case number one six five seven four three jol nesselrode v dennis not at all or arguments for fifteen minutes for plaintiffs fifteen minutes to be shared by the defendants trevor wells for the there are a number of issues in this case and they've actually sort of proliferated after the apple lisa filed their briefs and cited additional grounds to buttress the district court's decision however my plan subject to revision i'm processing that question and if we were to find yes that in fact the entry was unconstitutional violated the fourth amendment and that which was seized therefore violated the fourth relation to a warrant so a different factual so the circumstance that resulted in the seizure of the evidence there was no effort to suppress anything which was a teen after as a result of the warrant it wasn't a claim that you wouldn't have even gotten the word but for have to rely on an exception to the warrant requirement in the nature of the burden of proof means that it would be protected by qualified immunity unless it would be unreasonable for any officer to believe that there was an accident circumstance that would the primary problem is that at the time of the sentry there's no probable cause at all probable cause is a probability given the totality of the circumstances that you'll find contraband at the location and if there's a very good reason that this is a knock and talk investigation rather than a warrant execution and that's that my daughter's boyfriend says she saw weed on the property is not does not a warrant application make in any circumstance that never reaches anything resembling probable cause now i my brief describes this as sort of a paradigmatic summary judgment issue because the problem for the eastern doctors of kentucky is  that it makes an error regarding a disputed fact or fails to appreciate that there is a disputed fact and instead of drawing all inferences in favor of the nonmoving party what the court ends up doing is basing its decision on inferences pro defendant that it's drawing from disputed facts and in particular those are the facts in regard to whether mr nasal road was in the property we inside the home and then occurred i was wondering if there is not a way to view the statements of the various parties in a way that created speed the officers are at the door you know you have a marked a and  roads i didn't hear them talking to the police officer i was just going outside on what i had told my mother earlier i was going to do to investigate this person who was photographed on my property  help me understand why are they at it doesn't make a difference in this case because the question is what a reasonable officer in craig crafts position would have reasonably perceived let's say mr nice or road did not see him at the door but cry cry after song and he's talking to the mother about the drugs and he sees nasal road go standing up here talking to his mother i'm complaining about those reports of marijuana and i'm seeing him leaving i think he's going to outside to destroy this marijuana because it isn't there it's the reasonably objective inference take no reasonably objective conclusion made by the officer standing at the door why why is that a disputed issue of fact don't we have two different perceptions going on even if we accept both of their statements about what they were thinking i think the court has formulated the legal analysis correctly i do not believe that in light of all of the evidence that  that the evidence is able to be a squared dovetailed and viewed from different perceptions as the course argument genie is a rhodes testimony says when she comes out of the bathroom to get to the door that he's gone her testimony would be that he has left of the home i believe that's correct your honor inside in a footnote in the factual section i look i want to sit down here in a second but that's my recollection is that what that just money is because if that's not the case wouldn't we be asking what the officer standing at the door would think of what he observed i think you could ask that your honor and i think even if you give them that i don't think you've got a problem cops write the you know make it statement exists even in light of whether it is reasonable or not for the officer standing at the door to think that mr nice all road has overheard what has gone on is now taking action based on what the officer concludes he has overheard give them tip give them craig craft version of events i'm not sure it adds up to probable cause but the second part of that is definitely an issue of dispute facts so i don't think we get there but i think the court could spot them both tip and curry crafts interpretation of the events of the senior still don't have probable cause to believe the exigent circumstance exist them turning to excessive force issue like most of these cases is how the court draws the goalpost the level of abstraction it which you examined the qualified immunity clearly established mere possession of a weapon is not enough when a suspect has a weapon but the officer has no reasonable belief that the suspect poses a danger of serious physical harm deadly force is not justified to make it more than just a weapon here didn't you have the door he sees someone open the door and speak to them so he's going knock and talk is going on that's the point in which he knew was not to talk when he got the call it was even though it was not so yeah he knows it's not can talk and he hears cry craft there we know the uniformed officers there we know the knocking talk is going on he hears the man standing at the knocking tall say out say he's won an outback and i think miss nigel rug even said that she heard something along that line so there is confirmation of that yet i don't think that the dispute is your face not of a man was it he he he knew he takes action at that point to go out back where he has been directed he hears gone gone entirely upon the same prevent imminent destruction of evidence analysis so the discussion replies there there is not an accident see based on danger because in this circuit that requires not only proof of possession of a weapon but evidence of an intent to use the weapon none of which was available to mayberry at the time unit of the property now the question of when may breach shoots i frame the issue at the beginning of the brief the retreating individual gun low ready position and then there's the other question out there is whether there's evidence from which a reasonable officer could perceive a intent to use the weapon because of the failure to drop it which came to the scene said drop the weapon drop the weapon state police and then neither road says that's when you heard the shot before i had a chance to comply so if it the record is that he had a chance to look from the officer that was an idiot short there's no question about that but there's isn't the record clear nice the road had a chance to look both at cry craft and and then back again and when all earlier question as to whether there's a dispute in the evidence as to whether he looked from one to the other i believe there is some testimony from someone on that question i believe if you look at mr naser wrote own testimony about the amount of time he lady with the gave the information of betsy spangler she gave her name specified to deputy craig craft that she heard her boyfriend had been hunting and had hit a deer on their property and chased it over into the nasal road property is deer hunters do i don't care hind i will not come for fast to know what how how far they go to track their prey but he knock and talk admittedly mr gray craft mr mayberry in mr pocket were plain clothes they did have badges but the bottom line is that they chose the knocking talk because they didn't have probable cause to get them or i believe that they did have probable cause from that tip yes ma'am i think that that's more than sufficient in some of the comments from somebody who says somebody else told her that there were three marijuana plants growing on the property this was a tip not just from a paid informant this was a tip from a citizen who gave her name yet but it's somebody calling her from somebody else i mean this is this isn't something that she knew this is something someone else told her that knew really nothing about either one of these people they have nothing which to base reliability for those people if they do it it's a tip that i believe case law here it stands the tip is sufficient it when you take when you take mr nasal roads deposition and her son's deposition is that although they say if he says it's clear or that joe mays or old had left the residence it's be things but at best it's i don't know where they were i don't know where joe was jol doesn't know who his mother was talking to at the door she was interviewed about two kentucky state police  after the shooting and in her deposition shoes can run with these statements where she made these statements saying he was in the house at the time that the knock came on the door that was that was in that meeting afterwards but then was confirmed in sworn deposition testimony is that your position my position is it was confronted with her and she affirmed that testimony in her deposition that that was her statement i know he makes a statement that is i'm sworn but it was sworn testimony she was confronted with it and she is she not only in identify her voice on the tape she said yes that's what i said on several different facts have to be viewed obviously from a standpoint of what a reasonable officer would have done in his situation in a light most favorable to them to the plaintiff even in a light most favorable to the plaintiff it's at best a mere possibility i believe the gregg case in several other cases cited by the district court there say that that doesn't raise a sufficient factual speed to avoid summary judgment and for those reasons your honour's we believe that the  the reasons we have stated in our brief we we believe that the district court properly ruled that my client was entitled to qualified immunity the plaintiff did not show that there was no clearly established right to his violated as mayberry and that's been touched upon by the court what did he hear what did he see what was his officers perspective and what he heard again some of it's been touched on some of it is not he didn't know this was a not can talk until this team was assembled and then he learns on the route that it's going to be a not can talk once he gets to the new as a marijuana pool initially once he gets to the home he has the second car in line and the first car is a mar cruiser and the photographs are in the record that mark cruiser is part of very near the door with in clear eyesight a uniformed officer and mr craig craft officer craig graff get out of the car and go to the door as your honor said that saw now he's at his truck and he's putting on his mug preparing to pull marijuana and then it is what is he hearing the first thing hears and i think plaintiff's counsel has a greed with the facts as they were stated up here he hears you're going out the back what does he do then he puts on his boots and he walks he still in the public area of the driveway and he walks over to the father's w that point in time what does he hear he hears the word gun that's all been stipulated to it's clear in the record that is a see those two things are things that are coming from other officers and questions today  asked what is your case seminal case where the cases are humphrey vs maybrick interesting with the same name that officers can rely upon the statements of other officers and that arise in the context   ready existing probable cause to be location well this is i'm arguing under the qualified immunity standpoint so for his injury onto the property or these burble keys that he's hearing so his entry onto the property i'm arguing is once he's not on the property until years the word gun and that is more than just a gun when it's gun gun that is a police officer in his mind signaling out someone has pulled a gun there's an emergency going on there is a gun and he's entitled to rely upon that what does he do at that point in time then he goes around the back of the building and enters the rear of the property and see mr nasal road with a gun in hand and what's always been said a low ready position what happened before that the facts in the record are is that that he pointed the gun at officer craig craft so he pointed to cray craft as that's in the record you pointed it at cray craft and he confirms that officer maybe was not there to point but the gun is out it's not something in his holster it's already been pointed them what does he do he says he maintains it in a low ready position to a reasonable police officer low ready means something that means it can be fired at any time then the court is already mentioned he's in an uphill appeal position craig craft below maybe above what does he do i asked him the question so you turned toward him swung your gun towards mayberry no i kept it turned my body towards him and kept my gun down at the first time when he said drop the gun you heard him say something and turned your body yes then did you ever look back toward sheriff craig craft yeah i was looking up and down the hill just realizing this is person in the yard that yelled at me is not the same person as a above the hill so he has got a gun in his hand and a low ready position he's turning his body admittedly to look at mayberry does not drop the gun he turns back to size up the situation and looks back down hill court towards cra craft and this is showing a threat of serious physical injury he's got a gun in his hand and he's turning back and forth so maybe as lawfully on the property he's come because of a call gun he's got a gun and he's now seeing someone with the gun not in other cases where it's been said on the ground like a rifle and picked up you don't shoot somebody with a rifle holding it this way but a gun in your hand you can shoot someone and he's not dropping the gun and admittedly he hears the police yelled now he says that was right about the time he was shot but again in office or maybe was perspective it's the timing of this and all the indicators were there to him that nasal road knew it was the police you had a marked cruiser very near the door where they did the knock and thought you had a uniformed officer he saw both of these at the door and you have a holler and this is the mother a holler she admits how a holler of going around back he hears that and that's the first time he takes any move and then he sees a gun that is drawn and i think it's also interesting you know there's this word hey buddy that's in there well if here's hey buddy that's not a threatening statement what does he do after he hears hey buddy he immediately draws his weapon so all of these are indicator going out the back of the house doing these things that mr naser road was doing along with the other officer statements these are all in a k indicators that a reasonable officer such as dennis mayberry was sitting there hearing this and saying my assistance is required i'm not going to stay here at my car i am going to go around and investigate first by hearing you're going out the back and still remaining in the driveway and then not entering the property until this call for help of a gun is rendered and for those reasons i think his entry on the property was justified based upon the risk of danger and we argue that his use of force was appropriate because there was a threat of serious physical harm if there are no questions i will conclude my remarks there are not thank you counsel thank you discussion she says she doesn't know exactly when he leaves we have a citation for that she also says he wasn't there when i came out of the bathroom and answered the door and there's a citation for that testimony too i don't have the capacity to pull it up and pull the full context but it's my understanding that is not in the house as opposed to just not in some location there at the door while i'm talking about testimony mr cole's description of mr naser road having the time to look back and about police until instance before he shot page thirty five our brief first full paragraph and you heard him say he was state police drop the gun boom instantaneously you heard him say that twice no he said drop the gun drop the gun drop the gun state bureau and when he said the third time he had the state police and i'm like what and i was already on the ground with the second he said he pulled the trigger yes i still had it in my hand there was no chance to put the weapon down that is the basis for our contention that no inference of intent to use the weapon can be drawn from the drop the weapon in his failure to comply with drop the weapon commands from people who had no reason to believe were alone foresman at that time  variable he cannot draw that reasonably draw that inference in a in a vacuum where there is no authority behind the order to drop the pissed that's our position thank you thank you counsel the case will be submitted the court will take a