thank you your honors my name is currently named i represent officer copeland in this appeal and i'd like to reserve two minutes for rebuttal in this case may it please the court and counsel in this case the lower court fail to articulate a clearly established right violated in these circumstances when that officer copeland who was confronted with the court did not cite political u supreme court case law establishing that clearly established right and at the closest the court mentions tennessee v governor but in the recent us supreme court case of a excessive force was mistaken the psni the correct inquiry the court explained was whether it was clearly established that the fourth amendment prohibited the officer's conduct in the situation she confronted whether to shoot a disturbed felon set on avoiding capture through vehicular flight when persons in the immediate area are a risk we focus on this case the district court distinguished this is a case where the individual who somehow survived all of this says i got out of my vehicle with my hands up the officer disputes that the district court said there's a factual dispute on this i can't resolve it that the first shot needs to go to a jury what's wrong with that well even even assuming that well there's two things one factually the expert testimony of the  and even his mother said that his hands were up but then his mother lost sight of him at the time of the shooting coming or shot or second shot so now the first is that we're talking at the first shooting so he says my hands are up the experts said well physically you know through various examination that's really not possible given the entry of the bull one isn't that a factual dispute you have to believe the expert because it's not  the individual versus the expert and the expert may be totally right but he just contradicts the testimony well i think it's the scobie henery case that says that if there is no reasonable explanation to corroborate the testimony then that physical evidence would print prevail and in this case if you have physical evidence at that very moment that he was shot that rebuts the testimony of the individual then you you're not weighing that evidence this district or your interpretation at that point could have directed a verdict yes and should've directed a verdict and should have vehicle my hands are up and but there's expert testimony saying he couldn't have had his hands given all of the facts and circumstances well i think it's scott v heinrich which it says that the  if there is physical evidence that does not cooperate i'm sorry you keep saying physical evidence but it's expert opinion evidence about the physical facts on the ground to me that's not physical evidence well it's unre care what ballistics experts and mathematicians and statisticians and physicians say i had my hands up the jury's entitled to consider that is a well if if yes but in this particular case all he testified to was that his hands were but there it isn't clear even in the record whether his hands were up by his own statement at the time of the shooting and that's why juries decide cases and well what i'm saying is i don't believe that mr wade said specifically at the time that i that i was shot my hands were up so he hasn't technically rebutted right and all inferences are in his favor and i'm looking now back at this scott we hang rick case which is a little bit different because there the question really was whether there was physical evidence actual physical evidence that was contemporaneous with the officers statement and there was a question of an expert's view of what the physical evidence was so it seems like it's a little bit different do you have one where the physic the expert's opinion somehow becomes the physical evidence and that no other than no i don't have a specific band jury trial of a case like this in that if the first shooting went to a jury a reasonable jury could believe the expert and not believe mr wade correct just to correct or incorrect well  the expert correct correct although what's wrong with that the district court did on the first shot and that goes back to that split second of the time at the time of the shooting because at that point in time mr wade has not clearly established that he hasn't even stated that at that moment his hands were up so it's there isn't any evidence that says his hands were up at the time he was shot the expert says physically his hands could not have been and so there is no rebutted fact or there is no dispute of material a genuine issue of a reasonable jury could disregard your expert and believe mr weight but if they but that if the jury says well you know i listened to that expert and i'm really not so sure about that kind of ballistics testimony so i don't believe that now he may well be highly believable once he gets there but so the jury says are really believe that so the last the only thing the jury knows at that point is hands up and there you have it for purposes of this court did novo review open is what i'm arguing is that at the time of the shooting mom doesn't see him he doesn't specifically say i my hands were up so a reasonable inference would be for a reasonable officer in those similar circumstances to believe that if he dropped his hands then he was in a non compliant state and a career and he was aggressing he was moving towards him and it was a dangerous situation that was district court denied qualified immunity and to both of them if we can separate the first shot the second shot it was just an outright denial of qualified immunity i don't know that the the in the lower court really i mean i don't think that she put it this way he didn't bifurcate them and say reasonable question of fact on the first shot qualified immunity on the second that didn't happen correct correct my question to you is could this case be tried factually on the first shot alone yes if if qualified immunity is if the jury believes your expert then that would be a question of for the for the very very happy client that what would you address the second shooting because circumstances do change at that point so even though the judge didn't seem to have distinguished  what's your argument there in terms of whether there was a violation of clearly established laws well my argument here in all of that is that based upon the that there is no clearly established lies defined by a united states supreme court in my position is that the u s supreme court in taylor and shane and next has made it clear that you have to look for a u s supreme court case not just in the ninth circuit case or a compilation of of robust circuit case law and that in this particular case the articulation of the circumstances would be a suspect partially compliant deadly force would be unreasonable if the suspect is dangerous threatening or as perceived by the officer how much do we know how much time elapsed  wade exit his vehicle whether his hands were up or down and the firing of the second series of shots how much total time elapsed on the radio  the that was when the first shots were fired but then they're after it might have just been a minute or two because at that point mr wade first of all mr wade has no recollection whatsoever of the second shooting so from that point on this trying to get in my mind whether it was two minutes three minutes ninety seconds is this part of the record from the minute mr wade gets out of his vehicle until the last we see him coming which appears to be about he gets as close as what a couple of feet from the officer correct and that's when the second so it seems to me you really do have to fight for kate these and he's and at that point i assume from reading the reeses argument is holy cow the guy is like right here he's coming at me and he's been shot and i've already shot the guy and now he's still after me right and that any time he would overpower him possibly take his gun he doesn't  there there is qualified immunity on the second shooting without a doubt you want to save some time for me bottle  is he is working at a halfway house right now he's got a severe alcohol problem ok he's i would say he's in the custody of the correctional system ok which is a good thing it stop me in my ramblings in get to the heart of the matter that concerns the court obviously you've read the briefing there's questions that you may have i can't i am particularly interested in that second shooting  terms of being objective really reasonable whether one could fire a deadly shot he has this gentleman is already injured and  south and he doesn't just stop or lie there wait to see what happens he comes right at the officer and officer is in fear for his life basically so i suppose my question for you is and i'm hard pressed to understand why the officer wouldn't get qualified immunity and that well there is an assumption that the court's making that he that that that he stated that he's in fear for his life and that is a reasonable assumption to make based on the facts of the case the hardest part for me in this whole case is not testifying with my experience but what you know w looking at the video which i've looked at like that and that evidence it is what it is it is what it is your honor so why wouldn't officer a reasonable had been wounded but as part of the answer that this is not the law doesn't impose a duty to retreat well the law does not impose a duty to retreat and so the corollary to that is that not so that you can shoot again if if it's justified based on the facts well but if there's no duty to retreat and if you fired one shot and the individual doesn't go down from that one shot and by the way i think we would all agree a lot of officers wouldn't have wouldn't have limit themselves to one shot well actually i think i think you thought about i think he fired five shots in total to hit ok so right so so why also has a choice now retreat well i guess the three options are to retreat engage in some kind of hand to hand or shoot i mean i think that's  the whole universe of the officers options in this circumstance well in the law seems to privilege the officer having discharged as you've reminded me multiple  dispatch on the record he says no weapon but he doesn't have to retreat well he doesn't have to be people he has to act after reasonable he could the felt that his life was threatened he just shot the guy all right and this is always been something that i've looked at  he knows he had up right now he's got shot twice and then when all this and he drops when he when he when he when he fires the shots that obviously carders up there i think the thing that got me the most on this was when officer carter says well where's the weapon that told that told me that if you're using force in this particular situation there should be a weapon there cops don't ask questions like where's the weapon if there's not a reason  asked the question and so when you look at when you look at you know you shot someone you know you can see clearly in the video there is no weapon and this in this day waits hands and obviously this is where the experts come in in some respects b and i do know that judge hill is interesting he says you know nobody disputes the experts in regards to whether or not it was reasonable or not you had two law enforcement officers i think mr meyer was involved in the  scenario and my two are my primary witness and they both are looking at it with experience and going no and yes and when you have no and yes you have clear disputed material fact that needs to go to a jury which is why the ninth circuit says that generally in these types of cases the summary judgment is really great granted because the facts are in dispute and as was pointed out in the case this case a jury could believe l both so i look at a look at it was the offer was unreasonable and i think there's a dispute in that regard for me garge to the facts but the clearly established well as we all know you can't shoot a person when her hands are up you know you had to be a lawyer you know you need case law even though there is case law tennessee versus garden a few others but if a person is compliant their hands up its hands up don't shoot when they ask you the same question i asked you're posing counsel could you try this case on the first shot oh yes with no evidence about the second now there was a well yes because l determine that the officers intitled to qualified immunity on either prong on the second series of shots yes i think you know and we sent it back to the district court saying try it on the first shot alone you could try and i could try to case but i would want to but you don't want  question don't you think by arguing to try the entire scenario factually in front of a jury as opposed to trying just the first shot you're reducing your client's chance of success not on the first and not on the second i think here's the you know here we are a summary judgment and so we're not actually looking at the evidence that they're that all the evidence is there we're looking at as a matter of law can you dismiss the case i believe as we move forward on this will be able to establish the steps the facts also then you have not only do you have an expert witnesses you have rebuttal expert witnesses who can do things and let the the beautiful thing about our country and our system is that  think judge hawkins was really on to something important from your perspective i can easily imagine an honest juror acting in good faith learns that there was a second shooting could really undermine the probative value that the plaintiff was silence to the first shooting you don't you don't see it that way  there's only you know you go to trial as i say that would be particularly rational from a strictly logical perspective but people are people you know people don't always rational well to answer your question oh yes it could happen that way i just believe when all the facts are brought out when you put that officer on the stand you put my client on the stand you put mom on the stand you put i love our so carter because we're not going through all this deposition we're looking at whether or not there was a legal justification and that type of thing you i will let me let me address one thing even with his hands up ok in the first shooting mr khan wade was still aggressing he was not getting to the ground he was not stopping  whether he had a weapon or not was unknown and if you take into consideration the video from the second his hands were up there he's he's like this come in an apt at him and so the risk of him as as judge davis pointed out you know the options are still the same in the first shooting retreat hand in hand or shoot so does the officer know that in the nine one one call that they've said he's drunk yes that absent know that the name or he had said i don't care if i get shot that's right and he often does know yes because sheriff deputy carter had contacted him on the radio and said i need you to know that last night he called and wanted swat to come out and then also copeland knew that in september just a couple months earlier that he had responded to a call where mr wade had attempted suicide with a with a large dagger a double edged dagger knife so he has all of that we don't have any weapons one forty eight and two nine hundred seventy nine i believe so you still have the same situation so here this is a clearly established case law issue because you don't have a situation where again you have a supreme court case that says a a partially non compliant threatening aggressive suspect coming at you with again we can we don't look at twenty twenty hindsight it's the split second decision that you have to that the officer has to make with all of the facts that he has at that point in time even even with out the issue of whether his hands are up or not he still has the qualified immunity and as to i just want to address this issue if this went back and we tried the first shooting i would not be stipulating that the second shooting does not have any relevance because it also shows the state of mind that mr wade was in because it continued based upon what he said to the officer and as well as what he sounds like you'd have another issue for appeal right have an entry issue i love the ninth circuit thank you very much thank both of you counsel and also for your collegiality the case just argued weighed versus koechlin is submitted and we're journalists more