our last case is number seventeen dash one four zero four eight randall grier versus wayne i the at all three davis whenever everyone gets settled we'll start with you the morning of may it please the court michael davis bennett benedick uni and douglas beam here in behalf of randall greer christopher group was killed while home alone after law enforcement officers fired thirteen rounds at is closed and closing door one of the issues before the court is the correctness of the summary judgment order where there are genuine issues of material fact as to how and why that happened therefore to pull disputes first where was the knife father was in the home was that an after the fact just a case and the district court on that said in a footnote i'm not addressing that exactly and there is as not been addressed by the district court a father in the house crying yes or no the court concluded made a factual finding that it was that he had a sincere belief that the elderly father was home obviously has a record of outlines one swears the knife what was christopher christopher do and father in the house crime and what was the fourth and did the police reasonably fear for their safety and the resolution of whether there is a disputed fact falls within this court's analysis outlined in williams video because christopher greer the person most likely to  ut the police officers claim of what happened is dead and cannot testify and under williams the court looks to the forensics evidence the statements themselves and all of the other evidence tonight agree with you the first key issue is what about the knife where's the knife if at the time the first shot fired so here's what i think the record tells me and help me if i'm missing something ok no knife was found his h inches to living inches long your honor but it was not a butcher's knife in and i want to make sure to point out the expert was actually asked if there was any evidence whatsoever as to whether christopher group had a knife in the skin and the x was very clear that there was no evidence whatsoever as to whether a chris figure had a knife in his hand at the time he was shot and the defense expert was unable to offer an opinion on whether christopher group was holding a knife at the time i don't know whether an expert can opine on whether some has a knife or not but anyway let's go to holsteins testimony yesterday or do you rely on that as well yes with a knife bet also creates a genuine issue of material fact and we know what he said so i'm just trying to get the universe of quickly turned i could only see him from the waist up and i did not see a knife so you allow that as well yes in no there is a factual dispute as to what holstein actually all of that so if we got anything whatever it is we've got holstein what he saw what he said in his position the knife in the fall have we got any of the universe of knife evidence i think the basics with the only other piece of evidence would be the the obviously the officers credibility in general right because the air in this case in this case is that the district court made a credibility finding that the officers claim that christopher what you have to do they said they saw a knife and the question is whether there's evidence that challenges the credibility based on the things we've just talked about holstein saying i didn't see a knife he's right there the knife is not in his hand it's in the you don't have to worry about you've got to decide whether you had a knife in his hand or he didn't have a knife in his hand i guess maybe you'd have to go to your number to what he's doing he's moving forward is he moving forward have we got any evidence i think th business but then about moving forward how do we contradict how do you raise an issue of fact as i think we have to if there's an issue of fact what they are that the jury would have to decide how do you contradict their testimony he was moving forward aggressively with a knife first we look at the specifics of what they're saying we're going to deputy him and he testified that christopher greer was in the threshold of the door we know to first of all the door is that's you close the door that's for a person  standing ok that is directly contradicted by the fact that the door is closing a person cannot be in the threshold of a door while it's closing if the officers fired at christopher greer while he was in the threshold of the door that he could not have cannot have happened that way there's also the fact that where was the body found months he was shot another day the door is closed yes so when the door is closed and christopher was actually behind the door and according to the defense expert they agree with us on this picture of that that actually depicts how the door opened so that really set your point is that even if the second scenario is more viable on summary judgment then had he opened the door and been moving toward the officers when he shot the door would not have been closed exactly his body is found because it's because it's a backward opening door not a forward opening door exactly honor and that's one of the that's the issue of fact that's there and the other issue of fact crist approaching them with a knife in a downward motion as though he's going to stab but he did not so it all blends together if you find there's no knife i mean really all you have is chris for closing the door i want to make sure that i do address the we don't have to find there's no knife to the town and the sheriff ok as i understand the claim against the sheriff is negligence of the holstein and morris it's the flip is made the town having been committed called dan i don't know how you get to the town and the district court seem to have gotten that right and you help me on the town because it's got to be a special relationship not with mr randall randall greer it's got to be a relationship with christopher are but nobody's talked to christopher marrs had talked to christopher whole thing had talked to christopher you know if i can make it a bit easier we alleged a number of theories in our complain the district court concluded that one of the promises of the of the of so whole scene to the greers created a special duty and that was the promise that he was going to baker act christopher aggressor in terms of the duty the district court did make some findings  adverse to our position but the court to conclude that there was at least one duty that arose from some of the promises the district court however erred in concluding that one the special duty had not been alleged in to the district court erred in concluding that causation that there was no causation after making the factual finding christopher greer attack the police and as we've already established there's a factual dispute and as the share of the claim there is just negligent handling of their firearms climb under respondents a period exactly are they intentionally shot ham whether it was excessive force to do so or not i don't understand how the sheriff stays in florida common law recognizes a negligent use  we don't need to go into the the father after the fact justification detail but let's let's assume that you're arguing that the fact that they cited this father the issue is is an after the fact justification does that impeach their credibility on the knife issues as well exactly honor and it's a very simple cilla g as we explained in our brief a reasonable juror conclude that if the officers testimony about what happened during the prior thirteen fifty thirteen minutes and fifty seconds had this after the fact just to be cation a jury could also conclude that the ten seconds was an after the fact justification and it actually explains why there isn't a no knife the reason why there is no butcher knife is because that too was an after the fact just a case and as we explained in our brief the father up stairs is mentioned one thousand times in the police officers statement and it's video record holstein telling him in that the parents died recently too we have the cat which showed officer whole scene in his request for backup mentioning that chris was home alone and three we just have the fact that the father was actually  town's longest longest serving councilman and the jury really concluded that the you know that the police had no credible reason for claiming that christopher greer father was possibly upstairs i do want to briefly touch upon although i see my time's expired i don't want to address the abuse of discretion issues really quickly the district you've got a minute because we've taken you over your time and we need to have your colleagues come up to if i just take thirty seconds i want to give them an opportunity response that i taken eight minutes and the my colleagues will follow up as it relates to the wrist perspex or jollys got three minutes mr bolton's got two and mr not sure has to correct and i if i can go quickly i may give them a minute or two off of mine but  e in any event so the position with speck to the key issue in this case for to respect to sergeant hammond of course is the defense of qualified immunity our position is the district court absolutely was correct in determining that  entitle to qualified immunity when he was in essence attacked confronted by an armed individual mr greer who possessed a knife and it was objectively reasonable under those facts and circumstances for him to believe that his life was in serious threat of great injury or bodily harm and therefore use of deadly force was authorized under the facts and circumstances which are not in dispute in this case on our position you say well i think the second part of your argument completely flows from the first and i think you're right if the premises is valid then i think your clients do get qualified i mean are there there may not even be a constitutional violation but you think that there are no disputes of fact about whether or not this eden was armed with a knife or where he was when he was shot i mean if his if the knife that's found is wrapped in a coat how could that have happened well if he was holding the knife in a threatening posture and then he shot through a door or through a wall how does anybody have time to wrap the knife the second the so called second knife in a coat well clearly the knife is photographed and you can see see it at the scene it's in those pictures that are shown there taken in right next to the injury and both officers say he was had it in the right hand he's got a severe left hand injury correct correct your honor they say it's in the right hand and the picture of the knife is to the victim i mean two officers saw him approaching with a knife in hand they perceive the threat was objectively reasonable under those circumstances to believe they were in threat of of bodily harm that's one officers rises in to use deadly force under those circumstances but doesn't one officer say he did not see a knife from a vantage point where he was looking at him from the waist up officer a whole scene testimony i'm assuming you're referring to because clearly both my client the knife we don't know we can't know that they saw the knife that's where i think the credibility problem comes in that the evidence in this case is that they saw a knife that's what they have judged of lee that's what the objective evidence is in this case that opened an officer or used an officer would perceive if he sees a knife in someone's hand and he's approaching they saw the knife that's the testimony of those things testimony doesn't recreated dispute regarding  whether there was a knife in the hand or not holstein has consistently whether in his f d l e statement or whether in his dick sworn deposition statement he has said he was never able to see his hands he cannot testify whether or not there was a knife in hands if you can't see his hands well what and he can see the hands below the waist or he can see the hands at all because he says that he saw him from the torso up you can see the hands at all and remember i was not possible how is it possible his van image point because if you look at his vantage point it's also in the same photographs the judge hole was looking at you can see the narrow window of opportunity he would have had to have looked through the picture speaks a thousand words in this case he had before the shots were fired he had turned and it had been going to the front door hit again he had his own firearm he was going to protect the front door to see if the individuals coming out the front when he heard the canelo yell knife within seconds of the the yelling of knife that's when he heard the shots fired and when that split second occurs that's when he looked back and he had this narrow view for a split second before shots were fired and it was over it happened that fast within three seconds thirteen rounds were fired with two officers how do you explain the position of the body in relation to the door the position of the body obviously as we know the door was open chords of experts when the first round was fired open full or open well john it was either partially open or  open to some degree because one round went through without striking the door the second round according to the expert on that angle as the doors closing and the remaining rounds he couldn't have been in the threshold has opened the door to a sufficient degree where he can step to the opening of the door frame maybe not fully but partially right if not he still behind the door well again we're talking about semantics i mean you  be right in front of a door you can be right on top of where the door would close it so i don't know if it was ever actually i'm sorry i don't know if it was ever actually defined within that precise distance as to where how could the door but how could it be or have been closed obviously his body pushed it out when the shot had to push it forward because he's falling backwards has even the shot i don't know that i mean i don't think it makes any difference as it relates to whether it was object really reasonable for them to fear when a person is coming at them with a knife that's the as you keep saying with a knife and world we're all grappling none of us have any answers yet i don't think we're all grappling with whether or not the evidence at summary judgment shows that they saw a knife i mean if he was coming at them with a knife i don't think anyone any of us would dispute that the officers had the authority to use deadly force the question is at summary judgment are there disputed facts about whether or not he had a knife and where he was when he was shot and i'm trying to figure out the second question where was he when he was shot because if he was behind a door and you're telling me that officer holstein couldn't get a good view the no one can see the knife well the officers that saw the knife there are only two officers that saw the knife because they saw him  screams a knife because he was coming for the attacking them they saw the individual the knife they were in fear of their lives and that's when they begin to fire so that's the sequence of events and that's exactly what the evidence in this case is that the district court considered because there is no under it there is no dispute that those two officers who fired saw the knife would hear pattison reason why they fired would your position be different if officer canela said that he saw and i have an officer hand and said i did not see  it if officer him and said that he never saw a knife but officer canela well i mean obviously my my my client is and i know that's not this case but i'm saying if let's say officer officer be in the situation said he didn't see a knife would your answer is as as my colleagues have framed the question to you is that that has to be an issue of fact if if the two officers have the exact same standing shoulder to shoulder and they both can say we were looking at the my question here here's my question which is so weird i haven't been able to figure it out it and so when you look at the follow where i assume somebody said that's where we found the knife it's not moved is that correct so somebody into the full deuces and then the other thing i couldn't figure out and i don't know way or this is the other part of the knife so i'm not really worried about the other part of the knife but this is sticking into the fall but there's no why you can line up the dark and the light with the dark and the light here because here the dark on this one is got all of these jagged edges today might look at positions factually during the incident itself so if we if we believe that the summary judgment record viewed in the evidence most favorable to mr greer shows that the officers saw that the scene with a knife then your client's prevail right yes if the record shows differently what happens i don't well if the record shows that there are he says knife not doesn't make sense at least from our perspective what did have made sense for him to make make that up after the event it's not a it's not a make up thing it's dead but given human frailty human being sometimes make mistakes and that's at least one of the theories advanced by the defense that he said knife and there was no knife well we've got a fate we've got to figure out whether or not that's correct or not but that's that's at least part of the argument i i think i understand i have always taken the position that saw the knife that the that the seat mr greer had a knife i've always thought that it was on that it was it would be a usual i think ridiculous for an individual to yell knife when in fact he didn't have a knife if that was the case here is the knife then you don't contend that someone enclosed in the sheaf day actually i do you did yes yes yes right ok so you don't think is the one and the false you think it was in the sheath and he everybody agrees he's right and he actually has problems with the left hand and your concept it was in his right hand yes so how does the knife if he had to get down on the falls this incident unfolded unbelievably quickly as he approached the deputies as the deputies had the gun to enter the halls backed up as he approached them with the knife they began to discharge their firearms  they're backing up the doors closing for shackles misses the door the next eleven i think it was at the door and very in places my recollection yes i don't remember seeing in this in the we've all been a little bit concerned about how kevin given the fact that he was at the threshold according to their statements and it was an interior the door would open in the direction the interior how did it close after he was shot  and then he literally goes up against the door and the door closed and who testified who testified as to that i one of your experts though i think the guy said that that's what helped who said that the deputies  said that he closed the door but they did not close what ok but there's a difference between him not closing it in the deputies seeing him close it you say you think there's testimony in the record that somebody saw th deceit and close the door i'm reluctant to say no sir i will not ok but the door close we've always yeah asked speculated from the weight of his body as he was coming fall as he was getting shot yeah i think so yes so he's going forward as he's getting shot instead of going backwards that's my understanding he was coming forward and the door closed as they're printed off rounds when he didn't he obviously trying to close the door himself he had joe he had to close the door well i'm reluctant to say that is that right before this he was holding the door close and i couldn't get in i mean he was trying to keep him out so why wouldn't it be reasonable and in terms of the most plausible scenario that he's trying to close the door not not that he's aggressively coming toward him i don't exclude one as opposed to the other ok i think he was going forward but clearly he didn't get broken after the first shot do you agree with that no i don't think it got broken after the first shot ok so the knife is broken before the first shot we think the knife was broken sometime earlier stepping up the door ok so at most then he's got on my part of the knife i don't want to say it most certainly that's a plausible explanation now there was one we've got those are all the i'm sorry we've taken you way over your time so if you want to devote thirty seconds to something you can do that thirty seconds i would vote yes through the issue that there's that the judge abused his discretion in allowing the motion for summary judgment to be filed and timely as to the state tort claims which were not addressed in the original motion it was within his discretion to do that it was allowed since you've already made determinations of fact which after acted those claims against the defendant canela and i as the order or cites it was in the best interests of resolution of the case as well as judicial economy it was not a morning your honor tom paulton here on behalf of sheriff ivey i want to just kind of pick some of the questions that have come up that relate to the placement of where everything was found in beginning judge hole with your question about why the knife appears differently first as you pointed out it was broken it was found in a broken condition when you see it in the lab they put it back together again and second yes yes it's a lighting issue sometimes you see the pick it depends on the angle that they were taking the picture when it's in of the jacket which by the way the crime scene investigator i can't recall his name right now but it's in the record the crime scene investigator said finding it in the folds was consistent with the fact that they open the door back up and the shooting had stopped to answer the bigger opposition out to begin with certainly possible but if he's still coming out with a broken knife i don't know that that's not the ninety hacked is the knife and the polls aren't that all the peace and i that's on top of the jacket well presumably it would be the larger piece not the not the not the blade and let me back up about ten seconds in the scenario because i think that this helps one one point if we keep talking about the decei shutting the door the deputies don't know that one of the deputies kicked the door open because the way this happened was when they first went in there christopher greer had braced the his body against the door they saw his shadow underneath the reason that holstein had backed up and was now paying attention to the front door was because the shadow went away and they thought that he was going back to the front door and heyman kicked the door open and when they don't know whether it's because it was rebounding shot or because mr greer had breached and was was pushing it shut but when you talk about where the placement of the jacket you have to remember they have to open the door back up again and that's why it's found in the in the folds of counsel referred to as being wrapped in the jacket that's not that's not accurate you found in the f action of the door is what that's the folds of the jacket together and somewhat obscure the knife right when fact when the deputies went in they didn't even see it they saw the one in the sheath and him and went took it out of the sheath and put it on the counter it wasn't until the crime scene techs got there and started photographing the scene they realized there was the second broken knife in the folds of the jacket the the issue of what holstein saw i just want to emphasize you know that the points have been made that his attention is now being redirected back to the front door of the house he hears knife turns his attention back and says it all happens in a split second he says i'm looking over heyman and kanellis shoulders and he says i can't see his hands so when you talk about i can't see above his torso he's saying i can't see his hand so how can holstein say he saw a knife if he can't see his hands it it the whole thing about what holstein could see or couldn't see is irrelevant to him and canelo given their positions the hypothetical you ask about what if they're that they're standing right next to each other and they see the same exact thing yes if they but they're not in positions and if you take a look closely at what holstein says and most importantly put everything he says in context and you look at the pictures it all it makes sense about about that sequence of events and why it is that holstein would not have seen what had been in connect with saw but just to be clear didn't holstein say that he could see him from the waist up yes but he couldn't see his hands so could he have a could he have a knife of his had and while you're in that hypothetical though you're assuming that he's coming straight flush on from the door now i'm no longer in the hypothetical on the actual circumstances don't i but if if one officer said if if it's testified that he saw from the waist up and did not see his hands doesn't that mean that according to that officer his hands aren't up here except that he's saying my view is blocked by him and cannot well it's not it's not as if we're on picture he doesn't say that in both statements actually i think he was statement if i'm not mistake he spent statement ties twice and then there's also a deposition he gives an f d a lease statement does he not yes and in that one he doesn't say that his view was blocked right i would honestly i'd have to go back and look i can't say right now off the top of my head as between them and there but it doesn't i mean he didn't fire so i don't know what his incentive would be to you know to land i'm happy to move the court away from the knife because the claim against the town fails at every step of the analysis and judgment as order i think is thorough and should be affirmed in every respect judge hole you're correct this this activity is clearly falls under category two of the tree and in taxonomy this is classic law enforcement activity responding to a scene where a violent felony was committed there has never been a common law duty owed under those circumstances and judgment those who got it special duty to for greer the specific claim is for an alleged breach of a duty to the general public that's it's alleged in the complaint at paragraph two forty five to communicate with law enforcement in a reasonable safe prudent and non negligent manner so it's not alleged and even under the circumstances judge whole point pointed out to establish a special relationship that would have to be some sort of reliance interest that's created by some statement given by either officer holstein or chief morse to christopher greer not to randall greer so there can be no reliance under those circumstances and in any event that what they're a little relying on if you go back and look at the brief is the meeting between chief morris and randall greer about a month before the shooting where chief more specifically says we will not baker act your brother and less he's a threat and then it generally is advised as if there's a an immediate threat call the police that's advice that any prudent police chief would give to any member of the public so we think that the summary judgment order with respect to the town is should be affirmed and again whether or not there was a knife has nothing to do with that it's a category two activity there's no it please the court if i can just i'm going to start with the town's argument that special duty was not allez under rule d to express allows a party to provide alternative theories the core of the town's argument is that since we alleged general duty the rest of the complaint that sets out the facts stablish in a special duty were insufficient and that's just not the case and want to make sure that i outline the specific portions of the complaint the thirty minute complaint that set out the underlying facts that gave rise to special duty in paragraphs two forty seven into forty nine of the complaint the promise by chief morse to baker act christopher grizz alleged  that question one you know that was not addressed by the district court below and honestly i've not necessarily research that for this case the district court concluded that at least there was a duty and to the discord in address that issue but secondly i will know that if the court looks at paragraphs two forty seven said you didn't play the special duty exactly but in terms of the specific question of whether the duty had to be to the christopher greer rental where the court did not address that the court actually concluded that there was a lease enough evidence for a founding that there was a special duty or by the promise but paragraph two forty eight of the complaint in two forty seven do allege that officer holstein christopher and chief morris breached their duties of care there were complaint does at least allege that a duty was that his duty was breached and i agree with that and the question is whether they have any communication to christ or are there there was no communication  seen to the resolution of what actually happened and mary cheney also testified that the first bullet went through the door and struck christopher greer in obviously that's very important to the resolution of what actually happened in this case finally with respect to that there was one testimony will be that the first bullet went through the door and struck christopher greer their version of the evidence is that the first bullet missed the door and then you know the other ones followed bullet found inside the house that had not gone through the door yes or so if we agree that there's a bullet that did not go through the door it actually passed through and ended up in the backyard  would thank you very much if you're in we're in recess until tomorrow morning