please the court and flowers on behalf of florence thompson i'll do my best to reserve two minutes for a bottle the court in this case required to view the facts in the light most favorable to mr thompson and viewed in that light the facts establish that officer copeland violated his clearly established fourth amendment rights in at least three ways first he performed a search that he labeled an inventory search it was motivated entirely by investigatory intent second that search failed to comply with the governing inventory search procedures and finally his arrest involve the use of excessive force  begin with the first point it's undisputed in this case that searches motivated entirely by investigatory intent do not come within the inventory search exception to the work requirement of the fourth amendment and there were various facts here that could lead a jury to conclude that this search was motivated entirely by investigatory intent the first i think the most important is that officer copeland did not even begin to record an inventory in this case not particularly telling because he himself said that the entire car was cluttered including the front of the and he began by searching the front of the car and he didn't find the gun until he got to the back of the car with all that's true he should have had a fairly lengthy inventory by the time before he even found the gun issue based on that a jury could find that the real reason reason was his investigatory not what happened state court what happened to the state court charge and the state court charges were thrown out because the judge concluded that under state law the the search and the stop itself a pretext to washington law unlike the fourth amendment prohibits even pretextual stops i thought that might have been your first point but go ahead i don't i don't mean to interrupt i just want to make sure and i just want to clarify that if it stopped at the stop with the state court right you know these the court also found that the inventory search itself because that followed the stop correct text will stop the pretextual stop the pretextual stop it also said that the inventory search itself was nothing more than an excuse to look for evidence so the state court did make that finding in addition to the inventory sheets were missing you have officer copeland shifting explanations he had first said he searched the car because it was impounded it wasn't until the district court said that's not enough i need an inventory search policy they claim to search the car based on such a policy a jury could reasonably infer from that that the real reason he did this and that was never mentioned until after he lost the first motion to dismiss and again a jury could find they don't have to but they could find that that suggests that the real motive for something else was it was in fact investigatory finally he conceded that he pulled thompson over for pretext or reasons that he saw stuff during the stop that led him to believe that there may have been evidence of some more significant crime in light of the lack of an inventory and shifting explanations and that a jury might reasonably conclude that the real reason for this the only reason was invest but even moving beyond investigatory intent this is again undisputed the law isn't disputed that inventory searches must comply with the inventory search procedures by which they're governed the one here could not for various reasons number one he there's at least evidence that he didn't even know the policy existed and you cannot perform an inventory search pursuant to a policy that you don't know exists in addition to that this court is held in the united states if you want lists and is applied in cases since like united states  there you might not know it existed but if you complied with that would then matter it would not ok because the reason is it has to be pursuant to a search is not pursuant to if you don't know it exists and taken from the perspective of a reasonable officer as far as he knew if he doesn't know about the policy honor so finally it has to comply as i noted has to comply with state law that's implicitly incorporated into the policy itself washington state law requires you consider reasonable alternatives to empowerment the state court here found they didn't do that and reasonably so i think a jury could make the same determination in addition that the policy itself forbids exploratory searches and if i'm not mistaken officer copeland doesn't even argue in his brief that that the search wasn't pretextual in violation of that policy finally i move on to excess force the critical case here is robinson and that in that case this court held that a man who was accused of using a shotgun to shoot two dogs killing one of them his fourth amendment rights were violated when the police pointed a weapon at his head while he was approaching them calmly it it's sorry that they have that violated his fourth amendment rights here this case follows off or she already from the facts of that case for one thing unlike mr robinson who is believed to be unarmed mr thompson was known to be  unarmed because he'd already been patted down unlike robinson who was approaching officers copeland was sitting calmly on the bumper of a police cruiser under the supervision of another armed officer and you go to the facts that are tough for you it's late at night right and there was a gun and  the officer copeland did this action that's just spewed he was aware that your client had a prior firearms conviction right that's the ones that are tough for you admittedly and the guns how many feet away what's the undisputed numbers at all of this even if your were not disputing that was reasonable to on hold for the gun use the low ready alternative which officer koeppen himself claims he used and in green for example this court held that the availability of that alternative makes the point of going to someone's head  constitute excessive force and that same reasoning applies here even given all of the facts that your honor noted finally i want to briefly note that even if you find that the the if you find there may be a fourth amendment violation here but that's not sufficiently clearly established so that officer koeppen gets qualified immunity that would not get the municipality off the hook the reason is municipalities do not get qualified immunity and here thompson allege that the municipality engaged in a failure to supervise that led to the deprivation of his rights such as that those causes of actions have two elements first constructive or actual knowledge second causation with respect to constructive knowledge he alleges they failed to supervise specifically that they failed to investigate incidents involving misconduct with firearms and the morning and the cold of for all defendants in this matter deputy peete copeland should enjoy qualified immunity because lawrence thompson did not have a clearly established right to either have his car  impounded without an inventory search or to be taken into custody arrested for serious felony offense while a loaded revolver was nearby and accessible it's thompson's burden to show that he had a clearly established right and he hasn't done that counsel so so if we can cut to the chase again forgive me for interrupting but i'm looking at robinson and you both cite that this case extensively it's a two thousand and two on bank decision and it starts in the first line in the opinion is we took this case and bank in order to clarify the law that you so you've read it yes it is pretty rare that we have that statement right up front so what was unknown robinson there is an established robinsons a different case i'm not saying it couldn't be a gun pointing case couldn't be clearly established under certain circumstances but robinson wasn't being arrested let's hear your best argument about distinguishing robinson if we could robinson was an investigation robinson was clearly on armed the report was he had a shotgun there any evidence here that at the point when they beat him when he points the gun that he is armed know yeah is does he have any evidence that he is armed at that time no but he's within he's within seconds of a loaded or that's a really the kind of the cracks here is the proximity and potential action and yes and your honor it's important to remember that although there were two police officers here this is not a case of overwhelming force overwhelming police presence deputy copeland weighed about two hundred pounds was five seven i believe the record shows mr thompson was six feet two hundred sixty five pounds and when you're moving a large purse and you've got momentum going on the whole point is to not even get into that situation there's an information problem when you're taking somebody into custody a lot of situations that start out as a traffic stop and a felony erast that seem like they're going well don't end up going well in the statistics bear that out so you don't want him to even take the take take a chance and go for the gun and so the gun is displayed wasn't just displayed that's the point and the opposing counsel of knowledge is that it would have been ok to and holster the gun the problem is the allegation is the gun was pointed his head i understand that and i understand for purposes of this appeal we have to we have to accept that we has established yes nevertheless it was very brief it sheaves it's desired effect than and to get back to your honor's earlier question about the distinctions between iran and remember robinson approached that point it was just an investigation we have already p c for a serious felony arrest a gun crime with knowledge of a prior gun offense not the case in robinson secondly it was pointed at his head it very close distance and then he was detained handcuffed and detained for ten fifteen minutes now i believe it was fifteen to thirty minutes in the record and then released because it turned out he hadn't committed any crimes that's very different than a situation where somebody is being arrested for a felony well this individual it struck me as pretty  weren't any of the bells and whistles that we are you know sort of indicators that we often see well it started out as a traffic stop for for infractions it became a misdemeanor arrest and then you had a mandatory impound ordinance  in under the beery and municipal code and then an impound search which was going to majority search which was going to happen as soon as the vehicle was impounded regardless of whether deputy copeland had some kind of secondary motive in this case at that point when he found the gun it became a felony arrest so yes it started out as a fairly low lower key traffic stop and became a much more serious offense well do you have us a timeline i mean we read the things could happen in seconds for example because bring over to the car that's your argument but what kind of time frame are we looking at here to make a judge the best there's no m d t pronoun which we would normally use if if no timestamps but in terms of the sequence of events the part that's not clear is how long it took deputy fitch to arrive as a back up once the decision to arrest but he was called as backup right he wasn't riding along in the guy's second car right correct correct to do an inventory search at this point he's still sitting on the bumper and handcuffed as he has been the entire time then deputy copeland starts to do the inventory which he has to do he's compelled to do by the sheriff's office policy he sees some things in the front and course he's a trained observer so he's going to note that information because he's doing you know he's eventually provides information for a p c cert later on after he realizes there's a p c for a for a gun crime then he sees the the bag in the back on the floor floorboard on the behind the passenger seat with the handles up he sees the revolver pointing up and as the court knows the revolver he can see whether it's loaded it's like there's a gun and then forgive me for interrupting are you asking us it seems like you're relying on the prior firearms offense in terms of the escalation that you've described are our firearms conviction yes and the presence of this gun ten or fifteen feet away are you asking us to say that those two facts alone would be enough to point a gun at somebody said anytime there's a pro somebody with a prior felony in possession if there's a gun within ten or fifteen feet an officer is justified pointing a gun at his head it's an interesting question i would say not not necessarily but i think in this circumstance we're late at night it's also a felony arrest situation and i think that is one of the key factors that distinguishes this case from robinson and any number forgive me but i want to show following i know nothing but your time no that's fine so when you say in this situation wouldn't it always be the case that there's a there's a p c for an arrest if there's somebody who's got a prior firearms conviction and there's a gun within ten or fifteen feet that's going to be your argument seems yes going to the government arguments i'm just wondering if this isn't necessarily the case that you're asking us to say that those two facts alone would be nothing to warrant the use of the threat of lethal force i think if it was a misdemeanor asked it's not a stronger case in this case we had a felony arrest and we knew it wasn't his first time so i think it does make it more serious because at the officer can be second guessed for assuming the worst well we would we would argue no given particularly given the outcome in this case i mean the handcuffing took place he was asked to get on the ground he was handcuffed there was no injury to mr thompson that's undisputed in the record so actually this arrest ended up going off without a hitch and that's good but at the time that the gun is that the deputy points his gun that's an unknown and he doesn't have that information he doesn't know if mr thompson is going to cooperate with being taken into custody for yet another felony and i would point out the record does show that in fact this was mr thompson's fifth or sixth gun possession crime although admittedly deputy copeland didn't know it was that many offenses at that isn't a manner that he coupled the this conduct with the threat to kill him if he didn't comply well he said if you accept what thompson says he said if you move i'll kill you or something along those lines it's qualified with the statement don't move while out those might not be the ideal most professional things to say it you know often rough language is used in order to get people to comply with being taken into custody i think this was different if this was a bit of mere investigation i think it was it would be different if it was a minor offense or a misdemeanor it was not it was a traffic stop late at night with a your honor is one brief point that i can and i can stop the i'll just refer your honour's to the case first circuit decision stamps he's city of framingham i'm not arguing that case is binding or anything like that the reason it's it's useful is because it shows the problems with officers point their guns at  suspects heads when they don't have a reason to do so in that case the officer was holding individual gunpoint he slipped and he killed the man and that is the problem that arises in cases like this that are that are avoided by simply pointing the gun lho in a way as he claims to have done so mr further questions your argument i specially would like to think mr flowers for participating in our program on a program which i think is helpful not only to the clients but to the court and also really to opposing counsel so that they have a good brief so i thank you and i  also note there's another michael flowers who's an attorney in columbus ohio is there not do you know him there is i don't know him ok well maybe you should meet him since you share at least two of the same names all right thank you very much for your  argument this morning the case of thomas thompson versus copeland is submit