morning of me please the court my name is jeff simon i represent officer william thompson in this appeal from the district court's denial of officer thompson's qualified immunity summary judgment motion arising out of an incident in which officer circumstances presented to the officer at the time he made the decision to use deadly force there needs to be an objective reasonableness to that decision and it needs to be a clearly established constitutional right that he violated that should have been given him fair notice in warning that the decision to use deadly force was inappropriate so where the district court erred here is in two circumstances the first is the objective reasonable most of the shooting which turns entirely upon the facts and circumstances presented to judge to officer thompson at that moment now the entire encounter from when officer thompson first observed mr stokes until the time he discharged his weapon occurred in seven to ten seconds it occurred within a confined space in a dark parking lot at three o'clock in the morning on a sunday morning officer thompson was patrolling the parking lot when he received a dispatch overs radio cases where the district court not for some time but early in my in my years at the moment probably recalls we had district judges who simply didn't know didn't like to do qualified immunity analysis and so they did and so we set  back saying not granting qualified immunity but saying do the analysis now why wouldn't that be the prophetess position here well your honor i think the answer to that question is that on the clearly established element which is pure a  don't really know what the district court did it isn't that kind of inconsistent with our limited authority on in there lock you tory appeal for us to go and and supply the facts that the district court never supplied in the first  the district court actually found that there was a dispute there was no dispute effect but that the pursuing officer could not have seen that the victim dropped the gun before the shooting occurred this court went in and examined the record and determined that there was a dispute issue effect that may have been possible for the pursuing officer to see that the victim had dropped the gun before the shooting and therefore it was an issue of fact that had to be regarded as disputed so the cases we've cited have shown many times with this court has been willing to go in and look at those fat but my guess is that those the district court did the right analysis and went through and found what issues warrant or more were and hard to speed it i don't much care we have this year we have a couple of examples maybe one or two i think in the district court's order as to what what facts might be disputed but we don't have we certainly don't have any kind of extensive analysis i agree with that there's a there's a listing in page two of sort of facts that are undisputed  and we believe that even just those those list of undisputed facts given the fact that there is no dispute in the record regarding other key facts about the proximity about the the conduct of mr stokes how he held his hands how he moved how he disregarded commands qualified he would be do not agree right now and then i think it is perfectly appropriate for this court to make that observation i have to find find out from opposing counsel what object of the evidence there is there's all kinds of conspiracy theories in the  find it is undisputed that a gun was found on the seat of the car that mr stokes had just leaned into retreated from close the door and then began to turn in this direction toward the pursuing officer who was approximately fifteen feet away and his hands were still help like this and and could not be seen by officer thompson is and we know it i thought it was his name oh really ali ali where he kept the gun period of time now one of two things giving that the plaintiff every inference which i don't think is reasonable because there is no program of evidence of a witness on the scene who does that but even if you want to give the the inference that mr stokes did not have a gun because cases does not turn on whether he had the gun in his hand at that time or not what we know is that he went into a vehicle retrieved from a vehicle in contravention of command turned and went vehicle and retreated from a vehicle and in that vehicle we know for a fact was a gun now an officer when an officer sees a non compliant fleeing suspect going to a place of concealment like a vehicle and in a situation where the suspect has directly looked at the officer who has a gun pointed at him in full uniform in his issuing commands the officer sees that suspect go into a vehicle and come out of the vehicle turned to reengage with with a pursuing officer and cannot see his mr stokes is moving in this direction officer scrubbers over there the key difference is that officer stop sees mr stokes from the front he can see his hands and what he testifies to is that his hands were beginning to raise two things you can mean surrender or it can mean raising a firearm to shoot at the pursuing officer but the fact of the say and i realize are different views but the fact that that officers viewed the matter very differently that doesn't create some question of fact for they viewed that the facts of what was going on their observations of the individual are consistent their point of view was different which is why in the second or two that officer thompson had to make his decision he saw something very different than what officer stops that they were in completely different locations one could see the front of mr stokes the other could not one can see the hands of mr stokes the defendant in this case could not see the hands of mr s thousand couldn't see his hands correct but he objectively reasonable theory would be he had a reason he had a reason to believe that the gun he saw on the way to the car was still in his feeding that there i agree your honor i see i'm out of time could i ask one more question but there is a counterargument here right because if you have i mean this is why again the district court orders not not great because the counterargument is if the other one if the other officer butin this around during there's also objective evidence that he never warned him said hey drop the guy on or anything like that it from other officers not from him he said he warned them but other officers said he did not so if you have some evidence showing i'm surrendering and you don't say hey drop the weapon that doesn't look good for your client if you believe that evidence your honor if i might officer jones who was behind officer times and did hear verbal warnings given officer straw who'd been running for two blocks in a foot chase and was on the other side of the parking lot to even officer thompson was there says he didn't he did not hear the communities that that doesn't mean the commands weren't given there's no one who saw the commands were not given but  you've hit the nail on the head not surprising the dispute is about one thing this entire interlocutor interlocutory appeal rests on one fact was there or was there not a gun it is it defies physics let alone logic that officer thompson could see a gun in the r hand of mr stokes with the barrel pointed down in light of this testimony from the owner of that gun and this is it page sixteen of our brief ali out lee was with ryan stokes the entire night including in the red monica carlo car ride down to the power light district out lee was the legal owner of the forty  found inside the red money carlo we placed that gun barrel down between the driver seat and the consul he left  stokes did not take it from the red money carlo no one ever went back to the red money carlo to get the gun and ryan stokes never had any gun on him that night and as to ali out only he follows the rules when it comes to his handgun how can the appellant say that officer thompson seeing the gun as as ryan stokes was coming around the car in his right hand how is it that he can ignore the testimony of ali out there that says that gun never left my car that is a contested fact and then you've got a problem here i mean if we focus on the guy he can get into the car and then the gun is left in a different place in the car you know once the police later find it's a back i'm not sure that fact helps you well that that's record evidence that's disputed to you or you just heard an argument that that ryan stokes got in the car he never got in the car that's a disputed fact the car door open and closed within a matter of a second he never got in the car and if you he showed everyone in that deposition how the door opened and closed very quickly and officer jones did the same thing there is disputed evidence in the record that ryan stokes did not watch strawbs from officer strops perspective he thought that ryan stokes was simply getting in the car he didn't think there was anything unusual about it he didn't see ryan stokes as a threat and in fact when ryan stokes was standing in front of officer straw is palm to her face and he was surrendering to this for this purpose though and we'll get to the surrendering point in a second but for this purpose why is opening the door and getting is refuting thompson other than saying well nobody else off well i think that defeats qualified here's what does defeat qualified immunity when you have objective leap reasonable evidence that it is impossible for ryan stokes to have had that gun based on ali al east testimony it never left the car the two were together all night long he knows exactly where he keeps it ali ali works in a munitions plant it's important for him to follow the rules he had a makeshift holster for that gun and he kept it legally in between the driver seat in the console of his car and it never left the car that's his testimony so for this court to now disbelieve ali at least testimony your honor that's the only way you can come to your conclusion that you're suggesting this what evidence do we have to show that thompson didn't see the gun and you tell me not to mention ali outlay well the contested evidence is out lee the disputed evidence is ali out his testimony that dunn never left my car so in order for you to say there's a qualified immunity because no one can contest the court affirmed the denial of summary judgment in twenty sixteen and wallace vs city of alexander amplified what tennessee versus garner has always here if you accept as true which you must that ryan stokes never had a gun the whole not there was no threat and particularly under tennessee vs garner there was no significant and immediate threat if he had no bet and for this court to say we're just going to disregard allie out these testimony altogether it is not a proper qualified immunity analysis and it certainly does not give the benefit of the inferences does not shed the light most favorable on the facts in this case what significance is there if any i talked to opposing counsel on the the fact that the other officer said i thought he was you know i thought he was right or look like he was surrendering and then  also the other officer said i didn't hear any warnings at all as or significance of that or is this really about the gun in your view because that's the point you made from very beginnings is all about the dispute on the guy well and here's why i made that point and then i'll answer your question whether or not had a gun determines whether there was a significant and immediate threat that's why the gun is so critically important if there is no gun there can be never be qualified immunity this case because it's a ten versus garner he's literally walking away from the shooting officer not armed with anything in an entertainment district where they've just shot pepper spray and everybody is running towards correct  correct when he was shot and now to your question a more confrontational  accept the facts in the light most favorable to the plaintiff he was unarmed the crime that was he was accused of was a low level property crime of stealing a cell phone they were in an entertainment district where pepper spray had been sprayed into a crowd to do what reasonably perceived to be armed was not in this case there is no objectively reasonable evidence that he was mistaken if there is no gun you cannot make that argument if there is no gun well let's let's get off the gun to go back to the surrender and that and that commands point because i want to know how that plays and with and without the gun so assuming you know he saw the gun how does that play and the qualified immunity suppose there is no god how does it play if at all all right so from a number of different officers perspectives including officer jones she said she heard one command which was get on the ground officer thompson and you can listen in his deposition how loud it was says he says between five and ten times show me your hands and drop the gun those aren't commands that officer jones even heard and it is reasonable to infer from that evidence that what she heard was get on the ground after the shots were fired not before officer straw and his testimony page ninety one line seven through twenty one officer strub says i never heard any commands officer strawbs was only twenty to twenty five feet away from officer thompson when these loudest command voice commands were given by him to ryan steps officer vilifying who is toward the south and to the more to the south of where ryan stokes is located says i never heard any commands so the issue of commands is squarely disputed by the ever what about surrender so there's going to have a very different situation if he's got one saying he has his hands up versus having if he had his way from being a perception that if surrendering so what about the whole surrender point i think that what you have to presume from the facts in the record is based upon what officer strawbs said because he was in the best position to see he believed that ryan stokes was about to surrender about chest if he can see officer strawbs chest it defies logic that he can't see the man in front of him holding his hands up i see that i'm out of time if you have any other climbers one more time back to the the thing about that is if you believe ali out least testimony that that gun never left his car it is impossible for thompson to have seen a gun at all at any time if we  that's a question for the jury your honor because the reasonable inference is there are two possibilities not one two i know they made a lot of hay about this in their brief and i even heard your honor judge loken talk about conspiracy theories it is a reasonable inference when a police officer after he shoots and kills somebody gets inside the car with his flashlight that's the record evidence that shooting officer got inside that red m car with his flashlight against police policy the police policy which this court can consider according to the recent cases is is standard operating procedures and police departments and officer shrub said there was no reason for officer thompson to get inside that car so the two possibilities are to have it mr thompson's way officer thompson's way ryan stokes put it there but a reasonable inference is that officer thompson found the gun this brief i believe in conspiracy theories they do happen there have been many misstatements of the factual record that the court will be able to to assess when reviewing the transcript of mr mcallister statements i'll leave that be we cite you cases the billingsley case from omaha in which  suspect was shot in the back an unarmed fleeing suspect was shot in the back from a deck of a home the suspect was in the back yard he had no weapon the officer never even claimed to have seen a weapon the only issue neck case was the officer couldn't see his hand and then and the victim began to rotate in a manner toward the officer of the officer shot qualified immunity upheld the thompson case which actually judged wellman who wrote this was from pinal on missouri where the officer chased a robbery suspect down an alley the suspect jumped over a wall turned it in an aggressive matter the officer couldn't see his hands he was shot in the back he had no gun in the local case a drunken man was coming toward the officer the officer was being told he had no weapons he was raising his hands in surrender he was shot he was unarmed qualified immunity the plaintiff is focusing on the gun because it's all they have but the get the qualified immunity does not turn on whether the gun was in his hand or not because all the other objective the question is was officer thompson's conduct objectively reasonable without even without the gun in his hand his conduct is consistent with billingsley thompson luck and many of the other cases we've cited second point you never heard about clearly established this was the plaintiff's opportunity to point to a case that said that all that with that established beyond debate that only a plainly incompetent officer would have shot in the situation that officer faced not only did they not cite you to any such case they didn't even attempt to distinguish the three cases i just cited which are clearly factually analogous which found qualified by lose the ties let's suppose no guy yes is about to surrender to it for a moment i am out of time testimony they both testified he leaned into the car crouched the car he sees the suspect who's fleeing go into a vehicle come out he cannot see his right hand under those circumstances i think it objectively reasonable officer could be concerned that he retrieved a weapon from a concealed concealed place and then began to reengage with another officer of that does that that's right and he did but if you want to give the plaintiff every inference going into a vehicle returning and reengaging with an officer with the hands not seen is is is a is a much better qualified immunity case than some of the ones we