due process rights as well as the supplemental claims under florida law the principal issue we raise on appeal is the district court's error in finding that no th amendment seizure occurred in this instance in the facts of the case picked up her two children the two year old son that is for whom she's pursuing the claims as well as her seven year old daughter that miraculously was not shot of this incident but she picked up a twenty two children from school and took them through a fast food restaurant on a busy thoroughfare here in jacksonville unbeknown to her at a neighboring location right next to the fast food restaurant a bank robbery an armed bank robbery had occurred the suspect had fled the bank and was traveling down the road when he got to the restaurant that neighbors the bank and came up upon mr cooper through the drive through line at the restaurant miss cooper was waiting on food for herself and her children when the suspect suddenly and unexpectedly approaches her with the firearm and demands that she give him the car she was willing to do so provided she the suspect allowed her to get the children from the car he was not willing to do so in the struggle ensued with miss cupar in the suspect over the over the firearm being brandished by the suspect mr cooper was able to wrestle the firearm away from the suspect and it ended on the passenger side floorboard at this time the police the jacksonville sheriff's office were responding to this call and one of the officers lieutenant york came from behind the car tracking the suspect from the bank and was utilizing a shotgun at the time there was a struggle between miscue parin the suspect lieutenant york discharged his shotgun twice into the open door sweep of the car while the struggle was occurring and if this point the suspect wrestled his way into the car sitting in the lap of miscue for trying to leave the the drive through line realizing that the vehicle was about to engage in and to move yo fired two more rounds from the shotgun into the rear tires of the vehicle attempting to disable it while that was going on a number of other officers responded and set up a sort of perimeter on the roadway around the fast food restaurant none of them blocked the exit but they all set up the perimeter and officers began shooting into the vehicle officer black who was a six year veteran of the force at the time and was a field training officer for another officer that discharge six shots officer griffith black ended up shooting twenty four times in the incident he unloaded his st clip with thirteen rounds at the time the vehicle was stationary in the drive thru line all through the front windshield of the car and the record evidence in the photographic exhibit show that these shots of the windshield were all at the passenger compartment of the car and other officers began firing at the vehicle as well missed mis or at the commands of the suspect to move lift her foot off of the brake and at this point she had been struck in the foot by one of the shots one of the officers opined it was a shotgun but i don't know that anyone knows and the vehicle began to move officers continued to fire at the vehicle through the front windshield and as the vehicle passed through the passenger side and tragically mr cooper as indicated was shot in the foot but more tragically her two year old son but buckled into his course he was shot through chest and through the arm ultimately d the vehicle lurches across the road it wasn't it wasn't speeding it was slowly moving into the roadway when it stopped across the roadway when it hit the curb the suspect attempts to exit the vehicle and as he's getting caught up in the seatbelt officers converge and file or fire a volley of shots with the vehicle as backdrop striking the suspect and killing him in was granted in part by the district court excusing and number of officer just you don't have much time and i think we're pretty up to date with the procedural history and the fact of the case so my suggestion is that you dive into some of the arguments you presented on appeal or else you're not going to get to them well we contend that there was a quote district court erred in finding that there was no th amendment seizure and the district court's rationale for that finding was that the officers did not intend to shoot anyone other than the suspect well we contend that the officers subjective intent as to who they intended to shoot is immaterial for the th amendment analysis it is whether the officer intended to use the force employed the discharge of a firearm that is the only intent of the officer that matters deriving from the case of broward versus county a venue in you know from the supreme court that talks about whether a seizure occurs  is whether in force intentionally applied by the officer we contend the district court erred by morphing that analysis into the subjective intent of the officer as to whom he intended to shoot which is a relevant for th th amendment jurisprudence now there are i i tend to agree with your position but there are a number of cases from other circuits which have come out contrary to the arguments you are making right yes error tell me why you think they're wrong because they rely on the subject of intent of the officer as to who they intended to shoot as opposed to the intentional act of of the seizure the discharge of the firearm the subject of intent of the officer as to who you intended to seize is irrelevant it's the manner in which he's intending to seize is the intentional act of the officer that's relevant under violation claim it doesn't matter that he intended to shoot somebody else and happen to strike the hostages that was in the vehicle that's it was an intended and perceivable consequence of the discharge of the firearm just because he missed the target the the claim it's whether that chart that shot the shots being fired were objective lee reasonable and in this case they were not because of the presence of the three hostages that were there as well as the backdrop of the wendy's that the the use of force in this case the intentional discharge of the firearm that struck two of these hostages gives rise to a th amendment claim and the district court erred in finding that it did not and that's the law just shows that as so you always have a th amendment violation well let's put this way you always have an argument and whether what the officers were doing and how they were trying to handle the situation was on reasonable because there was seizure and the require criminal intent with that i don't know about criminal intent from the ses the person well would forget criminal intent you have specific and save the person well argument it is the intent intentionally the force by means intentionally applied under brower the intent that's relevant for the seizure analysis is that of the person confronted with the law enforcement officers conduct what a reasonable person  free to terminate the encounter so in that situation the hostage may very well know that it's not being directed at her and feel free to leave the situation in this situation with cooper confined to a vehicle with shots being fired and coming through the windshield answer that the seizure occurs when they're hit because that's when they're stopped well that's when and that's when brower kicks in because broward says and i'm quoting a seizure occurs even when an unintended person or thing is the object of the detention or taking but the detention or taking it must be willful it's enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place to achieve the result i thought your argument is or was that when they were hit by the bullet there was a seizure forget attempt a gun questionably there seized one or struck by the ball i mean why do you need to why do you need to go to attempt we don't she was struck by the bullet invention directed at a specific individual i think we all agree they were trying to the telling them robber here that's where the intent got to be specific not knows the fact pattern was the driver was shot and ended up wrecking the vehicle there after so the seizure you couldn't pin necessarily the wall of force but there was the intervening st you know the intervening driving of the suspect be directed at a specific individual that was the finding of the district court with which we take issue and we contend that it isn't the officer subjective intent as to who he intended to take down with the shot it was the it's the intent to use that force the consequences flow there from even if he hits an unintended target as judge jordan has pointed out in the brower opinion and this was confirmed in the brendel an opinion upon which we were rely that although a criminal case talks about when the driver of a vehicle is stopped the passengers are seized as well and it talks about the relevant the relevant subject of intent is that of the person being seized in this case misc hooper w feel free to terminate the encounter and with the number of officers and the fuselage of shots coming through the vehicle she would not feel free to terminate the encounter indeed she was shot and so at that point there was a seizure and we contend that both ms cooper  or minor child have stated a claim for a th amendment seizure and due to the facts of the case the seizure was unreasonable and that pertains to innocent passengers being in the vehicle that given the fuselage of shots that was occurring not surprisingly struck the hostages the backdrop of the the firing being a fast food restaurant at three in the afternoon when schools letting out a number of cars on the roadway two of which were shot by bullets from from what you have to show we contend that there exist genuine issues of material fact the district court did not reach this finding that there was no constitutional violation but we contend genuine issues of material fact exist so as to even the sheriff sir the this claim arises from what we contend is a failure to train in a manner that's so obvious that it's it's going to impact adversely that the rights of the citizens with whom the j s o encounters virtually no training as it pertains to shooting and hostage situations they they had in their deadly force policy directing it deadly force as it pertains to to this incident provided that the officers were to use reasonable caution to unnecessarily in danger lives of bystanders considering the backdrop bystanders and location that was just the general deadly force policy to exercise reasonable caution so as to not unnecessarily endanger people however when it comes to dealing with hostage situations there was no policy dealing with shooting and with the prevalence of course jacking in an innocent person's being in vehicles that are being pursued there was nothing to guide the officers and their discretion on whether to employ deadly force under what should to ations to employ deadly force and it resulted in a number of officers discharging their weapon forty two dollars times into a vehicle that's occupied by three innocent civilians with a fast food backdrop and there was nothing to constrain the officers and whether to use force in these instances and the sheriff's office they were to train on that point was the moving force that caused this incident and you have other aspects of the incident demonstrate the failure of the the department to to adhere to the stated policy we presented in the record training materials from approximately ten months prior to the incident where they had training on how to handle  had one at the ready but didn't shoot recognizing the danger inherent in the situation but there's other more of my new show facts that we contend established policy of the sheriff's office due to its failure to train that was the moving force  likewise we also contend that there was a th amendment substantive due process violation the district court found on the motion to dismiss that the allegations which were borne out by the facts shock the conscience of the  court that officer that was that was denied qualified immunity at the motion it is dismissed a as was ultimately just missed out on his appeal but the fact remains that the the facts of this case shocked one's conscience when when reviewed can i i can see that this is a tough row to hoe we do have some some evidence though that the officers intended to cause harm to miss scooper when the incident was over appeared that officers were about to place  under arrest when one of the officers saw her shot in the foot he tells another officer let her walk so there is it evidence that they believe she was a suspect in the shooting was intended to cause her harm which would stablish liability under sacramento v lewis for an intent to cause harm above and beyond the seizure itself but i do concede that's a tough row for us to and i'll reserve the remainder of my time for rebuttal unless there's further question all right thank you very much and st and foremost what the what the district court did hold was that there was no th amendment seizure under these facts and i understand that opposing counsel is talking about the broward case and arguing that  r focuses pretty much strictly on objective intent but really there is lots of lots of statements in broward and certainly from the many other circuit courts of appeal that we cite in our brief that that there is some subjective element that is still relevant here what happened in broward was officers threw up a roadblock to stop a car and everybody in it and that was their intent there tends to seize everybody in that car and stop it but the court also differentiates those facts from what would be an unintended what are called an unintended consequence of government action or an accidental effect of a government action like a hostage or a bystander situation and respectfully what opposing counsel is arguing w essentially eliminate all these cases that deal with accidentally hitting a bystander or a hostage when your intent is to shoot at the suspect and stop a suspect and in fact these are mr peter let me ask you a question what what do you think broward means wanted to toss about unintended person or thing being a subject of a seizure what sort of what sort of circumstances that i think it's talking about something that's that that is life what is what actually happened in that case which is whoever was in that caused a robot to stop everybody in the car whether there's a suspect whether it's everybody everybody else in the car with the suspect they're trying to stop the car i think that the courts differentiating in broward is an action so if in this case let's say that the assailant had been able to wrestle the car away from miss cooper and drove it away yes  and the police all shot at the tires to disable the car the car flips on its head and everybody inside is killed is there a th amendment seizure i think that would be a different case that would bring it much closer to what happened in broward and or see other cases that are cited that deal with roadblocks and brendel in as a case of course brennan was just a routine traffic stop but it was stopped that car i think that's what if what if the police were trying to kill the assailant by shooting him but they were poor marksman shot out the tires the car flips and everybody dies is there a th amendment seizure no and that's what that's where i think that that there's a difference specially gra you're telling me you're telling me that the subjective forget subjective you're telling me that the marksmanship of the police officers determines whether or not in identical results there's a th amendment seizure are there is that what the case assesses that if it's an unintended consequence of a lawful action using deadly force and that makes no sense that makes if the th amendment is supposed to be interpreted on  objective basis in the supreme court has told us told us that over and over and over again you're telling me that the identical result in my two hypotheticals turns on whether or not the police officer was a that's not for reasonableness purposes that's a different issue and you may wait on reasonableness just so you're telling me that was no seizure at all to begin with based upon what the police officer he or she was trying to do with the shot what the case law says is that an unintended or accidental consequence of officers action is not a th amendment seizure and in fact just just last officer fires at the at the robber or escapee and the vehicle in which he is fleeing with the plaintiff hostage but the bullet accidentally also hits the n c's plaintiff hostage thus raising the issue of whether the boat striking the plaintiff passes constitutes a th amendment seizure well it talks about it talks about what his eyes imagine the unintended or accidental consequence of shooting at a suspect and the other cases that the that the panel and and corbett was citing all talk about hostage type situations like we had here and they all say there was a seizure and that sort of accidental or unintended situation and so you know while while it is an objective reasonable a standard or objective lee you know what if what were the officers were the officers  from above reasonable there is still some willful act of the officer that has to be involved in whether there was a seizure or not but as we're talking about you know the word intent has a lot of different connotations there's general intent the hostages had to do with stock car and that's what they're trying to do then that's that's what the th amendment seizure is here in this case falls right in line with corbett and all the other cases that we cite that deal with the deal with a hostage that accidentally stopping of someone's movement how can shooting that person not be a seizure because here it was it was just like and many of the other cases it was the accidental sort of facts of trying to shoot the suspect the hostage he was accidentally struck by collateral fire if you will as the suspect every single officer throughout the record of this case has testified that they were shooting at the bad guy who incidentally that the two main ones th an innocent bystander or hostage is shot when the police are trying to hit on the failing would be a seizure and your and so it's an all or nothing proposition for sees your purpose but yours is an all or nothing proposition the other way too so any time the police say oh we were trying to hit the bad guy no matter what we did then there's no seizure at all i think that is a proper analysis of all of the case on throughout the years  you one more hypothetical and then i'll be quiet the police have a hostage situation the hostage is not in front of the assailant so they're standing side by side the assailant has a knife but not a gun and the police instead of taking a sniper shot or a pistol shot at the assailant decide to empty a machine gun at the two individuals who are standing next to each other and not only is the assailant killed but the hostages kill too is there a seizure that sounds like that is a that is an intentional act directed toward everybody that's standing there so potentially and that's that scenario that would be a seizure and probably a th th amendment shocking the conscience behavior as well that's that's  then the that's the way it is the hostage does not go anywhere there's no constitutional violation that's a fact often is not going anywhere and the police arrive that that's actually the court case from last year that's that was a case where everybody was already seized but hostage are one of the one of the children that was actually already seized was accidentally hit by a bullet that was meant for a dog and the cord in that even when an intended person is the object of the detention but the detention itself must be willful and it goes on to talk about that when you have detention the detention here was the robber detained her the detention was already in place she was detained and she couldn't leave because she was a hostage and so that there was no seizure because the afa search warrant trying to seize her they were trying to shoot the robber and attention to the extent she was in the car was from the robber now maybe that's not the right and that was is is the government say that's not the right analysis the engine was the him taking her hostage and they were trying to shoot him train or maybe not have a proper policies the only way that you do that is if the sheriff is deliberately indifferent to a specific need to enact policies concerning this type of incident which we do not have anything in the record that in two thousand and ten this type of incident was a and it was type of hostage fleeing felon type thing there's no evidence that that type of thing commonly occurred in jacksonville at all and we know that there's no there was no clearly established constitutional violation or so there's no way that the sheriff as a and state wise they train and all of their policies they're there as the sheriff says and the undersheriff says they're both of their the undersheriff decorations in the record and he says you know we train above and beyond what the constitution even requires we hold our officers really to highest standards and how they're trained so you've got to have it the sheriff has to be deliberately indifferent to how well i need to really train these guys what to do if i've got a fleeing felon trying to you know seven through forty nine and it's a very detailed this is when you can use deadly force only if all these three circumstances are present and this is when you can fire at a moving vehicle when these particular circumstances are present  very very specific and that's where the training comes in you've got to have a really high standard in order to hold the sheriff liable for a constitutional violation for the actions of officers who have all been given qualified immunity now the now this doesn't determine the issue of municipal policy under more now of course but the share of the internal investigation indicated that at least some of the shooting was an unreasonable use of force right that's different than whether they committed a constitutional violation but if they did not follow policy by firing at a vehicle or firing at a suspect when they weren't sure if there might be somebody else in the vehicle or maybe what kind of bystanders were on the air they acted too quickly that if they acted improperly under g s o policy but again that shows that that that the policies are in place were in place at the time and that there is you know there's there's units in jazz so internal affairs response resistance that investigate this stuff and make sure that the officers are not engaging in conduct are not supposed to under j s those high level of training and policy that they're acting reasonable in the  you know there may have been a need for deadly force so you did have a really scary scenario here with a with a guy that just committed a bank robbery seen robbery and may or may not have been firing at at the officers was certainly trying to  level are sort of aspirational high level of training they did not comport with that so again that just that just proves the point that the sheriff can't be liable for deliberate indifference to something where clearly they're they were on point here and they were all over this in terms of what their policies needed to be or thank you very much because they because the officers were firing at the suspect none of them none of them even knew the ones who fired the bullets even knew that there was a any hostages in the car at all and they were certainly weren't intending or trying to fire at the i thank you very much that your fees are thank you very much has i believe that the sheriff's office regarding the intent of the officer dictates whether there's a th amendment seizure has been squarely foreclosed by supreme court the supreme court and brundtland v california in the too had been seized when the car collided with the roadblock even though the roadblock was intended to stop the driver suspect anyone else in that vehicle that was subject to law enforcement intentional conduct would have been subject to a seizure that's the point of broward reaffirmed by brundtland and regarding corbett is judge jordan well knows having having sat on the panel and corbett the case was decided on qualified immunity grounds finding no there was no clearly established law resolved on qualified immunity grounds for what it's worth that's up in conference with the supreme court inviting the court to review qualified immunity lastly we do have record evidence that these officers were not just shooting at the bad guy  as the sheriff would contend we have evidence in the record and testimony from to least two of the officers one of which boy is black stating that he was attempting to prevent the caller from moving attempting to shoot the c officers lieutenant york's final two shots with the shotgun were directed at the tires trying to prevent the car from moving so those facts put this case more in line with the fisher vs city of memphis case out of the six that we discuss that when you attempt to shoot and disable a vehicle and keep it from moving that you are seizing all the occupants of the vehicle consistent with the brundtland opinion so based upon all of those authorities we contend when these officers engaged in intentional conduct to wit the firing of their weapons discharging firearms at that point when those bullets strike an individual through the intentional application of force by the officers there is a seizure and based upon that there's a seizure that requires the court to engage in objective whether it subjectively unreasonable and we contend that it was and further that there was a policy that was the moving force behind not only the th amendment violation but the  as well so that's our position and we respectfully request that this court reversed the district court's order granting summary judgment to the share all right thank you both very much we really appreciate the court is in recess for today