good morning may it please the court my name is james told byrne and i represent crisper rhona who is now a retired member former member of the bridgeport connecticut police department this case is about split nd judgments that police officers must make in the blink of an eye life and death decisions in circumstances that are tense uncertain and rapidly evolving it's a case about graham v connor in tennessee v garner and it is our contention with all due respect that the district court erred in its application of those two presidents from the supreme court don't you have to argue to us that there is no possibility no way in which the officer in the gun on the ground it seems to me that what you're arguing are the facts of the case to those which are in dispute with all due respect you're i may be right in a jury make certainly come to that conclusion conclusion you're suggesting but to say that there was no evidence that upon which the plaintiff could make make a case it seems to me a little bit difficult to swallow given given the care of the judge why are put into this case and looked at what it looked at the actual ev with all due respect judge walker we respectfully disagree because the entire incident as it pertained to chris perona occurred in approximately eight seconds yes and what is that what we have as the district court properly held clear as day probable cause for the st shot absolutely because detect that's not in dispute go ahead well the nd well the only way you get to the conclusion that the district court reached judge walker is that the nd shot was impermissible was to hit pause on the video and replay and break it down frame by frame and that is not what graham v connor mandates graeme's economy and dates that we do not look at these life and death decisions in it with two thousand and twenty hindsight with the benefit of monday morning review but if you look at that if you look at the picture you see the gun on the sidewalk and then if you look at it and there are also pictures of your client during this admittedly very rushed sequence looking down at the gun so couldn't a jury find that you know the officer before far and the nd shot saw the gun again with all due respect judge parker the only way that you are sitting here today or able to reach that conclusion is by hitting pause and replay video disagree he just watched the three videos and you see the rifle go flying and then you see a nd shot being taken and it's i found it impossible to make my own judgment if i were the fact finder about who's a weathered your client saw the gun or didn't see the gun and also heard the gun or didn't hear the gun and this is you know important matter a man died as a result of that nd shot no one's disputing the probable cause as to the st but it seems to me that this i don't understand why a jury couldn't find one way or the other as judge walker and judge parker are pointing out i don't have to hit pause to be uncertain about what your client saw or heard again judge carney with all due respect you have indicated again that it's based upon a review of the video but when you look at what happened in real time in those eight seconds it is not in keeping with graham v connor or tennessee v garner to say that the lethal frett threat presented by mr stooks when he waved the rifle in detective barone as direction after detective barone i had just seen mr stoops on a public street menacing anthony davis with a rifle if that  st shot is permissible and then a nd later detective broner loses sight of mr stoops as he rounds the corner which it's undisputed that is what happened then it can't be the case that the nd shot in that dynamic event is impermissible you're here you're listening to things too when you look at the whole context i would want a jury to make that determination with all of those situations in in mind i think you and i don't understand how you can rule it out in which you're basically saying it all happened very quickly and so the nd shot has to be given that leeway and your client's to be given leeway with regard to this absolutely judge carney and that is our dispute with the district court's best is whether it's possible it's possible that he could have seen the gun on the ground and and if it's impossible to rule that out i don't think you need to reach that judge walker why under tennessee v garner if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm deadly force may be used to prevent escape there's another point that i wanted to mention what do we make of the fact that your client gave a statement and after the shooting that he fired the nd shot at the victim who thereafter drop his weapon stumbled and continued to run west in other words that he was actually holding the weapon not that he didn't see it on the ground but that that that the victim was holding the weapon when he fired the court didn't rely on that i'm not saying it was intentional i'm just saying that he remembered it differently and he remembered it contrary to the video he did insist with the video he did your honor and i would concede that perhaps that in ca prior inconsistent statement it wasn't relied on by the district and it can be explained in that also could be evidence of of consciousness of wrongdoing i mean if there was a trial respectfully entered for that i'm not saying it would be think i personally happen to agree with a lot of your arguments as a practical matter were the case to go to a jury you know it's fast everything happened quickly he was a perfectly you know he was trying to fulfill his duty as a public citizen and as a duty policeman all sorts of positive things can be said about your client here but that's not the issue the issue is whether it's possible that he could have seen the the ground i'm not sure i'd phrase it that way your honor the law requires that we look at this from the perspective of a reasonable officer in that situation and at the time that detective barone a fired the nd shot he is entitle to that leeway that he reasonably feared in any reasonable officer would have feared that there was a threat continued by mr stoops either to himself or to the public at some returns money isn't the issue we're going to know reasonable officer would have done that the question we should ask is can you say no reasonable officer situated as this officer would have used that action so if any if any single officer anywhere would have fired the nd shot then detective barone is entitled to qualified immunity that is what this court held in machette which was a i'd like to just comment on that briefly that was a case in which the district court in connecticut found there was a question of fact and denied summary judgment based on qualified immunity to question was whether a deaf child could have perceived a taser warning from an officer the this court reversed because in some frame the question that as follows quote we stayed with the gun and wouldn't have shot him a nd time now that is directly contradicted by the written statement that he gives in this case where he talks about i saw  probable cause of the nd shot is that right well it's one of the things that we have a motion to dismiss that's pending on the interlocutory appeal because that's our position they're not accepting our version of the facts and our version of the facts are that he knew  of those situations where a jury is in a better position to make a determination about what factually happened it may very well be that we lose it may very well be that the defendant loses but there is sufficient  dispute about whether or not he knew that the gun was dropped at the time of the nd shot and in that context and the other thing by the way is the corner is  i think the reality is that this is a situation where a jury doesn't need to decide because there's efficient dispute thank you thank you familiarity with the fish market he had been involved in another incident there where he took a thirty eight caliber pistol off of the subject who had engaged in a robbery spree this is at a five o nine hundred excuse me just one second but are you disputing that your client what your adversary's said he's reported i think she's correctly indicated his testimony but he also testified that he reasonably feared for his life at the time that he fired and again this goes to that we don't he didn't have an opportunity with the benefit of two thousand and twenty hindsight after he'd seen the video to take back what had happened it happened in eight seconds less than it took me to introduce myself today and so i would just dispute the idea that he didn't fear that mr stooks still posed a threat no one has no one really has a better understanding of exactly what happened in your client what are we to make of contradictory statements from him about this experience that's human nature i would suggest how to help me understand yes judge parker i would suggest that simple human nature that when you don't have the benefit of seeing the video before you prepare a report even before his testimony was he hadn't seen the video i didn't represent him at the time he testified doesn't come video it comes from what he witnessed and in a dynamic event like this your honor where two shots are fired within mere seconds it all happens in such a chaotic fashion that you stand there and i figured out saying that whenever two shots are fired within seconds that the nd one needs to be excused and it's always supported i mean here we have a dispute as to the essence of what was known and the reason the nd shot was taken no i'm not you are in very specifically there's two with the why should qualified immunity apply at this stage of the specifically contemplates the situation that if there is a dangerous fleeing felon and the officer reasonably harmed yes your honor that is if a person is on armed and running running away you can shoot him in the back shots but the testimony was the officer only fired the nd shot because he was trained to always fire twice ok very good i see my time is arguments that may not may i just i think i think we have your arguments thank you very well equipped thank you as thank you judge