then you can shoot somebody so what do you say to a we have jurisdiction here the district judge found the disputes a material fact we came out decide whether in fact there were disputes or material facts usually give me your take on why that world shaw that's already been in bali that a clear constitutional plane what is the answer judge souter this question we have jurisdiction because the the rule that when there is a disputed issue and there is a video then you give more more weight to what is showing the video then to the what the point is are you saying the video appeal but our summary of qualified immunity to extent it turns on a question of law but whether just a court has found that a material you sure fact exist we can only review the material materiality not the genuine  of the factual dispute so we might look at the at the record and say this in any real dispute but the district court found it and we can't review that now are you saying the video overrides that and if so it must clearly show that the cannot be disputed material fact about whether he was fleeing or rushing the officer or not that is inconclusive i mean you agree with that but but this it or this case down here are under a different determination so what you see is the case it's not a material fact it's spirit so we have jurisdiction because the issue is not whether or not the gentleman was playing when he was shot judge's general conclusion that he was feeling well that he was free if that's the conclusion they he me but what is the basis of that conclusion they have to be facts they have to be fact that and this is what is crucial here that when this all research on for was a court required to accept believe no statement that he believed he was being charged but do accept it based on the facts there is no dispute that he was talking where the district judge says a fact issue exists as to whether gary was rushing the officer or whether he ran attempted to run past the fellow across the street a guest at his house molina's that his name who is filming it had some statement that he wasn't sure what he was doing but you just maybe in the deposition naturae held to that but it does seem to me the district judge is saying that the video would appear to make it that he was running towards the officer but for some reason he decided that was inconclusive i'm sorry oh  resource go ahead i didn't mean to but but but then what is the younger life fact that shows that barely know as a matter of law also aware that something happened there that would have charging made to be say i did not hear the officer say that well it's a matter of fact there is a recording where sergeant bellido said he taught me and i shot with  twice on their very leading questions in steel he says i couldn't tell because from the video you cannot tell the judge cannot tell whether he was freed we had enough to create question fan i'm sorry couldn't commander say let's retreat and build a stead all his troops go in the direction of the enemy where the guns are i mean i'm going about a rational reasonable human being and i think what we're talking about here is somebody who his intoxicated mind there was a good direction to flee well but that is that i think that the issues were there for talking bill you know perceived that he was for me so it doesn't matter whether or not he actually was fully is that your point the issue that's irrelevant actually is that i think that we're arguing it is what is what is only the only thing it's relevant is whether the officer perceived shoot him even if he's falling we have to we have two or three cases that say that you can shoot a fleeing suspect if you perceive a threat even at the time of fleeing i know that's maybe counter intuitive but we have two or three cases that  unclear but it seized me the issue is not whether the issue is whether they also had any basis to believe he was in danger regardless of what the victim was doing which is i think the point i was making if he was fleeing to wards the officer or charging the officer a dramatic but i thought that the issue factual was whether he was going not towards the officer but at some angle away from the car and away from the officer and i can't tell anything from the video about what's going on is that is that the factor spewed over whether he was actually charging the officer or running at some angle away from the officer like i would like to distinguish scottie hears but i think what your honour's are asking is you know for just a moment that there's another video that shows with clarity the actual direction that she ran and then it shows that he ran directly at the officer this court still shouldn't river second guess the fact is dispute that judge rodriguez identified which was that teenager was not a threat to the officer so even either way so that the judge identified three fact issues whether or not he was going at the officer or fleeing somewhat in the direction of the officer which was the direction he was going when the officer pulled up let me ask you about that right there's witnesses to the scene testify that gary was not a threat he had his hands on the hood legs spread was visibly intoxicated but he wouldn't that way when he's running in some direction so this is my quite sure with the just to judgment that but well he didn't and that i would say that that's irrelevant it's not material or whether he was a threat when he had his hands on the hood like spread his brain talks acadians it's what it was he a threat at the time that he was running whatever direction he was running taking the totality of the circumstances just when he moved quickly the judge had plenty of other evidence to rely on to rule that there was a fact dispute were going whether or not mr gear was us threat for instance he had the fact that a cure was extremely drug he was a point to six he and the judge even said he was visibly and very drunk he had been staggering and he had been walking very wobbly as the witnesses said there was no evidence that he had a weapon three civilian witnesses who know the relevant and craving crees whether he 's approaching the officer at the time that the shot well that's two responses to that one is that it's inconclusive as i think has been well if it's inconclusive doesn't the officer win because it has to be that no reasonable officer could legally perceive that it was appropriate for him to use deadly force in that circumstance in order to be filed the problem to to be satisfied respectfully no he does not  first off it's an objective standard and second of all you know for instance look at the supreme court in tolling the cotton that said the proper framework to look at these cases is not from the officers perspective not from his story which is that i was being attacked where but it has to be what the officer could perceive i'm very familiar with olympic cotton and i don't believe it says anything to the contrary i'm asking you does it matter whether he was fleeing or not or does it only matter whether the officer thought he was coming in his direction whether a reasonable objective officer could perceive that he was coming in his direction and so it wasn't reasonable for the officer to believe that even if you was coming in his direction that he was a threat who necessitated deadly force why is that and so well what case holds that because you need a case and holston barbee barnhart seems to be actually to the contrary the other side doesn't need a contrary case you need a case that says it's clearly established law then i know that an officer could not use deadly force if someone is approaching him under that a fleeing suspect on foot or unarmed and half dressed in the situation and very intoxicated as judge chremes point out that unless the unless the a reasonable officer would perceive that that person poses a sufficient threat they cannot use deadly force and the judge in this case had the benefit of a pelleas expert jeff noble who was appalled by this shooting a twenty eight year police officer who retired in two thousand and fifteen as a chief of police saying the same set of facts and he believes he's being charged by an average sans twelve year old and this office it is a big it was thirty pounds more than the teenager i believe he was to twenty at the time absolutely and that's why i judge all right i don't know if i was saying it correctly but i believe that the judge even the judge can consider even if the assumes that mr garrett was going to recklessly act the officer he can consider the fact that the officer was highly trained policeman thirty year veteran of the police force and that he was trained in a vase of maneuvers so i assume that the question the first pro of whether or not that level of force was the right level of force under the law i'm asking you the question about the second prong what case says that law is clearly established that an officer can't use deadly force under those circumstances an unarmed fleeing suspect and i have a case that in fact says you can use deadly force on an on our plane useless specked out of this court from nine hundred ninety seven called colston v barnyard and so and so i'm wondering what case you have that says ted and i'm not saying this i figure i believe that was the answer to this case of whether or not they get summary judgement or not so let's so can you help me do you have a case i do not have that exact case what i have is mason the luckiest city parish consolidator government that states that did the officer have probable cause to believe that the young man pose a threat of serious physical harm and if you did not which the district court found there was a fact about that he cannot shoot him dead and as the expert said he should have used an intermediate level of that case since you cannot shoot an unarmed person dead no i am i am admitting that i do not know the case that it actually says those exact circumstances  cases that you know you can't have a case that anticipates every set of facts police officers know and are trained that you don't shoot a person unless they present a threat of serious bodily injury to themselves or to others ok so that act of approaching the officer quickly does the video show unmistakably that he is running in the direction of the officer i plugged it into looks like he's running in the direction of the officer it shows that he starts to move quickly and hits the ground whether because he tripped because he was incredibly intoxicated because you know and i even i invite the court to even assume for the purposes of the appeal that he was heading right at him he still was not a threat in his incredibly drunken state his an arm state and the fact that the police officer could have stepped to the side and put the vehicle between him and the young man charging or used a come along hold used his baton you know any of the other tools that he had and in his training i would like to if i could distinguish the case relied on by appellants got me here is because i it and he he does place a lot of reliance on his argument that the video in this case negates the fact as you identified by the judge and as stated by appellant that is an exception to the rule that there is no but there isn't that there is no appeal ability of a qualified immunity denial and less it turns on a question of law and so the video in this case is very unlike the video in that case which i really contradicted blatantly contradicted the nonmoving its version of events the video in this case is much more like a recent case from this court in two thousand and fourteen to county copeland where the court identifies three issues with the video for instance it was rustics advantage point they didn't clearly show the important parts the distance from the video to the incident was long and there was a murky picture because it was filmed at night those and those exact story elements are in this video and the court in that case said that it left too many circumstances a the video other than the picture but in so far as the direction and that he was running it seems relatively clear though maybe sliding away from the three police cruiser i guess as possible which would be not directly towards the officer but does seem to me that what you're really talking about is not whether the video conclusively or not shows he ran towards the officer that's pretty close to that be as bad as agree which maybe already can acknowledge here that the video does in all the poor quality show that the c s was running towards the officer not whether he was trying to run away whatever else i got have been the head of the deceased but that he was running the direction of the office a sense that somebody in that direction whatever basis to believe is running towards him i think that's possible that's one interpretation of the video but what you know a pelleas are saying is that it doesn't matter and there's another case actually very recent from this court in two thousand and thirteen ramirez v martinez where a video again it showed that there was a struggle between the officer and then the non movement but every element of it was not clear and in fact did not clearly show the punch being thrown at the officers used as justification and this court dismissed that portion of the appeal ruling that the contents of the video were too uncertain to discount the the nonmoving under scott and so you know even though this of the you know the supreme court ruled in scott that a lower court can review the lights it can view the facts in a light depicted by the video and we're arguing well it doesn't matter either way you know unless you find that the video blatantly contradicts judge rodriguez's opinion and you can still dismiss his appeal because the video as you know as we've said is inconclusive well unless that's not a material fact if it unless it's not material whether he was fleeing or not and i think you know i won't argue that it's that it's ink that it i want to argue that one so much is that what's material is whether or not he was a threat that is the question under tennessee v gardner in a case like this you know the that which brings me to another point which is that the court also found a third factor and that was whether or not was at all credible in his account of the you know the split seconds leading up and whether or not he was credible and his claim that he was being charged and that got fact is material under this court's ruling in two thousand and one and bizarre on be had doggo county which cautioned the courts in cases such as this that are deadly for self defense cases to use particular care in evaluating the evidence because the him or trying to run away past him do you believe that the law is that even if contrary authority existed if there is if if it shows it depends on the facts of each case then it couldn't clearly establish that the conduct here violated the fourth amendment i mean do you believe that that's the law if if it shows that it's very factually part to kill arised that you wouldn't be able to show that in general there's a fourth amendment violation any time this happens and because of that then you couldn't say that you're not entitled to qualified immunity on the second prong i'm using this case  authority did exist about using deadly force the cases together show that the area is one in which the result depends very much on the facts of each case and therefore  unless no reasonable officer could have believed deadly force was lawful then the the officers nonetheless intitled a qualified immunity and that seems to be that we might be in a murky area or even if you say that it was unlawful the issue is could any reasonable officer under the knowing the case law as it existed no reasonable officer could have believed so the issue isn't really the there's no fact issue even on the other point that you say there's a fact issue on because that's not even the issue the issue is whether any reasonable that no reason mother could have could play a part takes a longest question well you know like like we've discuss neither of us on a case exactly on point which doesn't that mean he automatically wins under our case law because there are numerous cases that would allow a reasonable highly trained as this officer was a supervisor a police officer to understand that you cannot shoot and kill an unarmed teenager that doesn't present a serious threat so i mean it sounds like it's almost as if i do better if we assume for the purpose of the bill that he was running at him and not because we haven't found a case on fleeing i think you know under tennessee v garner and many many cases since but timothy garners not a qualified immunity case in that context bit it clear it but we can say that ing outlaw is it's not sending out qualified immunity yes but i think that it would any police officer would know that the law is clearly established that you do not shoot an unarmed person who is not a threat to you and you know i think in my short time left i would just point out that the calls for service for this young man or that there was a boy walking in the road who needed help and or knew that he also admitted that when he pulled up on the scene he recognized that jose care was intoxicated or having a mental episode so to your honor's point contrast what happened to him with how police regularly react to any really young people at universities and colleges or party hotspots like six three in austin rhymes run or how the police regularly react to the mentally ill in downtown urban areas also a big issue in berliners shooting of has a gear was reasonable police would be shooting countless drunk college students and mentally ill people that's not what they do they react with the intermediate known that he was playing when he's charging in following him to the back of a car is just it just doesn't make any sense but by the forensic evidence on the spirit forensic evidence it then just one extreme the other extreme is when the police officer has a reasonable belief that the man is armed and that when he's not when he's not the law says that you have to have a result believe that there was a threat in this case the threat was that not by choice he was in the middle of the pavement with a person that decides to taunt him when he when he