on february rd two thousand and fifteen a former omaha police department officer alvin lu got shot and killed daniel l ron by shooting him three times in the back he did mister l rod was unarmed his hands were plainly visible and had no weapon of any kind whether seizure occurred here is not an issue that encourages whether or not the seizure by deadly force was objective lee reasonable we're here based dismissal at summary judgment and the question turns on whether or not it sure could conclude that l ron did not pose an immediate threat of imminent danger again this is a question for the jury and the answer to that question we believe is in fact no deadly force was not objective really reasonable and the test for reasonableness under the th amendment requires careful attention to the facts so let us talk about the facts facts existing at the moment lou got decided to fire his weapon in the in bullets in the back of daniel l right are documented by video patrol dash cam video objective evidence that a jury could conclude shows that mister l rod was not an imminent threat of immediate danger to anyone on the scene counsel if you look at the video he does he is always reaching all down here like he's trying to find something and sometimes it's really quick too that he reaches like this and like this pardon my bad acting but that you see you've seen the video it speaks for itself how do you reply to that i think that's your  well ok ira i reply to that number one by the officers on scene that the reasonable officers that did not fire that soggy exact same information and did not just charge the fire while it's true but that's that's true  your hand and you st would have to get a gun in your hand his hands were visible at all times in fact if you look at j forty eight the dash cam exhibit two hundred and twenty seven prior to being shot his hand it is white hand is shining against his black clothing and the officer blue god testified that he believed that there may have been a weapon on in the waistband which is under the part of the parka is a long coat the drop down on top of the waistband in order to access that area lou got l rod would have had to use two hands one hand up hold the coat up and another hand to access the weapon the critical data to consider is the moment before the shots are fired he might have been doing all sorts of crazy things beforehand but the moment that the shots were fired what was going on his hands were visible one left hand is in the air because he's going to jump over this barbed wire fence where he would have been secured within a double barbed wire and his right hand is also visible at no time before we mediately before the shot was fired is he lifting up the coat going towards something so so i agree throughout this you know his hands are moving around but again when the decision was made to shoot there was no imminent danger of any threat of physical violence against bahnhof the partner and that's what i'll read pardon me the officer former officer testified he said i wasn't concerned about myself i was concerned about my partner who by the way also had his sights in the shooting position on l right at the same time and did not shoot and so at the moment the decision was made to fire to use the deadly force the excessive unreasonable force the hands could be seen if the hands could be seen there is no gun if there is no gun there is no imminent danger mister l rudd is thirty feet away from bahnhof with no weapon is he going to dive thirty feet out him when bahnhof has the gun pointed on him of course not there was no imminent danger at that moment and the video is absolutely clear as well are the still images that are in the record that highlight it but you can clearly positive video and see the hands were visible and if the hands were visible he was not an imminent threat and it says it's a simple as that in a jury could conclude that and we need to get to trial on that  summary judgment it's not of words on a stipulated dismissal reserving the right to appeal an adverse granting summary judgment and we have all those weird case law there that talks about oh the you know walking to prosecution upon what claims was the wants of prosecution because on october st two thousand and eighteen the dismissal of the partial summary judgment dismissal of this excessive force claim was kicked so the only remaining claim that was dealt with in the september two thousand and nineteen order that makes up the final order by having the three successive orders was the one thousand nine hundred and eighty three mon el claims about police custom and whether or not constitutional rights from french due to implementation of a police policy or custom so let's say we're not even dealing with that just throw that out we're still dealing with and it didn't become a final order on all claims the claims that issue here and tell that final order was entered we could have what you during doing during that thirteen month period to well pursue a remedy to force this into a posture that you could appeal from well we we were looking obviously at the evidence reviewing all of the thousands of pages of police policies and customs talking to ups x x births concluding whether or not there was viable claims on that action and i would submit to the court that we could have dismissed the remaining claim of there would have been a final order on dismissal then we could have appealed as a final collective order the previously partial dismissal on excessive force so i don't think that's of particular any moment we still had mechanisms to get to the argument we're here today which is the excessive force so again with respect our position is very clear you cannot fire a weapon that he did not have unless it's in his hands his hands were clear he never reaches for a reasonable officer like the others and a jury could conclude that mister ellery did not have a weapon was not ever going to show a weapon he was  retreating at all times it was x actually officer lou god who within seconds of confronting him said you're going to get shot don't make me do this and the student is like what for what for what he wasn't agitated he was confused he was stunned officer lou god said he had such a good vision on him that he could see his i had balls were dilated this is clearly a person under those facts that could have seen white hands against black clothing illuminated by a spotlight less than ten feet away on the side of a building an illuminated by three per troll cars each with their headlights on the subject while standing in an elevated position the loop eldad was onstage all they are but it's a mistake and it's an excessive use of force so it's not mutually exclusive it's both because again at the moment the shots were fired forget what happened two hundred and thirty four minutes ago he's holding he's holding the whole time taste exactly eight seconds before the st shot ok thank you and again your honor when he stays he can see him holding off hands in sight pulling off the tasers and then he looks around and turns to go over the fence absolutely correct if you slow the video down and watch it shot three times in the back we've got the autopsy it's undisputed his hands are in the air and he's shot one hundred and twenty three times in the back so this case is it's just i respectfully request that too if you have the opportunity to look at that video again it's in a moment of seconds but it's clear the moment the decision was made to use excessive deadly force this gentleman's hands were in the air and back  with that i'd respectfully leave the rest of my time for a bottle and yes you certainly may mister wiesel good morning honors may it please the court my name is ryan we send and i'm an assistant city attorney for the city of my mom include an order to show cause as to why the case should not be dismissed the appellant didn't do anything in response the district court's order on that front the appellant completely ignored that border and i don't think it's proper for the appellant to be able to come to be at circuit months after that occurred and say we want to nd shot at this we didn't follow the rules the st time we didn't comply with it is your course orders but we think you should send it back there to give us a nd chance at i don't think the  actual merits of it though in the qualified immunity analysis the court asking that the two step increase one of those steps to include an analysis of relevant case law that sufficient to put the officer in this case officer god on notice that any potential conduct is could be potentially in violation of the constitution and the appellant's sites for cases in support of this proposition that there is clearly established law on these d suspect lying on his stomach on the ground without again any allegation that he is in possession of a firearm clue coder whom involves the forceful arrest of a trucker by a plain clothes officer for failing to produce log books in involves the arrest of two individuals working on the side of the road with no allegation that they had committed any crime whatsoever or that they had any weapons of any kind these cases can clearly be distinguished from the facts of the case that is present before the court on appeal and in certainly aren't of the type that are sufficient place officer who got a notice of his conduct could be and asked to show and the supreme court has repeatedly reminded circuit courts and district courts that in the cooperate immunity cond contacts there must be sufficient case i would specific or sufficient specificity to place the officer knows that the particular facts that he has encountered could be subject to constitutional protections and the upon this fails to meet his burden of writing that case thoughts of both the district court and to this court in this case with respect to the factual assertions in that let's make facts that are issue in this case the district court in this court are required to makes the decision to fire his firearm from his vantage point mister oribe is turning from his view he's initially kind of facing and he's turning away from him is right hand which was underneath his coat becomes obstructed and then he pulls that right hand up from beneath his coat and begins to extend it now hindsight two thousand and twenty vision tells us that humans are reaching for the fence at that time but officer lou god can't see that he just knows that report and i know this i was very down in the weeds but i got to ask you do the well it's not that they came in the side you know on the on the t v shows at night they talk about what they came in the side and angle they entered and all that kind of thing does the autopsy here anything that or did they act like they were straight through or is that a silly question it's not a silly question your honor but i don't know that i have a complete answer to it i don't know that i have where the exit wounds occurred at i do know that he was hit in the back but again he is continuing it's overrides left the officers right there's another vehicle and so there are several officers to the right of those two vehicles but mister l rod is between the vehicle that yeah is between the vehicle that mister alatas standing on the end of the building so you can't see him in the cruiser teams because he's obstructed by the videos additionally it's a complete ninety degree angle or more difference in or three times ok and we can tell at least one of these times is captured on the video recording not all of the audio was captured for one reason or another but mister jordi argues that mister oribe was stunned and was not aggravated or men forgive my language but you can hear in the reporting and the officers also stated this in their interviews bed mister ed says i've got a gun motherfucker that's not it's a stun person saying that that's threatening that's argumentative and again when this case is weird because of how it got to where we are today this is a case of the lack of a better word that initially started at the state court level as a state based tort claim it was then there was an amended complaint federal duplicative case and so that's why there's a volume of evidence that's already been disclosed and press in this case without any of the parties actually having conducted meaningful discovery and so it is a very odd and it doesn't help the fact that scamps order is overturned and it was my understanding at least at the time that mister truly had lost contact with the actual plaintiffs in this case with the appellant and so if it gets sent back do we just go through plaintiff has essentially waived the ability to present that to this court by failing to prosecute her case and by failing to raise that that's not an order as an issue on appeal but ultimately that would if changed a little bit because on their brief page thirty two they want to argue that al rudd kept his right hand by his waistband well his right hand would have been directly in the line of sight of lew god who was no less than ten feet directly in front of him directly squared up with him and he can be seen as the dark figure right behind the s u v when you look at the dash cam video which is twenty two dash seven which is the hope dash cam video and so lou god of all people had the best perspective to know that he wasn't and eminent threat of force if in fact the pelleas claim they were concerned about the right hand while the right hand would have been obscured from the other two officers that were at a ninety or one hundred and eighty degree angle from l right at the time and so never does at the moment of tru the coat go up and under get the gun all in this motion that never occurs it at an attempt to doesn't even occur and you can clearly see that as he's said he's got his left arm on the fence that he's trying to jump into and so the left arm is completely out of place now they want you to believe with the one hand he can somehow do all of this motion to access a firearm that doesn't exist and in any event you can see i've got it screen shot it right here the white hand is almost like of flashlight you can see all the light flashing off the white and against the black and this officer who fired is no more than ten feet away right on em and there's a spotlight on the decision if i get all behind that wall they don't know who's there what's there what could happen and how does it clearly established well number one i would just respectfully dispute a portion of that which is i believe a reasonable jury could find that the barbed wire fence was obviously a fence to protect the property of that business and upon jumping into it he was going to be within a secured still and still focused counsel on the clearly established factor in billingsley that officer lost sight of mister billing or of the deceiving as he jumped off of porch fifteen feet below and then now becomes in a crowd position where the officer can't see in the meantime did he access the gun does he have a gun and he was not wearing clothes that would require this cumbersome movement to try to find something that parents only did those rotate one shoulder he did less than your guy he did but the key is the line of i think again the clothing is critical and the ability to access and the line of sight here there's a spotlight on this individual they never lose sight of him he never goes into anywhere where he could possibly produce a weapon the chain is never broken this officers on him one hundred percent of the time so that opportunity for oh now he's got something never never thomson's another shot in the back case right i believe it's at least one shot here we have three shots yes yes per