ok when you're ready good afternoon your honour's may please the court lois go back for test a police officer very out this is a tragic case there's no question about that but officer via real was required to make split second life and death decision what were quired him to do that so it looked to me as though he was the initiator the fact that mr herrera first of all he had been acting erratically before the shots were fired he kept his hand in the front pocket of his before officer me alys car blocked his view of mr herrera so he saw him on the shoulder of the roadway with his hand out of his pocket then he saw him when he moved in front of officer me alys car out of of relative safety into the roadway he saw him skipping and running backwards in the street all the while i mean if i have to say what you're saying is inconsistent with what i saw on his own camera that is to say the point at which he began to get close enough to see anything some of the earlier stuff was on the other camera but not on his i don't know i don't recall at one point his camera was was turned on this camera surprised his camera was turned on well before he got to the s he testified in deposition that he could he saw mr herrera on the on the side of the road and then he saw well he can just averted what he wants to help testify to but i want to tell you what i saw on his own camera tell me that the earlier part of this he did not see could not see i understand your point your honor he certainly was able to see mr her in the street oh sure ok saw him with his hand in his front pocket he saw him and he he knew he didn't start in the street so he knew he must have come from somewhere but he had his hand in the front pocket of his hoodie he was acting strangely and he was he was skipping backwards in the street he was running backwards in the street  then as the officers moved to box him in the moment at which he had to make his decision at the time that he ordered mr herrera to take his hand out of his pocket or to show his hand his intention was once the hand was out of the pocket presume assuming that mr her had calmly stood where he was and moved his hand out of his pocket his intention was to put mr herrera into a control position to get him down on his knees or down down on the on his stomach handle your pocket and i hear the gunshot almost simultaneously exactly they cannot be separated by more than a second and that's exactly the time period when officer virile had to make his decision before he was asked in deposition what were you going to do when you asked him to take his hand out of his pocket well i was going to i was going to put him in a controlled position that's what he intended to do so he's taking his hand out of his pocket yes and as he's a ba officers command he get shot but it's the way that he does it your honor he didn't just stand still and take his hand coming out of his pocket as soon as he began to take his hand out of his pocket he also moved quickly toward officer  the front windshield the front passenger window of officer veer reales car and brought his hand up in an arc in motion that's when officer very al had to decide is he doing this peacefully or does he have something in his hand that could be a threat to me and it's my life and well right here a fraction of a second well don't we have to view that are you know view this in the light most favorable to the to the plaintiff here i mean and so if we do what you just said right now offer two possibilities peaceably or he did it in reaction so i'm just struggling with in light of the standard that we have here her mr herrera was arguably complying with officer vi order to remove his hand from his pocket at the time that he was shot so if that is the  case how is it that we determine that we should grant qualified as a qualified immunity allows for police officers to make mistakes and allows for the possibility that officers will make mistakes in judgment and that's exactly what happened here officer very out had a choice to make do i wait and see whether there's something in the hand that could kill me or do i shoot and he made the decision to fire we know with the benefit of hindsight obviously that that was what is it  officer me allie was facing from from his point of view he saw mr harris back not mr herrera's front so he couldn't see any testified in his deposition that he couldn't see mr herrera's hands as they were coming out of his pocket he also if he had fired he would have fired toward an apartment complex officer viri allfired toward a block wall officer very allfired didn't fire in the direction of anyone other than mr herrera mr malley would have had to fire potentially in the direction of in the video as you can see that there are other cars so there are other people that could have been hit by a by a bullet from mr from officer me al s gun but aside from that your honor the standard is whether or not it was a gesture of reasonable whether reasonable whether or not every reasonable police officer faced with exactly the same search circumstances that officer viri outfaced would have concluded that firing under those circumstances would have been a violation of the fourth amendment the fact that one reasonable officer decided not to shoot and his circumstances are slightly different but the fact that one person decided not to shoot doesn't mean that it wasn't objectively returns i think officer feeling ouch i guess the issue i'm having here is that these are arguments in my mind for a jury that certainly you can lay these out but we're a very limited scope the adrenaline not him you have to lay out take their facts not the facts as you want you want to get a stick with their facts explain why under their facts you want as a matter of why agree your honor and right now with all your facts as long as stick with theirs as long as the historic facts are undisputed the question of whether or not officer virial is actions were reasonable is a question of law it's not a question that you give to a jury because we don't want jury second guessing the very very difficult decisions that officers have to make i agree but at this stage again this is not an argument to a jury it for us to have even have jurisdiction over this case right at this stage we have to accept their version of the facts so you need to explain under their versions of the facts why  disputes that that mr herrera was acting erratically no one disputes that he was skipping backwards in the street that's very strange behavior nobody disputes that it was almost simultaneous when officer viri out or directed or ordered mr herrera to remove his hand from his from his pocket that he started moving toward officer various car and then he had his hand reasonable well not just those facts officer of the area around knew that officer that mr herrera hat was a suspect in a domestic violence incident he knew that it that he had gang affiliation that he was on parole that he had a warrant out for told officer via reale an officer me allie that mr herrera was not known to be armed but that's not the same thing as saying he wasn't armed if the if if they had gotten a call that said through dispatch that's but he's not armed we know for a fact that he's not armed this case might be different but they were told he's not known to be armed his behavior certainly gave them reason to suspect that he might be our doesn't our opinion  suspects hands saw him move his arm and was worried he was going to shoot her but yet we affirm the denial qualified many in part because the suspect had not brandish weapon or spoken of a well i do recall that case your honor espinosa vs city and county of san francisco yes i think that one of the things that the court said in that case was that there was a dispute about the historic evidence some of the officers argued or said that one of the things that they believed gave the mexican circumstances to go into the house and go into the attic was the fact that they saw a bloody shirt and some of the officer said it looked like fresh but others the other officer said it looked arguing that it was an ongoing you know mr vice president i'm going to testify once incident but he was they were they were investigating he was a suspect in a domestic violence incident in which he was it was reported that he hit somebody on the head  that was the purpose for stopping him and at the scene at the time they knew that he was on parole that there was a warrant out for his arrest that he had known gang affiliations and all of those things factor into am i am i afraid of this encounter or do i think that this is going to be a perfectly safe encounter and everything that they observed a lot of the things they observed heightened the heightened the the situation to a point where it was objective lee reasonable for the officers nobody disputes that for example that it wasn't objectively reasonable for the officers to have their guns out they were going to do a felony stop domestic violence under california law is a felony so they had their guns out there's there's some question about whether or not there were other alternatives available well in the split second that that decision had to be made he couldn't put the gun down and pick up a baton he couldn't put the gun down and pick up a taser assuming that officer gear reality and had a taser i think there's testimony in the in the record that he didn't have a taser available to him he had to he had to make a decision based solely on what he knew at the time and it's easy for us to sit in hindsight and say well mr herrera didn't have a gun mr hurd didn't really doesn't i don't think anyone here said that one time no  i think what we're focusing on again the the narrow standard we have to deal with here and and that's that's what we're dealing with this is not a jury trial is not summary judgment a very limited thing no one's talking no one has raised about the back you've never done i well then that's not what we're doing right now i have worked with is not trial court part two this is a very limited in my what we have to do i understand your honor i'd like to reserve a minute half or so my time but i'd like to just briefly respond hear from the other side and you will have some time thank  you good afternoon everyone my name is dale italy people and i'm representing we're speaking on behalf of the pelleas and the plaintiffs in the underlying case i i think the comment made a lot of the arguments we believe they're being made here are more appropriate for a jury because in this case there are a host of undisputed facts that we actually think favor the finding of the district court judge and there's other facts that i think are either disputed or they're entitled to different reasonable inferences and as i think was pointed out for this limited purpose of today's hearing one has to take all the plaintiff i think you could say suspiciously kept his hand in his pocket and that the officers perceived a heavy object in the pocket that's first part yes second part a little less clear removed his hand and moved quickly it seemed like toward the officers car why isn't that enough well because sticking on the undisputed facts the officers had no information that any weapon was involved in a crime they were specifically told he was not known to carry weapons they were he responded to a command he was given a command he has a hand in this pocket and he was giving a command to take show his hands or take his hand out of his pocket the officer was asked what was your intention i wanted him to take his hand out of his pocket he took as one reasonable inference again this he took his hand out of his pocket in compliance with the command of the officer when he took his hand out of his pocket he had nothing in his hand in other reasonable inferences that the officer could see that he had nothing in his hand before he fired his shots officer and what do you officers entitle to a reasonable mistake and that's the end of the analysis i think for purposes here one has to look at the facts supporting the plaintiff's version and then decide whether one can say as a matter of law that the shooting is justified under our version both hands were visible and he had nothing in his hands and he was shot twice in kill we specifically asked to be asked the officers about their training and they conceded which is included in the cites in our brief that deadly force is a last resort only to be used in the direst of circumstances or only when no other reasonable measures are available and that a warning that deadly force to be you should be given one practical officer my equally based on his training said i i was watching very carefully and the last i saw gun come out of his pocket and point in our direction i was not going to shoot i saw its hand come out of his pocket i saw nothing in his hand i did not shoot and so we believe if one takes all reasonable inferences in our favor one could say he was complying with the command of the officer he took his hand out he had nothing in his hand both hands are now visible with nothing in him we believe that's a don't shoot scenario and even if one could argue as counsel did well this is happening quickly offices are in a position to make difficult decisions we believe that's a more appropriate argument for a jury it's not an argument that lets them prevail as a matter of law and we believe the district court got this right when she really carefully looked at this and decided this is really a jury question some of the other things that i think were mentioned were that the officers bo in and we believe that played a part in the dynamics in his movement it was also noted that he didn't take his hand out of his pocket in simulate a gun or pointed at someone as if he had a gun and so you know i made a list of some of the undisputed facts and that would have made a difference if he made if he had made now if if if it looked like he had a gun in other words if the officer would have testified if the evidence was clear that he pulled that object out of his pocket everyone thought it was a gun and looked to be pointed at the officer maybe it's different but in here you know when you ask the officers when you saw the hand come out of the pocket did you see any object in this hand no did you ever see a gun in any time no did you ever see anything that looked like a gun at any time no so we believe that's what makes this case different and i think if this case hopefully is set to trial both sides have good arguments to make to a jury but we think the jury has to decide these disputed facts have to decide the inferences that can be drawn from these facts and ultimately decide whether they think the shooting was excessive or not part of our further argument as we believe the jury could find that officer my only after more reasonably by not shooting given his observations and testimony than the shooting officer did and i think a jury can conclude that his decision not to shoot when he saw the hand come out of the pocket with nothing in it was a more appropriate decision i don't know if any of you have any other questions for me right now paying verses paying hugh two thousand and three night circuit case three thirty five f thirty nine seventy the court said that when the historic facts are undisputed and the only dispute is the inferences that can be drawn from those undisputed historic facts then and this was a probable cause case the question of probable cause is a quite is a question of law for the court to make we jury should not be put in a position of second guessing whether or not an officer acted in a reasonable manner or not the only province of the jury is to decide the undisputed facts and i would submit that we don't really have any material undisputed facts in this case we can see what happened on the video kelso we have jury trials in this all the time and the police officer will bring in their use of force expert and mr gottlieb will bring in his use of force acts were to talk about what should have happened i mean juries do make determinations that they're not making determinations on qualified immunity and the court you mean so depending on the jury the jury has to decide whether or not there's been a constitutional violation and a trial the jury cannot say here officer you're off the hook because you're qualified immunity that can't be right it's my understanding that quote the application of qualified immunity is a question of law well it is a question of law on undisputed facts or facts taken in a favor of the of the other side but i've never understood it to be outside the province of the jury want to go to trial where they just say that the officer does not have qualified immunity the jury has to decide the underlying credit i understand but i think i think i'm arguing on your point if we send this back i don't think you want to say qualified immunity is no longer available to you at trial absolutely not well i think that's what you just said that's why i'm saying you know that was not my intention and if the jury were to return a verdict against officer your reality i think that he would have the opportunity to file a motion for judgment notwithstanding the verdict on qualified immunity we're just looking right now on the undisputed facts in the light most favorable to the plaintiff whether or not  inferences that can be drawn from those facts are differences of opinion and what can be drawn from those facts then we may or may not be able to make that determination as a matter of law you when it goes back to trial if that's the result here can certainly argue to the jury why officer viale should not be held responsible and forth that he should be immune from this i don't really based on all the facts that are presented i agree with your honor that if this court finds that there is a disputed material fact relevant to the application of qualified immunity then the case has to  the the district court's decision has to be affirmed i think that on the record before the court the videotape evidence that position testimony that we have shows that mr herrera's actions officer actions are not in dispute we know what happened and it's just a question of whether or not a reasonable police officer knowing the same things that officer heriot new would have felt justified in firing you know this is a question that's off t one side from the merits of the question we are now being asked to decide so i want to make that clear but i would like to know if you can answer this if everything goes bad for your client that is to say if we send it back if the jury says no hall of i mean again if the jury comes in with an award of some amount of damages will your client pay those damages out of his own pocket or will it be paid by his employer it should be ninety nine