minutes you're on if i may you may proceed right this case is a fact intensive case that involves the unconstitutional shooting of an unarmed five foot six emotionally disturbed incapacitated by position individual who at the time he was shot did not pose a threat to the deputies or anyone else based upon his positioning i think i'll start off by addressing the question the court asked me seems like a good place to start the court was the question i received was whether or not this case should be reminded for an analysis of deputy responsibility and i would argue to the court that it's not necessary for two reasons the st reason is that the judge clearly and by implication decided hedger issue he made a determination that in segmenting he was only going to look at the last two seconds when the shooting occurred and by making that determination in terms of the segmentation analysis he implicitly ruled that nothing that has or did is important or relevant so i would argue the court he he actually decided that issue by his non decision you can't can i interrupt you already did you actually argue before the district court that hedgers orders to myers and portraits were a separate use of force distinct from the shooting because that seems to me like that's what you want to want to ask answer now in the brief we didn't get  so i didn't have an opportunity to argue that to the court brief is very similar but you put you presented a motion and summary judgment right exactly but i didn't get an opportunity to write does your but to me when i read your brief it didn't seem to mean that that segment that you're  addressed through the through the pleadings parent and secondly i think this court has previously in the case of able versus harp decided that the court has jurisdiction to canvass the record to determine whether pla facts as necessarily within the record can be analyzed and in that particular case as the court may recall the district judge didn't even analyze a qualified immunity issue at all and yet the court had to had sufficient facts before it at this you perceive with the merits of the argument and thank you ok so what it would apparently excepting this acceptance of you that you segment this analysis which seems to be firmly implanted the issue becomes what's a segment and i would argue to the court that judge clear lens analysis of what a segment was is the microsecond when the gun goes off he basically looks at the situation ignores everything up until that point in our argument is that this is not a situation where we're arguing that when they knocked on the door that was improper and everything else flowed from that knock on the door our segment that we asked the court to focus on is a segment when hedger orders the attack this is a cinch this isn't a situation where he just made a bad decision this is a decision this is a situation where he knew ronnie graves was emotionally disturbed he knew ronnie graves was sitting in a bath tub with his legs hanging over the side unable to move he knew he was non responsive and with it and testified that it but did that hedge or order for the deputies to shoot with guns drawn and in front of him so your memory this trailer it was it would be on the t v version of hoarders it was pretty full with with stuff and they'd they decided that this hallway that they were going to walk down they termed  fatal funnel because for two reasons you didn't know where you were going and secondly there was no way to retreat because it was so thin that only one person could go now had your make a dumpsite in a rabbit does make a difference my understanding is that he never determination was the person that was safety was at issue was ronnie graves ronnie graves according to him was a danger of suicide by cop that was his concern that right that ronnie graves was going to provoke someone to shoot him given his prior history reasonable i think that's a i think it's a great i think i'm not faulting him for that that's probably exactly what the situation was and he knew that he decided we don't want to provoke him we want to get me in a position where i can t i went outside the attempted to tase him he had a bad angle so they decide i've got to get there with my taser and i'm going to tase him from a higher angle where i can get him in the top with that being said instead of doing that he's got myers in front than he going in to deal with ronnie graves so he could tase him he sends the guy in with the gun drawn swearing and i'm telling him to get his f ing hands up and not only that but he participates in it he's back there with the three officers screaming at ronnie graves to get your hand up get your hand up doing precisely what he made a determination was a wrong thing to do so it's not that he orders to shoot he orders the situation to happen there swearing and i'm the yelling at him meyers go so far as to throw a chair and what happens is exactly what had you predicted would happen and exactly what had your cost to happen by his order to send in the  troops that's with respect to the hedger analysis and so what happens is guess what makes an action that provokes the shooting and he gets his face upon off by post trads who's standing outside with their fifteen blows half his face but when you say grace makes an action what what do you think the record shows that action is apparently but yes i'm sure this doesn't come out very well and in print or on the record but what graves said is i raise my hand up with a comb and i we believe it was a broken piece of the knife because we didn't find a coma we found were the two handles and it was black i raise my hand up like this to scare i didn't reach forward and nobody said that he made a move to come out of the tub that he tried to get up he did anything other than raises hand up with what he thought was a knife it was our comb and it was a gun hand and at this point in time myers is sixty seven feet away outside the door even when he falls he knows there's no aggressive action ever made by graves toward that let me just ask said the best i thought it was i thought it was a knife never thought it was a gun but doesn't gracie in this deposition that he says i think he pointed to the object he thought it was called apparently but what is it he said he pointed and he doing just like this there's actually a it's not relevant with respect to post tracks because protract says it was a knife but whether it goes like this or like this let's just say the record reflects that he pointed the dark was a black object it may have had a silver glass toward why i guess you don't want to argue that it's objective lee a reasonable question for myers to have fired of the three if you ask me which you know the question i'd hate to put him on a hierarchy myers you know if you accept myers testimony if you accept his testimony that i saw him point this at me i felt to get out of the way and fired if you accept that testimony arguably that he maybe he's closer to qualify to me and the other ones however there is evidence in the record that he wasn't falling that he was standing looking right at him with a clear view of him and that the trajectory of the bullet as he shot and why he was standing not this story he came up with that he felt so we consider the evidence in the light most favorable to grace that that would be that was that's what the court is supposed to do that's not apparently has happened in the deal what is the evidence that's most favorable to graze in terms of the myers segment myers shooting meyers was in a position looking right at him seven feet away from an elevated position with his gun pointed at him and should have had the opportunity to mean that wasn't a gun and there was no evidence in the record and there is it does not certainly does not seem to be clearly established that the that the assailant or would be assailant has to be within striking distance of the officers it seems to me there are lots of cases where we've granted qualified immunity to people where there's a fence in between the would be assailant and officers and we've said and they use lethal force and we've said well that's fine so even if we assume it's a knife or that that's the only thing the officers could reasonably have perceived why are the officers not entitled to qualified immunity here well that this is a dichotomy you get into if you look at if you look at starter and suppose ari and you compare it to the facts  if you if you can don't if the court accept their argument you're basically saying anytime somebody holds a knife the police can show and that's i'm really not the case in the circuit time's expired which i'm sorry just a moment to address  deputy officer by traps because my recollection of the record as he put traps thought that myers had shot or shot at and act is that correct and then what he  there's no time for that kind of that kind of thinking and if i don't believe it said he thought he was shopping he thought he was shot he thought he might have shot him because he actually goes through that through the portraits i don't need to point a gun to you your honor but real and on my wrist balls right in front of him he's lucky he didn't get shot by poetry as boatwright's says i saw it it was a knife then he later says well i guess not it was a handle but he never thought the graves had a gun so he ease with respect to the courts question regarding vacant chair counsel and i are in agreement there mimi and it's not necessary because but for different reasons it's our position that the same result will endure one of the things that the plaintiff pointed to in their brief and emphasized was policies that monroe county had with respect to certain predictable and intense situations and one of them involves emotionally disturbed individuals but when you look at the p it actually is calling for officer caution because those kinds of situations where there's domestic disturbances or emotionally disturbed people tend to be very unpredictable the situation tends to be very fluid when you look at the other policy  pages for eight and eleven i believe but plana forgot to mention the initial part of it which is do these things unless a media action is required and in this case they had three reasons for going in immediately  was to locate and arrest the subject because he had just violently assaulted he stamp his grandmother in the head and he lord or in the bathroom or into the bathroom to do it they wanted to make sure that there was not a nd victim inside because dispatch it's on information that one of the emergency responders indicated there might be a nd victim inside and thirdly plaintiff did have a history of being suicidal or were  that they went in was to make sure that he hadn't attempted suicide and needed medical care the amount of force used was proper applying the segment analysis or any other analysis regardless of what had occur did or did not do i think that the reason why the court below did not separately analyze the actions as it wasn't raised as a separate claim that wasn't it wasn't argued that way wasn't raised wasn't briefs and so whatever was in their complaint is what was briefed and it should have been indicated in their brief as a separate issue otherwise it would be waived the supreme court has rejected what they are proposing here which is that officer provocation argument the th circuit came out with a case it's a mr scott's in our brief in the supreme court rejected that basically saying we want to officers to be proactive and  be out there doing their job and protect people make these types of arrests and so you know we have to be really cautious when we try to argue that they've provoked it because if we really look at it in a very straightforward way well they're always doing something that would provoke it because that's sort of their job is to go  said not to do which is looking at the incident with two thousand and twenty hindsight and monday morning quarterbacking instead of looking at it from the officers perspective on the scene which is what we're required to do and we've cited all the case law that that  confirms that there is no evidence that mr graves was unable to move and i think that that was demonstrated by  rejected by the fact that he did move and what he did do and he demonstrated in his deposition and we did the still photographs in our briefing pages thirteen and fourteen and i would submit that what he demonstrates that he did was he pulled his hand from behind his back or from his side where the officers couldn't see it and he pulled it forward and he indicated that his intent was to scare the officers and it certainly did have that effect i think the fact that  shot almost simultaneously was that they both perceive that to be a significant threat you make of i mean if we assume let's assume that the only reasonable thing that the officers could have assumed is that it's a kni now i know you think they probably you think it's reasonable for them to have assumed it was a gun but i want to just move you went into night plant so if we think that it's just a knife what's the best argument that there's that the officers are still entitled to qualified immunity because your opponent would say look all the cases in which lethal force is ok where there's a knife is either there in striking distance the assailant is and striking distance assailant is moving towards the officers and here we have a guy in the bathtub so what's your best argument with respect to that your honor i think that they're still in very close proximity and it doesn't take much to get out of a  pictures i guess for a while and the other thing too is that when we're dealing with emotionally disturbed people they're capable of doing some surprising things i think that our officers encountered a number of cases i know i've worked on some cases i'm sure the court has as well where they almost have superhuman strength sometimes i mean it takes several officers to take someone down i mean i don't think that it would be unreasonable to within myself i think the distance was closer between myself and the podium to be fearful of someone especially in the way that he gestured it it would have taken much for him to get up and become a threat but but you're right your honor i think the bigger key there is that they did not know what kind of weapon it was he certainly fashioned it like it was a gun it was black and our case law is very clear that an officer doesn't have to wait to definitely see that it's a gun pointed at him before he shoots because by then it may be too late the fact that he gestured like it was a gun or a weapon once and the officers were in close proximity is sufficient to provide qualified immunity in this case back to your let's go back to the knife scenario i guess guess i mean a lot of the case knife and machete cases involved as judge moore says it's a person who was wielding it and the question is whether they're striking distance whether there is an object of speaking there is a threat to the officer safety or the safety of others i think that your honor there's and i think what's key here is there's not one particular case that's on point i think that there are a number of cases where the facts are a little bit different but we've cited several in our brief that are some lawyer and that would be i think it's  has been you know certainly whether there's proximity but there have been other cases where the person didn't even actually pull the weapon out and i think one of the cases that we cited the man had something in his waistband they weren't sure what it was but he was opposing the officers resisting their coming in and then did take a step toward them and reach for the reach for it in this case he didn't take a stab but he definitely pulled something from behind his back in a threatening manner and i think that this case falls within that area where you're really not sure what to do but i think more importantly when you're an officer on the scene and you think that or you know he had a knife or earlier because he violently assaulted his grandmother but you don't know what other weapons are in the residence and both of our experts agree that you have to assume the worst you go in there and you protect yourself and you you you you are armed and it's not it's not a situation where they knew that he only had a knife in the residence it's not something where they had spoken to anyone trying to find out what type of weapons were the grandmother was already transported to the hospital by the time that they got there like you're saying the principle of it would be when in doubt no i'm saying just be careful i'm saying they have to be cautious and they have in these types of situations where someone violently assaulted a family member with a knife stagger in the head repeatedly they have to be careful and they have to and their own expert players an expert indicated that he would have gone in with guns  as well and so when the plaintiff makes that threatening gesture which he admitted he intended to scare them they were within their rights to respond with lethal force it i mean it sounds like we're all struggling to find the the right case here because we have kind of cases that are sort of in the area oh my goodness so embarrassing and others that are not but is is that is that the plaintiffs that what does the work for you that's what i was just going to  honour's that the fact that there isn't any one case why the plaintiff is required to provide a case that shows that the officers conduct in this situation would have been prohibited and they have to do it given these particular ice facts and we cited plenty of supreme court case law where the court has said we we've had a state time and time again over the last decade that you can't look at things in a more general you have to look at in a particulars sense and that this particular situation had been beyond debate that it wasn't allowed and the fact that there isn't a case on point demonstrates that it wasn't clearly established it wasn't clearly forbidden and the cases that plaintiff has cited are actually distinct from the situation and we detailed those distinctions in our  his task was to maintain visual and the plaintiff to make sure that the other officers would be safe while when my ears cross the path and was trying to get plaintiff to comply and then plaintiff made the threatening gesture my ear shot and within a nd i think it was protract shot as well so i think that he perceived the same type of threat and he was trying to protect the other officer  that was within just a few feet of the park trust i think testified that he thought that myers these things mixed up graves had a knife well i think they all knew that at some point he had had a knife but at this point they don't know what  he what else you're saying don't they don't know what else he may have had may have had a knife and then they got a gun he had been in there for a significant a significant period of time and they don't know what he was doing in the meantime they found him in the tub but it doesn't mean that he had been there the entire time so they don't know what sure that the threat is abated you're allowed to use lethal force until you're sure the threat has been abated and in this case when he was certainly debilitated it did not rule out the fact that he could have had a weapon still at his disposal and so i think that it  was certainly within the parameters of qualified immunity for had her to chase him momentarily to go to get near him remove any weapons that he might have it has disposal before then securing him  that knowledge is that it was clear that i think he said something like half of gray's face or portion of it had been shot off or something like that  raises on the back to this clearly a very serious wound from an assault weapon he there's no indication he's otherwise resisting but there's no indication that he's unconscious and the fact that he had something in his hand could certainly be used as a weapon and i think that rush demonstrates that and less it's very clear that the person has been subdued the officer may fired so couldn't hedger have thought that that graves had just shot myers in which case surely he was it was ok for literally there from meyer says not hit not hit shots fired right here so why wouldn't why couldn't hedger have reasonably thought that meant that that my ears unreasonable for him to assume it wasn't he gave him nor does he did nothing and let's say he let's say he had a gun he wasn't brandishing anything at this time he was sitting there with a completely and there were some representation made that perhaps you know he could have jumped out of the tub he was five he's like five foot five his feet were not touching the ground he made no action to jump out of the tub he just raises hand so this idea that he he could have you know shot out of the top of an attack somebody it's not consistent with the facts that were presented he was incapacitated by his position and made no move nothing no attempt to get in a position where he could move he's just laying there holding the comb the knife handle whatever it is up so i think that this is a situation that should be remanded these are i think they're qualified immunity should not be allowed but if there's any thought that it should be it's certainly a question of fact this is them case will be submitted and you may call them