of qualified immunity asserted on summary judgment before the district court below there are two essential reasons why the denial of qualified immunity was faulty first the totality of the facts here created a circumstance where not only was it reasonable to use deadly force but also officer storm would have been a fool to have done anything else even with the benefit of twenty twenty hindsight and the second reason is the the the lone fact that the district court below found his allegedly being in dispute was actually never in dispute nor was it even material to the essence of the of the assertion of qualified immunity an empty handed suspect can still be dangerous this court has so held in at least four different cases the district courts of the circuit have held many many times because the officer is armed that itself creates a dangerous situation and that makes sense our officers are armed holstered or not the gun is a is a dangerous weapon a person who is willing to engage in hand to hand combat with an officer or who continues to approach an officer with a drawn gun despite commands to stop obviously has one goal in mind overcome the officer that person cannot possibly accomplish that goal unless their plan is to somehow disarm the officer in this case mr wenzel had just been driving down a highway a country highway in a high speed pursuit a time speeds up to ninety five miles an hour and i hope the as he rose bends drifts into the un coming lane of traffic as an officer seen this in the midst of pursuit you can only come to one conclusion this fella doesn't care whether cheat or anybody else but he else around him lives or dies watch the movie several times and frankly i got dizzy just watching it and then i'm glad i had the spoiler alert i was glad that nobody got killed because when i saw that pickup come over i said suppose  admission is well i want to ask how but one wonders why it was necessary to chase this man when he could have been apprehended some other way but i guess that's not the issue before us that is correct your honor and i think that's a legitimate question to  discipline for violating parole praise procedures i don't know but that's not the issue that that is correct but i couldn't resist mentioning that that is correct your honor and i think that the states and the departments are certainly free to impose requirements on officers  with respect to high speed pursuit in terms of when you let it go another thing about their job did this not reminded me of that you probably are too young to remember steve mcqueen's driving in the movie belt bullet oh yes your honor i will i'm old enough i'm sorry i'll quit interrupting you but not at all if this kind of driving though it was beyond simply a violent felony is this court held in the hudson case in two thousand and nine when when you see somebody driving in this particular way it's not just vehicular pursuit committing a violent felony this was a man who is demonstrating a homicidal suicidal tendency that's not all our officer had had been warned by this man's brother not a week or two ago that this guy was dangerous he had been warned by this man's nephew not twenty minutes earlier that my uncle going back to jail be careful be careful dealing with him now we can question as your honor points out the wisdom of pursuing or continuing to pursue a man like this at all but that's his job he's a police officer and as we saw in florida too long ago police officers can be disciplined for failing to take action as well as as taking action when it's risky and that's the nature of a police officer's job and smith against brown missouri's court case says officers are to react with dispatch and bearing in response to dangerous situations and mr wenzel indeed presented a dangerous situation there's no reason for a person to continue approaching an officer who has their gun out pointed at them telling them to stop there's no reason for that person to continue approaching the officer other than to get themselves killed or to kill the officer had mr storm not decided to use deadly force at that moment his options work strongly limited if he had any at all one he could have sat there and waited to see what happened and hoped that the man would not succeed in taking is going to wait for him to as as has been suggested there's a complication here our officer knew this man was suspected of using and selling methamphetamines and indeed his system was chock full of methamphetamines mace and ak and then asked officers are trained are really effective on such subjects so knowing that this man was so suspected made that choice if that was even available to him a very foolish one indeed to have even tried the fact of the issue moving to the second reason why this case should be reversed the fact  you that the district court found and the fact that the survivors have emphasized here is that mr wenzel was not armed and they say that by looking at the video you can clearly see that he was not armed and indeed you slow down the video and you watch of the up times you only get three point one seconds by my timing of a time that you can see mr ones a lot of the car indeed he probably is not armed i've seen people hide weapons in their hands in bizarre ways it's possible he was but he was not in fact armed and indeed from the video it looks like he probably wasn't that's me saying it on doing must rely only on their perceptions they have in that instant and it's not fair and it's not legal to second guess the perceptions well the our officers perception was not even necessarily to claim i saw a weapon no he doesn't go that far he simply says as honestly as can be i could not determine whether there was a weapon in those swinging hands a perfectly reasonable thing for anybody to say especially because this officer made it clear i was not even watching him during the whole of that three point one seconds that our camera can see him when i first got to the spot i had been led away at ninety miles an hour from my jurisdiction on a country road i had no idea where was i was looking for something to tell me where i was while i was trying to radio back to dispatch suddenly i look up and this man is already out of his car coming at me i say stop show me your hands stop show me your hands he's a straight away from me i fire i don't know what else a person would have done i don't know what else anybody could have done it is a sad situation because mr once was not in fact arm and perhaps  wanted to kill himself or perhaps he was trying to kill the officer will never know but he created that situation and it is wholly unfair for a police officer to be expected to bet with their life on less than three seconds of observation of a swing arm whether they might be at the end of a gun or whether this person might not be strong enough and desperate enough and drug crazed enough to wrestle his own gun which is already out of its holster away from him and then he doesn't come home that night  specific case law that governs as in most qualified many who suggested for the first time that this might be one of those cases where a move a summary a plaintiff is excused from providing a specific case law similar to this case because it's additional i would suggest that if it took counsel four years to think of this to note that it is wholly unfair to expect a police officer in three seconds to think of that if this was such an obvious case one would think that would have been a a little bit earlier obviousness being up yes we would think the judge knows of a terrific judge by the way who for whom i have the highest respect you would think the judge knows would have mentioned obviousness in the memorandum opinion below it was not this case is far would refer the court to which i believe your honor authored in hoyland this court reaffirmed from the principal smithson against aldridge that there's a difference between a dispute over historical facts which is what their their motion relies on what their twenty eight day letter from last night relied on and a dispute over the what this court called the quintessentially legal determination as to whether these totality of the facts amount to a situation that would justify a reasonable law enforcement officer in perceiving a deadly threat that is a legal that question and that's you know the fact so that's that's the basis and the fact that i like this for the decision i understand and the fact pointed to was was simply the sugge officer could see he was armed or not he's just that that fact the court relied upon a saying as being in dispute was first was not in dispute the officer never said he could or could not see a gun second it didn't matter the threat was the same either way whether he was armed or not  if you're going to frame if the does judge knows where the the survivors want to frame the the so called fact in dispute as being whether the totality of the circumstances amount to one that justifies using deadly force that is a legal question as this court described reasons and those contained in the briefs and in the twenty eight day letter we request this court to reverse the decision below and enter instructions and instruct the lower court to enter summary judgment for  leader you may proceed morning may please the court james shot jr counsel for the wentzell family first i'd like to address the issue jurisdiction and just rules argument about the question of fact and the question of fact was not the policy of the circumstances as pointed out by a judge no some this memorandum the question of fact was the visibility pointed out that these are very facts sensitive cases and that the visibility of the of the of the individuals hands as well as an important factor in considering whether the force was reasonable or not and as i pointed out my twenty in jail letter filed yesterday and i apologize typically before oral argument i do some case research because there's a time lapse from the time these cases are brief just in december this court issued the opinion of franklin versus peterson eight seventy eight federal third six thirty one and similarly to this case  franklin this court of dismissed the similar appeal also deadly force in a fatal shooting of franklin the the the ruling of the district court in this court ruling was that the district court determined that the summary judgment record raised a genuine issue of fact concerning whether the officers face a threat of bodily injury sufficient to the support the use of deadly force thus the court about mistaken but reasonable conclusions and if you start looking at the officer under these circumstances you know we've got the high speed chase weapon i want to go through all the facts but what you end up with there's agitated closing quickly according to the dash cam video in this officers got to make a split second decision and those are really kind of the cases if you look around that the court has found where the doct of mistake but reasonable has been applied as a matter of law why is this not one of those cases i would think this is not one of those cases based upon well based upon the judge's ruling that that he his a crime is the time that the suspect was alleged to have committed the crime was improper vehicle tags that's what led to the stop that was the underlying crime now could go into the chase and everything of course i opinion is that chase should have been stopped relatively quickly once he sped because the it's not like he was being chased for  murder or robbery with the threat of you know deadly force used he was and saw with a weapon so under those circumstances i think the initial chase was improper but when you look at the at the actual force that was used the officer storm testified that he was from a year with the use of force continuum and that of course is verbal commands then you use hand strikes then the next step is but may in the final step would be the use of deadly force so he went from verbal verbal commands to deadly force he baton on him he had mace he chose not to use either he used deadly force and did mr once was life you know it was that's one of the factors that's important to consider incident did he know anything about mr one's lifestyle in other words or wrote down is this a situation in which the shootings victim lifestyle his faith in his own counter with the police did that officer storm know anything u at least read the briefs there's an assertion that there was a history of assaulting officers in the past and we have a statement that says he won't go quietly back to jail voluntarily or something is that is are those things taken out of context or are they really part of the record i think i think i made objections and i can't remember because i think they were based on hearsay and then the judge had ruled there not off for the truth of the matter  think ok but a lot of that was hearsay and that was self serving testimony by affidavit after his deposition was taken but based upon my memory of the record i don't believe that he testified to any knowledge of any kind of substance abuse or any history of substance abuse by mr oneself and what about the history of assaulting officers was it was officer storm aware of that there was a general code they call that a j three code i believe but that's just the general code that he would confront officers i don't know that there's and i didn't see any evidence that he actually assaulted any officer i reviewed police reports a lot of that was produced and then discovered what i when i looked at the record i didn't see specific evidence that not may be there but and that's why i was asking because certainly as is a all trying to take the gun and everything that's all speculation mr once all could have been walking toward him just to argue with him he could have stopped at the front of the vehicle what we don't know is what occurred what would have curd after had he not shot him  and that's that goes back to my argument on the use of force continuum that if you continued to come there was other options instead of killing mr wentzell also as i wanted realistic options realistic options i think officers are trained to handle situations like this they're given the baton to use it and if he is on armed i'm trying to vet remember what i visualized that  leaving that car and coming towards the police car with his arms swinging by his side well he has no weapon though and he had if if the officer has a weapon that is what they're trained for the use of  when a suspect doesn't not have any weapon to strike them of the baton to disable him he does not have to go from a to z and pull out his weapon and shoot him three times and put one bullet in the side of this had  officer storm system that's all we have the video somehow the it was recording audio but somehow it did not record the audio at the time of the incident  the stop of the it was actually his brother i think that he would he had stopped until he chased mr oneself and so there is audio that was present up until that up to the chase and then it went  a determination of what storm perceived and considered requires a credibility determination that cannot be made at the summary judgment stage well there's no way that can be an accurate statement well i think what judge norm was only witness rotten well i think we have the video that's it's all we have with respect to this incident so what's the credibility what what kind of credibility determination would i believed i believe the judge kno referring to the testimony of officer storm in contrast to what the video presents that there was some testimony of officer storm when comparing to the video may not be accurate testimony as the video reflects i believe that's the conflict judge knows was referring to that that his testimony could not be believed with the evidence of the video can you give me an example with with respect to the visibility of the hands and whether or not he was holding a weapon mr jewel argues that that officer storms testimony was simply that he wasn't sure and i think i asked him directly did he have a gun he said no and i asked about the position of the hands i think there was some testimony i can't remember the exact questions but there was a few line of questions that may have been contradictory to what the video would show and i think that's what was pointed out in the briefing and i think that's where judge now had drew that conclusion that there are some testimony that conflicts with the video well i guess what i'm getting area is even if the even if the officer said i couldn't see his hands if he's saying something that's contradictory to the video so what if he is that's that's not true that goes to someone's credibility but might that not just be a mistaken but reasonable observation right well it could be but that's then you're into if you're examine mistakes or whether it's yeah but we have a line of cases just like this one where we said hey you know it might not be true it might be a mistaken belief but under these circumstances it's reasonable but you know we're talking about fight immunity laws in those cases right now we're talking about testimony i think the officers testimony of what he said i don't get reversed now one of these cases  but isn't the overarching or one of the overarching elements here is the fact that the decision for whatever reason whether he was on mass or not or when this high speed thing dangerously thank goodness he didn't hit that pick up on that was the only vehicle that they met through curves they were both experts know how they kept their cars in the road and that's no way road i don't know but ultimately it wasn't didn't exhibit throughout that what is a fourteen fifteen minute chase you think other than he was approaching the officer in a defiant aggressive manner well there was argument by me and i believe there was testimony of the record that obviously this is a small including mr once all was harassed or picked out and be used by officers that's what the that's what the testimony will show you would have gone for the victims be fired out of a sort of whatever you want to call correct the prior encounters with officers and chasing someone over or trying to pull someone over tags that he was just stopped recently i believe on that he was forty two of officer storms appendix the affidavit of carl storm as in the date of the incident i was aware that there was an active investigation by the bourbon police department into gary one of those methamphetamine use and distribution record paragraph three para four i'm sorry then in the very next paragraph as of the date in question i was aware that gary ones all had previously assaulted a mother officer and had previous physical altercations with other officers period paragraph five of the his concentration on the road in trying to keep his car on the road after this man he didn't have time to activate the audio portion which is why you cannot hear the siren and why you can't hear anything throughout the pursuit and that was testified to yes these things were said were not said during his deposition because i did not take my own client's deposition mr shuttle did and very carefully and i don't blame him refrain from asking him so naturally these facts had to be does demonstrated by affidavit after the fact your honor is absolutely correct about the cases with a mistaken but reasonable impression and in those line of cases which deleting starr is just the most one of the most recent ones three seconds is one of the very shortest times not the shortest time that i could find of any time where court said there wasn't enough time for an officer in that sort of a hearing situation to be able to make a clear perception of what he had and had not and i'll go a step further from our position standpoint he could just as easily have seen perfectly clearly that the man did not have a weapon in his hand he still did not know what other weapons t had on him the minnesota cases of cane and kalita minnesota district court cases to be sure both make it clear that an officer especially in our world where many people are armed with concealed weapons does not need to assume that a suspect especially one threatening them especially one disobeying commands especially when continuing to approach them is necessarily an armed simply because they can see that the person's hands are empty i could concede we don't necessarily because the fact of the matter is he could see the man's arms but in three seconds of screaming movement he couldn't tell what was in the hands of the and of those arms but we could conceive for the sake of argument that even if he could see those hands and even if he could see they were empty this man nevertheless posed a threat such that a reasonable officer would have been playing with this