it please the court my name is be this shock i represent gregory clark in this matter the first issue is a stop by the side of in a rest area in which the officer ra my client mr clark i know of no case asserting that a running action is as opposed to just asking for the id and getting it back is anything other than a than any actual seizure this point does however have two parts the first part is was he seized and the second part is was there reasonable suspicion for the seizure and the third would be one that was clearly a stand well and i'm going to beat focusing on the cases because i think that's where the action is your honor i prefer shape your thought on that let's look at the palmer case supreme court you're not free to go i take the position my client takes the position that when a officer is actually running the subject and by running i mean calling dispatch and asking and giving information on the on the license and all that you're not free to go because the the officer has the clients the subject identification in the black case says that taking property is a strong indicat the stuart case says it's a show of authority i assert that show that running somebody is a show of authority so i conclude that there was a seizure in this case now as to whether there was reasonable suspicion to justify this see the seizure we have that there were shots fired allegation of shots fired over the officers came to the scene that's obviously very serious and requires a response from the law enforcement or children involved it's i mean it's very serious we don't in any way dispute that what was my client doing he was at in the rest area twelve minutes later the cut the officers had to drive ten miles due to that plus the time for the report he was on the phone he was doing nothing when the officers walked up he could tell they were officers and he immediately handed over his s now there's a case doughty that says the initial response is relevant his initial response was call the cooperative and in fact he informed the officers by handing the concealed carry card that he had a weapon he had his retired military id these all suggest that he was completely cooperative at the beginning i draw the court's attention to walker versus pine bluff that  a case which i assert is spot on in my client's favor and justifies the denial of qualified immunity in that case there was the officers were speaking to a young man and another person the subject in the plaintiff in the case was someone nearby the officers walked up the the young man answered the questions he was asked just like my client and he was cooperative in every way he was arrested qualified you immunity was denied i contrast us versus stewart which is the district court case where the subject was in a car in an area known for  robberies and they were fidgety and they had a story that didn't match up when we look at these cases this story's not matching up becomes important my clients statements to the officers were wholly consistent with the facts as the officers knew them they're for i believe under the walker case qualified unit immunity should be denied because it really is so close in the facts obviously under the ziglar case it has to be beyond debate burnet call clear in light of existing law the sending or feedback from the department of correct because that's the moment when the client can't leave it's when the officer has shown authority in a reason you can't leave as you can't leave  understand him to be saying here's my you what you need to do with it well i don't think so because the case law doesn't give the officer that power once once the officer takes the next step he has shown that authority and if we go with the theory that you just approached your honor then the incentives are all in proper for subject we want subjects when an officer walks up to say how may i help you here's my i here's who i am i mean these are things which reduce tension which which which enable the officers to do their job if suddenly cooperating becomes a way that you you are now subject to additional power by the state i think that would be in the wrong place i might go on to the detention at the exit there are two issues here avoiding as opposed to fleeing and provoked and unprovoked after the interaction with the id my client said why did you run me the officer said and he admitted this was not true but it's something that he did for sort of verbal judo you might say well my boss wants to know who i talked to and the and then this my client says i don't think you would have run me if i were someone else and then the officer said in a very angry to don't play the race card with me i'll get to that woman have time when we get to the equal protection claim and then the officers went into the building at the rest area they didn't tell him t he didn't rush away he sat he sat and talked on the phone some more time he his car didn't squeal the tires he just drove off when the officers had completely disappeared surely there's no suspicion from any of that and then they then they come back out and they see he's left and they start following him now the wardlaw case is the leading case and it says that headlong flight it's creates reasonable suspicion but also talks about this issue of provoked an unprovoked i certainly client did not have had long flight all he did was avoid he does go up the ramp he goes over and goes back south following him provoked him to make his decision so that takes the wardlaw case and make shit in my client's favor and that is why this going up and  over does not entitle the officers to qualified immunity i draw the court's attention to liberal versus strada where the now that's a fourth night circuit case admittedly but  subject went around he didn't violate the laws but he sort of kept making turns in the parks behind a dumpster and that's that was found to be not to create reasonable suspicion the one son case is a supreme court case that's the one where the officer appears at the chinese laundry at six in the morning and says hey i have my ticket i want my laundry and the subject says the owner laundry says well we open at eight sir come back and then the office as well i'm really a policeman and then mr wong song runs to the back and so the question there is was it provoked and the answer was that the conduct of the officer provoked mr wong son to run to the back of his place because because they had engaged in this route in my case our case the plaintiff's case here i don't the action was provoked by the officer following him don't forget it's not just following but when my client goes up the ramp at the immediate north exit they followed him up there it's because of the taking off the ship in other words there's this idea that the officers come up and the subjects just run in all directions right away so that's different than my command crossed over and  oh we absolutely acknowledge that it's innovation of maneuver but we assert that it is of voiding which under wardlaw one may do as opposed to fleeing which one may not do well the distinctions are very strong in the lawyer i'd like to go to my excessive force claim if i may so the excessive force quiet so what's your point then on the exit ramp over what i'm trying to say your honor is that the club my client had a right to avoid the police he there's been an uncomfortable interaction you have a right after you've had an uncomfortable interaction to avoid the police that's normal human behavior and he had no obligation to continue north to chicago you go go anywhere he wants i'm going to be very very brief on this excessive force matter i've only got three and a half minutes left but just to say that is pointing  a is pointing a gun force yes or no is the first question and the second question is was the force justified in this case in this case my client had his hands out the window of the car and the officers came his his body camera showed in the reflection of the truck that they had their guns up and pointed right at him and i assert that shannon versus way threaten anybody he didn't resist in the court found that the pointing of the gun was excessive force i don't give up on my other two claims at the end but i am only have two minutes left if i may i'd like to reserve my time or  it please the court my name is portia kaiser i represent the apple e detective austin clark in this action this is an appeal from the granting of a summary judgment and i think that's important because what we're looking at really is not a dispute about facts here we're talking about a question of law summary judgment was filed at the conclusion and close of discovery in this case and the district court took the case as properly conduct is a question of law and as a question of law it is appropriate to be decided upon summ i'm sorry i'm very short here it's a question of of qualified immunity qualified immunity is best described in mally versus briggs where the supreme court said that qualified immunity protect all but the plainly incompetent or the ones who are knowingly violating the law and that there is no cause of action for bad guesses in great areas but rather only liability if there is a transgression of a bright line on january twenty fifth two thousand and sixty detective clarke did his job he investigated a call related to a shooting at a elementary school he responded and had some interactions with the appellant on that day appellant raises five points in his brief the first of which being the initial encounter the initial encounter was nothing stewart i believe had to do with the truck that was parked in a sketchy area that nobody had done anything wrong in that truck but the officer came up behind it turned on its lights went to the window took the gentleman's identification talked to him he said he was trying to have an affair there were some oddities there but he took that identification he went back to his car just like a police officer would if they had actually pulled you over went to his car ran the identification ran the license plate and came back but this court held that that entire encounter was consensual until the time that the officer asked the gentleman to get out of the car when stewart was asked to get out of the car because the officer upon running the identification found that he had an outstanding warrant then it became a seizure only when there is a seizure is the fourth amendment even implicated if you can run the identification with a case like stewart you can certainly run the identification in any case like cancel what would have been the reasonable suspicion to continue to to for the second seizure or what would could be described as the second can or the second encounter at that at the are and if if the first encounter was innocent just simple investigation just finding out who this person is why wasn't he separating out individual factors is fatal to an appellant's claim the totality of the circumstances here show from the beginning that there were oddities that built upon each other the appellant wants you to look i'm provoked like the cases that he cited to only have to do with whether or not that provoked or unprovoked flight were standing alone can create a reasonable suspicion and that's why i say it's not relevant because all of th cases are asking if i ran from you because i'm trying to avoid you can that standing alone equal reasonable suspicion are understand or to go back to when in the protocol of the established reasonable suspicion you we start at the very beginning so terry know it's terry versus ohio notes that not that there are going to be times when innocent people are questions it's it's just a fact of life but that's what terry acknowledges expressly terry says if you don't have enough facts upon talking to somebody to create probable cause then that person has to be free to go which is liberalism give the police the license to follow you until you do something suspicious enough for them to stop you here i understand around here is how the the facts played out and really there's no dispute about what happened between the appellant and detective clark detective park received a call that there was a shooting in the vicinity of a school that shooting was reported to come from a wooded area between a rest stop and the school property when they responded to that  there not only was he the only individual present at the stop that they could visualize not the only car but the only person they could visually see he was seated directly at the edge of the woods not you know right where the shots were alleged to have been fired when they came up and spoke with him he admitted that he was armed with a weapon they ran his identification they returned it to him they left to continue their investigation what struck him as strange after that point was number one detective clark's experience in dealing with former military members was that they're usually very helpful it was very strange to him when he came out that the appellant left the accurate information he did the issue for the detective clarke though was that in his training and his experience as a law enforcement officer he had not seen people leaving the scene of an investigation that was into a serious crime like shooting at a school district without making any further contact with the law enforcement he wasn't required to but terry says even and humiliation of innocent acts can result in reasonable suspicion because detective clark believed that leaving was an oddity and that the appellant left urgently in his opinion they followed they had been told he was going to chicago he was pleading he was not he was not what what  turned it into urgency that is that's how detective clark in his experience believed he was leaving it was a very odd situation for somebody to leave when you're walking around asking questions not only because once the officers of ask you questions and they get up and move away are you obligated to wait for them to tell you you're free to leave i thought that you were being in the seized so when officer turns their back and starts to walk away you're free to go yes they are what i'm saying is not that what he did wasn't innocent i'm saying that it raised suspicions was a reasonably was a reasonable suspicion was it articula you know because we're talking about reasonable suspicion ya stop always remember it must tag to some criminal act what's the criminal act you got up and left tell me how that act points towards a reasonable it's reasonable to think the guys don't just shoot and just hang around generally speaking so you go to a place where twelve minutes ago we said we suspect shots were fired we see a gentleman sitting at a table on the fall you go a you may we see the gun all those things which could have been done just in an ordinary course right if you in one of those questions are asked instead it turns into this conversation where there's an really kind of an inappropriate conversation at the end and then you suspicious because the person who feels that he's been singled out because of his race and the feedback is not a part of the positive didn't hang around to get permission to leave and you say that's suspicious and i'm saying ok it's stop him at that point but when they come out from the rest area and they see that he has left the supreme court and hernandez versus mesa says you have to look to what the officers training was what did the officer know it is relevant what he believes is unusual so along with all of the peculiarities up to that point now we have a gentleman who in detective clark's experience would normally not be leaving the site of an investigation not that he wasn't allowed to innocent acts under terry versus ohio can still create a reasonable suspicion they decided to follow him to see if he was fleeing for some reason upon coming onto the freeway behind him where he's headed north the direction he said he was headed he then exits the freeway and starts going back in the opposite direction that's another curiosity another suspicion that is raised why would somebody who has told us at the stop that they're headed to chicago now is turning around after leaving in that direction which seems reasonable but now  going in the exact opposite direction that they've told us following that as they're following the appellant detective clark says he could see inside of the vehicle that the appellant was moving around more than what would be if you're going to grab something looking as he described in the deposition as an excessive amount of movement and then this gentleman poles over by himself on a rest stop or at a at an exit ramp all of that built to the point where a seizure under the harry was appropriate and they had reasonable suspicion based upon the totality of all of the circumstances to in fact stop and investigate detective or detective part had reasonable suspicion to stop the appellant and investigate further to see whether or not that gun had been fired whether it is that different reasonable suspicion for the second stop in the f pulled over he had met you voluntarily probably how many police cars were part of this detective clark was the only one following that he had called for backup i believe there were one or two other cars in the vicinity it came up on it but the when we look at everything that officer part was dealing with and evaluating and trying to find what the appellant agrees is a very serious crime trying to find if this individual had something to do with and all of that was reasonable under terry and under dari and milton holland stuart all of these were justified reasons that low ready position is shown on his body detective clark does not believe he ever raised the gun however when he was opening the door it appears that may have raised the district court noted that in in their opinion  but the real issue here is that the black letter law in the eighth circuit is that raising a gun pointing at without the intent or an attempt to shoot does not violate an individual's constitutional right  arrest however shamming goes on to say that's not enough it's a great general principle you have to actually have a clearly defined contour of what the officer is doing and whether or better in that case there was no challenge to the taking and running of the license i mean i guess i just read it differently but i read it yesterday on this question and the there is no allegation in that case that the the court discussed whether running the office or constituted a seizure apparently the plaintiff didn't that just didn't make the argument that that's how i read it maybe i'm wrong say just a couple of other things one is that i think it's course well established law that this matter has to be viewed from my client's perspective at this time he says the back of the back of my truck was tented can't see anybody move around in a tent in it with a tinted window further what what what what would that mean that the officers already knew he had a gun i mean what what are they suspicious about they already know he's got the gun so that doesn't seem to add anything to me they'd know he has a gun or only know that he has a permit to him well that's a good question i guess they didn't say that and i would say the common way the officers do the gun business with the concealed carry is they say i may i remove your gun sure because they don't want the subject to pull his gun out of his own holster as you apply them if he chooses to they say raise your arms and then they think they could have asked him sure would you mind if we smelled your gun i think they could have done that absolute fact that's how the thing ended the that's that could have happened the rest stop i think so yes but since it's been left why couldn't they do it later well i think it's the point of judge erickson which is it's all over at that point why's it over they still haven't figured out who is the shooter well because they're not investigating what they're doing at that point is targeting my client i mean this is this is a response i believe to the argument that that's what's driving this with this conduct at the second stop they're targeting my guy because of the argument that's the totality of that i mean it's something that's for the jury causality the great question that goes to my fourth argument which is the equal protection argument causality is for the jury we certainly have the fact that the argument occurred and we have that there's nothing else