this case is here on appeal essentially because the lower court after dispensing with a hearing very oral argument after the filing of our motion for summary judgment proceeded to follow a path that the obvious cases but in cases that are not on all fours the facts are not obvious you have to have some smarts to to somebody this is true it's true why couldn't the j of all the court has indicated that a jury may find that mr daniels was a threat and if in fact he was commit was entitled to qualified immunity but that's an incorrect but process or rationale because if a court but that changed gangs was in fact question and i'm sorry could it could it could a jury find there was no threat with a question perhaps the jury could but what what the facts today appeal i'm sorry why isn't that the end of the appeal because there are undisputed facts at the time of the shooting that other cases like purcell and land for similar situations where there are reasonable fears client does not have any misapprehension i mean understands fully right that police officers may not shoot citizens who do not pose an immediate threat was no way to keep him from going into the house where there might be unarmed people who might be engine in this case if you read the facts consistent with the plaintiff's case mr dyers have turned away from obeying orders to stop and put out a knife on one forty eight really ill he was mentally ill he was not a he was he had not committed a violent felony but he was a danger to society he was a danger to the public just mental hold for evaluation the proper tries would have been one forty eight pm what was the threat he posed at the time that he was shot the threat was we have a drainage individual who is not only armed unlike driveway for two reasons one he chose to go in the school or two he encountered those who might have already back away to school because the parking lot here is a cul de sac no pun intended it's a dead end there's no way out you cannot go any further once you get into the parking lot of  school and vince knows the area and he says i don't want to let him get to an area where i can't stop him if the parents and children have already back to is this part of the test quoting the graham case an officer may use deadly force to prevent escape quote where the officer has probable cause pretty low standard to believe that the suspect poses a threat of serious physical harm to the officers or others is that the test that we're looking at i think that's i think that's a slice of the testers and it's another know i suspect there might be times in the house as possible so can i get a warrant to search with no no i don't think congressman foley would issue and then those have a for sure i don't think it's because i don't think it's part of the just answer the question as to qualified immunity i don't think it's a part of the clearly established that would prevent deputies in the same position as vince camillo from using lethal force to stop people who could be dangerous to those in the area or do you have to wait or define their intent or actually have four shots your honor he didn't go down he continued moving north in the driveway and when he went down the facts show there was no more shots and that's why in blanford this gentleman shot three or four two or three volleys i believe because the first volley did not prevent him from opening the gate and going to the back yard what significance does the earlier encounter the close encounter with the other officer have here where he grabbed him by the the jacket or whatever and in the person who ends up dead daniels  not provide any kind of resistance didn't threaten the officer nothing happened isn't that an important fact that they knew he wasn't a threat to anybody i don't think it's an important fact in that regard and i think it's an important fact to show he's not going to comply to law enforcement and the positioning of the two the time one officer hanging around over a fence holding onto a jacket james genesis certainly able to get out of that jacket and flee and i think that shows that in some way down the road he's going to be less or more compliant or less dangerous i mean we're talking about a gentleman who's not stable and he's armed with a sharp object we're not talking about somebody who's an armed like talking about a child right you're talking about a sixteen year old kid have an eighteen year old  young man who's capable inflicting harm on six year olds or and their parents if they if you can if you count contacts them in the parking lot as we're talking about then you want to be pretty confident that you went before you know the kind of not that the executive branch of government law enforcement has provided a qualified immunity to prevent them from having to endure lawsuits i mean all legal arguments for sure i'm just saying morning your honor sir peter williamson appearing on behalf of the plaintiffs in a police since one thousand nine hundred five the law in this country has been clearly established the police officer may not use deadly force against a fleeing suspect cutters i beg your pardon i'm sorry to hear you the hijackers had box cutters i'm not in any way diminishing the fact that mr daniel yes you are a knife what i'm saying however is that in the perception of the harm the potential harm to people there's a big distinction between the two and a half which sort and what reassurance exacto knife through butter and box cutter what should a police officer have done under these circumstances the most important tool in the officers arsenal was patience they have followed this gentleman for ten minutes he had not threatened anyone during that entire ten minutes in fact you join just the opposite as judgement like pointed out when he encountered officer for he had placed my phone life alma if he's not an immediate threat why follow he was a threat to himself there's no doubt about that and and camilla has consistently said that his intention was not to arrest this man it was to take him in on a welfare and institutions code section fifty one fifty hold a psychiatric hold so that's what they should have done the contingent didn't do follow the event was slowing down at the time of the end of the shooting  mr daniels was walking at a fast pace but a but according to the officers he was slowing down he was bleeding all they had to do was continue to follow him his intention apparently was to go over another wall that the officers had already scaled  wall following him so all they had to do was continue to follow him they were within fifteen feet of this gentleman until one can tell he goes to sleep until he collapsed until he tired and just drop to the ground that's right talked about this in in the smith sources henrik case but they had according to witnesses they had a less lethal shotgun available to them the officers deny this but i witnesses say they saw they could have tried to use to be back shotgun again to bring him down anything that was less lethal than using a gun to shoot this man a time one i'm sorry they tried to right they tried it in the next according to the testimony of officer welty daniels was twenty five feet away when he fired that's the maximum range of the last lethal shotgun officer wealthy testified that he believed that he had missed so they could have tried it again it was available it was there that certainly better than shooting him a times what  messed he didn't even hit him so and there's no indications on the body to suggest at autopsy that he had marks from the feedback shaka l a p d tried beanbag guns way back when and discovered that if you got close enough to knock somebody down they saying history is interesting thirty years ago every cop in the country would have shot the guy at tennessee versus garner came along said no you can't do that so l a p d said what do we do just talking about l a p d now and they said well chuckles so they started using the ch the sleeper hold started killing people so they banned the sleeper hold so they said well we can't shoot him we can't use the sleeper hold what do we use they said well the baton well rodney king ended the baton and so the police want to know why you can't shoot him you can't use the sleeper  application of multiple tasers over a longer ration of time one or two tasers that's really been very little evidence to suggest that the use of a taser one or two applications kills people and even came up with lou guns were going to shoot him with glue and then they discovered that was suffocating people were going to use nets i mean of the attempts that law enforcement has gone through to try to figure out ways they grapple people like dogs dogs boxing and then to god to versus gates can't put a dog on the guy it's a tricky situation and they want to know is why not bend your honor wait it out what was the rush what was the hurry he wasn't threatening anyone the rushes the guy all of a sudden takes somebody as a hostage somebody else comes out into the immediate range of this guy that's he's got  d on blood has aids in it and it's a tricky situation it's a tricky situation but the laws clear that you don't shoot someone who is not threatening anybody who is officers get trying to grapple with people like this well i think what you're advocating that and i hope you're not but i think you're advocating then that under any circumstances where a individual walks away from an officer and doesn't you know comply that they're entitled to be shot and i don't think that's the law i don't think that's a correct interpretation of them but aren't you just asking to try this case to a jury absolutely i mean there's a lot the community decide whether tasers or whether guns or bullets or bean bags or dogs or glue that's the whole point of a jury trial isn't that is it exactly what i'm asking for your honour's let the jury decide ultimately the jury will tell me yes you have a case or no you don't but it's up to the twelve people sitting in the box to make that determination to trial if there's not clearly established law on all the facts of these kind of cases the to pinpoint them with some type of notice that's the law that what they're about to do could violate someone's constitutional rights that's why they get reason impediments to getting issues before the jury have become so significant that you never have a jury trial and when there are fact questions and when the trial judge says there's no qualified immunity here why not try it and find out because your are in  stop future they did not say that here today what it's going was that your honor he said that he no he said at gunpoint you cannot go any further you cannot go up there at gunpoint i think eighty to ninety percent of communication is nonverbal and if a weapon is pointed at me and a deputy in uniform in the county of interest as you cannot go any further i know what he means if i continue to go further he doesn't have to say the words or i'm going to pull the trigger why would he point that weapon at me why wouldn't he be out of his holster your honor he  was warned and he continued to cook to vance north in the driveway and that's when he was fired upon and ultimately the rationale from glanford the rationale from bristow applies to this case and that's why i'm here because