was just standing there not close enough lower to two inches talked about looing the knife six inches from five or ten feet away it wasn't enough was was not enough in other words that could be a constant violation of excessive force so i would say this st the general case is saying that if there's disputed pushes the fact you shouldn't well qualified immunity nd the various cases we have in the circuit where the and bends in hand if that was the end of the analysis than any time someone had a gun or knife in their hand it would be the end of the analysis but we started nearest to me asking that question no in the st there's two parts the st part is excessive force the  nd part is whether there was a clearly are you saying clearly established right are you saying that there are there are issues of fact that that would have to go to the jury as a matter of  yes i am because i qualified immunity if you want to talk about it it's abstract and i wonder and i know now people are looking at the nd prong i get it but it always comes back to on what facts if you're saying that he went to the top of the bleachers turned around made no threatening movement there were no commands or warning with him on the bleachers he wasn't close enough to strike this woman who was three or four levels down and make sure that i'm someone could say that falls within the obvious it's certainly if you look at the knife and gun cases where they're not pointing the gun at the person or they're not charging or attacking we believe that would cover it even the officers own testimony his training was if there's not a threatening movement we can't shoot so if the key is to put the officers on notice as to whether would be appropriate to say i need to interact you're already over your time and i think you wanted some  give you one minute for about later but you better sit down now and you thank you statement of the test that we start though with a stick so why is there no picture of the stick i'm not sure why there's no picture of the stick we had a description from officer jackson describing it as a sharpened down stick similar to the type of stick that would be used in a booby trap in vietnam that kind of a stick that i think is inherently dangerous the officers shot someone why was there no documentation of the reason that included a picture of the stick or the stick itself well i think officer jackson's description was complete and it's not that complete he thought it was eighteen dollars to eighteen dollars inches to two feet other people say it was like six inches or the size of a bottle it's not clear what this stick looked like and it seems like the description of the stick was the length i believe that we have the description in the record from officer jackson even to see thomas when right before he shot he saw it and he saw it was a sharp stick with me everywhere is that because we were just finding the jackson testimony where where i believe it's it's between one hundred and seventeen and eleven of the next page well so i can read it to you ok at some point could you see something in the dissidents hands yes and at some point did you recognize it as a piece of wood or stick yes and when did you st recognise it as a piece of wood or stick after officer johnson had originally fired a shot would it be fair to say you weren't sure what was in his hand before the st group of shots that would be fair to say but when you got closer really able to tell what it was yes right and we do have officer jackson's testimony as to that's the bell and others also describe it as a sharp salute you need to tell us because i don't know of any other testimony about that if there is it would be really helpful  well i do know that there were descriptions from martinez saying he was chasing the children on the soccer field with a stick over his head and even the witness that playing for lies on beyond says that he was holding the stick in a threatening manner and she felt that it was a threat even to her and i think again we have we have to look at the whole whole totality of the circumstances and so we have people responding to mr schult instead they waved branches at him well i would say the people who were waving the branches at him were the adults on the youth soccer field and so some of the adults were really throwing their kids out of the out of over the fence whereas others were trying to sto p this man who was chasing after these young children and so i think they were doing what any parent hopes never has to occur the choice they have to make and some of them try to stop this man others tried to basically throw the children over the of the chain link fence to get them away from him so if we end up with i think where we are now that jackson was the only one who said it was a sharp stick yes then and that would be very helpful i suppose on this issue if it was char but if he only says that if the other avenue and said has been offered to establish perhaps that credibility issue as to whether out he's telling the truth as plaintiff's counsel has said doesn't that make it clear that it's an issue of fact as to whether or not it was sharp in the words yes he could be cross examined for example as you already pointed out in contrast to others he said it it's a lot longer which would of course make it more dangerous well the appellant didn't place any evidence into the record that would contest the fact that it was sharp and so again the issue here is and again if you take the actions of everybody else at the scene on its face value and the reasonable inference is from them their perception of the threat mrs marteen is screaming out  panic he's running after our boys somebody please call nine hundred and eleven and for her to jump off of the bleachers when he starts to approach because she saw him as a threat it wasn't because he was just holding a chopstick or a drumstick it was something that was dangerous we treat this as a situation where the officers destroyed the evidence and have a presumption against them about what the stick was like because it's kind of unfathomable that that they killed someone because they was holding the stick and threatening people and then didn't take pictures of it art save it well there some way that that should be against the officers here absolutely not because the police department didn't conduct the investigation whenever there's an officer involved shooting it's the investigations conducted by the orange county sheriff's department we have an independent rd party is that it's not in their record i  memory but in the wreck i'm not sure if it's in the record but that's just there's no there's no app there was no mention from opponents below that there was any sort of destroying about events or anything like that we have pictures from that investigation i mean they must have taken pictures of  this right i do believe there are pictures i don't know why they weren't entered into the record below so is it possible to get i mean why and why isn't that in the record well that's a question that directed not just to be a pelleas but also to the appellant but i think  you obviously you would know i don't think it was it was discussed really in the district court opinion so it seems to me that i would just feel for below did mention that it was curious that there was no picture of the only evidence of the nature of the stick was officer jackson's description of it but again if you take the circumstantial evidence of how everybody else responded to this man running across the fields chasing after the children that just confirms officer jackson's description of it so as a dangerous object ok and that's your point is even if it wasn't as sharp and stick it was a dangerous police do by what non police read how non police him react to a situation sure but it's evidence of the reasonableness of their perception of the danger that was presented by this man and that's that's consistent with every single independent witness everybody saw this man as a threat including ms bialek who said she felt relief when the officers opened fire on him because of the threat that she perceived from him and what others what other thing was he doing other than carrying the sharp stick running at these young children and eventually running towards these bleachers where miss cameron is huddled over her child her six year old and she believes something's going to happen because she does what a mother does and she throws her body over him also but it is always the the reasonable perception of the police officers correct so what you're saying maybe support what they saw but is there any reason to believe that they were there and saw the danger well you have their direct testimony in and i think the whole point of looking at what everybody else says is to test the reasonableness of their direct testimony and nothing that was elicited below changes the ultimate conclusion on the record that they reasonably perceived that mr shields was an imminent threat of the report of the harm if we take the facts in the light even if we assume the stick is sharp for now there the other testimony would have him a distance away from the mother and kid a distance away from the officers and only holding something that you could hurt someone with if you were closer to them and that seems very similar to the s d case where our court held there was in fact to support a violation but not qualified immunity so why do we not have a situation here where s b tells us this is a violation ok one thing i would like are small portable bleachers you know you could be a distance away that you couldn't hit someone with without moving more but for there was liters there was direct testimony that he was in from an independent witness saying that he was within striking distance and so there either  if he is about six feet tall and he lunges at someone from a higher distance that's clearly within striking distance if there's at least some testimony that he was even down he was either kneeling or sitting so i mean he needed to take some more movement which is really similar to what the says the big problem with s b in terms of the excessive force inquiry was the fact that two of the three officers testified that the officer shot couldn't see them and their location so that was the more significant factor in that determination him and so there was no erratic or do interest behavior illicit that he showed before he made that movement so can we look at the totality of the circumstances and his demonstrated dangerous behavior threatening young children across the soccer field and coming up on on this bleacher with this young woman in her parish small child and she perceived him as a threat as well is there a distinction remind me in the s p case that whether or not there was some evidence that mentally disturbed and but ok so he was mentally disturbed but when they concern for themselves because of the knives in his pocket or was there someone else there as we have in this case where the officers would have to be concerned about rd persons no there was no innocent bystander in the vicinity and again there was a dispute as to whether the shooter in that case could even see his fellow officers and could see how far they were away from from the person with the knife so i think that's very p is no barrier to qualified immunity for our officers what's your best case our best case i believe it's blanford because again in that case that gentleman refused several orders to stop him to drop his weapon but he had a huge sword right i that the case of the huge sword yes but there was there there was nobody else in the area it was just the fact that he might be going to a house and the officers because when the officer is telling the stop and he does not stop he does not drop the weapon that conduct in and of itself is jackson was when he made that perception compared to others who have been close or closer well initially they were pretty close because officer jackson came upon him and asked him the to come closer in and to talk to him about what was going on and then he jumps over the soccer field arena and then officer jackson is chasing him throughout the soccer fields at some certain points he's fifty feet away but then he's getting closer by the time he gets to the bleachers he's about fifteen feet away so is it your position that he was in the best position to determine what the stick look like yes and i mean there's never was no one else that couldn't contest that who was the would have a better position perception of it yes and no one did she said she did didn't feel like she could be seriously injured but at the end but then she said she said she felt she qualified that by saying i felt safe because the police officers were and i think at another point she said she feared for the safety of herself and her kids so there was kind of an eternal any question that people fear for safety generally but that doesn't mean it's ok to kill someone that's the distinction we're trying to make and as it's been pointed out by judge freeland and to some extent by judge schroeder if he went to the top of the bleachers turned around not close enough to strike that's our fax no threatening movement it's clearly supports evidence of a constitutional violation and state battery claims but from our position that also supports not granting qualified immunity especially with the nd group of shots officer thomas says there's ten or fifteen seconds between the st group of shots where he could tell he was struck injured bleeding seeded down and they both fired fatal shots ten to fifteen seconds after the st volley of shots one in the forehead and one in the chest and that's in part why we cited the z on case and that's why i said i think those two groups the shots because if you have someone who's already shocked sitting at the top of the bleachers literally bleeding to death not close enough to do anything and then you're just going to kill him by shooting him in the head in the chest i think a jury could find that's clearly excessive and i would say although i agree there is no specific case i think the closest one judge freelon pointed to and we agree with that that supports why this court should at a minimum send this back down the state law claims at a minimum i think the closer call is qualified immunity but i would say this if he made no threatening movement and wasn't close enough and was holding a stick do we really need a case to tell us that that would be inappropriate when an officer himself says i admit based on my training that would have been inappropriate let me ask you just one question do you agree in the s case and in this case in the s b case the officers feared for their lives and supposed to a rd party which we have in this case with the mother who was protecting her son technically yes but i would say it doesn't make a difference in terms of the analysis for constitutional purposes because if there's no immediate threat of death or serious bodily injury whether it's to the officer or someone else you can't shoot him thank you counsel thank you both sides for the helpful arguments the