unity and i understand in this case where the district judge perhaps had some difficulty wrestling with the at that time recently released skate of what case of white versus poly and the court had some trouble finding how do i find a specific case but since that time the u s supreme court has consistently come down stressing especially in fourth amendment cases where the specificity of the case to clearly establish law and the fourth amendment is particularly important and in this case the district judge it was interesting because a district judge gave the plaintiffs an opportunity to file supplemental briefs and say you have not come up with a case of clearly established law but i'll give you an opportunity come up with something in two weeks after they file their supplemental briefs even the district court said your supplemental briefs are unpersuasive and incomplete but then the court inexplicably at least to me so the court nonetheless finds that these two cases glenn versus washington county and hayes versus counties that san diego are sufficiently clearly established to put these officers on notice that their conduct on this particular date would have violated a clearly esta law however when you look at those two cases as the supreme court said in she hand the differences leap off the page and no matter how many times the officers could read either glen hayes it would not have been beyond debate which is the language in the supreme court that their actions in this instance would have violated a clearly established constitutional right glenn of course and even the supreme court has said in this case it was interesting that the district judge said in this case that the court is aware from the record we have a frantic woman calling nine one one saying that there is an individual who has broken into her home is threatening her with scissors which turned out to be the gardening shares with scissors has exposed his penis to her broken back into the house after he left once and is strangling her dog that's not what was going on at the time that he was shot and that no but that's the officer state of mind who they're dealing with with the nine one one calls that a drunk individual also she did make a comment that he appeared to be drunk a lot of time passes after that a lot of time in which the officers apparently didn't think it was urgent to  deadly force as he's walking along and there's minutes that go by and he has the sears and following him in that time he's away from the victim and there are no other people at risk are there well and that's i think the critical point and these cases with the video although this will happen be a cell phone video are going to more and more come before this court because we're getting the body more cameras the dash cam more and more and i think you can't just discount the fact that he is a suspected reasonable officer believes he's a suspected sexual assault suspect he i understand i understand and i give you that we're putting together in what's in the officer's mind based upon and and they're talking to the rest of that that's going on and i understand they haven't done anything yet but then we get up to the intersection and it's not clear in my mind if i understand correctly the officers believe whether it's a fact or not the officers believe that at that corner they would run into some other individuals and there may be a safety problem so they had a reason for wanting to confront and stop now i'm not quite clear what happened at the very end before the trigger was pulled what is the record show i couldn't i've looked at the viewing and i couldn't get that but there's some discussion by the officers that there was some type of a threat that came to them because of him using these scissors or whatever they are but they are an instrument that cause death so they have to be concerned what happen specifically just before the trigger was pulled that alerted that caused all this difficulty as far as record is concerned short and to things in the district court recognize this but then for whatever reason discounted two things the officers know that right at that corner there is a very crowded bakery at lunch time this is at lunchtime their feeling is that they cannot let him get into that bakery with those sheer scissors whatever you want to call them or if they'll have a hostage situation or another assault of some type so at that point officer lynn makes the decision that they don't want to use deadly force as you know they tried tasers they try talking him spanish english everything but at that point or said we're going to use deadly force if you don't drop the shears though they did not say that they said drop the weapon they said stop get on the ground all the things they said us or lynn then makes the decision to frankly endanger his own safety by trying to approach the individual and leg sweep him and take him down so he can't make it into the bakery and create a greater threat you know at that point what you do see on the video and i know you almost have to freeze frame that the individual does turn toward the officer and even the court in its opinion cited that he had this years raised over his head that's the point where the evidence that if you freeze frame it and the court the district court actually talked about that  that and i thought i had made a reference to the record were that in the district court's opinion they say that he does raise the shares in his right hand as he turned towards the officer ok so this is a finding by the district court based upon what was before the district court ok so then what happens after he raises who's according to the facts of this if we raised these  up that's when both officers fired because at that point and they got it down to inches he is less than six feet seven inches from the officer raising the sheers in an aggressive manner the officer at that point realizes he's not going to be able to lake sweep him but in fact would have been cut had he not deployed deadly force so there's a witness chavez who says he never raised the shears and you are saying we can tell from the video he definitely raise this years but i've watched that video and i can't figure out if you raise this years so i'm having trouble understanding how you're taking the facts in the light most favorable to the plaintiff i don't think he i don't believe mr chavez ever says he never raise he said he turns it into his hands in front of him normally and that's the problem with the timing all right because mr chavez then says he does turn towards the officers although with a leading question was it a normal sort of turn and he says he does turn toward the officer and he does have this year in his hands six feet from the officer and says was it above his head no i mean i don't understand how you can read that testimony as anything other than he's not raising the sears up the district court in its opinion says he does raise to a court can't resolve facts in summary judgment right if there disputed facts it has to go to trial and you have to take the fact in the light most favorable to the plaintiff so i'm not off to find the statement are saying but it sort of irrelevant whether the district court thought it was resolving a fact of the can't do that anyway but i think and we've all watched the video and i invite you to watch it again if you literally take it down to the split seconds in the half speed and i think you've gotten three different versions full speed has been quoted speed in have speed at two minutes and two seconds you can see him raising the sheer in his right hand and as the officer approaches men and bites you to watch it again and priest frame it if it's possible there's no question that he turned to the officer raising it and he has previously been swinging this years at the officers who w there you know there are there shooters with two hands he you know he's got them in one hand he's stumbling around he actually fell backwards and hit the ground once you know what i agree with you if the officers were faced with a lunch or  something like that they were entitled to use deadly force but if they just made up in their mind that if he gets any closer we're going to shoot him they're not and isn't that a factual issue here well one i don't think it's  the video i think you can see that i didn't see it on the raisin but secondly i mean yes the officers fired because they believe that they are they were in immediate danger but if you look at even at this court's opinion blanford versus sacramento and the supreme court in scott versus harris it's an officer's reasonable belief that this person is a danger to the public they could not let him get around that corner it is had to be an action that was actually just when the bakery had people on and whether there was anyone else around right so that's another fact that you're assuming and the officers favor but chavez is not true but mr chavez is driving but it doesn't have to be an actual belief and that's what blanford says if an officer has a reasonable belief based on their familiarity with the lunch crowd at that very popular bakery it could have been empty it could have been closed but that's not that would not give them a reason to shoot and kill him so that would not know but that does give them a reason to intervene to come closer to him and to try to block his path right i wouldn't what does he do in response to that is where we're having issues you're saying it's clear on the video that he makes a threatening gesture with shears and i just didn't see it and it was even quite frankly clear that to the to the district court and  it isn't in the record at ten at page ten where the the district court actually cited to the video that he removed this years and will host holding them above his head as he turned but then the district court says other than that evidence there was no threat there was no lunch like the officers testified to this well i mean if you six feet from him does he have to actually have to go through and i don't think that the court this court any court is going to say an officer has to actually be in the process of being assaulted if he raises it in the court this court has many times said if there's threatening gestures that's sufficient mir having a weapon in your hand is not enough but the threatening gestures and raising it over your head turning to the officer isn't it don't we need to think it's undisputed that he was raising it above his head and actually threatening rather than just holding it well it clearly is not just holding it and again i'd invite the court if you look at again but the district court found that he did raise that over his head they watch the same video they reviewed the same record they raised his head and turned toward the officer and then the court said quote other than that evidence there is no evidence of a threat i don't know how you call it there's no evidence of a watch the video and perhaps freeze frame that i didn't ask the district court how it came to a conclusion and i watched it again last night and you do see at two minutes and two seconds in the half speed it is raised over his head as he turns to the officer  so i don't think that's what it said is he was holding this year's above and around his head as he backed away from the officers of the district or doesn't see it the same way and we've looked at it slowly we don't see it the same way isn't that upset the exact kind of thing that needs to go to a jury for a factual determination what was really happening here well and if the court believes that's a factual question of material fact we still then have to look to the second prong and was there clearly established law even if there's a disputed fact well isn't it clear that you can't use deadly force unless someone is a threat i mean that's clear right you can't just shoot someone course you can use deadly force if the officer reasonably believes they don't have to be an actual threat but reasonable belief that he is a threat to either the officers or the public but has to be an imminent threat right that's clearly established it does have to be and i don't know how you say it's not an imminent threat but somebody is raising sheered all you're going back to the reason this years if that's contested and it's possible he's withholding th he was for the last three minutes and they didn't shoot him then then isn't it contested whether he's an imminent threat but he wasn't just holding the shares now you have to go back to the officer state of mind that he's threatened this woman tried to kill her dog exposed himself broke her house and if you watch the video clearly he is continually waving the shares at the officers he's not just walking down the street holding the shears he has already demonstrated a willingness to use it as a weapon to threaten the woman to threaten the officers albeit yes they used commendable restraint by not shooting him and they probably could have but they tried their tasers they tried to verbally talk him down only and the point when they believe he is now going to become an extreme danger to the other members of the public they endanger themselves he turns to them i don't know what his intent was and i don't think it matters it's the officers reasonably are you familiar with the case george p morris from our court about a guy who was holding a gun but was pointing down instead of just so why doesn't that case clearly establish that if unless the deadly weapon is actually an imminent threat at the moment of shooting that officers can't shoot because having a deadly weapon isn't enough and there's plenty of cases george being one of them where just possession of a weapon itself to shoot you unless you stop we're going to shoot you unless you put the weapon down they never actually gave him a command that told him that he was going to be shot and i think our courts that you need to warn before using deadly force is often possible right well and i think and judge trot in guns all us versus anaheim opinion that said if an individual is continually defying commands then it's not feasible that he spit at additional warning or command is going to gain any any result and  commands these officers these of all that if you tell them you're going to kill me is going to respond now in a circumstance i don't think at all because he was continual there telling him drop the weapon stop get on the ground he's not complying with anything i don't believe that you're ever going to find police officers in the real world hollywood maybe they're going to say stop or i will shoot it's typically drop the weapon get on the ground stop stop the uniformed police officers a recent case in our  send our court held that it was insufficient the boy was actually turning and bringing the weapon up and defined and they pay and the officer shot  know in that case our court has held that that has to go to trial some matter of fact now how would you distinguish that case i would i'm not a great fan of the case but understand but it is the law we're going to apply how would you say that your case is stronger than the one and i think in that case two things major things one we don't have the foundation that we have in this case there's a reported violent crime sexual assault breaking into a woman's house trying to kill her dog threatening her with a weapon that wasn't present in the sonoma case in that case you also have if you were obviously you recall me well that in that case it came down to the factual question being a matter of inches where whether i was acting up right and so i don't think because we have video which you didn't have in that case and that's why i think it's important in this instance and in many cases coming before the court the future that the video is going to be eliminating a lot of this material facts if this video is subject to interpretation and does not everyone sees it the same way you claim to see it then isn't that a thing that the jury has to look at and determine whether the inches are there the turning the direction on the whether it's above his head all these things are things that maybe a jury needs to watch this video and think about and let me assume for the court's benefit that maybe that is a factual issue how do we then still get to the clearly established prong of the qualified immunity that nonetheless exists under these circumstances with these officers belief with this foundation would it then beyond debate to any place officer under what they observed in the sort of business time that they would be violating constitutional right to this individual with this entire foundation of facts that they could use deadly force for two reasons one because he was an imminent threat to them and whether you dispute whether he has that the shares over his head or not  represent it's in the record or two that he's an imminent threat to the public if he gets around that corner but what the trial court would have to do and it's cumbersome is submit basically in iraq and tories to the jury  our side of the jury should decide qualified immunity no but there are factual issues about what happened in that case that will determine whether there was reasonable for the officers to do what they did and whether it was clearly established right so you know your officers said in their depositions that the that he lunged at them if that was in their mind that he's lunging at them well that's something to consider but it's different than seeing what the video seems to show and here's the dilemma that the trial attorneys are going to have now is is in order to get qualified immunity it's no longer need be at the earliest possible phase it's not a defense any any longer it's going to be something that's going to have to be factually decided so and quite frankly i'm not aware of any ninth circuit case there's a seven circuit case that says that the district court has to allow for special irag authorities to the jury to decide if these factual issues exist and then the court can determine as a matter of law qualified immunity and if nothing else i think in this case we need a case from the ninth circuit if there's cases in the ninth circuit say it's discretionary whether the district judge can allow  but if that's going to be the standard that factual issues in order to get qualified immunity have to be decided by the jury in order to preserve the qualified immunity then i think the district courts need to be told you must allow those factual determination to be made by the stories and then the district court will make the i'm very interested in that because decided he didn't want to deal with marla sources for any more and now it's my case for trial and now it's discretionary and so i think that that if nothing else needs to be mandated but i do think the important thing in this case is the clearly established prong and there is not a case under any remotely similar facts which the district court that we have you are going on there i'd like to ask you a question about something else yes before you that in your motion opposing their motion to file a brief you publicly submitted mediation communications and i would like to know whether you got permission from the circuit mediator and the opposing parties to do that because the usual rule is that mediation communications are confidential and it seems to me that you violated our court rules and i'm frankly at a loss as to what it is that we submitted you submitted e mails about how much the offer a settlement we have all kinds of information about yourself negotiations totally inappropriately in there in the public docket but i would agree i think and our intention was only to file the one email about  the the scheduling if there was a trail of e mails then you said in your brief the reason i don't think they should be able to do this is because i mean they were say the whole thing is ridiculous that they should have filed a brief but you said that they shouldn't be allowed to do this because here is all this communication is going on and i don't understand how you how you could do that and i'd have to go back and look at the record if anything we were just citing to the fact that they said that the timing issue and if there the the court i think it's getting this correct in the sense that the focus is what's taking place at the time the use of deadly force takes place in this case and although there is a video we don't think the video tells the entire context what was taken place at the observations as to what's a place when the video was turned away at those fateful moments appellants extensionally want to reverse or it simply ignore mr chavez's observations which were given which are part of the record by way of his deposition in a stetson plant with they think took place or what they want the story to be however we all understand that at on motion for summary judgment the judge the court cannot necessarily ignore turned in a normal fashion towards the officers which frankly the officers were telling him to stop so that may have actually been him complying with the officers commands to stop once he got to the corner we also take issue our should say our position is that gone as he was nearing the corner there and he turns towards those officers the officers themselves essentially did something that they should have done a long time ago which is they got close to mr go but in this instance they decided to use their gun mr he had gone as was acting in the same behavior that he had been acting from the time that they had started confronting him and contacting him accent crazy raising the shears that was that was the focal point and it was a finding by the district court that we have to accept that he turned raised the shares and that is certainly is and firmly back and so the real question is was it sufficient for the officers then to pull the trigger well your honor we disagree with the district court's interpretation is right if you disagree with it but if that's the factual finding we have before us well judgment and the just the judge issued his opinion but that is not an actual factual finding we're still would have been a title to litigate that issue if the judge which he ruled to go to trial on this case if you go to trial would just take had stand your position take from the assumption that the shears were raised and that that that there is a threat and there at that time according to counsel some eighty feet between  deceased and the police officers what what more would be necessary before the police officers would use do they have to wait for the thrust to come do they have to wait for what well  first the assumption that the court is asking me to make it something that's contradicted on the record oh there is no direct finding that the shares were raised the fact that their party witness says he did not take place that way i ask you just to assume that i know you don't agree with the facts but assuming that the district court was correct that the shares were raised would that be sufficient well then we have the defendant officer saying that the shares were not only raised but they were used and launched at them so that is what they claim prompted them to fire and use deadly force on top of the fact they said this what i consider to be an arbitrary line of death whereas if mr lee is here gomez reaches this point they were fully aware and intended to use deadly force against so mr porter what certainly george wallace this question is of course they were entitled to use force if those were the facts yes but you know from our perspective in looking at the record that is not what's a place like ok i just ask you to make an assumption if you can't do it all move to some other area i'm one third of the panel so i proceed you moving with me ok now you got that far what is your best case that that's insufficient the fact that he will raise your the shares and the rest of this the facts that are going to be in a determine merely possessing this yours and turning around in response to the officers asking him to stop and and and not no longer proceed is not enough in and what your home is one who's now i'm asking you what your best ninth circuit case mere possession of the weapon is not enough to warrant the use of deadly force and if we're looking at night circuit cases i believe the court was just mentioning believes george v morse but also we have other cases that we talk about in our brief where and that person may have edged weapon but they are not using it as often simply against the police officers which have been ruled to be unconstitutional use of deadly force i take it you're not relying upon lopez then right i was not relying upon lopez at this time as i think this was to ask in my brief because lopez was not decided at that point in time  why didn't you file your brief on time rather it was simply fall on our support we did not properly calendar and it did not get done have i've i've never seen a situation like this before i mean either as a practicing civil trial lawyer for fifteen years over the years i've had an adventure where we've had a situation like this where a brief is filed  not filed in spite of giving we give them every opportunity and we tell them what to do i just can't imagine why you know why can't you tell us why it's such a complete on appeal but you're going to be some reason why there's such a dereliction of duty well you know as i mentioned you know this is a situation where we just did not get it done it was not intentional however wants i canceled my personal attention we you on july thirty first that the brief was over a month overdue and it took a whole other month until august twenty eighth for you to even file a motion seeking an extension of time understood your honor i cannot argue with those facts all i can say is that once it became to my personal attention that it had not been done we moved as quickly as we could to rectify the situation and get something filed court and it's our apologies to that however we are here seems like there's been a pattern in this case where the  was an adequate here you didn't even file briefs i mean you may actually have a good claim but it's i'm struggling a bit with whether you deserve to have it be preserved because of the behavior of counsel but it's also unfortunate for your clients who may have a good claim so if you put us in an awkward situation here it's is certainly very awkward we are hopeful that given that we did get something filed and also with my forthrightness in terms of why it was not done that your honour's would not my client a possibility of pursuing their claim when you say your forthrightness and why it was not done i still don't understand it you said soon as it came to your attention you filed it but why didn't that come to your attention and if it came to an attorney's attention and they didn't do tell you about it is that attorney still working for you is that staff person still working for you well you know as you mentioned i'm here having to take the the brunt of this as i should give in my name is on the case to rectify and i'm here once again having to take the brunt of that but i understand that you know my name's on the case i'm the brief did you read it before it was filed excuse me  what case of your list of cases is the closest case that you want us to look at well your honor we did cite glenn and we also have haste as to cases that we relied upon and we also  we require more and we do we do take away the right people practice for court if they don't follow our rules so as a suggestion if you do you may want to look at your organization and he was going on i understand your lawyers are busy  and i'm not being critical i i was in the middle of that for fifteen years i know exactly what you're going through but you have to read you have to respond to what we want in our court i'm sure you understand that and i'm not trying to be critical i'm trying to be helpful we fat staff meetings and will continue to do so in order to make sure that says that it also seems that you knew about the existence of george v morris because you put it in your statement of jurisdiction but never discussed it as a case that's about whether a weapon was really pointing it seems pretty on here and just on the issue of it and i understand the factual dispute although again before the court to page ten of the record the district court where it says here the prieto and bakery gomez removed the garden shears from the backpack and was holding this yours above and around his head as he backed away as he backed away yes yes and but then mr child as the witness says that he turned toward the officers so that issue there's no doubt that he turned towards the officers the district courts as he has and raised over his head and you know the case where there may be some metaphysical dispute here seems like i'm still not understanding why you're telling us that the district court said this was a fact given that that's not something that the sirkar can do anyway so we have to figure out whether there's a dispute a fact it doesn't really matter what the tests are courts that the supreme court has instructed the district courts when there is video to view it through the light of the video and i think what we're just as well positioned to do that is that just a court is right yes and i think that albeit perhaps not crystal clear  if you break it down which unfortunately officers don't have the ability to do to freeze frame these things the officers believe based on the totality of circumstances going in is that this man is not just some simple drunk who happened along and is is now carrying shares he's already threatened a woman he's already threatened them the tasers didn't work and now he's going to a crowded bakery they're going to try to intervene he has this years in his hand raised any reason a police officer would believe that that was an imminent threat but the other thing and i i think we've lost it over the factual issue is the question about where this court said in s b versus san diego county that weather is a factual issue and to quote the court but that's not all because then you still have to find a case that's clearly established and that's what the supreme court continually sends these case backs back about under fourth amendment where officers in those difficult situations can't dissect it down into split seconds there's a need to find it clearly set of a case law that would put these officers on notice beyond debate that with the citizens there making we understand i understand your problem but but it's a pretty part under lopez i have to disagree with but it's pretty hard to say under lopez that the threat hasn't been met i think express myself in writing us as to that view but we have to look at the ninth circuit case the majority's moment nine circuit cases how would you distinguish the lopez finding her determination that there was sufficient prior warning to give the the officers were governed by that so how would you distinguish us well and i think that's where the supreme court in chile comes back and says you have to have the specificity of the facts lopez it is remarkably factually different than this case now is there a disputed fact whether or not he was bringing that replica weapon up slightly or and i understand that lopez is involved what the police officer logically thought was in a coming up to him at any shoddy but there was no factual basis for the officer to believe a crime that can be committed as you know the boy was just reported walking down the street carrying a weapon that's much different than someone who's broken into a house threatened woman with a weapon tried to strangle her dog and exposed himself that's a much different stop didn't drop the weapon when told to a camera you're saying that would be different from this case and we could distinguish lopez on that basis very much that just like this court and the supreme court and she had had distinguished glen where there's no crime it's a suicid