good morning your honour's counsel may it please the court terence franklin fled from the police by car and then by foot he then broke into a home in hid in the basement when five minneapolis police officers found them there he resisted their efforts to place him under arrest he fought with them with their police dog he punched one of the officers in the face and then he tackled another into an adjacent laundry room he wrestled control of a su machine gun from that officer and pull the trigger twice shooting two of the officers he was then shot and killed by defendant officers michael me thin lucas peterson now these basic facts of what happened that i just recited none of them were identified by the district court as being in genuine dispute but instead of granting the defendant's qualified immunity chief if she's a defendant she wasn't personally involved what's why wasn't if she soon or in personal capacity why wasn't she granted immunity i don't understand where the district court the use of the deadly force yes that's correct me right and i think technically the district court should have dismissed the city of minneapolis and chief harto but did but did not technically so i think really what th qualified immunity appeal but we have said time after time it's personal to each defendant and only limit the damage claims yes we understand that your honor and certainly weren't trying to   i don't believe that it does but here and that part of your appeals gone well we we believe that it is the facts underline the official immunity in the vicarious official immunity claim or in extr on by the district court to deny qualified immunity one was the person i sometimes between when franklin shot the officers and when he was shot that beans up to seventy seconds according to the district court and the second fact was the presence or absence of blood on the submachine gun and the district court basically seized on these two facts and said that they were material and allowed the now of the qualified immunity claim but there are basically two errors with with this analysis the first is that neither fact is material and the second is that the seventy second timing is blatantly contradicted by the record and the court should decline to accept that under scott b harris so i'll start with the immaterial of the of the precise timing and these basic facts of what happened are listed in the district court's opinion in the district court doesn't cite doesn't identify any of them as being  tenth two thousand and thirteen franklin was identified by a nine one one call a yes q when you say that in your brief he doesn't identify them as being in genuine dispute he also doesn't say that they're undisputed so where does that leave us well i think well under under the jurisdiction law the court looks at what facts that this record assumed are likely assumed and i think when you read the district court's opinion as a  concern with the cases whether we can review that or johnson versus jones type situation where the judge has i think a jury could find that they weren't threatened at the time of the shooting and you you say well that's not a plausible inference but can we review that in a qualified immunity appeal i think the court absolutely can review that and here is why that that fact is basically the ultimate legal standard of whether the shooting was was constitutional whether the officers felt that franklin continued to pose or any suspect continued to pose a threat of serious harm or death and if if the district  serious harm if that's all it takes and the issue is the supreme court under move the next and white the poly and a series of other cases has said that the qualified immunity determination on appeal and that the district court needs to be done in a particularized basis it can't be done on a general level and so if the district court simply says genuine issue as to whether there was a serious threat of harm or death that prevents this court from reviewing doing the review that the supreme court has mandated and here what we have i think the facts support an inference that he didn't have a gun and that he was alone in the laundry room but if the court did find those facts then this court would then accept those facts and make the qualified  presented by plaintiffs more than seventy seconds passed between the shots fired and he goes on to say further plaintiff points to evidence suggesting the absence of blood on the m p five which would have been either in franklin's hands or close to him and then the district court goes on to conclude quote this is that we circumstantial evidence that franklin was not in possession of the m p five when officers peterson and me use deadly force against him and so i think it's clear from this analysis that at best what the district court is saying is there's a genuine issue of fact as to whether franklin was in possession of the machine gun at the precise time he was shot that's what it says when officers peterson and meath use deadly force against him but that that's error and if you look at the lock the litchfield case that addresses this very same issue and this court dressed the plaintiff's argument that well the jury could conclude that the suspect was in them possession of the handgun at the time it was shot therefore it was unconstitutional and this court said that's not that's not the law the law is and if they're not in possession of a firearm they you can't use deadly force and that's exactly what the district court reduced this issue to whether he was in possession of the gun at the precise moment he was shot and consider defendant meat for example defendant so we can safely shoot at franklin he does meet never saw the gun that shot him in fact he thought that and this is that page a for ninety three to four ninety four me thought that franklin had his own gun and that shooting was still reasonable because meat had a reasonable belief that franklin continued to pose a significant threat of bodily harm or death and he had just been shot and by the way quote he's got a gun and so whether franklin was in possession of a gun when me shot is actually immaterial under the circumstances and the same basic analysis holds for officer peterson  he's punched in the face franklin and durango in the laundry room peterson eventually follows sees franklin's struggling with duran and over the summer machine gun and then peterson moves in to physically engage frank when he reaches out in the darkness so he can find more franklin's head and eventually pulls the trigger whether officer duran for example successfully wrestled that gun away from franklin in the moments before peterson shot is immaterial because the in order for the qualified immunity claim to be defeated you need evidence to show that peterson knew that that gun wasn't in franklin's possession and the district court didn't say there was a genuine dispute about any of that and moreover beyond just mere possession of the gun we have we need franklin to be subdued because we've got two officers who have been shot and iran the basement floor bleeding potentially bleeding the death we have an ongoing struggle between frankland who has fought with officers already wrestled a machine gun from one of the officers and fire it even if the machine gun that's taken is taken away from franklin you need frankland to be subdued you need him no longer to pose pose a threat and that just there is what about the time what did you want to say about the time just on the on the time gap two points one the precise timing between when franklin shot and when he was shot is immaterial whether it's twenty seconds or seventy seconds it is consistent with everything that all of the physical evidence and everything the officers have said and then the other issue is that time gap is blatantly contradicted by the record  that that expert opinion is not admissible at this stage and enhanced video the expert opinion relied on is not in the record even if it's not an expert opinion out of here how can this be as clear as only thing it's the record that's correct and i'm going to review her can we make yours determination well the harris determination is made on what's in the record not what may or may not be that he can hear thinks he can hear yes your honor and i'm out of time and finish my answer to that that is correct but the expert opinion is basically not evidence it is not admissible and so we because under levy anderson an expert simply saying i listened to this critically it's in there it is basically because it's an admissible evidence the it is it amounts to nothing and the plaintiff failed to enhance video on the record and and quite frankly if the hance video was in the record we would be making the same exact same arguments about it that the only thing is this is this expert's opinion that he heard something and it's just not that it's not admissible under a levy anderson so as i don't understand how it comes up at trial i guess but i mean what what what what with this is would be allowed to testify i hear something well i think witnesses who were on the scene so th by the way all of that firsthand personal knowledge based testimony is inconsistent with the seventy second time and  black man who had surrendered who was killed by the police there's evidence to support the contention i believe the judge franks decision your rear your brief prompts me to ask you what this mendez do to your analysis of the situation the only thing you look at from the application of deadly force is what was the situation facing the officers of the moment they applied the force and i understand that your honor but your whole argument is well they if they were just looking to get this guy because he had he had run down an officer on the streets if before and therefore they illegally entered the home in the basements that's all you're relevant under mendez is not well potentially your honor but i think that th are actually we're talking about interlocutory appeal right now i understand that your honor but there are factual issues for example the city the defendants in this case are claiming that this young man grabbed the m p u five and intentionally shot it and had two officers that's something that's just that's significantly in dispute so i think you know from what i what ok what what what other than saying a jury might disbelieve them what's the what's the the nonmoving parties no i understand that but there's there's just because the officer saw you have happen doesn't mean it happened i mean you know if we try to apply the supreme court qualified immunity jurisprudence understand if if  the only if the only people on the scene are police officers who consistently testified to what happened in the other the nonmoving party doesn't have anything affirmatively to contradict that well then the fact that  supreme court has said the fact that a jury might disbelieve the officers can't defeat qualified immunity but it seems that that's the that's what we have that's what we deal with i understand your honor but i think you have to look at the overall picture i mean for example force understood but that it would seem to me that judge frank looked at that your honor he denied the motion so i think that we're dealing with an issue here of whether judge frank correctly rendered a decision based on the because peterson testified in your honor that i mean it seems to me as part and parcel of their argument if this if this young african american grabbed an m p five and shot two officers he would have been immediately dispatched within seconds in fact that's what peterson testified to most of the obvious was wouldn't commit to that to any testimony specifically on the gaffe but he said that he was dispatched to me which of course makes sense because they had side on your honor in the when he was a take to grab your side arm and shoot the guy and the reality here is that that recording that was made by the citizen creates significant factual issues we're talking about a gap of over seventy seconds and it's not just the time gap your honor by the way there is evidence that the  shots can be heard the shots that dispatched frankly could be heard at second fifty three of the of the gains video and it's not just the timing your honor it's also what can be heard i mean the for example the officers claim that this young man never uttered a word but at second twenty seven you have the you clearly have second eight in the video and this would be there was a thirty second gap before you can hear officer shot at second eleven you hear my name is moki that was the young man's name and then you have let me go at second twenty seven that's a significant discrepancy from the version the officers gave i think it's clear in the evidence in this case of the discharge of that m p five was accidental discharge so there are numerous  discrepancies starting with the attempted apprehension of him at the at the apartment complex in south minneapolis which i detail in my in my brief i mean is there any well we have specifically your honor there hands on the young man to check for life and then was handed the m p five by officer duran so it's pretty clear that's how it ended up on the gun and he claims he was wearing gloves but the problem with that contention nobody corroborates the fact that he had duran handed them the gun he said to shock and i quote this was the gun that caused the injuries i would submit to you that if this was the gun that if that suspect had grabbed and shot two of the officers he would have said something different like well this this is the gun you know so the quote was this was the gun that caused the injuries i would freeze or injuries would be you and referring to what you know cause the injuries the two officers that were accidentally shot correct but to me that's a type of statement that i don't think it's the type of statement you say if you have a suspect to grab the gun and shot to your guys so i think the inferences from that statement are significant sounds like calm aftermath lawyer in the beginning they claim that one of the officers claim that he attempted to run a rover and that was that's not true and i think that's significant because the minute how many hours before that that was at the start of the flight well that's true your honor yes i was right in the beginning dispute where's where's anything this believing the cops that suggests that it was an accident this jury your honor if he had intentionally grabbed a gun and shot two officers i submit to you he would have been immediately killed the gains video creates is wrestling with the shot well that's what the officers claim the hofmeister is going there what judge i admit to you there's no witnesses in the basement there are no witnesses so we have to go by the police version but if the if the police version is to believed why does that video taken by the citizen created a significant time gap from the time of the discharge of the of the time that an officer was shot up until the time that the young man was dispatched you know i think that officer say officer shot his deposition was taken and at the time he says officer shot he's running back to the front of the home so we had to fill in the time because the videotaping that was done by the citizen was not perpetual so there was something that happened before the videotaping began and when you take his testimony from his deposition from the time he was in the front of the house and you heard that something that happened he ran to the back and he stopped to see what was going on in the he was told to secure  first aid equipment the time there your honour's thirty seconds that's a real you know that when you add it together it's thirty seconds so it's second fifty three when the shots are heard the result of franklin's death you deduct fifty three minus eleven is forty two and you had thirty seconds from the time that he was first aware that a shot at haven't heard that from a shoulder mike so the point is when he says officer shot that's not the exact time that he became aware that an officer of his but had been shot that was the time  articulated officer shot and was picked up by the citizens recording so i think seventy two seconds is a reasonable time  they had the perception of this young going to try to run over an officer which was not true i think that added to their to their anger and what was involved it's important predicate to what happened you say that peterson testified that  franklin grabbed the gun because of the shots that injured the officers and then was shot with him you know i believe it was peterson that yes peterson's testimony i believe he was the only officer of the five swat officers that were down there that gave an estimate as to the time gap for example meath asked a fighter from time can you give me an estimate as to the time between the time you were shot and the time that frank was killed and he  couldn't give me any response however peterson was very specific he said it was seconds he said it was seconds so which of course it makes sense because of a suspect as intentionally shot to officers with their a gun then it's certainly reasonable that he would be killed seventy seconds is reasonable inference that creates of this view their version of how the events unfolded yes yes official immunity one of the cases we cite in the brief is eagle v morgan eighty eight f three d at six twenty and then i believe the parker v charge case also has that and i have not looked into at ok thank you your honor peterson's testimony he is one point he does say a matter of seconds on some timing issue but there is a couple of things that the court should note about peterson's testimony at another  peterson says something to the fact that it seemed like twenty moreover peterson didn't even hear the gunshots the first volley of gunshots that franklin fired so it kind of illustrates the whole fog of war mentality that affects so a witness under such traumatic and chaotic circumstances so that that isn't a contradiction that sufficient to the nih qualified immunity this case is very different as we argue in the brief in the reply it's very different from the williams v holly case the district court at page nine of its opinion foote no one specifically  rejected the notion that franklin's voice was on the video and then finally the accidental discharge we don't think there's any evidence that suggest it was accidental moreover it's immaterial because i wonder if the court would let me make one final comment on the jurisdictional issue so it is clear that the district court made the ultimate finding that the shooting was unreasonable because franklin didn't threat or the officers didn't reasonably believe that he posed a threat of serious harm or death and but to get to that finding the district court had to assume facts and under johnson v jones this court is allowed to look at the district court's opinion and try to figure out what those facts were and moreover if help you mean if he made that inference then he have assumed facts that are different from the ones that you're laying out because the ones you're laying out wouldn't support the conclusion so i don't understand how that helps you well i think it's i think it's clear from the district court's opinion that he didn't assume anything more than what i'm what i'm laying out and the second point you don't think some of what you laid out was not potentially not credible isn't it if if that's if that's the route the district court's opinion went and then were in a williams v holly situation and there the court exercise jurisdiction over that der determination and then enter a local tory appeal and under that case you had a ton of expert evidence gunshot wound pathways and testimony from a medical examiner about those being inconsistent with what the officer it said the absence of gunpowder stippling and and evidence about why that was inconsistent with what the officer said here we don't have any of that and that's not because the parties didn't develop that expert testimony all of that was developed thoroughly with depositions of the medical examiner and forensic firearms examiners and the plaintiffs points to nothing in that and the district court pointed that