summary judgment the standard of review as to novo and we contend that under the facts that we produced mr monaco was not entitled to qualified immunity under federal law for the killing of max martinez first of all the laws clearly established law enforcement officers may not shoot to kill unless and a minimum at a minimum the suspect presents an immediate threat to the officer or others or is fleeing and his escape will result in a serious threat of injury to persons in the ruby ridge case harris versus roderick this court emphasized that the police cannot kill suspects who do not pose an immediate threat to their safety or the safety of others simply because they're armed now the district court felt that under the facts mr amano really there are issues here that's right a martinez to raise his hands above his head secondly there's testimony on the record principle that well from the civilian witnesses and as you know there were a number of civilian witnesses who watched this who testified that he raised both of his hands in the air and an angel wings type movement like this with or without the gun with the gun in his hand but the important thing is one of the witnesses and that would be the inquest testimony of the hill on e r ninety three through ninety five crucial testimony in terms of establishing disputed facts in this case and she says that he raised both hands at the same time and he was not looking at the black officer now the reason that's significant is the black officer as officer who take a few is the guy who they are claiming he was pointing the gun at but her testimony is that mr martinez was not looking not even looking at that officer where was the gun pointing well that well the facts are i guess i put it this way where was that officer in relation to the seat i think i apologize for not being able to answer that quickly i mean to a school that answered yes to this it's just your best recollection of the moment it's ok not to be correct you know let's assume that they're out to the side it's not pointing you know because obviously you get all inferences in favor of your side in this particular situation it appears that it was also some of the other undisputed facts are that  comment there's going to be some shooting here so let's just assume that they're out to the side they're not pointing at anyone what you know how does it does it have to you have to allow is it reasonable to allow that they that they move it and you give someone the first shot i mean i think that's well i think that i mean can be pretty threatening out here at the side it only takes that much t over well i think that's the i think that's a decision that the jury has to make because under our facts and jury could clear that mr martinez was not an that had relates to the standards for the use of deadly force and here this is a guy what this starts off as as a traffic stop on a misdemeanor hit and run a tell me get out of the car he gets out of the car they take his girlfriend in a custody he's saying let her go they say if you get on your knees we'll let her go he gets on his knees they don't let her go he stands up again and they're telling him to raise its hands a jury could find that the he did not pose an immediate threat to the officer see the theory is that he was the police side of the story is that he was pointing his gun at officer boot hey who was not the guy who killed him  but he was the jury could find that he wasn't even looking at officer to take me that he was complying with the command to raise his arms and he's doing it and he's raising both hands at the same time which is extremely significant in other words if he's got one arm on his side and he's going like this you know which are not are facts you know that's more sinister but if you're raising both of your arms in an angel wings fan passion like this and see to the civilian witnesses he was shot at or they thought that he had fired a shot when its hands were up here like that's so according to civilian witnesses he goes like this and then they hear the shots fired what's the matter if he didn't have a damn well that's true in so many situations it's it's obviously we wouldn't be here in iran for that case if he just put his gun down on the pavement but that doesn't give the police the right to execute him under our facts the jurors could think that he was giving himself up and there's a third witness c there ms hill or  and you know i didn't realize somebody says i didn't realize he had put the gun down before he gives himself up in any way to that witness it appeared that he was giving himself up so if those were the jury could find if that's what he reasonably appeared to be doing he wasn't looking at the guy the police claim he was pointing the gun at and that it was unreasonable under the circumstances to open fire it's also significant and maybe could be significant to a jury that the officers are supposed to be separated after an incident like th butane replies yes he did he raise that gun at me he raised that then at me now why where they have to have that kind of conversation at that point you know if i get to try t to a jury you know those guys are going to be question about that why did they have to tell each other what their proper justification for the shooting was going to be under the circumstances  is the officers are not supposed to talk to each other after the shooting they're supposed to be separated i think in the record here i think somewhere in the my excerpt of record i include something  in the inquest testimony i believe he said he went directly to this police car and sat there and totally forgot it when you're talking about the protocol that's essentially when heard i mean you still have mr martinez waiting for medical care you still have him  you know i guess focusing back on before the shooting occurs if i mean doesn't it really kind of boil down to obviously there are there are statements you know there are statements that that come from the officers but but giving you all the inferences taking all the statements of your witnesses is being true as opposed to and i think that they're more favorable for your case than obviously for the officers case if you don't you can we just have to look at those and decide whether an officer would have been justified shooting under those circumstances you know assuming that the arm you know has a gun in his hand but the arms are up to his side or either over his head and not pointing directly at someone but obviously you can't exercise that from the fact that there has been so there's some undisputed facts that occurred before in terms of the gun coming out previously you know his not surrendering saying there's going some shooting but don't we just assume you're past witnesses this being true and then decide whether that's that's right taking a light most favorable to the party asserting the injury to the facts alleged show the officers conduct violated the constitutional right and there are facts he's giving up he's raising his arms in an angel wings fashion he puts his hand up above his head courting the civilian witnesses they think he shot when he's up like this when he's given up and that's that notre dame jesus is like this well the game's over all the angel pictures i've seen the wings go way up here and you know i didn't make i guess i didn't make a detailed record when i was questioning that witness about the movement but i guess i got pretty well you know what i was she was talking about the angel wings in the snow and you know when you're a  that's not that i mean i just i didn't think of you know getting to get into that at that point i thought you know i wish that you'd been there to ask the question so many of then the qualified immunity standard is a very difficult one for the defense to surmount and i think we should have been allowed to proceed through a jury as to the first shot i'll talk very briefly about the remaining issues there's testimony in the record that after the first shot mr martinez collapsed and rolled under the truck that his back was to the officers and the second shot when the second shot gets fired it hits him in the buttocks so the officers are claiming a couple of the at least one of the officers officer monica was claiming that he thought that mr martinez was trying to get up on his the elbow or something under the truck and somehow miraculously get off another shot so he blasts them again the jury could find that you know the guy was lying on his side with his back to the officers and he you know in my brief i didn't have a chance to look that up when i got home last night but in my brief i indicate that the medical examiner did not know which of the shots came first let me see if i can find and here autopsy report that send mr christie's declaration or i might add something i'd like to apologize about before i sit down and that is i also included the autopsy report and dr harris testimony in my  mr martinez seemed dazed and entice a candid that's on page seven perry factual paragraph five and he says the police tell him to show his hands and put them above his head mr martinez says what's all this about why are rapidly you know we don't have we didn't get that far facing what happened is this case was filed there wasn't much discovery in the defense came in pretty fast and filed a qualified immunity motion and we had the hearing discovery should be limited because of the qualified immunity matter and that came on before the judge before there was that much discovery and while i'm at it i just have less than a minute but i do want to say if you reverse the district court then the other claim should be reinstated the defense takes issue with that on the issue of minutes of the municipal liability claim against the city federal way be reinstated and again here is in the monger case  the record wasn't sufficiently developed but i can represent to you as an officer of the court that the city of federal way police department did ratify and approve of the shooting and sent us an official letter denying our claim for damages you have to file an administrative claim under state law first attesting that in their view the shooting was reasonable so there is minnesota liability based on ratification and the red lights just went on so i'll stop thank you for very much when you're honest my name is five christie i'm the attorney for the city of federal way and officer miguel monaco who's president court with me today i was like you're on another matter on wednesday your honor for different city city at the ci on these points is that there were three shots fired at mr martinez two shots fired virtually simultaneously one being a nine millimeter and one being a shotgun blast the nine millimeter shot  wrist exit his fore arm traced his clavicle and entered the nape of his neck that shot came by physical facts at a point in time when his left arm was extended directly at officer time i do see in the record that when he put the gun away the time before that and had it in his hand before he pulled it out the last time that he did it with his right hand so i do see that in the officer's reports at any anyway my point is the shock and that's correct and the testimony which also is undisputed is that at the moment officer monaco saw the arm extended towards officer he perceived the threat having raised to the level of  shot because of the report that he heard from his first shot the medical testimony is uncontroverted that the fatal shot and this is my supplemental excerpt of record page eight the autopsy report the fatal shot was the first shotgun blast to the trunk the first shot of officer monaco one of the pellets having severed the aorta and causing a bleed out and that's that's what killed mr martinez so that is undisputed in the record to answer your question and it's the evidence in the record for the most part is in question here in testimony that was presented under oath he's also the one that described the arm position having to be extended in order to create the path of the wound by the nine millimeter ammunition in it and it's fairly common that they're loaded with alternative shots i believe some of this testimony is in the record i'm not just making this up that's off for good taste testimony the first shot has a large size tell it in it with approximately nine round balls in the shot it's not a final shot the second shot the alternative like i would call it that yes the second shot is a slug one piece and that's the shot that hit him gauge so i'm guessing that the diameter of it is probably about six seven millimeters the testimony of my esteemed colleague focused almost principally on the first element of the sauce the test which the district court never got past they found that there was no violation of the constitutional right given the facts and viewed mo i can confirm that i don't know that that's in the record but my plaintiff here i believe it was a pump shotgun the barrel is not rifle the perilous not rifle the the issue is whether or not there was a violation of a constitutional right and the test for reasonableness under the fourth amendment is of course set forth in the graham versus conner in art rearticulated and so i see a case and we know that that is judge from the perspective of an officer on the scene at the at any rate ultimately the first question is whether or not there was a violation of a constitutional right and viewed from the perspective of graham versus conner without looking at whether or not a reasonably objective officer could believe that force deadly force was justified which is the second test i believe you never get past the first test judge peckman believe you never get fast past the first test so if we look at this case actually there are two key features that are uncontroverted and i piloted both of them one of them then the path of the bullet fired by the first officer that shot that recognized that at that instant moment in time mr martinez had reached a point with racing his hands that the threat of force of deadly force was not in that and coincidentally the path of that bullet makes it unequivocal that his arm was pointed directly at this case is unique both in the trace of the bullet which confirms where the arm was irrespective of what may have been perceived by others given that there's always a time lag between when the shot is fired and when the report is heard that evidence of two officers perceiving at the exact precise moment in time when the threat of force which had been evident for some period of time with mr martinez waving his weapon around making the statement that you indicated there's going to be some shooting going on here there was a precise moment when both of them perceive what had been a general threat of deadly force now become imminent and they both fired instantaneously of the record in case the both gentlemen were approximately thirty feet officer butane was slightly closer it was officer monaco's belief that officer booth terry who had the nine millimeter because he was the closest and because of the way he was situated next to his door was the most exposed of all the officers present officer monaco's testimony in the record that he was approximately thirty feet again in the v of a door i believe on the passenger side with you mark either way in this case your honor the one thing it does from the perspective of officer monaco who was the only individual named defendant is it removes any doubt by virtue of the way the bullet traveled removes any doubt as to where mr martinez had that left hand pointed at the instant that that shot was fired but we don't know that is not clear to me in the record it's clear to me  i don't know that that's in the record either your honor i don't know that that's in the record the record is not well developed either on the point of his historic drinking in other words  whether he was an alcoholic and could function well at the blood alcohol level that was found what is in the record is that he was staggering that he did appear to be confused that he was irrational which as the officers testified heightened their concern about what his actions might be any second that the difference between being here and here or being here and here in terms of firing our instantaneous and back to judge callahan's point there is no requirement under the law that you allow the suspect to shoot first if we get to the second element i believe the evidence that is undisputed about the shots being almost instantaneous does establish objective reasonable notice and of course the test for that is that all but the plainly incompetent are going to be protected that if a reasonable officer could believe again under the lens of graham versus of connor that we're not looking at this with from the perspective of twenty twenty hindsight we are looking at it from the perspective of an officer on the scene evaluating rapid tense situations that if an officer could believe that the use of deadly force was fired to the extent that the court looks at the subjective belief of the officers what the testimony is on that subject by officer monaco is that at the moment that officer or that mr martinez leveled his arm on officer butel he began and he sensed that this was the moment in time that i have to fire or officer monocle may be shot and he also testified waited a split second too late and that mr martinez had just shot officer protect it turned out to the officer to tell you having perceived the threat and fired his weapon a split second before officer monocle fire there are no jury issues because we have the qualified immunity test we have a two part test that doesn't force every case that has any hindsight disputed then that occurred in  microseconds we have to look at the totality of the facts and we can view all those facts most favorably to plaintiffs to the extent that they're not and in dispute the physical facts cannot be controverted and we ask whether or not a was involved in a hit and run beforehand they did get a license plate ran it and confirmed who the vehicle was registered to i don't believe there's evidence in the record about them getting any more detail than the fact of his identity involved in a hit and run accident and that's that's what i see in the record that that's all true i was trying to answer the judge's question of whether they got more from dispatch in terms of background information on and on what had been observed and i don't believe there's any of that in the record the the next issue in the case and every claim the in this i submit falls from the determination that this officer acted objective league reasonable the next referring to judge marshall peckman who is one of our district court judges and i presented the honor of arguing before judge from a different different part of the country the analysis under that is whether or not the officer was carrying out  statutory duty and of course it's not a duty to shoot someone but there is statutory authorization using authorization under r c w nine a sixteen zero four zero that authorizes the use of deadly force in exactly th situation who was pro procedure in the ultimate issue under our qualified immunity as it is under the federal immunity is whether or not the officer's actions were reasonable  for you mind fine choir because they are the police chief here is well i don't know that it's in the record one hundred seventeen commission officers your honor it may have been a few officers less this was in march of one thousand nine hundred nine but roughly that number the next issue that is in the case is whether or not there was a failure to provide medical care and there's that's asserted both under federal and state law we've articulated the different standard the standard under federal law of course is the fourteenth amendment due process deliberate  indifference standard the trial judge found and i submit this court should equally find that there is no evidence of deliberate indifference now another red herring issue that is submitted in the appeal is whether or not officer monaco had an obligation to with orange mr martinez that he would be shot if he didn't drop his weapon first peckman found and i submit for this court to also find there's undisputed evidence that officer parker another officer on the scene made that exact precise statement to mr martinez she commented on and i think it makes common sense that you should not impose an obligation on every officer on the scene to you know i mean i think a lot clearly states that i agree your honor i was just i'm i guess more reacting to an argument that was made in the priest rather than believing that that would at all be appropriate here but the point is that in the record it clear that that kind of statement was made on the the other argument that was made under state law and yes that there was a failure to provide medical care on a negligent basis the standard under washington is that if you create the emergency situation that results in the medical care that the test is not whether or not you made the best choice it's whether or not your choice was reasonable under the circumstances we also have the ninth circuit law that makes it clear that there is no obligation for an officer to initiate c p r and even more fundamental in this record there's no evidence that c p r was appropriate in this case the evidence in the record is that mr martinez was breathing and was reading labored he died from having blood out he did not die as a result of anything that r would have would have stopped so there's also evidence that first aid was provided almost immediately and that the decision was to let the medical people that were on hand that had been called respond to that rather than the the medical personnel arrived medical had been staged your honor and it's my recollection of the record that by at least one lay witnesses estimation there was a period of five minutes i think that's one lane witness this estimation of t the device and there's testimony in the record that the call had been made and there was an i guess by the officer that it may have been there in a matter of minutes and i can't recall the precise number of minutes i submit that there is a complete red herring issue it would really force an officer at the moment that a weapon is level on him to tell the individual wait stop there will be a less lethal use of force here present shortly that i might be able to employ against  you that's the silly position and i don't think it adds to the analysis here of whether or not the decision to use force when there was an imminent threat was objective league reasonable well just playing devil's advocate here what did get there and i'm actually here on the balance of the testimony in the record on that point is that it would not have been appropriate to deploy at the point in time where he had the weapon in his hand and was able to use that weapon immediately it would be used if you were away from the weapon and were still presenting a danger but it would not be a use of force that they would employ or a weapon they would employ when he had a handgun in his hand and looked like he was imminently  prepared to use deadly force they would not use that less lethal method because it may not have the intended effect we again can't forget part of the totality of the circumstances is that this is all taking place in a crowded apartment complex in the parking lot with a daycare adjacent to it that is part of the circumstances surrounding the setting in which officer michael found himself so most other questions i'll i'll step aside thank you john or something in  history that is that is correct for my recollection of the record i believe the extent of that this information about what happened that day and that is that he was reported to be intoxicated had been a hit and run i agree there they had no information that he had a prior record that he was you know violent convictions anything like that they this was a traffic stop or two misdemeanor hit and run manners secondly it was officer parker who called for the project it carries mace and could be fired fifty to seventy five feet to disable the suspect he testified that the estimated that it could have arrived within six to seven minutes which would have been about the amount of time between when mr martinez got out of the truck and when he was shot  i'd like to simply ask the court to let us try to scase to a jury if they don't agree with our position fine but it should not have been dismissed on summary judgment  the court for holding the oral arguments today at the end of the third week of an aggravated murder trial and it would have been really hard for me to come in yesterday so i appreciate your coming in here today i know it's the federal government in general is closed down but