good morning mike all of you and thank you for accommodating my trial schedule ok my name is dale and i'm appearing on behalf of the appellant michael easily well let's let's talk about what's undisputed and it obviously has to be material as well there can always be disputes in the fact that the facts but they have to be material in this situation my understanding is  car while carrying an object with the officer stated with a handgun my profile while chasing the officer they said saw controversy and the other officer said to him again and it's undisputed that mr easley made some sort of turning motion and it's where it becomes disputed is he says he was throwing the gun it's undisputed that he had a gun he says he was throwing the gun the officers thought he was turning so  why if you look at those undisputed facts why would it not why would not a reasonable officer have the right to shoot because the fact that he's throwing the gun or he's turning to shoot him what does that really matter because either he's dead or  he learned after the fact well but not ok you don't catch it twenty twenty hindsight so that what would clearly put an officer on notice after they pursued someone they didn't stop he was running the officer it's the officer said they believe that they see something there's a motion it's undisputed there's some sort of motion in that back area defendant ball but the plaintiff and the officer there's no dispute that there was a turning but what the dispute is your client says he was throwing the gun and the officer thought he was going to shoot him well first of all i think it's it's undisputed from the record that you couldn't shoot him for merely running away on the exact plane i am going with you on that and i think it is disputed as to whether there was a turn mr specifically said he never turned towards the officer in fact the officer claimed that the object that he saw that we didn't know what it was was in this tree of these right hand mr easley never had an object in his right hand according to his testimony and most importantly from our perspective he threw what we now know to be a gun or the object forward and away from the officer probably over seventy feet away from him because let me ask you this mr focused you know we recognize that this is on summary judgment so all the facts have to be construed in your client's favorite but the facts that i focus on is i don't think it's material whether the officer actually disputed that he was holding his waistband in some respects in the officer believed it was possible he had a gun right so one officer shouted gotten so that was kind of their mindset as there as they're pursuing him and then but the point at which you say there is material factual dispute is when mr easily reached into his waistband pulls out a gun and tosses it right is that's right that's that's the point you're focusing on well that's only part of it because what's more important i think george when is let's just say hypothetically that the officer saw the gun in his hand and recognized it as a gun and told them to drop it and he did and two to four seconds later he was shot well let's let's let's illness on this fact i mean i i don't from this record it's hard to tell whether the officer actually even saw a gun or not but to me is it possible to be running i'm assuming running fairly fast reach into your ways and tossed a gun fifty to seventy feet away without some would have meant the upper body that would lead a reasonable officer to believe that he was about to turn and shoot the officer there's no question judge when for him to have thrown to students i'm with you that he had to have he had to throw it with some force away from the officer the problem that the reason is is because and i think this is part of the testimony of officer in the c s and the two police practice experts one who testified one who supplied a decoration a report that it's known that people that have guns are going to run from officers and try to throw the guns i know us having a back criminal law know that that's something that people do you put your head on just in terms of what was seen at that time right does yes some people might throw the guns some people shouldn't you know it's also known that people that have guns she's on to shoot right so to say that's a reasonable officer have to decide in a split second whether someone's throwing  at or going to shoot them with that and if you're wrong your dad right you know the issue this is what that's the issue see this wasn't a split second this was two to four seconds let's take four seconds let's give these really every now you have the shots so that's the problem if there were factual questions that the jury had to answer to really determine this they could have had special into august tori's we just feel as a matter of law i get what you're saying i get what you're saying about the split second decisions but the facts of this case are such that he tossed an option and i understand what judge wins say two to four seconds on that is then the clearly established law for officers that are out in the field that when they try to stop someone they run and there's that and the conversation is gun think you said gun and then something there some sort of motion to get is think again that clearly established law that officers cannot shoot under those circumstances because that if the officer believes it's a gun coming in his direction at the time of the shots i agree with you i agree with you officer well i like your sense that he i mean the officer doesn't well but your theory for this case part of your theory for this case in terms of what you claim the factual disputes are is that the officer this is what you can argue to the jury the officer saw the object leave mr easley's hand right and then shoots in the back for no reason to  that he tossed the gun and then two two i recall from the record four hundred to four seconds after the object leaves his hand was when he felt the first shot that is correct hat but if you give them the four seconds the other thing is that a jury might conclude that the officer did not see an object in his hand at the time he fired and the only reason i drew the example of someone says identifying an object  how could i ok you're saying no we can't say that on summary judgment but how could the jury conclude but he didn't have a gun in his hand when your client's testimony is he had a gun in his hand and he was throwing it but not shooting the officer how could they conclude that i think the questions the jury would have if they were given special interoperate tories would be something like number one did the officer identify the object as a gun before the shooting yes or no did the object did the object see the the officer see the object in this hands at the time he fired the shot or had the officer seen that he had already thrown the object away from him before he fired the shot if the jury finds those factual disputes in favor of the plaintiff hypothetically i don't know what the jury would decide then i would submit this is a case that has those facts have to be decided and the judge matter who's a fine experienced judge for whatever reason really was taking inferences in favor of the defense when he decided this deciding certain evidence maybe was more i would i would be inclined to agree with you that there w established problem where it is plaintiff's burden to come up with a case where an officer acting under similar circumstances with how to violated the fourth amendment what does the record show regarding whether officer missy is actually saw the profile of the gun i'm and when other officers responded to the scene then officer missy is reaction is i think he saw through something so that's the fact that he testified on the one hand that he saw the profile of a gun but then tells other officers on the scene he threw something instead of identifying it as a gun does that create an issue of credibility to get this case at least to the jury i don't think so your honor why not because if you think about what we were focused what you were focusing on a few minutes ago in terms of the admits that as he is running he in fact pulls out a gun officer misty is running ten to twenty feet behind him it's dark there it's a fast chase whether he was one hundred percent sure that up it was a gun but at the other partner say g fact grabbing his ways and when he gets out of the car as the admits that he was he says the gun was in his pocket not in his hands but i don't think there are a credibility credibility disputes that matter here when you're taking the what happened from easley's perspective accept four seconds first of all easily test mr back up a second here this chase we know from physical evidence covered about three hundred feet from the part where the car was where they started running into where mr easily fill it lasted twenty seconds again we know that from physical evidence there's a timestamp on the video from when they start running to shots fired so three hundred feet in twenty seconds that's about fifteen feet per second mr easley also testified he threw the gun in the last five to ten feet of the chase the last five to ten feet of the chase you're now under one second before he was shot and that's easley's own estimate so easily as estimate about distance suggests that actually the shots were much much closer to the throwing than four seconds they suggest it was under a second  says i threw it two to three seconds before at one place and one place he says a few seconds maybe three or four so that's all easley's own testimony and i understand that on summary judgment we set the record in the light favorable to the nonmoving party but here even his own estimate shows that he's not really sure and that it may well have been under a second and may have been as many as four seconds it's really hard to estimate time while you're running and you're in the heat of the moment is mr easily say about his body position  making the throw because i think there's there are some things that went on there whether it was torque door if it was but give mr what does mr easily say so mr easily demonstrated what he did for the district court and the district court described it i can tell you that way but mr easley's own testimony is i was running i reached across my body pulled the gun out with my left hand i raised it across my body and threw it like a frisbee and if you'd like i can read you the exchange watch where he was asked about it in front of the district is your deposition you describe staring at me like a frisbee toss correct like this indicating and the court says indicating the arm back throwing the arm backwards your left hand back mystery's this is forwards or you threw it forward and then  you're showing us with your left hand yes with the fingers and thumb pointing towards your body yes you're extending your arm to throw it like people throw a frisbee yes and away from your body going forward yes and then the the court then having watched the demonstration so that easily reached into his right cam pocket with his left hand raised the gun across his body and threw the gun forward if you're an officer running ten to twenty feet behind this and this is a man who has jumped out of a car didn't y that drove through a crowded parking lot getting around people hopped out you're holding something at your waist beyond in a way that the officers think is a gun now you're running and now you're pulling it out of your pants with the officer ten to twenty feet behind you material but i don't have that page of the testimony with me so i can't see exactly what he said but he definitely testified that he saw something he said he saw a profile of a gun it for sure that's the profile of a gun or not he knows that he thought the suspect was armed he knows that if he makes a mistake he the police officer could very well end up dead and we're on qualified immunity immunity where even a reasonable mistake  fact is excused how does it how do you factor in and easley admits he had a gun but that he threw it all right how does the fact that we in fact it's undisputed that what at that the object was a gun cannot be considered at all since i hear you saying we don't need to consider that but is that is that part of the factual that is undisputed that if the same with the hypothetical be different if he for it turns out he didn't have a gun and he threw a dope but say i think you would go right with that make this closer to it's possible but i think i think the relevance here of the fact that it's understood that it was a gun is that when you have the officer having run behind him and also thinking it was a gun you've got the officers perception matching up with reality which i think i think does put a thumb on the scale in favor of the officer in favor of qualified immunity here because you were talking before about what the rule would be if you were to hold in this case that in fact this was unconstitutional and you would be adopting a rule that even when the suspect actually had a gun and actually could have shot him instead of throwing at the officer still is not entitled to shoot and could be subject to monetary damages because it takes him a second to realize what was going on in his shot is not you know it's too late he's got to wait until basically the you know he's got to either shoot well while the gun is there and if you miss your window by fraction of a second a second whatever the rule is that would come out of this case then you're liable and that's not enough of a question for an officer on the scene and again because this actually was a gun this wasn't a mistake you know this wasn't a water balloon this wasn't dope this was this was the gun that the officer perceived it to be the minute that they started this chase and that he thought it was when it came out this ryder truck court held that there was a genuine dispute as to the timing of the was four seconds at the outset two seconds before he shoots every sees the gun go right in my correct  i'm sorry judge hatter thought that that was not a material just right why isn't that material again because first of all easily is own testimony that the two seconds is not the officer's testimony even that the low end of that witness's own version of events is two to four seconds the jury's not going to make a credibility determination within mr easley's own testimony your history answer needs to be that even that four seconds is what we go by and four seconds still entitles the officers to what a manatee i do think that i should be like your answer was that it's not four seconds because there's objective corroborative evidence that it's much less than four cycle that's why i was starting with b it's not a credible the different term determination between two and four second thank you judge when i don't that's a credibility question i think my point is that own testimony corroborates a much shorter time but yesterday callahan i also agree that four seconds would still not make this a situation where you would deny qualified immunity again the supreme court has been very clear recently as has this court and its precedents when you're looking for a clearly established law you need a case where an officer acting under similar circumstances has been held to have violated the fourth amendment and there's not even a case with a for second mug with a running chase and pulling out a gun after fleeing from the officer in a car but there is no such case pla supreme court of what you need tells versus hope the eleven circuit case about prison conditions you've got to have something close this is a clearly excessive force case amendment context we've been criticized for being too general yes well and lately you've been much more specific so you have to send a twenty eight day letter but lately the s p case the schaefer case in the sharp case three times very recently you have emphasized it's not just defining a reasonable ness at a high level of generality it's on in this factual context and the supreme court has said particularly in the fourth amendment context so mulan x specificity especially is especially the ground and taking his version of facts there was a gun somewhere else he had someone on his lap and there was a gun somewhere else when he was when he was shot that's not a case where there is a running pursuit after a car pursuit and someone is pulling out  not if i if i want any further briefing i would say that we can read the cases are so there are no other questions i can answer i will but i just again want to go back to the exacting standard that the supreme court is requiring these days on clearly established qualified summary judgment on one thousand and three cases but i think there's a great temptation when you have a two day in person hearing like judge her did to make credibility findings and the temptation to do that when you're watching witnesses and hearing witnesses say that this was probably not your every day procedure i want to bring with you i don't think i've seen it before but but again regardless of whether judge had or made credibility findings this cour even at four seconds so even even all inferences in favor of usually there is no material credibility dispute you're to resolve no fact dispute even easley's version of events is that he ran away dark street fast chase pulls out a gun and throws it in the shot within maybe less than a second maybe four seconds to deny qualified immunity in this situation would be extraordinary there is no there is no case law on point that would you your time thank you for your argument i first of all i think the colonel case and your smart clerk is right on point because colonel and a whole series of cases say that a weapon identifying a weapon in someone's hand is not enough to shoot and colonel in other cases and where the weapons many cases to say there has to be a case in all points on the what is your bass case tell us that i mean clearly established as the supreme court has chastised the ninth circuit for being too general that you have to state that you have to stand it with some particularities to put an officer  notice so what is your basket i think curnow is one of the best cases but there's other similar cases we cited in our brief i think what's really important here is the officer did not perceive the object as a gun the mention of a gun which is disputed by the way happened by the fellow officer when mr easily was getting out of the car he was a passenger not the driver of the charge you know then you have the pursuit circumstantial evidence or common sense if he had recognized the object as a gun whether it was or wasn't if he perceived it as a gun his own testimony admits i would have told the fellow officers arriving on scene hey i think he threw a gun we better look for a gun the reason i said he threw something i didn't know what it was so just because he comes to a ever denture hearing which i've never seen in twenty eight years your honor and it m s j just because he comes to them eventually hearing and on direct examination he gets to say i thought it was a profile of a gun and then on cross examination admits that he never specifically saw a gun this is a case where qualified immunity should not be granted i personally think of the way i understand the directives of the supreme court now the pendulum is swinging back in a dangerous way were cases that have factual disputes and credibility determinations are being taken away from federal juries and the consul says where there's no case on point i guess there's no case that someone dropped it six seconds before eight seconds before or ten seconds before that doesn't mean it's not clearly established even their officers based on their own training said they knew even if they identified a weapon if it was dropped you can't shoot someone so the four seconds is fairly important in really to fairly look at this without making credibility determination jeff to assume to fax number one the officer did not recognize the object as a gun and two he saw the object thrown four seconds before he shot well that's the crazy part we we met in conferred with consul they asked if we would drop a few of the claims so that they the and exchange they wouldn't fall in m s j they didn't even think they could get qualified immunity and then it set for trial and judge hatter said why don't we have an evidentiary hearing and nobody even really knew what the confines of that was going to be defense counsel been practicing law for forty years and a friend of mine and we were both scratching our heads what what is this going to be ok i guess that's yes so you over time why don't you wrap up in a minute ok thank you very much so i would say this the do officers have difficult jobs yes sometimes they have to make split second decisions i get all that but in this case on this record if you're going to assume the plaintiff's facts as true qualified immunity should not have been granted i do agree that judge chatter because they had an evidentiary hearing may have been tempted to weigh evidence and judge credibility and we all know that's not what you're supposed to do specifically for a summary judgment and i think it would be hard to say if the officer didn't recognize the object or think it was a gun because that's a reasonable conclusion when he doesn't tell anyone hey look for a gun i think he threw a gun and it was tossed four seconds before he shot him it's hard to say as a matter of law that's ok and i would submit that although this can go either way in front of a jury the right thing to do is for your honour's to reverse the ruling a qualified immunity should not have been granted assuming all plaintiffs facts as true