good morning mit please the court janet strayer on behalf of the defendant gresham police officers kevin carlson and gavin sasser st to brief housekeeping matters i submitted an additional authority a decision of this court that was decided on thursday related to a little immunity in the context of a knife attack very similar to the one at issue in this case and i did it so late because it only came out two days before arguments so i wanted to make sure the court was aware of that and had that i know judge who was on that decision so i know you're aware of that second of all that in preparing for argument i see that in plainest echo what she calls the excerpt of what is counsel excerpt of record which is actually supplemental the subject of ninety five thousand nine hundred and eleven call stemming from domestic violence assault and kidnapping and when the police arrived the suspect ignored commands to stop he fled he later turned toward the police officers with knives in hand advanced toward them with the knives ignoring the officers request to stop and drop the nights and i think we've lost opposing counsel oh yes it looks like they just connected i'll give them the minutes a come back and if not i'll give them a call here they are right now in this case and in fact although the district court didn't specify what disputed facts she was talking about it appears to me again speaking only for myself that the only way we can analyze this case is to take all disputed facts in favor of the pointer and then determine that version of a man's whether or not your clients the facts in the record must be genuine and material it must be based on admissible evidence and not simply speculation and in our view to the extent the plaintiff attempt to create issues or points to issues of fact they are not genuine and they're based on your speculation and surmise and that is not permissible to create a genuine issue of fact for the purpose of a summary judgment this case in fact create it presents a question of law because looking at all the evidence in the record and looking at the even and viewing them in the light most favorable to the pla distinct from a shiny cell phone happened time he was killed now he's your client still may be entitled to a summary judgment on qualified immunity but i would like you to respond whether you agree or disagree with that version of his facts but i have two responses i don't think the record presents a genuine issue of material fact that he was holding a cell phone as opposed to knives at the time he was shot because the only reference to the cell phone was way back before the chase started and thereafter he had two cases of beer in his hands one in each hand which he then dropped and ran there's no witnesses that testified that he had a cell phone is in his hands as he fled however even if plaintiff paraphernalia and all kinds of other things were you know near the body afterwards but the fact that it was he also there were also two nights that were there and that's what the witnesses saw i mean again taking it taking the facts and inferences in favor of the point if he was holding a shiny cellphone and not a knife until that was in his version a cry out to justify the shooting afterwards but it was at least calling a cell phone something shiny he was running and central so perceived from there sure st of all after the after the shots were fired the witness went down but there is no dispute that he continued to move with the knives in hand or shiny object in the hand and so to the extent the officers perceived this to be a knife it was enough to justify the application form why didn't anyone under this court's case find a supreme court case law qualified it for qualified immunity purposes even if officers are mistaken and that mistake was reasonable they're still entitled to qualified immunity and it doesn't preclude qualified immunity in the circumstances presented on this record given the unconscious tricked in evidence about the nine hundred and eleven calls and what this does even had done prior to the chase and during the entitle i'll fight immunity if there is a mistake that is reasonable under the circumstances and here they didn't have the luxury of time to say oh it's a knife is it a is it a gun is it is telephone he was running he turned and he rushed at officer sasser and under the circumstances presented on the facts in this case they were reasonable in believing that they were in danger and that they therefore were justified in love him or gave did not issue a written opinion which is very common in summary judgment motions so we are left to assess the record based on her to answer three sentence minute order however qualified immunity as your honor has pointed out really is hard to establish if you don't know what the facts are you don't know what the use of force was what the presence of your client was mean chased because of reports of very serious criminal activity he was running away the officer saw something shiny in his hands  shots were fired but that's the situation it seems to me here a light most favorable to your client in that circumstance why didn't i case or cases would have given every admonish this court many many many times that there has to be something pretty darn close for an officer to know that a circumstance involves excessive force so are there any cases that are hardly similar or this quarter the supreme court has said running from the police serious crime shiny object turning and coming towards ok ok then he was running away and you agree with that you agree with that ok and there was something in his hand you agree with that you agree with that it was right i am editing it and then he turned and came towards the our officers rather than continuing to run away or you re with that we don't agree with that the  cases from this circuit that i'm going to have have told us that you can't just rely on the generalization that force has to be proportionate to the problem at hand so that's why we're asking  when the two officers one eyewitness he one officer in the middle of the road firing at the duty and the other and the other officer or an other officer come around to the left side of van as would being hidden which would a so i would like to remind the court of the plaintiff's counsel was unable to supply this court with any cases with any degree of specificity that would have them formed in these officers that the shooting under this circumstance  not constitutionally permissible and i would submit that there are not the objective lee reasonable standard that the officers are judged by and used in using deadly force must take into account under the graham versus conner case the calculus of reasonableness and it must embody allowance for the fact that police officers are often forced to make split nd judgments in circumstances that are tensed under certain rapidly evolving about decision that they had to in order to what they believe was avoid lethal force on the part of the d c don't recall the b b c they had committed multiple felonies allegedly he was running it's three am it's in the pitch dark this is a man with multiple felony arrests warrants out for him as his girlfriend has informed the police on her nine hundred and eleven call and so this is not just anybody on the street but the undisputed evidence reveals that this was a very dangerous man who was fleeing from the police they saw him fumbling in front of him as he was running away from them with his arms and they didn't know what they were for the evidence shows he had a jacket with large pockets in it and so whether he pulled out a cell phone when he turned around to face them and started toward them or whether he pulled out knives doesn't matter they had to make split nd decision in a rapidly evolving circumstance in the dark in the middle of the night with someone that they knew had felony potential felonies that he had just committed in addition to felony warrants out for his and i suggest there are no cases that would establish that there was a clearly it was clear to them that they couldn't use lethal force under that circumstance some of the facts i would ask the court to factual assertions that they make are unsupported by the record for example the one suggesting to you and the brave baldly says this that he was shot in the back is absolutely not supported by the record the medical examiner d nelson said that was not true he was either front shot by the front or the side and the evidence is that these officers were in the front and the side so that is not and the case is that you can't shoot a person in the back simply don't apply here this isn't that is the facts of this case the if you also read the transcript of this hearing before a judge him or get you will see that she challenged plaintiff coun to supply evidence on multiple of the factual things so called factual things that were being asserted on behalf of the plaintiff and there was no evidence it's simply speculation on this circumstance there are no cases being available to provide these officers with notice that under these challenging circumstances in the middle of the night in the dark when someone turns and faces now in all this and has a shiny object obviously the police officers thought there was a knife but they yell drop the knife drop the knife there's undisputed nine hundred and eleven call that that was yelled out and then boom boom boom after that but either way the officers believed there was a knife reasonably believe there's a knife and under this court's authority and under the u s supreme court's authority qualified immunity is required to be provided to these officers cuz after all qualified immunity is is not really a defense it's an immunity in the purpose is to avoid having to go to trial and when as here the un contradicted record and the law supports the application of immunity having to move forward for a trial simply obviates the whole purpose of the doctrine and i would ask that you reverse the trial court's decision and apply qualified immunity to both officers thank you counsel the case just started you submitted and we appreciate very much helpful arguments from both counsel in this