are claiming both prongs of the qualified immunity defense one that there was no constitutional deprivation into that it was not clearly established that what their actions that their actions constituted a violation under the fourth a directly to this case concerning the totality of the circumstances the difference between our two sides from the beginning has been that our position is and then this case has to be looked at from a tally of the circumstances were as a police position is you look at the three to four seconds prior to the shooting the monte escobar versus monte case specifically talks about the totality of the circumstances when you evaluate the graham factors and our position is that when you look at the totality of those twelve minutes from when the officer is first arriving on the scene that this would this does qualify it one under the grand factor what is the severity of the crime whether the sups suspect was actively actively resisting in our position was throughout the entire twelve minutes he was actively resisting this incident started the incident occurred on august twenty eighth two thousand and fifteen and unfortunately started at a time when does the dissidents mother told him he was no longer need to be part of the will an argument ensued and he was in living with his parents with his wife and a seventeen day old daughter mr gilbert floor is savagely attacked his wife while she was breast feeding the baby was injured the wife was injured they ended up in the hospital he went to the mother and the mother was so scared because she saw blood all over that she herself is the one that called nine one one when she called nine one one and she said the devil is in him we need help he is going to he said he's going to have it out with the police that's all part of the dispatch not only that but then gilbert throwers got on the phone took the phone out of his mother's hand and told dispatch you better sen swat because i'm dying today i'm going to commit suicide by cop now having known these factors as officer vaska as a rides to the scene he actually left his car running he got out as quickly as he could to get to the situation he doesn't know what's going to happen he knew there was a subject with a knife and there were blood and he goes to the and enters the home and actually know what everyone is silent just look said and he's identifying himself as a police officer trying to find out what's going on and that's when gilbert floor's jumps from behind a wall with this ozark trail knife and comes at the officer that his testimony is that he could have this is are we call the deadly force in the area of number one he could have shot him right then and there if as the police say that is this these officers are just killers but that's not what he did he was concerned with other people inside the home he was concerned with the proximity and he had spoken with this individual although he he knew the seriousness of the situation he decided to back out even though he had a shield with him that fortunately he went in with a shield actually so the second deadly force scenario the officer has retreated and it's important i think to note that he immediately gets on his mike and says we need a negotiator so he what we know about who has access or possible that he would get to that weapon your honor we have there's basically six scenarios before we get to that last one ok in that second scenario the line he was striking the officer shield trying to strike the officer and that officers are blocking i'm sorry so the officers blocking the shield as he has these knives and that's an undisputed that's even the cousin chris still didn't he still restrained himself and did not he's still trying to talk to the individual can throughout this entire incident both vasquez and songes are trying to talk to him to reassure him they know he's trying to commit suicide by cop he continues to tell them i've just done ten and i'm not going back you're going to have to shoot me that's what he said throughout the entire ordeal which lasted twelve minutes now on this tape keep in mind that you see the last seven you don't see the first five that's when the fleming started recording subsequent to this incident taking place the we submitted as exhibit exhibit eight to our docket number one ten is the f b i enhanced where they put real time dispatch over what was actually occurring on that day on the video so that's why you have that and so you know what the officers are being told by their superiors which also becomes important this week tenet malto and sergeant drows so as we go into this third the third scenario goes into effect because such is officers deputies sanchez comes involved in the scene when gilbert flora's sees another officer he decides he's going to babies and he want to get back inside the house lieutenant mall though said he doesn't get back and do not let him go back inside the house officer such as seeing him flees actually shoots but misses gilbert floors at that time that was the third deadly force in the area the fourth one he comes out gilbert floors didn't actually go and say went to the sports his front landing came out with two chairs and is going at officer vasquez keeping in mind again there's this colloquy between individuals you know it drop the knife it's going to be our right don't worry about going back to prison he's saying i will not go back to prison you're going to have to shoot me you're going to shoot me today as this plays out became involved and as he's struggling and fighting physical contact with gilbert florins to taser drops the subject's retreat and mr gilbert flora's picks up the taser which leads to the call did the force the incident will you disagree with it and florrie's went to the quizes patrol car which was unlocked with a loaded they are fifteen and so i tried to open the door when the damage is radio that florence was trying to enter the patrol car put that directly to you not to speak to that this deadly force six and seven are very close together within fifteen to twenty seconds as far as going inside the vehicle the officer  drop the knife now we have to understand what he did mr good mr floors after moving from the patrol car where they were concerned about the air fifteen he moves to the officers he's not giving up he takes the night out of his waistband positions in his hand in his at the officers and that's the last five three to five seconds he's positioning a knife in his hand that's not but that's not a surrender mold only thirty feet away or not removing it from his waistband that's what i mean it sure he could have just dropped it he moved it like this and put it like this and switch and you know three attack and that's what i think you agreeing with me that in order to drop it  got to take it out of ways but when he was told to drop the knife he wasn't in his waistband it was in his hand so they want commanding him to put the knife down before he well he had the knife before yet there's  understand this under this parlay he had the knife in his hand when he went to the car he put it in his waistband he opened the car door closed the car door step back out then took the knife back out of his waistband and held it up by going toward the office so the command at course but that is a tragic fact that most of our civil rights jurisprudence involving excessive force cases arises out of circumstance where people are engaging in pretty reprehensible conduct as it turns out people to whom the police apply excessive force are generally not law abiding citizens and the court is always faced with dealing with the situation with who is obviously some threat to the police officers versus judicially this shooting an entire statute that was designed to keep officers in check if the court affirmed reverses the trial court's decision and concludes that as a matter of law this greeny video shows a supreme salt of conduct as opposed to surrender it essentially takes these cases out of the hands of a jury allows every factual dispute that goes in the favor of the of the plaintiff in these cases to be did have subject to do novo review in a mini trial before the case is actually determined by the fact finder not only is there no case on point that suggests that that's appropriate this court's decisions have expressed the stated that interlocutory review is only when all of the facts are undisputed that is not the case here most of them are but the essential fact the one of what was this person doing when he raised the knife over his head that is a factual dispute that cannot be resolved as a matter of law this is the problem here and i think the part of the story that was not told is that we know that he had his hands over his head we claim that he was in a surrender pose we know that he was motionless for five seconds he was not making any forward momentum towards the we have an admission from the officers that as he was standing there they looked at each other and said we have to end this and conscious admission that they were going to shoot him before they fired in other words they were just tired of it but did the officers then when documenting this incident go back and explain what just happened no the version that they put in their police report was that the mr flores came running at them and from a distance of six to seven feet brandishing a knife and that's why they shot then after that lie is exposed to video that they didn't know was being taken they have the gall to argue that there was no real clearly established law here that would have guided their decision  ironically the clearly established law that is precedent that they rely on now in this case is exactly the made up story that they claim that they should have done or that they claim that they had did before they were i wouldn't buy the video the law was clearly established in the law  neither of those are present here were there five or six previous situations in which deadly force could have been used perhaps but the goal here was to have him surrender and i think i can distinguish we have distinguished all of the cases on which they rely in our briefing and i don't want to use my time before the court to talk about cases in which you have specific questions about them but what i'd like to do is focus on the public policy implication that happens in this case is reversed i already touched briefly on the order for there to be clearly established law simply cannot be the case and it is parroted repeatedly throughout briefs not just in this case but in every single one of well we don't have a case just like this one therefore the law is not clearly established but that's not the standard it has liability and that simply makes sense if the state or the government actors are essentially entitled one free bite they can do one thing wrong and by engaging in constitutional conduct to be immune for it because there's never been a case like it no one will ever lawsuits everyone will realize it appears is the first one where it's happened then you basically have no possible remedy the supreme court has recently in three different cases in the past six or seven years talked about situations where the law was not clearly established and it's plainly different from what we have today in excuse me a case called rightly versus howard in two thousand and twelve the plaintiff argued that he had a first amendment right to be free from a politically retaliatory arrest even when the was supported by probable cause and he filed suit in one thousand nine hundred three saying this is a faulty arrest my fourth amendment rights were violated and the supreme court said quite correctly that's quite a reach and once you've made that argument before the idea that an officer should have known that this is politically retaliatory and couldn't arrest you there's no precedent for that in ashcroft vs kid which is also in two thousand and eleven there are the plaintiffs argued that individual i suspicion was necessary to obtain a warrant under the federal material witness statute statute that had never been determined yet or never been interpreted plainly different than here in white versus poly which is the other one on which the defense relies it's really the plaintiff an officer who arrives late to an ongoing police action should have presumed that his colleagues failed to follow proper procedures once again the supreme court said that's just not it's never been discussed before but there are legions of cases going back saying that you need to have dead excuse me and media threat to the safety of the by saying that was a fact is you for the jury to resolve it doesn't have to address the complicated issue of as a matter of law was he resisting or not that subject to be left to the jury's determination can be reviewed on abuse of discretion standard or for sufficiency of the evidence excuse year in a case called garden versus city of fort worth the actual circumstances slightly different but the point being there was a video recording of a police officer case you know suspects home there the suspect was eventually thrown on the ground and taste to  video never captured that the police said the video suggested that maybe he was resisting obviously there were fear i would this is in this home he said there is no evidence of that and this court said because the video does not provide absolute untrammeled clarity such that the nonmoving evidence could not be believed by anyone this remains a fact issue for the jury to decide if you know like you said not sure who trust juries well in the garden this court just a jury and it was because the video was not sufficiently clear i point that would otherwise turn the summary judgment standard on its head but the fact the issue we leave to the jury in this case they'd be determining whether or not the police were had a reasonable belief that their life was in danger that required them to use deadly force and this court's pattern in jury instructions on when qualified immunity is appropriate specifically spelled out to the jurors exactly what they have to believe and i went to that question yes or no and i think answer question one in the negative the rest of the case is over but then when this court reviews it on appeal it's going to allow that it's going to give deference to the jury's determination because they were the ones that had the ability to hear from the witnesses to see live testimony to look at the evidence as opposed to simply having it come up here and an overview where we just received transcripts some sort of whatever and that's what that's what the zone we're working on and it's very difficult to sort those cases out at the u n i think that to the extent there is a balancing problem here we have to consider whether the judicially created remand allow the jury to consider not simply because we know what washington will do one way or the other but because it's the right thing to do allowing a jury to resolve a fact dispute not only puts the conscience of the community and people that can weigh the evidence and allow them to make that determination but it officers conduct is so flagrant that the judge says i think there's a fact issue here and you allow the jury to resolve it those are the ones that right now into the court is don't seem to disagree on the facts they seem to disagree on what the officers are what the suspects intentions were determination has to be made of whether the officers were in danger for their life and we have a grainy video that shows you know our clients his skivvies our witnesses say that he was palming the knife that he basically holding it in the air showing that he was not making any stabbing motion they have an expert that says you know based on his analysis of the video this is clearly a threatening gesture there's a factual dispute here or at least if there's a dispute as to how the evidence should be interpreted but it's not within be done as a matter of law any more than is a matter of law is this person telling the truth that's just a determination that that's proper appropriate for the fact i think another thing that's worth discussing here is this suicide by cop phenomena which this court has recognized as it is a condition that an unfortunate one since since early two thousand opposing counsel advocates for the totality of the circumstances test and as a result of all of the misdeeds that our client who engaged in that somehow that should be allowed for the use of deadly force even when there's no longer a threat and yes candidly the phrase to tell you the circumstances appears in virtually every one of these cases but that's not really an argument it's a bit a truism we always look the circumstances and the fact that immediately prior to shooting him there were a long list of characteristics i went out earlier there was no forward motion it was bright it was daylight you could see what he was doing was no threat as you noted judge about this essentially bringing a knife to a gunfight that's the type of situation where deescalation tactics are most appropriate and that was their goal here they knew from the outset suicide by cop this isn't something they discovered as a result of his behavior so what essentially the argument that the defense is asking for what essentially allows for deadly force to be used in every suicide by cop where guard most of the case and there is this court specifically held an exercise of force that is reasonable that one moment can become unreasonable the next if the justification for the use of force has ceased again we're going back to the ultimate question here is was it justified and this court has to determine who gets to make that decision the other one is an unpublished case which i know because i know it doesn't have presidential value under this court's rules but it's res versus bridgewater from two thousand and ten and judge excuse me judge haynes specifically not the difference between the threat posed to an officer by a knife these are via gun she noted specifically the immediacy of the risk presented by a man armed with a kitchen knife in his sight is far less than that of a man armed with a gun now opposing house of the been hiding for twenty minutes while he was trying to escape the police and in justice scalia's opinion for the court in scott versus harris he noted that treating fleeing suspects or giving the police a little bit more leeway has an important public policy rationale for it and that is the argument in these fleeing suspect cases was from the from the plaintiff side as well why don't you just let the guy go if he wasn't hurting you he was trying to get away from you why did you need to ram the back of his car why did you need to fire bullets at his tires w simply makes no sense here it's undisputed that our guy was not trying to flee he was standing motionless and if you haven't had an opportunity to watch the video that's in the record please do it is absolutely shocking and i have told numerous people the type of thing that a jury should be allowed to consider when then wondering why this officer went back to these officers went back and wrote reports that were completely contrary to the exist to what happened and then when those jurors are asked to consider where the officer is going to reasonable  of their life they can also consider the fact that they lied immediately afterwards probably to protect themselves because they know what they did was wrong you guys have any additional questions everybody answer otherwise i circuit did not qualified immunity the supreme court per curium said that the standard was that the qualified immunity would be would be established because it wasn't clearly established that what he was doing mainly d p s trip ramala next violated the law the second case i want to point out specifically with the questions we had previously was clayton versus columbia casualty this court held that strict is quoting from the case strict reliance on circuit where the supreme court granted qualified immunity to an officer who just heard that in a female with a large knife was whacking at a tree he came to the area that he was called to he saw an individual standing by the tree and a woman coming out of the house with a large butcher knife he ordered her to stop twice and she had it on her side he ordered to stop twice she did and he went down under the fence and shot her the hell even though he was only there for less than a minute that his he was entitled to qualified immunity and in this particular case your honor i believe that officers vasquez and sanchez who did show and exercise restraint when you look at the totality of the circumstances they are entitled also to qualified immunity i cite the case of smith versus freelander which in a six circuit case i often excited this in cases i used with regard to qualified immunity quoting we must never allow the theory at the feet theoretical sanitized world of our imagination to replace the dangerous and complex world that policemen face every day what constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure my clients were involved twelve minutes played they were in your life throughout i think acted reasonably and when we look at what the court held the trial court held and didn't gain denying qualified immunity it said we did not qualified immunity because a reasonable officer could conclude that floors was no longer resisting and singling surrender that's not the standard your honor the standard is every reasonable officer would have to conclude that their actions violated the fourth a now they might come up with a reasonable officer but i've got a commander former commander d p s commander rodrigues who's a reasonable officer who said that their actions are reasonable and if unless you can show that all reasonable officers would conclude that what they were doing were violated the law we are entitled under the second prong of to be the graham versus conner standard to qualified immunity i would ask the court to please reverse the trial court's denial of qualified immunity and grant qualified immunity to