the district court has given law enforcement officers an open invitation to shoot and kill its as soon as they see any movement from a suspect who is not complying with their orders officers zola's decision to use deadly force in this matter was not objectively reasonable officers ola did not take the time to properly assess the situation that was in front of him that they've they announced at the top of the stairs if you're there come on out and they come they search the whole basement and they're outside the closet if you're in there come on out he doesn't come out that he's lying in w and they open the door and all of a sudden there's a sudden movement and it's a split second decision by the officer for his own safety and you're saying we're going to give a license for the officers to kill well if we rule the other way the other argument is that we are going to put officers at risk because they cannot protect themselves when they they reasonably believe that they are they're going to be shot at and they are going to be deadly force against them i mean that the line in weight here i think distinguishes it from those other cases where he's on noticed and he's hiding and he doesn't comply i mean can you come up with a case that somewhat similar to this simple versus bailey is that individual is lying hiding in wait inside a warehouse who's on the second floor of the warehouse it was dark it was night he was in some type of storage container where he was hiding he was not responding to the officers commands to come out when the officers happened to open the thing in town or and saw that he was in there so that case is similar to this it was like this he did do is to sudden movement i mean the one difference between that case and this case cases of level different if you're inside a container i mean he at any point he could have erratic kicked open the closet door and shot you've got to come up out of a container you've got to get that was there a lid on it i mean it's it's just a different situation because if i mean in theory the suspect in bailey could have fired as soon as he saw the officer pull the container open he could have shot in bailey the sixth circuit said some movement is expected in this particular case this guy the arrest warrant is for armed robbery right it is i think he's got other convictions of violence so they think that he may be armed and dangerous sudden movement by somebody who may be armed and dangerous i mean are we really putting the officers in peril if they can't react to these officers and i think depends on the situation in this particular case with danny withers these officers were in tactical positions they had searched and cleared the entire house if there was one place that withers was going to be at at that point in time it was in the closet with a gun some statements my home or them wants one show us your hands or hands up or come out and show us your hands appear and show up i don't know exactly what the words were but something about sure wash your hands it depends all three of the officers testify there in depositions that they were yelling out commands as they were going through the house when he gets to the basement area there's some dispute between the officers the opposite are consistent as to what was being said whether they stopped yelling to show us your hands once you started walking down the stairs whether there were any orders at that point in time to whether there's and other officers claimed that they continued to yell out for him to come out or to show his hands or to say something what they saw or what what is when he looked was kind of at an angle looking into the closet where when the door was opened and he had his flashlight he saw the person and he could see a hand go up because that is that but he couldn't see the other side of the persons but it was the right hand it went up and couldn't see the left side of the body or something there's a dispute about that no i think that that's what this all has testified during his deposition they saw a slow out of a man he saw the right hand begin to go up but he made the decision to shoot in less than a split second we talk about split second judgment in these cases he said it was less than a split second isn't qualified immunity isn't it and that to protect officers split seconds decisions when  they're reasonable under the circumstances and we shouldn't judge second judge second just split second decisions like that because this is an excessive force claim you're  you're you're claiming that he intentionally violated your client's constitutional rights by using excessive force and usually split second decisions there don't come into play because there's usually some conscious decision that i'm going to i'm going to use more force than necessary and that would be most that reasonable officers would not under this situation but a split second thing as long as it's less ok less than a so it's a bit more protected there no i think that that leads to the the inference he was if he saw any movement in that closet he was firing whether it was one step out whether it was any movement of the arms he was firing as soon as you saw movement in that closet when you make the decision to fire your weapon into that closet as soon as you see any movement in less than a split second without seeing whether he had anything in his hands that is not constitutionally permissible you had these officers were in tactical positions it wasn't like they just happy walking by this closet door in the door opened they were in tactical defensive positions detective shoulders restart the shoulders or open the door testified during his deposition and he told solo that he was going to open the door so that in case somebody came jumping out of that closet or something happened these officers had flashlights trained on that door they head their guns pointed at the door shoulders was the closest one to wethers in the closet he was right there he opened the door and even though he saw with his arm move begin to move he didn't fire his weapon he didn't think it was necessary that he was expecting some type of movement is what his actions would suggest three the person in the closet more or less at the same time i think the only one who had a obstructed view was officer shapiro and shoulders were standing by the door or kneeling down by the door to open it zola is eighty nine feet away with his gun trained on the door shapiro's off the side that has his flashlight shined its door with his gun down at his shapiro's here with his or his flashlight pointed at the door and any time an officer searching a house individual could reach in grab a gun or what happens at a traffic stop any movement any time an officer pulls over somebody you know and individual could reach for and grab a gun but the question is how long should the officer have to wait before the fire is weapon in less than a split second it is not constitutionally permissible for you do with the problem of qualified immunity here problem of clearly established law don't you have to meet that test we do have to meet that test your honor and the law is that the law emanates from what can see the garner on excessive force yes in bailey this court reasoned that there's no factual distinction between a case like bailey and any other one and any other one in which police officers confront innocent a suspect to in effect in a rusty individual once you had your gun in your flashlight trained on an individual unit that individuals in hiding before once you have your gun your flashlight trained on him seen as any other type of arrest when you're trying to rush the suspect and you should you need to be able to take the time to look to see whether or not that individual has a gun in his hand at this floyd vs detroit that i cited in my brief in that situation officer responding to a complaint that an individual was threatened by another individual t gun they go there they see the individual that meets the description and as they're approaching him they hear a gunshot and one of the officers falls to the ground the other officer fires you have to go over is the clearly burglarized house and was trying to run away and offering his i remember have a flashlight turned it on the person and the person was trying to escape go up a fence and the officer leveled on him and guilty and the supreme court said that was excessive force now if your case is the same as that or more or less the same then was satisfied to see to see governor would satisfy clearly established if it's not similar then it would not be follow me i mean you've got a supreme court opinion about it so and i don't know whether supreme court thinks that what we do is clearly established of a closet he wasn't like a suspect if you know could run a far distance and scale a fine to me in this case he's confined to a closet they have him surrounded of three officers guns pointed flashlights out the printer how secure they searched every expectation that whether it was going to be in that closet there was an expectation there was me some movement once you open that closet door and the fact that you wait less than a split second before making the decision use deadly force is not constitutionally permissible  panel this case is really very simple actually as opposed to the case we heard rep of for it was quite complicated and the bottom line is the district court got this absolutely correct let me walk you back through this we have three officers who are going to serve an arrest or going to serve it at a home on a person who had just threatened to blow the head off of a bank teller and also has a prior weapons conviction which they're aware of so this is not just approaching someone on the street they actually who he had shot where he was are but he had just committed a serious crime so far or similar owner but then things become very different times when the officers arrive they first call out and try to identify where's the anywhere there's a grandmother opens the door in fact admits that yes there's a daily weather still lives there and they go in now they have to search for this person this is a house where danny weathers lives he has the advantage who knows where there may or may not be weapons but the officers have to arrest this person at least they know he's in the house because they seen it went up stairs that they believe that they had seen with us i don't think that any of the officers could have said with certainty but i know i think at least shoulders testified that he believed it was danny whether she called down to them i'm not sure if they saw him there was a voice that answered and because they initially there's sometimes more than initially it asked for cabin and a voice came from upstairs that nobody named kevin lives here and then that person just disappeared so now they're going through the house to search for danny where there's a start on the top floor it's a three four home as are searching for him they're calling out for they're giving him every opportunity to surrender it could have been something as simple as just letting him know here's where i am so you do not have to feel afraid he could have said i'm here i'm in this room i'm on arm he could have done a number of things to make these officers feel a little bit safer he does the opposite he silent and he's hiding this tension is heightened for these officers they have time they do call him back up to surround the home because they realize there are other points of ingress or eager ass and this guy's dangerous if he gets away who knows what he's going to do so they continue their search giving him every opportunity to give himself up and he doesn't do it eventually they get down to the basement and this is taking a walk and all this time this guy is in compliance so they're looking through the basement it's dark and yes they do take tackle positions when they finally get to the last place the reason they take that is i believe the testimony had to do with come out i don't know if anyone ever says show us your hands and have to go look back at the briefing that's what it looks from the briefing but i don't believe that anyone said that in the moment just prior to the fire and i believe if it was said it was sad some time a few minutes or even further back before coming on the steps on the base it may have been coming down the steps but even if it were coming down the steps i believe this search the basement for two to three maybe even four minutes before they finally get this close now they do take tackle positions the reason that they do that is because this is such a dangerous situation and this closet and there's a big distinction from sample bell and sample it was a tiny compartment where the person was balled up he couldn't quickly move  anything for of anything of that nature this was a large closet where there's just as much room as i have right here you can be doing stuff with your hands you can leap you can do all kinds of stuff and they sort of in their tackle positions shoulders job is to open the door it was roughly ten feet give or take it was a close proximity with the world right and spiral is behind him enter pyro testified i believe that the only reason question they do well enough i guess so now the door opens and for all these opportunities to surrender to do whatever he could have done one hand comes right out and he can't see what's in the hands he's the  arm the other side of the guy he doesn't know where the guy is raising his hands and surrendering or what because he can see the other side of the silhouette right and then the question becomes reasonableness yes true i would have to look  angle of looking at the interior of the closet where he had the flashlight on the gun would not show or perhaps would not show open question or whether it would show the other hand coming up so that he was trying to surrender your honor i think that that question that you're asking right now really obviously it's the issue i think at this point in  given all that they knew to question that is the use of force reasonable and it was a split second decision it was a reaction and the reality is if dan weathers had had a gun to us and it's very possible that danny zola is that today or tomorrow is that today ok just because they were in tackle positions and there were three of them and there was a flashlight on them didn't mean they were safe see the light you don't see the parameters of what how would the guy hit the officer if all or if he had the flashlight right his face and his eye of all your arm just briefly address that number one you're actually looking at the wrong standard with all due respect the standard is the point of view of wrong here just try to answer my questions there's no way for me to know your honor and what matters is the point of view of the officer i don't know probably from that distance  i think if you were ten feet away and someone had a flashlight at me about the distance i am from your honor that i would be able to see other things the light would be so close to my eyes that was blindingly i could see other things that were going on moreover i'd be aware that i just committed a crime so there's reason for police to be looking for me and we're also danny's well aware that these are police in the house or in fact looking for men anyone with common sense knows that the police come to arrest someone they're going to do it armed and moreover if you're hiding from them which is what he was doing if you press lying in wait it's just giving them more reason to be fearful that you're going to do something terrible that you're going to try to kill one of them and with that screwdriver his hand right there which is what he dropped my guess is probably going after shoulders but we don't know that we're never going to know and the way the case has to be looked at is a reasonable officer at the time given what they knew under the circumstances and i think this case is very simple that we do we know we had the screwdrivers and i know that screwdriver was found at the scene but it is just an inference it was in his hand i mean you're not have to go back and look at the depositions the way i have it in my mind as you know you sort of put these cases up no he didn't say i saw the arm flash of a screwdriver and at this point i do have time remaining i think i've made all the points i need to make so i can address any questions of the panel well one question sir haven find for the nonmoving party and there are not facts that could hear that could lead a reasonable jury to find for the plaintiff it's not just any fact in the world if we're disputing what color should he wore that doesn't matter and when you look at the actions government and the department of justice and got a copy of it here and it seems from just reading it eardley that the cleveland police department concedes that it did not have good frightening for the officers with regard to the use of force and particularly deadly force are vault in in a perspective with with ratio of the consent agreement yes judge well there is there are provisions in there about this deadly force and excessive force problem that apparently the cleveland police department thought they had certainly the part of justice didn't they entered into as you say in agreement about it and there is language in which the cleveland police department seems to be conceding that  my understanding of the training with the case i have had is of the training it is the comport to the written policy that would agree then that to see the corners really the case on existing where the supreme court cases being sample rather than bayer or i thought that sample or bailey would you have or was the suspect was in a cupboard he was in  cupboard and he was smushed in there so that it took him some effort to get out and that when they opened the door to the to this space they could see his hand and could see that he had nothing in his hands am i wrong about that it depends on whose version of the facts you agree on i don't recall it being covered up thought it was some type of closed container that was on the second floor the  big difference between bailey in this case is that the suspect in bailey survived so he had his facts in his testimony to say that he was trying to reach out to pull himself out since he said he had to pull himself as he was reaching for mean that the holding there if you look you're supposed to look at some somebodies hands if you got a chance to do it the officers in those cases both bayley and in floyd well in bailey the officers at least even if you took the defendant officers version of the facts he at least waited to see the suspect reach into his pocket before he fired his weapon at the suspect the suspect in bailey said he was reaching the pull himself out never reached into his jacket so there's a difference in the facts that were before the court on bail as to whether the individual is reaching into his jacket the possibly put a weapon or whether he was sticking his arm out to pull the point was though unless i'm wrong the officer could see both these hand it wasn't that split second sort of right the officers didn't wait less than a split second before firing they waited to see if they could see the hands and floored the officers admitted that the officer that shot admitted that he never looked  hands floyd was the one that said he had his hands up in that his hands were visible the suspect studied his hands up his hands were visible the officer claimed that he never took the time to look at the hands before he fired as soon as you see as the gunshot and so it is part of the  point i'm trying to make is the holding in those cases was that if you can see the suspects hands you lose the you lose the fight that you should look at the hands and see if there's a gun in the hand i saw officer rene so looked at floyd's hands even momentarily before shooting him in the chest he would have presumably seen that floyd was unarmed it's taking the time it's waiting more than less than a split second officers ola testified i think we're familiar with that thank you thank you