you've appeared before before so you know about the time how that works i did get some information from ok i'll just keep track here if you want to try to save any time for rebuttal keep track of it and i'll try to help you if you let me know what that is otherwise you're on your own i as recently stated by the supreme court in the white case qualified immunity is important to society as a whole because it's effectively lost if a case is run if we committed to go to trial let's all very true and we're very much aware of the white case here but as you also know and and pearson there are two parts to that the first one is to decide whether or not there has been a violation of the constitutional right in this case the use of excessive force against the requirements of the fourth amendment and then secondly whether there is a case or cases that are enough one point to put officer in this case officer get a house on notice that what he was doing was a violation of the constitutional rights of the deceased and that calling and he was not committing any crime or attempting to evade arrest it's one of the circumstances we're only left with one factor to consider which is whether andy posed in quotes immediate threat to the safety of the officers or others do you agree that that's the only problem we're looking at in the gal i mean in the graham case i don't agree with that your honor we certainly are looking at the immediate threat that is certainly the main factor that plays into this case put certainly if in fact mr going to the first prong whether he had been committing any crime we suspected suspected he may have been carrying a parent a k forty seven assault weapon in public which is certainly could be a misdemeanor or felony depending upon other circumstances so from the deputy's perspective in fact mr lopez was committing that potential crime that's why the attempted detention occurred certainly your honor the other factor of the immediate threat is really the thrust of this case did the district court decide that for purposes of summary judgment did they decide where  district court made a determination and i will read you what the district court said district court found that in quotes as the rifle barrel was beginning to rise and given that it started in a position where it was pointed down at the ground it could have been raised to a slightly higher level without posing any threat to the officers and other words the district court concluded that there was no threat to officer gale house based on where the gun was pointing when he turned do you reckon you remember that yes your honor i do and i agree that's what the district court found because based on the undisputed evidence in the record this gentleman did turn around that's undisputed in the rifle barrel was beginning to rise however i disagree with the court to the extent the court did not cite any cases that starts a separate edition that's a separate issue that's the second prong appears and we'll get to that but as as far as the first prong is concerned as to whether there was a fourth amendment violation isn't it correct that unless the record clearly does not support what the district court said aren't we bound by the district court's determination that what occurred and the turning that and he did it with the gun in his left hand it did not pose a threat to officer go house you agree with that no your honor i believe that the fourth amendment is not violated when an officer is facing an assault weapon that is turning towards the officer and the gun barrel is beginning to raise so i believe the fort the court the air the court made was assuming those set of facts that that was the court said was not a fourth amendment or skinny was an arguable fourth amendment violation we disagree with that tenet because and judge smith you have indicated a prior opinion united states versus henry that in that case was a homing machine gun that those are dangerous and unusual weapons that are not typically possessed by law abiding citizens for lawful purposes so when an officer in the deputy house's position without a lot when the description starting to raise is pretty vague an officer gulf coast himself testified at one point that he didn't know where the gun was pointed so would a jury be compelled to conclude that he faced a dangerous threat i mean suppose the jury concluded that that the gun wasn't being raised at all that  victim turned and face the officers without using a second hand which ordinarily you would expect with a rifle like an a k forty seven without trying to put himself in a defensive position i mean when officer cowhouse demonstrated how  turned was just turning face forward and that the shots were filed so quickly i think by the officers testimony within three seconds from the drop the gun to the firing that lopez wasn't necessarily doing anything other than responding to the call if a jury could find bath thought i don't know how it could be if that's the facts is the jury viewed them how they were compelled to conclude that he in fact posed a dangerous threat the mirror respond to your honor first of all this is the type of weapon that can be fired with one hand there's it's undisputed he had his hand on the pistol grip when he turns towards the deputy if he makes any movement with that firearm under the law deadly force can be reasonable because we're talking about us in this room breaking down milliseconds from what this officer faced and so if we look at this not from the perspective of this learned discussion in the courtroom here but from this officer who standing behind his vehicle who believes this is a actual a k forty seven who called the cavalry from the department with his code twenty call and now instead of this individual dropping the gun which i would submit we would have a different case if you told the gentleman to turn around or put his hands up what he ordered him which is undisputed was drop the gun so when the gentleman doesn't drop the gun and instead turns with the gun towards the deputy the law allows the deputy to guess what i struggle with and i think it's what my colleague just mentioned we are at this point at the summary judgment stage at the summary judgment stage if there is a conflict in testimony we have to under under the graham case we have to take the facts are most favorable in this case to andy lopez and his estate so you've got a whole series we go through now but we won't take your time to do that we've got a whole series of things where your officer said one thing another officer or another person said something different that witnesses say something else bottom line is we've got conflicting testimony and but if you take the testimony in the way that is most favorable to the estate then you've got a material conflict of fact and i guess my question to you is putting aside for a moment the question of whether there's a case under you know white crisp ollie and so on isn't it clear that in this case that there are major conflicted facts here and that under the under the case law we have to construe that whatever the jury might ultimately decide if it goes to a jury but right now we have to assume that the facts are as favorable to andy and under those circumstances couldn't a reasonable jury find that officer gal house violated the fourth amendment rights and the lopez by using excessive force let me respond your honor i believe that there is not material dispute in the record whether might be some conflicting information on immaterial issues such as the age of the person and whether or not other people thought it was actually is no dispute about the age of the person the person was thirteen the potential dispute would be could the officers perceive that as they were approaching him from behind and i don't know there's a dispute about that either they probably couldn't i guess the question is what i think or what the court think  are material of this because when i've called in the record did the officers face a severe dangerous threat ok so the evidence on that point which is not contradicted in the record here is that  contradicted in one respect because there is no victim to testify and we have authority that says we don't substitute for what the victim might have said we use caution in looking at the officers testimony so as not to motivate officers to make sure that the victim is dead so they can't testify so we're supposed to look carefully at the officers testimony and that's why i raised to you my concern that officer gail house himself testified in his deposition that he didn't know where the gun was pointing that seems to me to open the door to a jury concluding you know maybe he wasn't actually looking down the barrel of a gun maybe i could conclude as a juror that the the dangerous threat that would justify the use of deadly force wasn't there i think the court is splitting hairs on that issue and i don't think it splits hairs to say what is the situation faced by the officers what a reasonable officer i accept th officers perceive that but the test that we have to apply i believe is whether a reasonable officer in that circumstance would have believed the use of does the force was justified and what a jury have to can make that conclusion under good but the reason i said splitting hairs here is because it's clear in the record deputy gal house said and in the deputy shammal as well they saw all the gentleman turning around they saw the gun coming up and around at that point deadly force is appropriate the case law says they don't have to point the weapon at that point in the record deputy go house says he's at that point looking at his sights which is how he's not looking at the hand where the gun and nothing pointed that testimony i believe is not does not create a material dispute sort of a red herring that you're contest to say that your client said he didn't know whether the gun was being pointed at what exactly he doesn't have to know the law doesn't half he doesn't have to wait until the guns point he doesn't have to know where it's pointed as the court has said and judge clifton in the in the george case the fourth amendment does not require officers to delay their fire until a suspect turns a weapon on them if the person is armed like in this case suspected to be armed a furtive movement or harrowing gesture might create an immediate threat we submit that this was a harrowing gesture ok when he starts turning in the barrel starts raising which is what the district court found deadly force is reasonable you want to save some time so it's up to you but if you're going to do that may i suggest you at least to me george that you referred to is right on the money in terms of all the material elements of this case i'd be interested to know when you come back up why george is not squarely on the point and your client should have been advised as to what he could and could not do in this situation ok yes forget  go house yelled drop your gun lopez turned as he turned the fake gun appeared to rise for them that's the end of the inquiry i don't think it's anywhere near that simple and there are a multitude of other facts that i may as well go through first first for example deputy gil house never identified himself as a police officer he got out of the car he yelled drop your gun he never said police communication between gail house and shamo in which gail house would have been informed that lopez turned further to the police they sounded their siren when they were on the other side of the intersection so they were but trust me a hundred twenty feet away on the other side of the street chirped their siren even assuming lopez turned around does that tell him that the police are interested in him or does that tell him the police are interested in somebody in the community but you don't know when in fact in my personal i've seen police do that just because they want people to get out of the way because they want to do you turn or something like that so i don't think it provides any notice  say they sometimes do it for you turn that's your point of view but there's nothing in the record that said they were chirping to do a new u turn that is correct or there's also nothing in the record that lopez would have reasonably determined that that was directed at him of course not but that was in the purpose of the question question was that he was aware that a police officer a police car was there he was aware of it please curry area yes yes ok was that was that there's the bell ever does not mean that he realized when but it isn't a normal thing for a police car to church and if you're in the area and somebody yells drop the gun and you're carrying what appears to what is a toy gun can you just not include that is a part of the facts that we have to determine as i think that the shovel was still required to say police officer or something to indicate it was a person in authority or alternatively you could have used the p a system from the car which would have immediately put any lopez on notice it's a police officer who was calling to you this is just some unknown person i understand you can always go back on these things and say wh what i'm saying is i think that he was still required to identify himself as a police officer if he wanted compliance well that is one of the things is left out but what we're talking about is in the the circumstances we have before us it might have been better if he had done that had might have been better if they had driven on might have been better if and he hadn't been carrying it was something to look like a gun there's a lot of chirp and all he does is from forty feet behind yell out drop your gun i think you can assume most people are going to go there because that's the typical reaction ok you  just to cut to the chase at least of what i'm hoping you can it help me with i read the record i've seen the burden of proof and from my perspective at this point there are a number of material issues of fact that go to the reason most of the conduct here and so i have my own view as to whether the first prong is satisfied the one that always creates problems particularly ninth circuit is the second one which is is there case law on point that should have put officer gail house on notice that what he did was a violation of constitutional rights in this case of and the lopez from my perspective the case of george versus morris  colleague was on seems to is actually a worst case in terms of the threat and yet our panel found that it was a violation and there was no qualified immunity are you familiar with the georgia vs morris case i am familiar with the ruling i don't this place he's turning around and also you know house senses that there's really no weapon and the facts indicate the weapon begins to come up was a district court found that he turned around and it would be gone to raise would go hell spot was in a k does he have to wait till the first shot before he can defend himself or is are sufficient then that he can defend deposition he was not told to tell where the gun when he was told to tell how you turn and how he turned around and even indicated he's having some problem with the because there's a desk in the way so he was trying to demonstrate t turning around so i'm not sure what what we get from that he wasn't asked to say how the gun was coming up but it he did testify there was testimony that was coming up now if that's  true i just i'm wondering what more should happen assuming that gallo house believes that he has an eight k and he turns around and has the district court found he was coming up the deputy's as opposed to perhaps a natural event that occurs if you turn your head may tend to swing of what i think happened here well what we think happened doesn't help us any now officer and on the stock he can't defend himself to least sees him move towards the trigger that move the second he has to wait right i think that's more than a millisecond your hands stuck to the trigger trigger i think at least two different stories the the burden i mean it when there is a conflict when you have summary judgment you have to believe your client story and those are the kinds of things that go to juries and you haven't argued that or you're i'm not right because i've been responding to the question so there's plenty of them with plenty of facts which including the fact that the police officers are on routine patrol there is no nine one one call and he's just walking normally he doesn't attempt to evade them at any time he  d that's all true but as my colleague has pointed out police officers look at the totality of the circumstances they're entitled to defend themselves they don't have to get shot that have to wait for any particular period of time the question is what are the facts and in this case the facts are very yet one persons and one thing somebody else and something else and at least from my judgment at least six material facts and under those circumstances isn't it correct that when you have that kind of thing we have to assume that the facts are as they would be in the light most favorable to your client which would then lead to where you meant to the district court for purposes of having a trial yes your honor we have third party witnesses saying that and he was a kid we ha are sitting to perhaps the back of this courtroom and the question is can you tell the difference between a thirteen year old and the so you just said as a matter of the guy's going to kill you i mean there are plenty of but you know we have people litter very young we've had nine year old cases where people are killing police officers so it's not the age that the factor here is it i think it is i think it's much more likely if it is thirteen years old rather than seventeen eighteen nineteen years old that he's not going to do anything that it is indeed a toy so yes i think example you're over your time let me just ask my colleagues if either has questions additional questions yes i just wonder if i should what should we what should in trying to determine the situation of the issue before us what weight should we give to the area that this is episode took place and the apparent fact that officer go house has encountered people with a case in that very area  and had contact with them officially i think we have insufficient information to give any weight has he seen people walking around in the middle of the day carrying a seventeen has he seen people  we're asking me questions in this i don't know what the answer is my question is a simple one if the if the evidence is there it's in an area where there has been problems and also go house has  in that very area encountered people with a case how can that be also considered in the make up of his reaction at that time  officer got houses and can he consider that as part of the other way could issue of whether or not he's got a serious problem here i think is a very very very weak element which is vastly over borne by the other elements that are in dispute judge smith i believe george is distinguishable that was a sixty four year old man in his own house in his back yard not committing any crimes holding a weapon and it was a clear dispute as to whether or not this man with the weapon and the walker and i  agree on that but that doesn't help him with you that doesn't help you it was far more it was far more serious the officers respect you and the court found that there was no qualified immunity because there was a disputed testimony about whether he raised the gun to point it at the man that shoddy there was disputed at and seems to me that george hurts you because it's far more serious as a domestic relations kind of thing older man senile it's a receptor and yet there was no qualified immunity case where there was some factual issues as to whether or not this gentleman whether he had the shotgun whether he reached for the barrel whether this was sort of the reaching the shotgun type of case and the court said that qualified immunity was appropriate in that case i also because of time i'm trying to move through this quick more quickly i think our case there are other cases where courts have found qualified immunity or deadly force is justified when simply people are reaching for an area when there may be a weapon either known to be there or even suspected to be there i would submit our case is a lot more dire from the perspective of this officer he had milliseconds to make this decision he gave the command the command was not followed he did if you don't believe the district court that he wasn't being threatened by the district court found he was well that's why we have been over review and we're losing learn in court to look at these issues because there's no way we can tell law enforcement out there that they are not threatened when they are facing an individual with us but acted when we have reasonable review we have to look at what the record shows could you could you finish your sense of humor but thank you when we have an officer who's looking at an individual who's turning towards him with this assault weapon that is potentially coming up words as in the georgia case officers don't have to define the  biomechanical nature of this thing we can certainly not be that finite we need to provide clear guidance to these officers at a minimum this case compels qualified immunity because there is no case in front of the cord that indicates what detective see me deputy gal house did was clearly unlawful beyond all so your position is regardless of what happened at the accident that there's no law before the accident which would warn him that he that this action could cause liability that's correct your honor and there's a ton of cases that show what how's did was comported with the fourth amendment there were situations that were less dangerous or courts have found appropriate deadly force or qualified immunity this case there was a significant we're talking about a three second period here that we're analyzing essentially from the drop your gun to the the gun shots so i submit that this is the extreme emergency deadly situation that this second guessing here you're saying that george harris and current how don't give your client full knowledge that what he did was improper that's correct what are your cases that you say are exactly on point well that's the thing there is no case definitely on point i think white the white court says if there's if you have a unique set of facts and circumstances which is what i believe we have here then you serious it's a you think this is unique we get these terrible cases all the time kids being killed with artificial guns this is not unique that's the problem and the question is whether some of these other cases and we have disputed facts are enough to apply qualified immunity when the law is not clear so i'm having trouble with what you're saying frankly because there is no license for police to kilt teenagers with three seconds when even that officer says that the gun was not pointing at him or not even coming up to point at him and others say the same thing that's not the law what is your strongest case to support your position that that that the the officers go house was not worn by prior cases i will answer that question and one second your honor i agree with judge smith this is more of a social issue but should not bear the brunt that social issue for my in my out of social issue it's a legal issue will they have a right to kill this boy under the circumstances nobody knew he was a i mean there's it's not material boys and nobody knew his person he takes a couple steps just towards the gun deadly force was used in that situation it was found to be lawful there are several cases we cited in the fourth circuit individuals are reaching for suppose and weapons deadly force is appropriate in in this situation we don't have somebody reaching for a supposed weapon we have an individual who is holding what appears to be an assault weapon that is moving so i would submit that