and the reason why i say it's unique because we have a situation where the non shooting office or is the person giving the order to the shooting office or to shoot him shooting him and why it's unique is because at the time the shooting officer shoots the the deceit and he was actually in the process of trying to tase the deceit and he had his taser out and he was immediately behind the subject then becomes was he responding to what he saw transpiring in front of him this person running in the street in the general direction of the op assert or was he responding to the other officers command of shoot him shoot him in addition to not sure that's an either or question exactly it which makes it a question of fact well no i mean we've seen the video yes it's not hard for me to understand both why the officer who felt he was in danger called out to shoot and why the other officer hearing that and perceiving what he is perceiving agree that the first officer was in danger and decided to shoot but doesn't make it  genuine issue of material fact well i think it actually goes to what why the officer who's doing the shooting decided to shoot why didn't he have as the first officer appeared to be in serious danger at if you look at the video and actually look at the photo and the fact that the shooting officer had his taser out at the time the person i didn't see it was running into the street indicates to me that he was it didn't think it was a life or death situation otherwise he would have had his firearm you didn't work well he did it did work well did the first officers taser it's not clear to me why it didn't work the second officer didn't turn off or remove the safety but his problem was you've got a guy with what appears to be a serious blade running toward in the direction of the other officer and what are you supposed to do we may not have made the best judgment but i have a hard time understanding how that judgment was was constitutionally know and i understand that point your honor but we can't just look at what you see from the one video because when you see the other officer activated his taser he did and it's slightly jolted the suspect and then there's a question of well then did he attack the officer or did he attempt to flee and unfortunately didn't attempt to flee as in running an entirely different direction or dropping to the ground that is correct but always so it becomes a judgment call on the part of the officer now you can argue and you have argued he's actually vary a different direction but at least from the perspective of the officer who felt in peril because that's whose body can we have it's really easy for me to understand why that officer did not perceive the victim to be running off in a way to avoid this he was still headed in the general direction of the officer and i understand your honor and i think if you have a situation where the officer is closed in has no where else to retreat then that is obviously an option that needs to be exercised but this officer who was retrieving had a street behind him and had plenty of space to retrieve including vehicles that were nearby that would prevent having to resort to the ultimate use for those who think there's a duty to retreat on the part of an officer when being a centrally approached the very threatening way by the assailant under certain circumstances under certain circumstances where it's safe to do so yes are you talking about for the purposes of your constitutional claim or your negligence claimed it i think it applies to both actually and what is your case for the constitutional proposition well the because you must be eating meat at threat or death or bodily injury at the time and the fact the matter is having a thirteen inch plate fourteen inch blade fifteen inch blade in of itself is firearms but they're not aiming their fire i'm not using it they're holding it and they're telling them drop it drop it drop it they can't fire just because that person possesses the weapon and has to be in the media threat of fear or death can i go back to your initial are going because i'm not so sure this is consistent with what i thought you were arguing in your brief and in your brief you're basically suggesting that the decision was moving away moving not toward the officer moving away and as a result it was inappropriate to use deadly force in your argument when you just started what you're basically suggesting is that the person who did the shooting the officer did the shooting only did so not because of necessarily a fear that there was going to be on the salt on the other officer but because the other officer said shoot him is that what your position is on this point b are you do you have evidence to suggest that the first officer only shot the deceit and because he was told by the second officer to shoot him if you look at the video and slowly you'll see in it it took me four or five times to watch the video to actually see this he has his taser out his left arm and attempting  sorry i was trying to listen to this guy miss him but when it doesn't work what's still logical about the the officer who alternately did the shooting saying this weapon isn't doing it i've got to go to option number two which happened to be  firearm and i really don't understand your argument that somehow he had made and the election that shooting wasn't necessary something that the officer who alternately did the shooting and maybe i should get their real names arm and fires a real gun and ultimately fatally shoots the victim and you've told me this sequence taser first doesn't work gun and i'm trying to figure out what's remarkable about  that would be remarkable your honor if he actually is directly going to the officer it would be a legitimate shoot if the person is running away however or the person is not going to read the officer he is trying to escape or get away from after being tasered fearing that something's going to happen to him then i don't believe that would be a just justified and now we've come back to the argument that your brief appeared to present and i have to say looking at the video i just don't understand how that argument gets any traction because at least from the perspective of officer vander hoke man of the guy's got a blade like that he's come in generally in my direction i'm not surprised to yell shoot no i don't know exactly what it looks like from the other side from sergeant santos but it's got to look pretty much like the mirror image of what we saw in the video and i'm not surprised that he decides look that's too close for comfort i'm going to shoot back to the argument presented in your brief that is that the that officer vander how cool was not really in danger and if if somebody is not in danger there's a basis to say it's not appropriate to use deadly force but if somebody is in danger if there's the danger of death or serious bodily injury the law permits the use of deadly force and having looked at that video i just do not understand how how it could not talking well and you know he's reacting in seconds he's had doesn't have the time that we've had to go back and forth and even saying that and even watching that video more than once and it's so brave because we as we watch it we know the ultimate result and we know that we're watching somebody shot to death and so but but i how how else well i guess i i guess we can get into othe issues in the case though in terms of how well you handle that situation because the deceit it was mumbling to himself he was acting strangely the officers noticed that he was out of it so there is a crisis intervention training when they're supposed to put down their firearms and attempt to have a conversation before the situation escalates somebody is coming out with a blade you know i i thought try to have this crisis intervention two seconds later the guy's got the blade against my neck i'm not sure that  there's any case law that supports the proposition that the officers required to take that course i agree the person is the person who was shot did not flee or right in the street or take off in a direction till after he was tasty if there had been an attempt discuss this and see if he would comply anyway prior to being case perhaps he could have been avoided but as you said it's happened very rapidly i would i wanted to reserve i didn't say that to fifty two is it ok if i was there yes thank you unless you have other questions just i was interested in your neck which is you you brought up negligence yes claim but the negligence claim was related to the actual shooting so i assume that you agree that you look at totality of circumstances and then you put all of those circumstances together to make a determination as to where there was negligence at the time of the shooting not necessarily at the time of the confrontation with mr lopez or the lack of taking procedures to make sure that shooting that's what that's what he says and no i didn't mean to suggest that that was not the case right ok so to tell the of circumstances and in particular how it impacts the decision just you certain to shoot that or how your circumstance must be considered thank you thank you morning your honour's may it please the court i'm angry now appearing on behalf of defendant sergeant michael santos and officer fritz vander hoke the circumstances of this case are tragic however in this case both defendants acted reasonably and violated no clearly established constitutional right on appeal plaintiff claims that antonio lopez is fourth amendment right for deadly force was used against him but that right has to be evaluated objectively qualified immunity is granted to a police officer under the first prong when an officer has probable cause to believe that there is a serious threat of serious physical harm to officers or others and when evaluating qualified immunity under the first prong the most important factors are the seriousness of the crime the immediacy of the threat and whether they were resisting arrest in this case all three factors were met what was the serious c of the crime it was  judge co found mr lopez had been previously spotted on the campus making stabbing motions with an over foot long blade that's a felony offense on a campus during broad daylight when there are students  around say we agree with you on the constitutional claim could you speak to the negligence claim and why a jury couldn't find that the officers acted unreasonably in the full course of conduct here yes your honor as was pointed out previously w evaluating a negligence clase case under california court law the totality of the circumstances are about waited but there is no separate pre show separate from making the decision to use deadly force unless that results in a separate injury so in this case all that we're looking at is the totality of the circumstances resulting in the ultimate shooting but wouldn't a totality of the circumstances include whether there was an opportunity to deescalate the situation and whether reasonable officers would have d escalated or at least attempted to deescalate the situation i think that's true but in this case i think that's what happened what did the officers do to deescalate the situation so prior to arriving prior to spotting the suspect all that officer that se eant santos knew was that there was a person with a knife on campus plaintiff has cited two evidence of it as he ought at least one of the officers testified that it was clear something was wrong with him with his mental state correct as the situation had unfolded so when when the officers got there when the plaintiff had been down on his knees he was initially complying understood the command that's a very low level of force trying to ask him to drop to his knees and drop the weapon at that point he jumped back up with with the weapon in hand and they continued to try to use alternative force sergeant santos continued to ask him to drop the weapon to drop to the ground officer vander hope tried to use the taser to avoid using greater force sergeant santos tried to use his taser as well and when nothing else worked and when the suspect continued to charge into the street even at the point of the street he could have gone right or left in the opposite direction of officer vander hook they had already used three kinds of also learned from the very beginning that like with the kneeling could the officers have spoken more gently i mean are there things that the plaintiff's expert says the officers could have done and why couldn't a jury believe that those were things that should have been tried there is no evidence that the plaintiff was mumbling or doing anything at that point all we know is that he was down on his knees so he understood and was complying with the instructions and at some point he chose to stop complying he was resisting arrest which is one of the factors under the california penal code that justifies the use of homicide so there was no reason for the officers to have behaved any differently and how they came up so i mean a jury could find that i mean you may win but why isn't there a fact dispute about what the reasonable officer would have done in a situation particularly given that there is an expert testimony saying that this wasn't reasonable so the expert testimony is entirely based on the fact that the expert assumed that there was a mental disability there is was and has never been any evidence of a mental disability in this case here all the officers thought something was wrong with him mentally which turned out to be the fact that he was on methamphetamine drugs and are we allowed to use that later knowledge in hindsight do you have a case that says that we use that retroactively but the fact that he was dangerous and had a mental disability as was pointed out before someone has a knife in their hand just because they have a mental disability does not mean officers can then back down from an armed suspect moving towards them in broad daylight right off of a campus where there have been spectators or pedestrians you could see even in the video this isn't a contain situation where it's already safe he's not in a room he is out on a sidewalk in public where there's plenty of people around he has a backpack on we don't know what's in the backpack he's not complying with any of the rules and as far as you can tell from the video he doesn't start mumbling intel he has that knife in his hand and he's already resisting arrest at that point there's nothing else that they could do than the reasonable methods that they took just ask your hypothetical situation let's just say that the and i think that's true here there's an obligation to try to deescalate deescalate the cause confrontation and the police of all of these requirements that they go through to try to do that in particular with mentally distressed or disturbed  persons let's say they're negligent in the way they approach that the escalation the fact is everything contributes to a furry and as a result all of a sudden they're faced with a situation of deadly of the need for deadly force no they may be negligent early on but when the relevant decision is to be made that is due in confronted with this dangerous situation do they shoot that's the point at which negligence is most clearly evaluated isn't it and even though there may have been negligence early on which contributed to the friction the fact is when they're faced with a deadly situation they have the right to shoot your position yes your honor because at the time the first time is where you can even see any monitoring as mentioned by the plaintiff he already has the ten inch blade in hand over ten inch blade  hand it's already dangerous and getting more dangerous by the second as was pointed out this is happening over a period of seconds so that that officer vander hook tried to use intermediate force he did not immediately go to lethal force he didn't interrupt santos's continued nonstop directions to drop to the ground and drop the weapon mr lopez kind of dropped the knife at any time there was nothing keeping him from doing that he could have gone in a different direction so at the point where muttering begins and it's possible any different tactic could have been used and the argument that anyone could have known there's something mentally going on it's already too dangerous he has the blade in his hand he's in a crowded area and at that point there's nothing they can do other than continue to try to use lesser force and tell it's no longer possible because of the danger to officer vanderhoof who meanwhile also was backtracking and retreating as quickly as possible you know this can i ask you  about your response to opposing counsel's state of the very beginning of his argument that really he suggested the perhaps or sergeant santos shot not necessarily because he felt there was a dangerous situation but because of  said shoot so i have you heard that argument or and if so how do you respond to that i have not heard that argument before but i will respond in two responses to that one of which is that sergeant sa deposition he states clearly by the end when he shot he was in fear for officer vander hope's life as well as his own if he said if officer vander hope goes down it's me and him and we're not having any luck controlling this man he was in fear for both of their lives regardless of what officer or hook said to him and secondly officer vanderhoof also said regarding the taser yes the safety didn't work but he also said that he realized he didn't have a target there is a backpack but the man was wearing the sweat shirt officer vanderhoof had try to taser and it had not worked and so it wasn't just that the safety was on it was that in that minute when the safety the second when the safety didn't work he also realized it wasn't the best option because it already hadn't worked and the situation was getting more and more dangerous could it be part of the negligence consideration that he had to remove the safety i don't think it would because of his statement that it was for both reasons and i think that both reasons are probably correct because there was little to no reaction to the initial taser frankly had he been able to use the taser and gotten involved in that observation or hope might have been stabbed in the meantime i think it worked out to officer vander hocussed best safety that the t didn't work and that he switched to the alternative means of force i don't think it goes to negligence because there were multiple reasons for his not using the taser and in addition there's no evidence that would have provided any different result he was on methamphetamine drugs and a prior to right answer my question about hindsight so i'm curious about what california law says about this can we take into account that he was on methamphetamine rather than just mentally disturbed i don't know that california treats that any differently and i don't think that there was there was really no evidence of that in any event i mean there's no evidence of that i'm i'm just not sure the plaintiffs the plaintiff keep citing to the mumbling as if that's conclusive proof that someone has a mental disorder or or is on drugs and in reality this is a what this is a one minute event where it's possible the man was mumbling for half of that while running at the office is the  original call about someone sort of waving in the air i mean it wasn't sort of erratic conduct in the first place that led to this call not like he's attacking people but he's kind of acting crazy well as judge poe said in her order it was that the knife was being stabbed in the air that's not erratic behavior is that what the call said to the police the caller what sergeant santos was told was that it was a high risk dangerous situation there was a student that later said that or and may have given the off information to the dispatcher that the that he thought the man might be off his medications but that information was never transmitted to the two officers all they ever knew was that there was a man who was resisting arrest and once he had a knife in hand was mumbling what he was already resisting arrest who had tried to arrest  earlier resisting arrest at the at the scene with sergeant santos and vander home not at the for the original incident all they knew was that there was a dangerous man who had been using a knife on campus there was nothing about erratic behavior or anything of that nature that the officers were told so what they're coming into is a situation where there's a dangerous man who has been on campus stabbing a long knife in the air they find this man where they don't know that either right all they know is there's a man with a knife on campus from what you're saying the call said so and when they get there here originally complies and then have the knife back in his hand and from there on he does not comply with a single command that was given to him he has the knife he stands back up he's told to drop it the whole time they try to use alternative force with officer miranda hooks taser and he keeps coming in officer vander hoax direction he holds the knife the whole time he doesn't drop it and he keeps running in his direction that's what the video makes clear and then the it could you tell me again what your theory is about why it wouldn't have helped if officer santos is taser had worked because officer  worked there's no evidence we have that with that with the plaintiff's heavy sweatshirt and with his backpack and with officer with sergeant santos being behind mr lopez that even had he been able to use the taser that it would have had any effect and not only was there no evidence it would have had any effect because it already hadn't even from the front which is how officer bander hooked him santos himself had come to that conclusion when he had the second to realize that it wasn't firing he also thought there's no target here there's no skin there's nowhere i can get this taser in a spot that's going to be worthwhile and frankly from how fast the video was moving and how fast mr lopez was moving towards officer vander hope i think had he done a second ineffective taser shot we'd have a very different and different sad ending to this story i think so just going back to the very beginning the only evidence that the sergeant about shot because he was told to shoot the no sergeant santos is the commanding officer so i don't see how that would have entered the calculus but in any event both depositions made clear that both officers felt off vander hook and sergeant santos life were in danger there's no conflicting testimony on that point they both thought his life was in danger when the shot was fired and he shot only twice i mean just to stop him and immediately administered first  to get rid of the expert testimony of the plaintiff's case where was there any motion to strike of any sort that testimony no however you talked speaking about expert nor well i'm marking exactly clark clark no there was no testimony about clarke but there are two or three other cases where clarke's testimony has been given the way to do which is that when there is no evidence of a mental disorder you can't question someone's tactics for the way but so why isn't it a jury question whether there was evidence of a mental disorder why isn't a jury question whether to believe their expert versus yours i'm still confused about i mean you didn't even attempt to strike this expert so how is there no fact dispute on negligence here because there is no evidence of a mental disorder how can it go to the jury when there's no evidence of where it wouldn't be very watch the video and think about that themselves for one minute long of time i think we're also underestimating how this happened this took place over one minute with someone who complied and over that forty seconds these officers are supposed to recognize mental disability i don't think there's any case in california or any other court that would put that obligation on an officer when you're dealing with someone with a foot long blade six twenty six point ten that is actually having me here or dagger on a school campus and that is a crime however it's not a felony what it is is a crime against the public and then depending on the facts it can be charged a felony or misdemeanor so mr hope is the conduct was not necessarily at the felony level if he just possesses a stabbing interest instrument or a some broken saw blade in this case secondly a judge sessions you asked me about the argument i made it's actually in our reply brief on page ten eleven where we talked about if this had been eight an immediate threat to officer vander hook's life at the time to he was running in that direction in toward the street why would he attempt reading but if you look at the police the brute the photograph in a police brief it will show you the angles where the at the fact that he's holding his firearm and this is at the time that sergeant john chose from behind a shooting and it related question at one point you made this