community face by virtue of factors beyond their control what this case shows us is that how certain biases and nonexistent threats combine the poor policing practices are used to justify the use of lethal force against suspects on the night of july twenty seventh two thousand and sixteen david collie was a fox with six inch one hundred fifty pound thirty three year old african american man he had the great misfortune misfortune would lead to him being shot in the back from a distance of thirty three feet eleven inches away perper the city of fort worth police force paralyzed from the chest down it is the position of the appellant this morning your honour's is that the trial court air and granting summary judgment for three main reasons number one there was a june dispute concerning material facts number two it was clearly extent wish that a officer may not use lethal force against a suspect that presents no threat to the officer or to a third party and then number three if time permits that the granting of summary judgment in this case was premature for this story here we've got the video i mean it's in the briefing and so forth and we've had yes your honor the material issue effect it's evident a few in a few ways number one hugo peron claims that david collie had something in his hand that is the disputed issue of fact mr coll himself says his hand was empty the video produces no evidence of anything and mr kali's hand we have the declaration of this c e o of twenty first century for resits animation who states that if there was something in mr kali's hand between the light from the patrol car the flow of light from the building and the flashlight of deputy floor is that a a metal object would produce some sort of glaring some sort of reflection or something that he calls gleam in his report all of those things are missing not only that as also indicated in the report prepared by twenty first century forensics animation mr kali's right palm is visible when he turns around and faces the officers his arm in front of him as we can see from the video deputy flores is behind him as well as officer of the room in fact what we learned from the three hundred sixty degree laser mapping of the area is that deputy flores is twenty four feet twenty four point eight feet away and she is ninety four degrees by mr collie we can determine that mr collins hand is in front of him his feet are facing forward in that both officers are behind him but i thought the sequence of events showed the fire had asked him to stop and turn around i mean they were yelling at him well they your company w appeared not to paying attention that's what they say well you're correct in that they were yelling at him yonder and it's debatable as in terms of what they were yelling at in in the record we find interviews from both deputy florist as well as officer bear in they were yelling what what claims seems to be potentially conflict in commands about remove your hands from your pockets or show wishings mr kali's position your honor is that he attempted to comply and upon attempted to comply with t alert actors are two black males who left on foot to an apartment complex on normandy sepia met these actors on facebook to buy shoes actors no interviews from the deputy florist as well as officer iran that they gave that night there were there was not only the text that was sent to their cars via the of th tax there was both text in there was on your reporting there was a audio command that went out there was a call from the witnesses there were own duty officers who met in staged at the gas station that their office a baron drove right past on his way to shooting mr colley all of these things were there and available one things that appellant argue they happily argue below is that well you can determine when mr berry went off to bury receive this information and to the third point was i guess we'll get to now was that the appellant believes he should have been entitled at a minimum to discovery to determine exactly when officer barron learned which is undisputed that the suspects were six foot one one eighty and six foot four it's also worth noting that mr colley was confirmed by the own duty officers in the facebook photographs not to be the suspects what of that apparently there was a box cutter recovered at the scene is that one of the material issues or fact that you're highlighting that the box cutter did was not in the possession of your client it is what was ever tested for fingerprints or anything is there any way to it to resolve the issue of whether it is or is not the property are in the pit was in the possession at the time that again  goes to that there are point that at a minimum some sort of discovery should have been granted before summary judgment was was granted in this cause because there is nothing in the record to suggest that mr colley on that box cutter not only that if we look at  the police reports there are different statements as to where the box cutter was recovered not only that we never see in the video ever this box cutter there are two videos that actually a part of the record there's a as a body camera video that gets turned on and off by officer baron and there's also the dash cam video which contains no sound the declaration of mr stewart from twenty first century and i'm a forensics an animation makes clear that that video has been altered in some way and that the metadata has been removed so but with the commands that the police gave at the time you mentioned something about show us your hands are you contending th conflicting commands given or was it raise your hands or well that's just it young or there are two officers yelling missed a colleague one of whom has a gun pointed at mr colley he comes downstairs and is confronted by two police officers one with guns both yelling at the same time is he complying with the wanted not the other is that your theory as to how this happened or was he not complying with either one of them and just ignoring them our theory is that he tried to comply he says he startled is our position he's not again is confirmed he's not the robber suspects so he's not the robbers either of the robber suspects that's that much is clear so when he is confronted by two police officers yelling in one point in a weapon that is not something that a person deals with on a daily basis it takes a few seconds to process and figure out the best way to respond mr connerly did that he attempted to do that by removing his hands from his pockets and i would grant to the court so surely he was local and that it took him approximately three seconds to make this happen but again three seconds is not a lot of time when you're start and that's not a gun but it took him approximately three seconds to remove his hands from his pockets and he attempted to inform the officers where he was going when he outstretched the right hand in front of him that is a material issue of it's going back to something you just said he was attempting to show them where he was going it was that it is not part of the command that was given to him about where where are you going or anything like that or what's up with it did they tell him to stop and raise his hands or show us your hand if there's no indication that they it that the officers asked mr colley where he was going what what i think that for myself and the apple he will agree on is that the officers did tell mr colley to remove his hands from his pockets and to show its hands again mr colley not the robbery suspect well a suspect but not the person who committed the robbery was he startled by two officers at gunpoint he removes his hands he's walking as the course sees from the video he's walking through the parking lot he's attempting to show the offices where he's going to has a vehicle parked in that parking lot at that point he is shot in the back th have they told him to stop it seems to me if they're telling him to stop show us your hands that's that's one way to comply with that is to not continue to walk and if i understand your testimony i mean you're you're you're argument you're saying that he didn't stop and said i'm proceeding toward my vehicle you know my car's over here is is that well it's certainly true your honor that he did not stop again there was no discovery in this case and so beyond the audiotape interviews of deputy flores and hugo barron we're not exactly sure what was said other than we do know that there is a conflict and there are two people yelling that this man who again is not the person who committed the robbery is that of the parents but it came which were is came in order to be able to hear the commands is it correct to think that in the body jim belongs to officer barrett there is audio on the body tam but you cannot hear any of the exchange between officer bear and or mr colley or even any of the commands there were yelled by deputy florus so officer barrett is is in charge of both the dash camera video which is missing sound and metadata an officer baron is in charge of the body  understand urged it they're both behind but my point is so she did not have a body cam on is where she's closest to him she heard she isn't happy about a game i don't we're only talking about actually disputes that but the facts make clear that mr colley did not point in the direction of deputy flores as claimed by officer parent that is a gene when factual dispute issues that should be presented to a you press a there is no body camera whatsoever for the floors nobody camera whatsoever nobody came or whatsoever of the shooting itself only the dash cam ok and then my other question regarding the box cutter was that ever fingerprinted at all is that information that so none of that's in the summary judgment record in my argument is assume he didn't have the box cutter we think you did but for summary judgment purposes assume he didn't because that's not a fact i'm relying on in this case on the evening in question my client was a former police officer riding with a kerry kind of sheriff's deputy call to the scene of an armed robbery suspects fleeing on foot they go from their location toward the call location on the on foot one armed with a handgun plaintiff's argument below was that the officers made a mistake because they should've stopped when they saw the suspect they should have kept going to the scenes they could have gotten the full description they never had the full description when they encountered the suspect they pull into the parking lot like him up with their headlights he turns were immediately walks away they get out they're both yelling stop show us your hand stop show us your hands mike my client had his gun withdrawn because of covering fourteen frames the video within a single second this motion is all my client had to evaluate whether or not he was going to wait and see if he shot the deputy or whether he took action to stop the threat in that in what you're saying about the framing use certain of brea th at in fact we we look at it he sees pain out there's no doubt about that history but you're disappointed that both the offices or behind him if you will floors is closest to one you can see on the video you can see in my frame by frame he ends up pointing directly at the deputy if not directly within an imperceptible angle but the expert says if you go back in time off a second zero point four seconds he doesn't dispute that his arm was swinging rapidly in that direction there's just no dispute about that you see it on the video  another side note if you will plaintiff's counsel refers to all kinds of things that are not part of the summary judgment record and none of it matters and you're welcome to look at any of it you like but the summary judgment  things of that nature but the only evidence that was considered was that the act described by the officers and i was the only evidence they had in that case would have presented a reasonable officer on the scene the action is judge from the perspective of a reasonable officer  it was enough to justify the use of force and ballot versus burton judge stewart wrote that force must be judged from the perspective of reasonable officer factional disputes abandon that case as judge stewart wro including even whether the officer fired the shot that ended up paralyzed the point of may have known that the suspects gun was empty that did not even matter because what you judge is from the perspective of a reasonable officer if if officer florrie's thought he saw didn't think he saw a knife a reasonable officer an officer barron i'm sorry seeing this in action under those circumstances as seen plainly on the video more than justified him protecting his fellow officers life and firing the shots he cited in my twenty eight jail letter a suspect was stopped to happen to be an international spa and didn't cooperate and when he was getting out of the car he moved his hand toward an officer an officer on the other side of the car saw that been look at these pictures a bunch and i don't understand i mean this was quite a shock on the part of officer baron does the video show the suspect go down room it does i will i'm just looking at the angles because it looks to me as if a suspect is turning like that and his back is not really in the line of frame that i provided me look at the very first one and then you look at the very last one to look where he's pointing the very last one and understand that from one to the other was a single second but i couldn't put the video in my proof and if you look at the video argument help when looking at it again and i will point out that back to one thing just to clarify ok you said both offices gave the command you know show your hands is that what you about it was one comedian and that was i mean one is a singular one but the same to me about both the office show your hands start show your hands stop show your hands or what is what is in the record the officers said and none of them said swing your arm frostrup the deputy you know stop you don't stop so your hands maybe this but it's certainly not what you do and as judge jones wrote in the man as he lost in case you know if the suspect is trying to tell us where he was going or or not we can't ever make that determination nor is it relevant to what the officer on the scene perceived or reasonably perceived which was and the other half of the qualified immunity test of course is whether or not the officer acted reasonably in light of their earlier step wished law and in this case the plaintiffs interestingly have always taken the position that we don't have to show you a case that is on point we don't have to show you a case that is tied to the facts of our circumstance in the district court even noted that in his opinion that the plaintiffs refused to try to show a case that was  but me you know there are plenty of cases that involve split second decisions resulting in officers shooting guns and as far as i'm aware just about all of them you've cited a bunch them go against plaintiffs ultimately where there was any cause to you know some a reasonable belief on the part of the officer that some somebody was going to be threatened this is all a pretty well trodden ground conditions and particularly the courts ever ject of the notion that you can simply say as a fellow does here an unarmed non resisting non threatening suspect dooms this case on appeal and i point that out because even on appeal plaintiffs haven't satisfied their burden but it is an odd situation where district courts are told to require factually specific case law suspect and the court came to the same conclusion that the if the facts when viewed from the eyes of a reasonable officer easily justified qualified caught this was a hold up outside a convenience store called police to get their suspects are seen leaving but never found them and these often officer baron didn't have the benefit of video viewed in slow motion in a frame by frame analysis with three hundred sixty degree high tech imaging in the case i cite my twenty eight day letter out of the eighth circuit is very on point in that case where they said in that case the court actually found that if you look at the video in slow motion unlike here if you look at the video in that case it did not support the officers claim that the gun was pointed where you said it was pointed but they said somewhere in the arc of movement it was reasonable officer could have felt a threat and noted that the officer doesn't have the benefit of such technology when he's on the scene making split second decisions and and  the claim that the officers that was argued below that the officers exposed themselves by getting out of their vehicle and not taking cover the officers should have gone in investigated gotten more facts before they stopped none of that's relevant but even if it were from a factual outside looking in perspective it's not where we judge the use of force we judge the use of force from the moment the use of force decision is made at the moment his arm swings around that's the moment in time where we judge the officers actions based upon the tally of circumstances known to him and that was the exact case that i argued to judge stewart in the davis vs rover case a few years it is a dispute it is a very material in genuine dispute to this case the and in fact in again the report from twenty first twenty first century forensic examination of course the eyes of this for the moment and address the case law council opposite has cited the cases you know they're legion regrettably yes or point regrettably in the sense that there's a lot of tragedy involved in the case here is what it is and you know we're not authorized to make brand new law i don't know within the scheme of what's out there what's your take on staying on or first off start with tolls and the cotton or the supreme court rules when there is a factual dispute all reasonable efforts are to be drawn in the favor of the not movement moving truck or below as well as the apple e rely pretty heavily on white versus poly white versus poly was a case  where there were essentially the supreme court says lester something to put the officer on notice that his actions are against the law to get within the context he said when he got up ok he didn't want to fight over whether the box  they say so how does this case fit within you know the officers on the scene you know they see what they see it separates else but second what's the delineation what is the demarche to pull difference that she was allegedly beating was clearly established but what has been clearly establishes that the use of lethal force against a a suspect that presents no risk of harm to to the officer or any other person is not permissible within the bounds of the context of within those cases a lot of can all the facts that are here and assume for the sake of the answer this question take them all in favor of your position  was such a moot issue in that there is a shoot out going on in the court says that the officers involved do not have to announce that they might use deadly force when they arrive that's a limit let me ask you one question i realize you're out of time i'm sympathetic to your plea regarding discovery any litigant who doesn't get discovery and has a claim dismissed it seems to cry out for some examination of why did you counsel made reference to fifty six d did you endeavor to list under fifty sixty if i had discovery it would show the following and you know of course we want to be specific on that if i deposed officer x i would expect that her testimony might be such and such if i had documents from agency why i suspect they may have given insight as to the procedure whatever did you employ any of the fifty sixty time for discovery this case was abated twenty one days after the abatement was lifted summary judgments granted to the course point did not make a showing or offer proffer to the court to to show it which evidence i expected to receive if i had the opportunity to conduct discovery again a twenty one days after case been abated the granting of summary judgment was premature at that point we move as a set at the outset