council we are here today because my client in an effort to protect himself his property and the miner that was inside his house was out on his front porch on his own property with a law full handgun not raise that anybody or not do anything but just waiting for the possibility that someone was coming to harm them that's what it was what actually arrive was a voice from the dark my property get off that's why we're here there are several issues that we had appealed in regards to this case i'm going to go through them relatively fast the st one was in regards to the county's twelve b six motion  think in regards to leatherman and its applications as he read the records that have presented but you know the supreme court when it came out with one billion a ball a lot of course have the opinion some do some don't it relatively changed the face of pleading my assertion that it did not at all love them it was a case that came out in which this court was reversed in regards to a dismissal on the pleadings under mondale liability th supreme court and the other one specifically said that there is no heightened pleading standard in regards to that and then this court saying this court and perhaps some others were wrong and we got that regard that it is a rule a notice pleading nothing that's really transpired after eleven than has overruled other men or really even addressed anything other than adding to it some possibility standard we know that in all that was in the face of after nine hundred and eleven dollars and there were some detainees that were suing the director and the attorney general or the former attorney general in regards to what was transpiring at the facilities and federal well they were as the buildings action they were suing individuals you can't sue the individuals under the federal talking about look there has to be some plausibility standard regards to it you need to lead some facts we need to make it plausible that this person individually could have done something that's the purpose of it all but as far as mondale liability is concerned and the necessities of pleading that not forming for anything for purposes of summary judgment for the pleading standards which have not changed under rule laid or anything else it's not accepted out it is still a notice pleading in that regard and it needs to be plausible and in this case i would assert that a case in which the officers creep up in the middle of the night to do an investigation they weren't there interestingly by they were there just to investigate and see what was going on that their training is that they don't announce they don't tell anybody who's there and they don't even attempt to allow somebody the opportunity to say who are you and that is what this case is about and i would proffer to the court as i did in the responses to the motions to dismiss that if given a chance for discovery we would have determined whether or not their policies and would have sufficed for summary judgment material you know there's a difference between pleading there's a difference between argument for purposes summary judgment and the judge should not have dismissed the twelve b six the county out of the case at that point you know i would point out that there were some other cases that came out from the united states supreme court after each one and after it paul that did not mention anything about love them in being changed and in fact found mono a liability even on the bare basic facts of those pleadings there are and i cited to i think half a page of courts that have similarly done so twelve b six motion if there's any question that the nd issue we have is in regards to the summary judgment evidence i don't know that at the end of the day it makes much of a difference since the defendants in the case acquiesced and said we understand there's a fact issue in regards to whether a weapon was raised at all and their point being that it doesn't matter if he ever raised the weapon at all they'd still be justified in shooting their bases are going to the court that it's clearly established law that you officers can shoot you if they have a gun they don't have to show really go establish law to support their position you have to show a clearly established violation of constitutional rights and in your introduction you gave a  compelling view of the case from your client's perspective sitting in that chair but we have to view it while we take the factual disputes in your favor we have to view it from the officers perspective and they're walking up on this house they know your client was drunk he'd been in a physical altercation with his girlfriend and they see him holding a gun by your side and five times ask him to drop it and he does so why isn't it reasonable for them then to use force i think the problem is in the casella cases and the other ones that were in the officers have come up and there are obviously officers they've announced their presence anything that nature you're talking about from a one hundred feet away and it's dark some officers who have not identified themselves have not said anything about we have any questions for you or anything else the only thing they've done is said that they're going to shoot him and call him names which led him to believe that there might be somebody there was their arm and he had said he said he did he said he was going to go after them right no he did not say that he it's at one point he rides and he said that stay off my property get out of here then they said i'm going to shoot your ass in our m f er and then he again they said we're going to shoot you so go ahead know that they said drop it five times on the video that was submitted as part of this there was a lot of yelling at some point all i know is that they said you know we're going to shoot you he said this is my property get out of here get off of here and he was finally shot five times at the time when he was saying this is my property get out of here so i don't know that they in there and they never once announced who they were i personally with you know comes up and starts cursing at me and telling me that they're going to kill me why would i put my weapon down what why would i have to do that that's one of the that's one of the failures in regards to the case i think that's why this is so much different than a lot of the cases been looked at before because you're looking at it from your client's perspective and the jobs are walking up with the female girlfriend what you know whatever she was you know worried about her safety and they tell him five times to drop it they know he's  he's been violent that evening in and he doesn't drop it i mean aren't aren't they reasonably viewing themselves to be in danger i don't think so yeah i think there's a lot of factors that come into this and one of the biggest factors is the fact that they changed their own testimony if you just look at one of the officers that actually fired originally he stated in there that my client had pulled the gun up and then he put it down and they pulled it up and put it down and then he pointed it up and that's when i shot it but that's not true if you look at his trial testimony it's also part of the summary judgment evidence as well what it is is an officer who shot at somebody without really probably even seen the gun because the other two persons who even closer than him they didn't see anything racist at all didn't even see a gun not somebody that gets caught in it in a bad here contest he was never told to drop i believe in the criminal trial he testified about what the video said because they played the video that they told him that they were to kill him and he said get off my property and that somebody yelled at a put it down and he didn't but again just because do as a defense of property so yes he has the right is that the right to bear arms and actually bear them is part of the right under your nd amendment and so against the defense in regards to the qualified immunity analysis senator graham in this case there is no negotiation they started at excessive force they started that deadly force the only thing the percipient ten did that from anybody's perspective is really just anybody who was carrying a weapon candidate in point shoot but without any kind of threat and just holding a weapon many people go outside and we have the rights carry which means anybody who is on the street can be shot and i don't think that's what here's the five warnings that i've dropped it's i think the key here is that they don't announce who it is they don't say anything about anything and i think that's one of the differences in regards to the case i mean there is a n imminent harm factors and i know that into cells there are some discussion regarding that as well but the founding call versus hot air and ray is case of a long line of cases in the th circuit that have talked about that dealing with knives guns what have you  it is a very tricky thing for us to say that there is going to be qualified immunity whenever anybody has a weapon because anybody who has a weapon could as some point possibly maybe use it or try to use that weapon i think what we're saying is if that's true is that it's clearly established that you can shoot anybody who has a weapon period and that's not what the case law is in and respects what was your crime here i mean with that many shocks it's surprise i believe to you a shot at nine he got hit with five he did survive part of his body he lost a finger he had his arm he's made the disabled in his leg i think that also if punctured by his kidney if i'm not mistaken he was in i c u for a couple months in and out of coma so he's alive now at least that's a good thing but but this case is very difficult i would say i've reserved a little bit of  time but in regards to the qualified immunity i think going through the harm analysis as i briefed in that you know regards to the severity of the crime they were only investigating him they were going up there even if you kind of call that an even one when you're talking about the immediate threat or anything that nature the case law is pretty clear when you go through everything that there really wasn't any kind of threat whatsoever and all of the cases that were cited by the court in the analysis for its order cited two cases that were factually just completely insufficient you know where a guy had fired his weapon up several times in the air and then aimed at the officers or was reaching into his boot after threatening to kill officers and you know those are not the facts or even possibly related to this cas who is the sheriff's department that they work for i'm not going to talk initially about the motion to dismiss or rule eighty for the exclusion of the evidence and till we finish with a qualified immunity if you don't want to talk about those things you tell me and i'll talk but judge cost to hit the nail on the here in this case we're not talking about whether or not mr ratliff was negligent whether he was it fault whether he did something wrong what we're talking about here is did it officer scott or at the moment that he fired the shot did he use excessive force and what the case law says is that's the only moment in time that you look at what did he know did he have a reasonable belief that there was immediate threat to his safety or the safety of others judge well most of the district court after reviewing the evidence said yes that's exactly the case as a matter of law making this decision as a question of law and saying that the force that sheffield excuse me its gutter used in shooting mr radcliffe was not objective leon reasonable given the circumstances that he faced and the information that he had at that time and i want to go over the course he knew at that time that the officer should not identif involved the city of new orleans police department and those cases talk about conduct of the officers in creating a dangerous situation and what this court has hel is that in the qualified immunity context evaluation in the th circuit we don't look at any of the factors leading up to what happened to the incident we look at what the office f testified either in his deposition or may perhaps even in the criminal trial but that that he his girlfriend fiance mr van natta had an ex boyfriend he had trouble with members of the mexican mafia d and he was worried they were showing up and again the officer knows nothing about that he when the officers walk up they have a felony assault suspect rd degree felony assault suspect who they know has been drinking all day who threw his fiance down the floor choked her to the point where she thought she was going to die and had an eleven year old child in the house her child that's all they mean that's all they knew when they walked up to the house the st thing that happened and the st statement made by anybody that you hear on the video is a statement made by mr ratliff and this is a twenty one  second time frame and it starts it on that when you look at the videos and at twenty eight whatever the twenty eight years and he says get the f off my property that's what he says before the officers say a word five seconds later he says again get the f off my property officers haven't said anything yet at the same time that is happening mismanagement or serious he might have a gun he could have a gun the officers have walked up i'm sorry where is she and she's standing beside him behind him the two officers are walking down the street i believe the testimony is a kind of had their flashlights in it is dark she's standing in what few feet that time to go arrest him now they might have ended up arrested doing a depending on what he says happened it cetera but as they walked so at that point in time they don't know anything about a gun at all so at thirty three some sixteen seconds before the shot is fired they pull out their weapons having been told he's got a gun and he's yelling at them and he has a flashlight on the weapon they shine it on him and sure enough he's got a the officer says hey drop it another officer that was a stutter sheffield says i'm going to f ing shoot you mother f put your gun down now to which ratliff responds twice shoot me just shoot me again now we've got now and that's only five seconds into the suspected felon they've got they've been drinking all day he one has a gun he's telling him he isn't going to drop the gun and we know he's heard that he's been told to drop the gun because he's respond one in which everything that has to back up he says no no i'm asking the question i'm just using i'm asking the question i'm sorry let's take two different factual situations one which is what actually happened on the scene here that is to say we have officers who were officers but did not identify themselves let's take a separate factual situation in which there were never any officers on the scene but only some strangers who arrived on the property who under the facts were not in for police officers of any kind let's take those two factual situations now from mr rattlers point of view it makes no difference in terms of how he acts correct because he don't know their officers ok so at what point then in either of those situations does mr ratliff do something under texas law that justifies his being shot the question is from the view of the officers without regard to whether they have created a dangerous situation without regard to whether they have acted negligently in not identifying themselves in the cascades for example the office the when when the officer shot mr k s he had not identified himself as a police officer he wasn't wearing a swat out that had police or lawn he had a badge but it was on his hip and it was on his hip on the side away from where mr path came out of the door mr cass came out of the door with a gun and he shot and this court the th circuit said as a matter of law that shooting was justified we are confined to looking at the facts from the perspective of the officer only with the gun raised in the case because the yes yes yes yes faced with tints uncertain and rapidly evolving times facts and then we it's not fair to nd guess the amusing two thousand and twenty hindsight hey that would have been better if we divide into found ourselves as police officers it would have been better it would have been better and they may have been negligent in doing that but that's not the standard it's not a standard of negligence it's not a standard of gross negligence it's a standard of deliberate indifference all but the plainly incompetent who would knowingly violate the law we don't have that fact situation here that and that's why the judge ramos determined that under the facts as they were presented and known to this officer he had a had a reasonable belief that the shooting was justified he could be mistaken in that he could be mistaken in in his belief but he i don't think judge that in a lot of cas and in the law to harris and in chaos they're serving a search warrant and they go in with swat gear and in that case this is the same thing the  know they created this situation you could argue that week that spatter in sheffield created this situation by not identifying themselves as police in the th circuit said we don't look at that we only look at it for the eyes of the police officer at the time he fired the shot the same thing in harris harris was here in new orleans his wife believed that he had overdosed and was locked himself in the bedroom she called nine hundred and eleven the police came they've got swat gear they've got tasers she gives them the key they can't get into the bedroom because he's barricaded the door they bust into the door they find him laying in the bed under the sheets they yell to him we can't see you know uncover he then reaches up with a knife and they shoot him in killing and the court said we don't look at the conduct of the officers did they escalate the situation should they have ever barged into the room should they have ever tasted what we look at as at the moment that we fired the shot was or a reasonable threat of imminent harm and there was a reasonable threat in the case and also these warnings about i've seen the video but it's a little hard to tell how far away were they from the plaintiff the testimony is ninety feet and what i would say judge insofar as the distance is concerned that the telling factor that they were within the danger zone if you will you know we we believe that his he knew it we're officers but we we don't we can't prove that and he hasn't testified that when we were in uniform our cars had driven down the street their headlights were on we're across the street talking to the fiance we won't come walking up with flashlights if he says he doesn't know then that's and we can't controvert that other than say well we think he did but we i can't contemplate photos but i guess i  wanted the officer perceives that and but what the officer perceived is he's got a gun we've tell him to drop it five times in a sixteen nd span he refuses and he says just shoot me under those circumstances the officer was reasonable had a reason the belief there was immediate fear of a threat of imminent harm and clearly we were in a range where there's a danger zone or we would have been able to shoot him i mean if we could shoot him he could shoot us that summary now you know that's that that's another point and it did in i've been telling you you're only to look at this from the officers perspective and only what the officers know but at the same time at the same time the testimony from ratliff is i've got my gun and i'll be out on the porch in a tim test scare people off if they showed up let me get my officers don't know that but but the point of what what his name tipped was was exactly what happened he scared the heck out of my officers when they put the flashlight on him and he's got a gun there's another aspect of qualified immunity and it we've briefed it and the d with particularized facts so that every reasonable peace officer in this country would know if he's in scudder's shoes and he's faced with these facts and he tells somebody five times a drunk felony assault suspect to drop his weapon five times and he says just shoot me and won't drop his gun that every reasonable person peace officer in this country would know oh if i shoot him i'm violating his civil rights that's what clearly established law says that's what casella him use and at that the test would be a little even stricter than at in your favor of it is to say that there would have to be clearly established law that all of that existed in a case in which the officer didn't identify himself rect correct you'd have to have you'd have to have case law elements of qualified immunity and we have briefed both of those elements of qualified immunity even if even if this court finds that judge ramos was in error when she granted the qualified immunity based upon there was no that there was no violation of a constitutional right then what you're really doing if you don't say is you're holding my officers to a higher standard than we're holding judge ramos to if judge ramos doesn't think this is a constitutional violation with time for deliberation with an briefing attorneys with review of the case law with a legal education with all the facts laid out before her if she doesn't think under those circumstances that this violates clearly established law how in the world is officer scudder and all the other thousands of officers posed to say well you know judge moms is wrong about this and i can't i should know i'm plainly incompetent for not knowing that law gale you save time for a bubble once you focus on the i'm the one that clearly established a lot just to show was quite sure what your best case st of all in regards to the court's order in regards to the qualified immunity but when counsel says if the judge ramos believes this wasn't clearly established then it must not be one that asked if she doesn't believe it's a constitutional violation then how can it be a clearly and that's different and that's why we brief specifically the graham analysis in regards to the severity of the crime the immediate threat all of those things that went into the analysis for the making a determination of whether qualified immunity applied in the when the constitutional violation but the clearly established course and i did mention that in a footnote because i said look this was not part of the or i don't have the ability to appeal from an order that isn't given in the guards to that but we did address that you've got numerous cases and county of say we don't have cases that  show that they would have some sort of the notice you would have notice of people have the right to bear arms you have notice that the people have right to protect their property you have notice of many things that they violated in regards to this case and i think you're correct i think it's unreasonable not to announce if you know somebody is not committing anything and is not pointing that weapon i mean suffice to say in regards to the analysis of qualified immunity we have fact issues there are fact issues from which a jury could make a determination that qualified  in regards to the cases that have been before this court and there's the das case which is cited in my brief that's from two thousand and fifteen and also the sauce dawsons both of those are cases that deal with the escalation of negotiations to force  what transpires so when you're looking at it from the analysis it is part of the analysis to take into consideration what was done now their reliance on cas and harris is a little misplaced i think they're going to little far in regards to the issue in saying that this court  said that it does not matter in the slightest any facts that develop or have anything to do with any of the now assess here except just what was going on with the officer at the time i think that's an incorrect analysis specially with errors because in regards to those cases there was other factors that yes there were some allegations they had not followed certain procedures with not going to announce and announcing their presence things that nature but those things were not the impetus for the fire of the shootings there was many many other things as mr collins gone through so in regards to those cases there is case law specifically saying that those sort of escalation we don't negotiate if you skip those steps and you don't follow the heart of the the use of force analysis dives or guns but there has to be some sort of threat now the casella case is a little bit strange and you know while i may agree with some of the analysis of something they are in regards to the dissent you know it's a very factual case but not a lot of the facts are developed in regards to the opinion itself but each case is developed especially in the area of qualified immunity based on the facts and in this case you've got some defendant you've got a defendant who is basically making up a story as because his own words don't make any sense in his reports and they're basically a fabrication so he contradicts himself so what was going on in his brain is not something that i have to plead prove but it's something that go to a jury there is definitely a factor in regards to that in their brief i would state that the defense at the end said you know all this could have been avoided if he had just he had ample opportunity to put the gun down but didn't do that you know they had ample opportunity to announce themselves and to do well because right they could have just as easily come up and said hey sheriff department you know where the law enforcement has a question for you anything of that nature and they did nothing now while past then it was me say that you know creating a situation where you've got a role full hardy and someone comes at you with an axe or