seven two two one zero down or a hollow versus scott hamilton granting sergeant hamilton qualified immunity because the law was clearly established at the time that a police officer cannot shoot and kill a suicidal person who is not an imminent threat to the police officers or anyone else particularly in a situation where the person is holding the firearm up in the air at least a forty five degree angle is one hundred fifty feet or more more away from the police officers who are at least under partial cover when this is a three plus hour standoff with a person who's never threatened the officers never fired a gun well as you so know you know you've given us a lot of facts you know and i'm not sure that they are not your representation you say for example that the standoff lasted for over three hours all right but it was not three hour was of on constant repetition of the same activity or inactivity in the end the critical fact it easy firing range in the direction of the offices albeit at a forty five degree angle but in the a direction in slightly over the heads that was something that had not happen pointing it in the direction of the offices after making the threatening gesture within easy firing range and one of the offices toward whom the gun is is a game all right t and in from time to time pointing the gun at his own head or he wasn't he wasn't moving in the direction of the officers let alone pointing his gun in the direction so the situation was certainly  point the gun at the officers counsel can i just read something to you this is this is this is this is what the district court uses the words the district court in spin this is just before the fatal shot and he says  flexing his wrist moving the barrel of the gun closer to fisk said one of the officers on the other side of the road so that this could see down the barrel of the gun and then back up i mean that suggests proximity or of the officers suggests that proximity was sucks that the officer could see down the barrel of the gun and the quote goes on to police officers standing in sergeant hamilton shoes would have done and in ensuring that question on the perceptions of other experienced police officers who are at the scene observing and experiencing the same advance as as sergeant hamilton not those relevant any answering the question of what an objective lee reasonable police officer would or would not have gone what's important honors what sergeant reacted then by asking police officers who swear and heard the same things the same advance how they reacted but we know how they reacted founder none of them used deadly force or another we know that two of an overstatement and i would agree with that idea but in my campaign we have someone who is sixty nine feet away from the office or mentally disturbed the gun down here we have someone three times a fire three times as far away from the officer with the gun u rather than down and no warning that deadly force to be used more ample opportunity in three plus hours that they have the force could be used to kill so there were over the three plus hour there were constant mornings to him  to not go beyond this to not come closer to put the gun down i mean to suggest that there were warnings in the situation strikes me is completely contrary to the facts as found by the district court so i don't you say because there wasn't in the seconds before the fatal shot there were not a re a reassertion of the warning is that the point that you're mccann case talks about it but it could not any case that talks about the fact that some warning must be given it doesn't talk about any magic words doesn't say what that the warning warning because that was serial warnings in this case including one in the media to leave before the tragic event which is a number of the many distinctions between this case and beginning all right but you giving if he would have complied because he did comply with other commands that were given such as oh he was he was told five six seven eight times to drop his weapon and that he did not see any of those mornings the last of which happened seconds before the fatal shot was fired when we do know that he moved towards the road and told not to come any closer but he did back up and not proceed towards towards the road and i and i understand your honor may not agree with me but i have a hard time seeing the at the stations between retaining and in the current situation where linda kenney was there are warning given at any time within  as you see a witness later in the case from a few years ago and that was a case actually where it summary judgment to the defendant officer was denied but in denying summary judgment the court looked at that the perceptions of other officers that they did the it confirms that sergeant hamilton was was accurately perceiving the situation that that there was in fact that the threat that he thought there was it's further evidence that confirms that he was making a reasonable judgment and that's why it's relevant here perceptions or a wide by accounts of other officers involved in the episode who will in effect say that they did not they did not perceive any threat but did not feel threatened in the way th shooter proceed and those cases or use those contrary accounts are used to undermine the objective reasonable this of the perception of the shooter here as you're suggesting the perceptions of the officers who were facing the gun tend to confirm the officer hamilton's view of what was happening the results of his view so they can go either way i can be support a future cases if the officer is at some distance away is relying upon something that he sent over the radio and he has independent reason to believe that that information is not accurate for some reason that might present a different case but there's there's no suggestion of that in this case started hamilton he could see the individual atomistic ahmad he could see he could see some of what he was doing he could see that he had his arms extended across the windshield of the car and then he gets information over the radio that the gun is in fact being pointed towards the the other two officers and it is in fact at a forty five degree angle over his head so i think in that case you have to get all the evidence sort of points in one direction at all at all points towards a n accurate single accurate picture of what's going on and there's there's really there's no reason for second hamilton to do to question the information he was getting from trip with this kind of there's a difference to radio communication routine situation and it gradually over the course of the three hours became more and more alarming the actions as related from you know shouting profanity that he arms himself with a knife then he does the gesture  ron mentioned about pointing the way at the officers or with his hand in the shape of a gun which i agree that no other purpose than to threaten there's no other reason you would do that than to threaten somebody he starts advancing towards the officers and retreating drawing lines in the sand then you have this situation where he he pulls the magazine out of his gun holds it up for the officers and then loads a new fully loaded with this can see it's a fully loaded magazine that he rose back into head sergeant hamilton is starting to think boy i might have to use deadly force here before he makes a decision the gun goes back up in the air and then just a few minutes later he does it a second time and true professor says i'm not comfortable started hamilton here's a warning being given by the officer over the p a system which is you you need to put the gun down right now that is most certainly a warning especially in that in the context that we're talking about where you have somebody who is can only be deliberately pointing a gun over the head of the scriptures which is a threatening act he's doing it deliberately he hears a warning like that over over the over the p a you have to put the  so throughout this this chain of events you had it a situation that really escalates the point we have very scary very alarming situation in which it was it was reasonable for that they know when they're going to shoot and so you probably need to act before the spun out of the somewhat troubling concept though it seems to me that it could be used to by action reaction time is important to the analysis here where i think that makes it important and i understand the why you could you could you could have a different case where that could be  an argument that could be more trouble and i don't think it should be troubling in this case simply because of how close we were in the situation and to shots being fired and how quickly that could have happened i mean this is this is not a situation even a bike mechanic where he's got the gun dangling by side and maybe there's you know he's got to bring the gun out from his side there's a longer you know a longer duration there and you could a gun right over somebody's head and pointing it right at them and it's essentially the same thing so you know in that case i think it's it's not even a question of police training i think it's just sort of common sense well and you know in that in that circumstance you know you're not going to be able to once he decides to fire you're there's nothing you can do you can't you can't dodge a bullet if the bullet is actually fired that really doesn't answer the question of what sort of police training police protocol and whether whether police were following or training in a protocol in dealing with these deadly force situations i think that information is on the record because it shows that the officers were responding in accordance with their is if you have a situation where you have a gun and he's pointing his gun over the heads of fellow officers and you're in a position where essentially the only action you can take is to shoot you know that's a reasonable action to take take that step to protect you or your fellow officers warning it doesn't say doesn't say what the as i think was pointed out it doesn't say what the warning has to be in the way it's phrased as sort of as some warning you know to suggest that this is a very flexible concept and again i  your honor so if you look at the recording and video in the last five minutes before mr camarda shot and you listen to it i would suggest that there is not the urgency that the state or the defense wants you to find that there is there no reason to think that this man who has been in the parking lot for three hours and twenty minutes is going to shoot any of the officers if he hadn't done that for three hours twenty minutes you have a gun in the air and he never discharged it even and sergeant hamilton he was not in the best position to even see if there was a threat he was four or four hundred feet away looking couldn't even see the gun in his hand he's relying on trooper fest who's has the better position still hundred fifty feet away which is probably longer in this courtroom behind  tractor and he tells him that the gas where the gun is he tells in one point the guns forty five degrees in the area where the gun is again he says now guns up in the air and then the guns back to forty five degrees in the air the police officer he's moving towards the police officer getting closer with the gun down could easily move the gun up and the court found that wasn't acceptable for these protected by calcite isn't it or wasn't it hamilton's judgment given what this was able to destroy which was exposed in somewhat in other words he was not fully behind cover if he had been he could not have described what he was perceiving wasn't that another important consideration that