was entered by the district court in this case finding that there were no violations of the fourth amendment based upon fact no material dispute the facts according to that judge and yet the fact this case are simple the defendant who had turned his back on twelve police officers and raised his hands was shot from behind by the defendant in this case at the time of the shooting he had nothing in his hands he was thirty feet or the distance between your honour's and these tables at the  time shortly before he had the only thing that he could possibly have had his hand with rosary beads but the plans that sit on the tables of these were you can see them and in the bright arizona sun he could see that the man that he was shooting was not armed he also had been participating in seventy minutes of a chase where he had driven throughout the town and of course that le to time and time again to pass a certain house and during those seventy minutes he had not fired a gun once he had not been seen to have a gun he had on one occasion held a wallet and tried to pretend he had a gun he said to a number of people that he had a gun but during the seventy minutes there's no evidence of the ever used it when he drove he drove with one hand out the window window often times he drove irresponsibly but he did not crash his vehicle and then he won at times when he was surrounded by police cars he drove an intricate manner that avoided all the police cars and he just kept driving and he said you're going to have to shoot me your i'm just going to keep driving and at the very end after the car had been disabled so that his driving was no longer a factor he got out of the car and one of the sergeants yeah non lethal non lethal mr long gloria assumed what they call a shooter stance in the direction of deputy rincon and the effect that that would have on his perception of a threat yet and his split second decision to use lethal force under those circumstances well if exhibit fifteen to the defendants is an enhanced video that it's a little misleading because when you break it down slowly enough so that you can see the second by second what's occurring there is a time period starting where he gets where rankin gets into position and at that point miss he has one of his hands behind his back that's what some people might say that he's holding up his pants other people might say he could be hiding the gun other people might say that he wants to die and so he's hiding that and for that purpose but again you have a  but then he begins to get shot and so it was the factual disputes well the factual dispute is the inference that you derive from that fact just having his hand behind his back mean that what does it matter what's going on in his head what matters is what a reasonable going to hire the weapon or he was doing it is why does that thought process make any difference because it's not like in cartoon land with loons over the head telling the officer what's going on in the suspect dealing with just we're dealing with seventy minutes that this is the final in the end of that seventy minutes but at one o'clock or one minute one i'm sorry i don't think we're communicating here you are for three options of what he might have been thinking the reasons he might have had hindsight and i'm asking you what difference does it make which of the three things are true was going on in the suspects head and why does it matter why he it was obvious that previously he put his hand behind his back with the wallet there in order to get shot so within the context if the if if ranken had heard he's got a wallet on the previous occasion then he should be given a context of what  seeing right now because he drives around for seventy minutes again if he wants to be shot all he has to do is pull a gun out pointed an officer and he's going to be shot ok back to the as he let me just stop you you haven't answered my question about the stance yes so the question is of on the video you can see and i know you said it was enhanced but you can see a moment when it does appear that one could reasonably interpret his pose to be a shooter stance and i isn't that  enough to create a reasonable fear of the officer of possibly being shot and therefore the need to use lethal force thank you ron great question but when he starts getting shot and his hand comes from behind his back in his is basically his arms are flailing because he's being hit by four separate beanbag shots they can see that he doesn't have a gun the rosary beads come flying out of his hand and at some point again if you take a still camera and take a picture of one of those things in front of a car dealership that's arm flat flail around eventually you're going to see something that is going to look like a shooter stance if you just parse that apart it's tenth of a second when he brings his hands up like this and again it's from twenty two hundred feet away down the road you don't get any depth perception you see that he puts his hands in front of him and then he turns his back to the to the police and puts his hands up and so he has seconds to be able to look at what the fact that there are no gun there is no gun in his hand the only thing that can be considered to look like a gun is the rosary beads which come flying out and at the time that he goes like this he is thirty feet away and can see that he doesn't have a gun and then he turns and puts his hands up and unless this court is willing to make a finding that is a matter of fact if that point nine seconds you begin to put your arms down and at zero seconds when they shoot that you've got your hands up that that is that that is inexcusable event because psychologically or physiologically that people can't change their mind or stop themselves from shooting that would be a finding of fact it's not been in this record so you're saying it's a factual question even as to whether or not a souter stance occurred is that right because you can't see that you can't see within the context of what's occurring whether or not his hands are like this or whether his hands are somewhere apart but two hundred feet away from behind from the i phone that's bouncing up and down whether it's actually a shooter stance you can see those arms are in an say that he could see he didn't have a gun he's just jerking around because the beanbags and not having a gun and pointing it at someone is certainly not enough to justify the shooting but then he turns around and puts his hands up and when he shot his hands or raise any presents no danger to any of the officers including the officer who shot and it's somewhat relevant that there are thirteen officers and there is one person using deadly force everyone sees the same thing you know if we have twelve jurors we have twelve people who didn't shoot when they saw everything that the officer saw so we believe that those are  some evidence that the other officers kind of doctors flinched when he was assuming that what the county is calling the shooter stance there are there you can see two two or three officers react but is that what the reacting are they reacting to the to the beanbags bouncing off them you can see those at different times he turns to them and looks at them directly he's in that general direction are they reacting to that a jury can take a look at that they can certainly we can certainly lose this case but we've seen in the jury when a jury trial you mean that's actually yes a jury a jury can look at that and they can come up with their own conclusions as to whether or not we should when i'm saying merely that the people that were flinching is one thing firing a gun is another there are a number of facts which are inferential the fact that if we have a person who is facing police officers and there's twelve of them over here if officer rank believes that this man has it gone and is going to start shooting and that these twelve people all have guns and are going to be shooting back the jury can infer from the fact that runs behind him to get over to a position where he can shoot and be one of the shooters they might assume that maybe he isn't so worried about this fellow having a gun having been there when he's used a wallet in the past he's been there listening to the seventy minutes of this unfold and and we believe that we should have that opportunity because it is a factual issue it's an intricate factual issue that's based on the totality of the circumstances in a rapidly evolving situation but one that continually shows the officers who are paying attention and he was the person it was supposed to be listening to the radio when they announced that there was a wallet and not a gun he was the person who's there when they're selling yelling less lethal less lethal and then they start firing beanbags al you're not saying that you that the record shows that he heard the less lethal are you or were saying were saying that a jury could find that he did but we are precluded from doing any discovery on the other on the other witnesses because the judge good morning i'm nicholas a sado and i'm arguing today on behalf of the apple these crews versus city of anaheim this court said it would be unquestionably reasonable for a police officer to shoot a suspect if you reaches for his waistband or makes a similar threatening gesture how you're characterizing what you saw in the video correct that's correct you're describing what you saw and then you're concluding that it was a shooter stance we don't isn't that ultimately a factual determination as to what that meant that's a label that is just a label sooty a shooter stance or shooting stance is just a label but it carries significance because it suggests a conclusion that at that moment mr long gor presented a lethal threat to the officer isn't that what you're saying now what's significant here and what is the material point is just simply the threatening gesture and as mr robbins just got up here  demonstrated himself he admits that the video shows this much at a minimum and whether mr korea was intending to strike that pose or whatever seeing whether and also just taking a stance like this with nothing in your hands when they seem to justify shooting deputy rank you didn't have the benefit of sitting behind the bench staring at what was less lethal at that point you can see that the rank in the background still running to his position there's no way he could have heard that just like a test of our testified that he did but it's back to your point of view in my believe in germany i think that's not i don't me put it this way after he was hit with the being back around at that point he turned towards the car door and reached down and did this that's all that matters in that one second in that one second before jury viewing that video could make could reach that conclusion because there is a break and there's a distance the distinction between him reacting defensively and then him moving making a move towards the vehicle and then him reaching down  that's point one point two whether he was reacting whether it was involuntary which by the way there's no evidence that this was an involuntary reaction let's say that it was that he was just reacting and he didn't intend to do this gun i would i would think i see it and i don't even have perfect vision so the question is can you stop pulling the trigger under for visibility so i mean night is different you know the happened and you know i i mean this is not i mean this is been going on for over an hour or so and i mean i i know i'm you know i don't know all of our cases of top of my head but do we have any case saying you can use deadly force without identifying an actual instrument of deadly force actually three cases in the last three years by this court in situations very similar to th a situation where there was a drug deal an individual walked up to an undercover police officers a man and he went like this one foot away from the officer's face turned around five shots were fired in a span of three point three seconds and took the shooter stance the ops or the court held that the officer reasonably believed that that was that posed a threat of harm even more recently area versus city of los angeles the suspect was holding a cellphone same situation  are you saying the facts also included the person turning around and putting their hands up in surrender and then being shot now well know another case that shreveport was a situation where he had a cell phone took a shooter stance and then was ultimately shot in the back it wasn't a hands up situation well this was a hands up situation and it all happened in just a matter of seconds or fractions of a second and so isn't that part of why one might consider that a jury question as to whether or not the officer did have enough time since only seconds were elapsing to assess the situation before he fired because it was only a fraction of a second before the person surrendered and put his hands up signaling the officer that there was no threat well one of you is that he was putting his hands up in surrender but the call this is after seventy minutes of him telling police that he had a gun that he was he's standing there he's standing there and then is shot if you pointing to the video that that slowly it happens in an instant there's enough time for him to stand with his hands up before he falls down right in the evidence is it only takes three tenths of a second three tech a tense of a second going from the shooting stance to turning around that's a split second and underground that's the that's the amount of time that we're supposed to afford officers when analyzing use of force we're talking about split seconds and it took deputy rank in a second two to perceive process and react and it only took three tenths of a second for long gauri to turn around we were talking that fast and under those circumstances to get under tennessee versus garner he only had to have probable cause deputy ranking only need to probable cause that there was a threat of harm to this movement for whatever whatever reason he was doing it that was enough and i think if you go back and look at our non electronic exhibit number three which is the enhanced i phone video is actually more properly referred to as a stabilized i phone so it takes off the joggling and you can see it without any any any movement is making to some degree is how fast this was happening and that's why part of much of this all of this perhaps is a factual question as to whether or not and light of how fast it was happening it was reasonable to perceive a threat or it was not reasonable person to perceive a threat and whether it was reasonable to think that there was a time to pause and wait until it was clear the person had surrendered or whether it was not reasonable i mean isn't that what we're dealing with here is a fast moving situation with that we do have some video evidence of that is very hard to assess as a factual matter because it's a fast moving situation that is why we have to get deference in these situations not to decide whether there was enough time an  officer doesn't have to wait just wait to confirm whether he's in fact holding a gun that would be dangerous it's dangerous that's a game of chicken if that were what this court would hold he'd be telling officers you got to play this game of chicken and guess whether or not in that split second he's holding a weapon or not but they don't need to confirm that there just has to be probable cause and that's what we're looking at the cases that i cited date versus dam a sack versus interest auto area and all of those this is the exact same situation it all happened in matter  this actually happened in a fewer amount of time in a less months and less than a second corrales occurred over three point three seconds and yes the fatal shot struck him in the back but if you go back and look at the video something else that you pointed out earlier judge was the other two officers in the same area ducked and if the standard here is what a reasonable officer perceive that as being a threat yes but let me  officers didn't shoot either and they were closer well they could see what he was doing and they didn't shoot shouldn't we take that into account shouldn't a jury have an opportunity to take that into account but i think  cool and kept his shot and kept his line and and did the right thing in this case i can't speak for the other officers i don't even know who those other officers are but from deputy rankin and just because they didn't pull the trigger doesn't necessarily mean that there wasn't probable cause that he posed a serious risk of harm everyone had a different perspective officers line straight up there were there were officers that said that that he made he made that movement towards the car reached down so so  it's not just the video the other officers have corroborated this threat and at a minimum i'm almost out of time but at a minimum if you look at cases like s b versus county of san diego and see versus city anaheim where they said that ok maybe there's there's issues of fact on whether or not the risk of harm was there because one of the movement threatening enough in both of those recent cases to in the last year this court afforded qualified immunity to the officers because under those precise circumstances they gave him the benefit of the doubt and this port a minimum give deputy rank and the benefit of the doubt because his in these circumstances it was even quicker and under under more tense rapidly evolving circumstances because of the minimum thank you very much this corps has the luxury that we haven't had until recently of being able to have a video to look at and when you look at exhibit fifteen to the defendant's index of exhibits it is the enhanced video that they talk about and at one there is a tenth of a second where whether they're together because of the perspective of the i phone down the two hundred feet down the road there there are hands  of a second and then they start to go down at nine tenths of a second and then he turns and his hands are up when he shot but not in the defendant's video because they understand what they have to do to really make this case is not have an instant like if you catch something freeze frame up there is the one that that we can use you have to take the whole thing and that's why in their video when they turn it into slow motion at one it stays like this you know you can see that the hands from the side in popal are together and it stays there for five seconds in slow motion so it looks like he's standing there for a long period of time not just that tenth of a second that it takes in the actual video with the timeline they have to freeze frame it because they know what the problem is with this case the guy's getting he hit with bean bags he's flopping all over the place but for seventy minutes they've followed him he's never fired and he's made it clear that he wants to pretend like he's got a gun but he doesn't have one he might have wanted to a static got something that looked like a gun but his actions don't we speak someone who is trying to injure people on purpose and they don't justify the shooting in this case one of the officers actually yells he doesn't have anything and at that level when you're dealing with those facts with over a seventy minute period of time when are you saying that occurred that he said he didn't have one thing it was it was before the shooting but it's still in that general time period but what you're dealing with here is where he can see what's going on with in front of him it isn't dark it isn't quick he's standing there getting fired at but there's no indication i mean if you make the defense counsel makes this motion you can see the video for yourself it doesn't support the decision that was made and you shouldn't ever when they say hands up don't shoot out on the street it's for a reason thank you thank you careful thank you both the case will be submitted