thank you sir good morning it's all right i want to start by telling you what officer correct said on the night of the shooting to ca investigators in a recorded statement question ok when he goes down to the ground what happened you said he kind of went down to a prone position or he kind of fell down near where you were what happened there answer he stopped told him to put his hands out keep your hands out keep your hands out which he did and then he didn't move and we told him not to move and he didn't that's what they said the night of the shooting this court said in williams of the holly and in wilson the demoing that district courts in summary judgment motions and officer shooting cases must consider evidence that is inconsistent with an officer's version of events that is just because they are the only surviving witnesses doesn't mean the district court can't consider contradictory evidence including contradictions within an officer's account contradictions between officer accounts contradictions between officers account and physical evidence or forensic evidence or other eyewitness testimony now we have all of that here nearly none of which was considered by the district court but even more than that we have one better we have direct evidence i have eyewitness testimony from someone who was ten feet away from henderson as he was shot from someone who happens to be an officer defendant in this case saying that events occurred exactly as plaintiff is saying they occurred in this case yet not a word of that was considered by the district court in summary judgment get it that it wasn't mentioned in his opinion and so i thought let me start this way but it was bold it was underlined it was a part of the argument i don't know how it didn't end up even being considered but honestly your hon in not to be frankly most of our evidence wasn't considered i mean it's almost as though i mean this case is not about official immunity or qualified immunity this is more fundamental rule fifty six before you get to the qualified immunity standard you first have to take all the facts in the light most favorable to the nonmoving party and before you do that you first have to take all the facts and consider them and so if we haven't taken all the facts or what are the facts in your favor that the district court didn't consider is sir so the first one was officer cracks prior statement as we said from the night of the incident force was reasonable is a legal questions here and we qualified immunity easily ok or to be a material disputed fact i think you'd have to say if his hands were out as you say this witness has then it was clearly established that it was reasonable to shoot him yes why is that the case yes sir so if he was complying with commands if officer correct was correct the night of the shooting and if this hostage came out got down on the ground he got down on the ground laid in a prone position in response officer commands showed both of his hands and showed he was unarmed there is no case at least that i'm familiar with that says officers would be entitled to qualified immunity for opening fire on a prone hostage with his hands out and person question one of the pieces of evidence it was disregarded was an eyewitness testimony john me aki who was a business traveler staying in a hotel room he said he heard the officers outside talking about this hostage situation saying there's a there's a suspect inside he ha he's complying with officer commands if he shows that he's on armed and by the way that's the central thesis for why the officers say they shot the officers now say their current version of events is he was hiding his hands and when he was on the ground they gave him commands to his hands he didn't and instead he bladed upwards towards them and brought his hand underneath so they had in that moment to shoot him which probably would be protected by qualified immunity but if the night of the incident they're saying no in fact he complied with commands on the ground and he showed his hands which is also by the way consistent with the photographic evidence that the district court did not consider of mr henderson with both of his hands out we included in that in the brief as well as the photo if you get evidence excluded  or what that the court make any affirmative statement regarding yes the court just said well that was a photo taken after the incident so that doesn't prove what happened during the incident but my point is if that photo taken after the incident is consistent with what crack said why his ans would end up like this if he was blading underneath like this since i asked what is their testimony as to why they say i don't know to a person they say i don't remember i can't demonstrate i don't know i can't tell you that every single one of the officers who presumably were very acutely focussed on this man on the ground not a single one has an explanation for why his hand isn't towards them but rather came to rest in all this yes sir and you listed three no sir multiple witnesses eyewitnesses said that henderson left that room with both of his hands up and walked down the hallway the officers said that they didn't look at his hands so they don't know whether they were up or not the district court didn't consider either the eyewitness testimony or the officer testimony that his hands were  because you sir so are our expert our our expert which also wasn't considered by the district courts is that the very first thing a reasonable officer would have done had they known this was a hostage situation and thought that someone was armed was look at their hands and so for a reason officer would have looked at this person's hands as he was walking down the hall presumably that would be one more thing or one more reason that they knew or should have known that he was unarmed when he was laying on the ground additionally the district court didn't consider officer off stead's concession that he gave contradictory commands to henderson that henderson could not comply with officer ofsted at his deposition said that the commands he shot henderson for disobeying when he was on the ground were to stop moving and show me your hands he conceded that one cannot that henderson could not both stop moving and show him his and at the same time and that he would have shot regardless because this was an impossible set of commands to comply with the district court didn't consider that either furthermore the district court ruled it undisputed that officer ofsted issued a warning prior to opening fire the dischord said it was undisputed that ofsted said stop or i'm going to shoot before you open fire even though ofsted had multiple prior statements including the night of the incident and his answers in iraq tori's were hidden he made no mention of that he did give that warning so i don't see how he can say that it's not feasible to give a warning if we're going to look at his prior statements where to to say that maybe he didn't actually give this warning but in fact he did give them warning i don't think they can have it that's right he may so he may i agree your honor that a jury it doesn't necessarily mean that he's not telling the truth that he has these inconsistent statements a jury could very well credit him and it doesn't necessarily mean that even officer crack is not telling the truth the jury a jury could believe the officers and say well you know what we believe in the only point i'm making is that there is evidence from which a jury could go the other way it is if i'm willing to say that then i hope that they would be willing to say took the actions the officer said the district court didn't address our expert testimony regarding contagious fire in fact the district court drew an inference against mr henderson because he complied with officer commands the district court said because henderson complied with officer commands and went to the ground that shows that he retained control of his movements and therefore was a greater threat to the officers there setting up a situation now  commands it's flipping rule fifty six on its head so there were a number of and the last point i'd make force it down is this case seems right directly on point with the cotton case with the u s supreme court where they reversed summary judgment that had been affirmed by the fifth circuit in the supreme court said quote under either prong of qualified immunity analysis courts may not resolve disputes of fact in favor of the party seeking summ judgment and cases alleging of the unreasonable search and seizures we've instructed the courts to define the clearly established right at issue on the basis of the specific context of the case accordingly courts must take care not to define a case is cont please the court counsel my name is vicki ruby and i represent officers anthony ops dad stacy crack natalie bauer and the city of what barry in the amount of time it took me to make that introductory statement the officers had to respond to hearing a gunshot simultaneously with a man running at them and defying their commands he sprinted at them from a room where they previously had a gun pointed at the uniformed officers had the quiet deliberation of this courtroom was not available to the officers this is precisely the type of tense rapidly evolving circumstances that this court has routinely found officers are entitled to qualified immunity that the circumstance changed once the individual stopped and assumed a prone position and this remained a tank circumstance where they did not know that mr henderson was not an armed gunman that fired at him as he was running out of room to sovereignty and passed from two fifteen past room to thirteen coming within ten feet of the officers when he went down on the ground the unrebutted record reflects that he did move in a furtive manner all of the officers testified consistently i do want to touch base on officer stacy cracked statement as opposing counsel raise that issue statement and all of our subsequent testimony is that the remark whether he was thrown she was asked what he did when he went to a problem position and her deposition which is submitted to this court at page three forty she sta was shot that's after all shots have been fired ye and the forensic evidence supports that reading of the testimony here we have an autopsy which means which has been submitted to the court as a confidential supplemental exhibit the autopsy reference wound fired by an officer under plaintiff's version of events none of the officers bullets hit him until he was down on the ground yet gunshot wound number one has an entry point in his chest that's not consistent with someone lying prone on the ground corroborates the officers testimony that is moving in a furtive manner lifting his body up with his left hand in a manner that they perceived as preparing to display a weapon and fire upon the officers  under those circumstances exactly the same type of tense circumstances that this court commonly and routinely finds qualified immunity for officers here and there's an end when you think he proves the chest and has taken the position that he was not shot by any of the officers prior to laying down so i'm assuming the evidence that plaintiff has put forward that none of the officers bullets has struck mr henderson before he lied down and that that wound to the chest would be possible under their version of facts that they've submitted to this court and again the evidence doesn't support the officers testimony that he continued to move in a furtive manner there simply isn't any other witness testimony that robots the officer testimony in this case that he was continuing to move it's a guess it depends on whether you think that your interpretation of this correct testimony is the only reasonable reading of it would you agree with that because if you read it the way the plaintiff reads it she's saying he had his hands up before he was shot i had i disagree with the pla that plaintiff is claiming aren't the type of inconsistencies that was before this court in wilson or holly where the forensic evidence actually refuted the officer's testimony here in the from the government does not refute the officers testimony in addition miss cracks testimony when you read the statement which i encourage the court to read in its entirety is consistent with oliver later sworn testimony as she also states that no additional shots were fired by any officers after he was down on the ground on her version one she when she explained her deposition testimony down on the ground was when he was prone once you could see his hands it's undisputed that shots were fired after mr henderson initially went down on the ground and in henderson momentarily went down on the ground in that bracing like position she had consistently explained that he was not down on the ground not prone and tell he was compliant until his chest was on the ground again that's at her him i do he said and in any event whether the officers rounds hit him or not the key in curry in regard to the use of force after he goes down to the ground as whether  reasonable officer confronted with a man and we're talking this entire incident occurred within a matter of seconds he's running out that all of the shots were very close in time the more critical analysis was whether all of the officers fired because they viewed him as a continued threat this court in no versus starlee considered whether all the officers perceived the threat the same way and acted in the same way and reflecting whether it lended itself to the reasonable of force here all of the officers that mr henderson's movements on the heels of gunfire as he's printing out as he's failing to comply with commands as from a room where they previously had a gun pointed out there had all of them looked at that the the officers could not visualize his right hand they had reason to believe that he was an armed gunman based on their knowledge that there was a gun in that room that he sprinting at them simultaneously as the shot is fired that would be akin to this court with another officer saying he's got a gun and that officer fired when that man was approaching him because it was reasonable to rely on that credible information hear the officers have credible information they actually saw the gun they heard the gun they see somebody running out them that in light of those constellation of facts they don't need to actually visualize the weapon in thompson v hubbard but this circuit also recognize that officers don't need to see the weapon before responding to what they reasonably perceive a what about the position of the plaintiff or to thank his version of the facts that the deceit and showed right shoulder was up against the wall and that it would have been nearly impossible to bring in the  doesn't supply the court with the dynamic movements during the relevant time period the officers all testified as to those movements and also provided information regarding  how mr henderson came to be in a position that was consistent with the me arche photo that testimony is in the court's record at a p p two fifty six three sixty seven and three forty one of each of the officers up it was moving at or around his shoulder his body was obscuring his right hand and at some point the right hand did come up by the shoulder and at that point when i could see the right hand not for their shots were fired i got into this is th situation down to the my new show of movements is not what this court has is asked to do they aren't asked to monday morning quarterback to monday morning quarterback and officers decision making rather to look at the that merit consideration judge kyl in fact actually consider those issues and rejected them for example the warning issue this court has held in lafayette litchfield in the state of more morgan and that prior commands that give an individual sufficient notice that if they continue to violate those commands and ask you to do them a firearm would be used of significance to lock the lips field the commands were given over a fifteen to thirty second time frame to get down on the ground in the court found that that was sufficient warning for a plaintiff that their continued movement forward would justify the use of deadly force here the whole incident was much less time than fifty to thirty fifteen to down the hall testified that is right hand remain near his waist that he had a better vantage point than the officers who are taking cover behind the alcove and this court has repeatedly recognized that again you don't need to see a weapon to determine  fair warning but they must immediately comply again this is not the qualified immunity case it was the case where a plaintiff has made no effort to even identify what the status of the clearly brief because the officers action was objectively reasonable and viewing mr henderson as a threat of great bodily harm their use of deadly force is reasonable officers are not liable for bad gaston in great area here because of cannot establish that no reasonable officer presented with the circumstances that the officers were presented with on august thirty first two thousand and twelve would have reacted in the same way they're entitled to qualified immunity and we'd ask that you  so two very quick points i wanted make one they're trying to make this all into one big incident and say well look if they the shots reasonable bush reason will come out the door then they must have been raised on the ground there's no all of the officers testified and this is it footnote sixty six in my principal brief that they stopped firing when he went to the ground because they perceived it as he was obeying their commands they said we stopped firing and therefore they said they reopened fire because he bladed up towards them and didn't comply with their commands to the officers themselves said this was two separate uses of force and that's how judge col analyzed also the second thing to do your question judge col tin about the context of officer correct statement she said it towards the bottom half there's like it there's no line numbers unfortunately but it just says s k and it's got a that stacy crack and it's got a big paragraph go ahead sir and it says  opened fire other officers did too because i had ringing in my ear he makes it up to like the vestibule point where the stairs come up like a landing area and he stops and lays down right there so we don't know if he's got a weapon or anything we order him to keep his hands where we can see him and he keeps his hands out so that's twice where she says the same thing so as the chief judge pointed out if this is a context issue it's a fact dispute by itself but there's two separate points where she says the same thing she doesn't mention anything about this push up or this plating or anything like that just because of this was a close call without considering nearly any of our evidence with consideration of this officer correct said that they didn't shoot at him at all when he was on the ground because this was before the frances came back so an eight seventy five she says nope we didn't shoot animal he was on the ground his forensics came back during this case and i think both sides agree that all twelve shots in fact were while he was on the ground her point is that so our expert says that some of the shots can ricochet so that if someone is on the ground unless they are one hundred percent flat like  you something judge if you have some so if someone can be on the ground and have their hands up like this so that both hands are visible and someone's on the ground but bullets can still ricochet off the ground and get them on less their whole torso is on the ground etc so many of these bullets were sort of ricochets like that and at any rate that's all sort of a fact issue that a jury needs to sort through