good morning you may proceed t please the court john bogdanoff for the appellant jacqueline spencer the major issue in this appeal concerns this deadly excess in this deadly force excessive force case concerns existence of gen a genuine issue of material fact precluding summary judgment as to whether the deceit in marcus spencer owes an imminent threat of harm to the safety of the defendant officers which would have justified their use of force in this case the trial court granted summary judgment to the defendant officers and city on their qualified immunity defense including that the record failed to show a violation of the  show right to be free from excessive government force in doing so the trial court overlooked significant evidence the court relied on officers amb officer florence safety and justifying officers and beat of his use of deadly force in shooting the deceit i had to get you off track but i just want to look like to me that in the explore and thing like to me on appeal you acknowledge that he had the explore am i right about that in the second stop there were two stops as the court is probably familiar with in the ok mr carson had been an occupant of the vehicle being driven by the deceit and mr carson stated in his deposition that after the second squeeze when the two unmarked police vehicles bit the vehicle became an operative it would not start and it became disabled and as a result mr carson jumped out of the vehicle realizing that it was an operative and began to run away from the scene now this is entirely contradictory to officers and vito's affidavit where offices and vito states that he saw the vehicle accelerate and move towards his fellow officer officer florin and that that was the reason fearing for the safety of officer floor and that was the reason that he shot at the driver of the deceit  and who was operating the vehicle but under our cases even if we assume that carson has it right you know whether the testimony was sworn on sworn whatever the circumstances there are even if we assume that his testimony controls here is there law clearly establishing at this with that there was an excessive force violation here well if if we accept the fact based on mr carson's testimony that there was not an imminent fear of harm to the other officer then we do believe that under the existing law that it would have been clear that the officer would not have had the right to use deadly force and what are the what are the cases just so i'm clear i've tried to sort of plot them for my own sort of note taking purposes but one of the cases that you think clearly a step several of the cases that we rely on include morton versus kirkwood and vaughn versus cox which are both out of this circuit  what what we did on page four of our reply brief is we contrasted the various cases it's basically if you put the cases on a continuum you have and several of these cases were authored by judge marcus so he's imminently eminently familiar with them you have mccullough vs and to leni you have robinson versus ag and you have pace versus cappo bianco in those cases you had a motor vehicle that was operative that was moving towards the officer or officers and the officers therefore fearing for their own safety or the safety of a fellow officer were forced to use deadly force in order to stop the doesn't your entire argument turn on the factual assertion that zambian no allegedly was aware that the hyundai was inoperable and he fired anyway that's that the core of this is yes that based on mr carson's testimony that would be the jury could so find that's where i'm having difficulty and maybe you can help me what is there about this fact pattern that would have fairly put the officer on notice that the hyundai was in operable and that it couldn't be used well first of all there's mr carson testimony that he didn't say that the officers outside the car would have been aware of that that he no he didn't but we believe based on his testimony that would create a jury issue is whether or what evidence would there be to suggest that the officer on the outside would know when the car had been moved slammed into the car at an earlier point legibly jeopardize the life of a lot of us are saying on round one that on round two after the car was squeezed in  between these these two police vehicles that it couldn't be used and he couldn't hit the hit the the pedal we do know the driver didn't follow the command of the officer right they said you know put your hands up and he reaches down they don't know what he's reaching for well we don't even know that that would not be in dispute would it i think it is we don't know that he was even alive that occurred after know what crank the motor means to turn the ignition on and i hit the bottle that's probably what he meant is he to get tempted to turn the ignition and the car would not start because he does state that the car would not start it would become an operative and that's when he jumps out of the vehicle because he realizes that he tried to start it up and couldn't write how is it that the officer on the outside given everything that he knew before that would have known that too well we don't know what the officer that would allow a jury to reach that conclusion the fact that mr carson knew that the car was an operative and only because tensor had tried to crank it and had failed and it wouldn't move and so carson jumps out of the car and starts running carson jumps out of the car with a gun in hand yes no dispute about that right never points that he takes off running away from the scene so let me if i can i just want to take you back to your continuum i like the way you're thinking about this this is how i had to try to think about the case that the case as well the difficulty i'm having is that i plot your case between two other cases that i'd like you to comment on one you mentioned this  as i understand it the vehicle is moving very slowly toward the officers this is not sort of a high speed you know sort of missile but it's moving very slowly and then the other one that you didn't mention is called the law called long versus late and where the office where the car is actually moving away from the officers and both of those cases we say no violation you're kate your car sitting still so it's not moving away where there is no violation it's not moving forward slowly where there is no violation it seems almost a force your right to me that your case is a no violation case a couple of points on the argue about a case the car is moving slowly but it's moving right towards the officer and it's pinning him between the car that hit the defendant's car which is approaching and another and the police vehicle so he it is moving at a slow rate of speed but he's being pinned between two vehicles so there is some imminent there's an imminent danger there the longer says slayton case is if this court says that's creates a unique danger because you bet you have a police car being driven by somebody who's just mentally disturbed and he is not following the directions of law enforcement and he goes  on an effort to evade the police so he's driving the vehicle in a way to evade the police in a dangerous situation isn't that sort of what we have here though you had the soft block your guy makes this sort of daring getaway nearly hits the first officer they have to pin him in again and he's already used the car as a weapon in a sense once right well the first time the evidence indicates he didn't realize this was a police block i only realized this after the first attempted block if you recall this is a situation where they treated the city city officers used employed four police officers using two unmarked vehicles an f one fifty truck and a ford explorer v to stop the defendant or i'm sorry the deceit and for not wearing seat belts that occurs at night unmarked police vehicles so the first attempt to squeeze  intersection for failure where the seatbelts he doesn't realize at that point because there's no markings on the car that these are police officers now at some point one or two of them jump out of the vehicle they have a vest on that says police but it's only after he takes off according to mr carson that the occupants of the vehicle realized that these were police officers so the first stop really is not very helpful  on the issue of you know whether or not the deceit understood this to be a police stop can i just bear down on that particular point of the story i just want make sure you and i are not talking past each other  do you acknowledge that mr spencer hit the police the explorer or whatever and you said yes i acknowledge that he did it on the second stop you do not acknowledge that he didn't on the stop i don't recall that he actually hit the and the record you know will it just is what it is but i don't recall that he actually struck the vehicle the police vehicles on the first one i do know on the second one there was a  vs or whether the pace versus coke bianco and the long versus slayton which suggests an imminent danger to the police on the other hand we have the morton versus kirkwood case which indicates that the vehicle there was in park and was not in operation when the officer shot at the operator of the vehicle and in that case right the court said there was no probable cause to believe that the suspect had committed any crime let alone  crime we're talking about failure to wear steep belt it was you know we're not really talking about a serious crime so when you look at the has this been out of the first block the first soft lot not constitute a separate crime well interest the not wearing one seatbelt at that point i think there's a issue of fact as to whether the decision knew that these were police officers mr carson says they didn't understand this was a police stop until assault with a deadly weapon even if he assumed it was just john q public and not the cop well i does that make a difference maybe it's more flagrant with the police officer but wouldn't it still be a violation of the penal code of the state to attempt to commit aggravated assault with a vehicle against a citizen who was not an officer well it would be i think that we have to look  to the genesis of this whole stop situation which was the crime addition initial offense at issue here was the ferry where seatbelt even assuming argue went to the initial stop was no good that's not the question i'm asking you when that car almost strikes that pedestrian whether an officer or not would that not be an aggravated assault with a deadly weapon it could very well be certainly would be probable cause for an officer to believe that let me put it to you that way yes ok so it doesn't matter whether or not he knew that the person who he almost struck was a cop or not that wouldn't didn't do d act of its felonious character would it well it may were relate to his intent because if he does not realize that this is a police stop and he feels like this is something you know there's a big unmar vehicle he doesn't know who is stopping him and who's trying to you know create this situation so his intent might just be to try to i thought the better argument would be you can't really dispute on this reference on this record that incident where as he was pulling away he almost hits the officer whether he knew he was an officer or not but that on around two the car was inoperable he did nothing and he was did that and therefore even if he was wrong around a woman who was involved in a serious felony that didn't give them justification to shoot him on multiple occasions around two that's what i thought the argument would be yes i think that is innocence workers thanks very much you have reserved and will give you the full four minutes you were answering our questions thank you good morning may please the court last and more on behalf of the a pelleas i guess i'll just drop and jump right in with the what i the most important case as it relates to this analysis for me is the pace versus  of bianca case and the most important holding that i took from that case was that where a suspect uses a vehicle in a reckless and threatening manner during a chase officers then have probable cause to believe that that suspect is armed with a deadly weapon so at the point i'll jump right to the second painting when officers and beat zero is confronted with that split second decision he has probable cause and any reasonable officer in his situation would have probable cause to believe that spencer is armed with a deadly weapon and at that point when he sees officer floor and trying to as an exit the vehicle he has to make a decision about whether or not to use deadly force to prevent imminent harm to officer florin me ask the question this way is the police officer have the right to shoot someone driving the vehicle where the driver had earlier use the vehicle as a deadly weapon but is no longer and can no longer use one the weapon is used and miss is the cop round two sometime later they stop the vehicle and the vehicle is no longer operable at that point simply using the vehicle as posing a deadly threat it's garm could they fire shoot and kill the driver unequivocally the vehicle is in operable the my fact pattern and the suspect has yes or rendered yes they would be improper to use deadly force the homicide comes dances yes because it's clear that there is no imminent threat so we accepting what happens on round one tell us why you are entitle qualified immunity here as through round two what is it about this case law well your question earlier is the most critical question and that is from officers a beatles perspective how would he know that the off that spencer was no longer presenting an imminent threat he has no reason to know that and more importantly when you asked well what facts could we possibly discern to get and say you know officers embiid oh should have known which is i mean we're giving i'm giving you their best possible argument carson admits that spencer was trying to start the car he had not surrendered he was making every effort to drive that vehicle it's akin to if spencer had a gun and it was unloaded but he's pointing it out it officer and pulling the trigger and he also doesn't know whether or not there's any bullets left that's basically what's going on he's trying to start the car the car may start it may not start and in fact we don't know if the car did actually move at some point because carson jumps out of the vehicle and runs a well me taking carson's statement of the facts as the controlling evidence for all purposes carson says the driver tried to start the car crank it up he failed then carson flees the car with a gun in his hand from the passenger side and then the officer shoots is that the sequence that is the sequence the shooting the first shooting doesn't occur until by carson's account until carson has fled weapon in hand that's correct arson says i'm out of the car i'm running away i'm carrying a firearm and i hear the weapon bang bang bang yes once you realize the car wasn't going to start he realizes they're there done so he jumps out of the vehicle at some point then he hears the shot carson sheds no light see on the officer's command to the driver which the driver ignores and goes down to the lunges down to the bottom no carson had testimony the only testimony on that comes from the officer on the outside that's correct the other instructive case honestly is morton v kirkwood where this court found that officers who use deadly force on a suspect that was in a vehicle were not entitled to qualified immunity and it's precisely for the reasons the judge knew knew some identified in that case the underlying crime was not serious as opposed to our case where we're dealing with aggravated to say assault with a deadly weapon if we consider that it's police officer that mr spenser almost runs over in his attempt to avoid the first block but in kirkwood they didn't have that we have that in our case the other graham factor about whether or not he was actively trying to evade obviously mr spencer was trying to avoid arrest and capture at the time that force was used again and the kirkwood kicker morten v kirkwood case we didn't have that and finally whether or not morton present the suspect in morton presented or whether officers had probable cause to believe that that suspect was armed with a deadly weapon in that case the suspect hadn't done anything to make the officers think that he was going to use the vehicle as a deadly weapon which is the exact opposite of our case it's it's and it is not disputed that spencer tried to run over officer evan co at that initial block committing aggravated assault with a deadly weapon at that point every reasonable officer has probable cause to believe that spencer is driving and has and a deadly weapon while he's in that vehicle let me ask you a question about what you just said was it clear on this record that the driver would have known that the officer standing outside was indeed a police officer rather than just the pedestrian again to the extent that i mean he tried to run someone over we still have i understand that yes i mean it is i what you are clear i'm asking a different question would it have been clear to the driver that that person was in fact a police officer yes it would have been clear so officer evan cohen had a vest on with the clear lighters police across the front of his vest in addition even carson edm it's in his testimony that the lights came on he said no sirens but there were lights that came on and that he knew the police were on us and these were unmarked cars but the police lights went on when they tried to pull him over that's correct your honor and then the lights remained on so there's no dispute that they knew they were officers and the officers believe they had given them fair warning that a were trying to initiate a traffic stop were asking pull over and spencer ignored those those commands of actual question i don't think for a minute that we can or should discount carson's testimony simply because it was on sworn given the circumstances what about the the bit about the post accident investigation the car still running what's the story there right so there is there is factual evidence that the car moved after  after carson got out and after the suspect was shot and that the car was at least the engine was running but again we're i understand that i'm bound by by carson's testimony that for what it's worth that the car wouldn't crank i don't know exactly what that means what i was really sort of wondering about and i don't recall whether this case was not in the briefs or not but that high speed chase case that the supreme court had famously that had the dash cam scott versus harris maybe where the court said you know where allegations in an affidavit or a declaration contradict sort of cold hard facts and i wonder is this the kind of cold hard fact that contradicts the statement that the car wouldn't crank so there was another there was another case i was reading even just last night where the of there was a similar report that was purported to be cold hard facts that the car was in operable  that case and this this court said no we want the dash cam basically the video is called hard facts a report from the f d a leader or some sort of investigative body was an unknown off to to discount the sworn affidavit from somebody else but your contention is doesn't matter newsome you know whether the car was still running or not he was trying to recreate it and that's good enough that's right and whether the car was operable or not we have to of alue way this from officers and beadles perspective objectively and there's no way he knew that that car wasn't going to cause wasn't going to be used to injure officer florin as he got out of that vehicle let me change the facts a little bit and then it issued a command to the driver to raise his hands and come out and instead the driver did quite the opposite he lunged down as if to grab something could the officer of shot him yes he could it would still be entitled to all of our immunity even if he knew the car was an operable given the totality of the circumstances that officer would be reasonable in believing that the suspect by not obeying his commands pose imminent threat to to either the other officers or officers and be to him self to the officers see carson leave the car armed before he shot officers and vito did not see cars and did not did not appreciate that he had left with the gun officer evan ko who was the one that shot who shot the second time that was yes and shooter yes i did see carson with the gun exit the vehicle and i think he even testified he was concerned that because he already saw one gun yield my time back to the court thank you it's a couple of points the defendants say that the pace versus capital bianco cases their best case there again that case involved the engine a car engine was running the car was moving forward there was an imminent threat of harm in that case the the situation in our case is completely different based on mr carson's statement that the vehicle was no longer  operative at that point the vehicle was no longer a deadly weapon and so we believe this case the case before the court today is totally different from the pace case as well as several the other cases that we cited where the vehicle was operative and was at the time being used in a way that created an imminent danger of harm to the police officers so i might have misunderstood the reason that counsel was citing the capobianco case but i thought he was just saying this is not a seat belt case this is an aggravated assault case and you know couple bianco gets me into aggravated assault land at which point you know in our excessive force cases we look not only at the seriousness of the offense but also the immediacy of the risk and he says as to seriousness of the offense this is not a civil case it's an aggravated assault case and now and now as to immediacy of risk we've been talking about morton and mccollough and long and those cases even if it's a serious  that merely of attempting to evade the police officers from a stop or an arrest does not necessarily present an imminent threat of serious harm to the police officers that case there another case we've cited it's different as you point out because the car was moving before the shooting whereas this car was not but it's also different in that the prefatory crime is very different unlike hayes because it will be arco in this case the vehicle was used as a deadly weapon and they had by your own concession probable cause to believe there was an aggravated assault so capobianco is different in both respects yes i would also point out that  the affidavit that officer's name b t o executed is very important as we point out of the wording is very important as we point out here verse in his affidavit not that he believed or feared that the vehicle would move he states in his affidavit that the vehicle was accelerating and moving toward officer floor and well based on mr carson's testimony that does not appear to be possible so i  was an operative and if if officers and beat i was incorrect that it was accelerating and moving toward the officer and we believe that there's an issue of fact in this case as to whether or not the officer there was there was an imminent risk of harm to a fellow officer which would have warranted the use of deadly force i think that's what it comes down to and we think that under the cases out of this court that would be the answer to that would be that there was no imminent threat of harm that the officer should not have shot at the driver and therefore the summary judgment was improvidently granted i will just close by saying in the mccollum into leni case where there was an imminent threat of harm judge marcus began the opinion by calling it a tragic case that involved a drug dealer who tried to evade the police if that's a tragic case then this is an extraordinarily tragic case based on the facts that  you are familiar with as to how this case was begun thanks very much thank you both although any of us disagree with that by the way it is your client lost her son and we'll proceed to the fourth and last case this morning