good morning getting home and appearing on behalf of tacoma police officer hannah high ohman i would like to reserve three minutes for rebuttal officer heilman is asking this court to reverse the district court's denial of her motion for summary judgment on the basis of qualified immunity the record is such that once the appropriate legal standards are applied and the relevant admissible evidence is considered the court could dismiss or grant the officers motion for summary judgment on either problem of the qualified immunity analysis that's all i'm going to ask your question right up front so you know where i'm coming from because in your briefing there are repeated references to whether or not the officers conduct was or was not reasonable  understanding that the deceit and accident his car holding a gun and there's considerable that is replete you know in the briefing and there's considerable physical evidence to contradict that so so how does what set a faction we take  is uncontested that the weapon was found on the driver's seat after he exited the vehicle and didn't know that officer had moved it or picked it up and put it right yes got it ok and plaintiff does not dispute that did she thought she did i'm not taking her credibility into determination in into question here certainly not on appeal but to say it's uncontested and they contest that right well they have to have evidence to contest it your honor we had an expert no actually the expert said in his testimony in response to direct questioning do you know what happened with the gun and how it got to the edge of i thought you know i don't know i thought he opined that given the configuration anything but what she may have thought she was at was actually a window wiper winchell played so different that there is seems to me there's a real dispute a fact about whether your client in fact saw any gun in his hand isn't that disputed no nothing in mr sweeney's opinion that suggested he said officer how men describe seeing mr papen else arm outstretched with the weapon yes and then the size of the cab and the location of the seat backs in the headdress the mr sweeney opined that it would be an unnatural and contorted position he could not say in his testimony was clear i pressed him carefully ken is there anything about the physical evidence that would allow you to say that officer h the first point in my notes is that there was no i think uncontested no blood spatter on the gun no blood spatter ok the second is the point that judge pius raised that the dissidents arm outstretched it would have been a very unnatural position right he would in fact he would have had his arms outstretched in order for the gun profile of the gun to be seen between the two headrests he could've had his arm like this the officers and the third point is that that the profile of the gun was very very different and so different it could have been mistaken from the front for the for the windshield wiper plate so quit a reasonable juror decide that he didn't have a gun and all your client was mistaken about that not given the evidence in its totality it's undisputed that mr pappa now had the weapon in his car it's undisputed that it is his gun and it is registered to him and again yes i see if offers no evidence to say that mr pappa now and in fact concedes implicitly in their briefing that he himself retrieve the weapon from the zippered holster on the passenger seat plaintive only argues that he didn't have it in his hand when he fully emerged from the car the detective who was in charge of this case and as plaintiff said and their appellate briefing their expert and i dispute that their expert actually didn't offer this as an opinion but the detective in charge of the investigation concluded that as mr pappa now was exit ing in one fluid motion he left the gun on his car and continue of his car and continued out the vehicle with this wallet in his hand the district court does not i qualified immunity by applying frankly the wrong legal standard first it said on the first prong of the analysis is whether or not the plaintiff was able to make a prime a facia case of a constitutional violation the court said a jury concluded could conclude she was mistaken a jury could conclude that that's not the question the question is whether it was here i guess as we should say the nonmoving party here and you don't qualify to me when you get to qualified immunity you have to if there's any conflict you have to take the facts you have to take you have to take the facts for the plaintiff right counsel but that's really different than what you started with at the top of your analysis and really different than the briefing which is where you're saying telling us and this i'm not trying to beat up on this but this is an important point so for missing something i want to know about it i know this case is very very important but what you're what you're trying to argue initially is that it's uncontested that he had a gun in his hand and it seems to me that's absolutely contested honor i respectfully disagree the evidence in the record there's literally no evidence to other than case wienies opinion that holding his arm straight out would be an unnatural and contorted position there was nothing to rebut the officers assertion and the officer is mindful of the fact that when you have a deadly force encounter where one of the two people involved is dead you have to parse through the record very very but it was also an eye witness to this little inferences and there's also an eyewitness to this event who testified that he saw the car doors open simultaneously saw both of the occupants leave their vehicle saw mr  the officer with a dark object in his hand and his hand outstretched and the eye witness said i thought it was a gun again the law allows an officer to be mistaken about the level of force required if the belief is reasonable and there is no question it is the officer believed mr pappano had the gun outside of the vehicle the evidence is such that that's probably not accurate let me ask another question if she if the officer was mistaken and he didn't have a gun outside and you're not arguing he ever had the gun outside the trucker you know all right so so so let's just pick up at that point your client responded by i think becoming convinced that she was going to die that her life was in danger yes all right and what i don't understand is it seems a little funny in the briefing that that she exit at her vehicle and wanted to scramble to get to the back of her to take cover basically as quickly as she could but that she also immediately opened fire she didn't warn him first warnings are required if you swear you're on of the on i know that and my question is is that so forgive me but your time's ticking when she winced when she a police vehicle did she turn her back and run to the back of her car or did she come outside with some sort of shoot backing up she shot back and she said ok so to thank you for that clarification and now if you could in that order could you explain to me a warning was not feasible because she had no question in her mind that she had seen a handgun in his hand while he seated inside the truck had mr pappano retrieved a weapon and simply sat in his truck and application of deadly force would not be justified it would be warranted it was the act of seeing a gun while he is in direct disobeying it's of her orders opening the car door and exiting and as he's exiting she's watching the gun come down and out of sight she has no reason to believe that he's going to leave that gun behind ok counsel how many there are two sort of volleys of shots fired how many in the first volley as i believe three ok and she stopped she got to the back of her car popped up saw him standing his hands were down she could not see them ok and so at that point did anything else happen before she started shooting again no she fired two more shots and they according to the eyewitness were in rapid succession with the first three there was no substantive break in time ok and then she gave a verbal warning she moved to the far the passenger side of her trunk popped up sighted him he was still there at that point the eyewitness said pulled off onto the side of the road in front of court has said several times that it's very important in that kind of a situation to look at with particular scrutiny of what the evidence that the police officers are bringing forward is and almost everything you've heard today is just the version of  couldn't the officer standing back well not standing but in the vehicle i don't know how many feet they were separated right behind night you know he raises he's coming out of the vehicle she see something in that scene but remember she says right hand and remember if you are officer heilman i am rocks i'm coming out of the car my right hand is here you can't see my recount so that's what you think she's wrong and of course the moment we do a qualified immunity and not mistaken when we do qualified immunity analysis the question is whether the officer was unreasonable so if we talk about sort of that the prototypical case in this area where police officer makes an incorrect tragically wrong call judgment call in the field in a split second and thinks that a cell phone is a gun we've all read those cases typically are often in in those cases qualified immunity is granted so so could you address that please or i don't think quote i mean any is granted if the officer of a jury could find that the office belief was unreasonable exactly to believe was unreasonable that's exactly it so what this was she was alone and it was late and you know all the facts i'm sure and very very well so could you just address that what was that that's the intersection whether she was wrong and you of physical evidence indicates to me that she was wrong why was she on reasonable i think it's unreasonable to be wrong when you are saying i saw something i saw the gun in his hand as he was exiting that's impossible that's demanding perfection she gets to that's blackout or law she gets to be wrong she can't be unreasonable what but for a jury remember a jury could say this officer has said several things that are untrue she said things that are inconsistent with herself she said things that are inconsistent with the physical evidence she said things we have circumstantial evidence that she said things such as that brooks was actually shooting at her that ultimately were proved not to be true and she's changed  story is that a jury could say this up we don't believe this officer at all think that that's a different argument that's the argument that she made found to be actually misrepresenting the facts ok i'll grant you that there's there's that argument but there's  there's a middle road there that i'm trying to get you to address or and that is there's something between being right and and misrepresenting and that is what if they decide that they think she's a credible witness and she thought she saw a gun right what about that would have been reasonable under these circumstances but if she explained to the jury all the facts that led her to believe she saw a gun and they found that was reasonable now that's a classic jury question is a belief about a physical event that you can see not a legal question but a physical event is it a reasonable belief and she said things that are physically impossible and once the jury i think hears that they would think perhaps her belief wasn't reasonable away because a government official panics and believe something that's totally false and perhaps even irrational and perhaps even says things that are untrue police officers are human beings and and so i guess my authorities that really goes to that question about police officer making up an incorrect call out of fear or panic i don't think that there are cases that address that specific thing and i don't think it's necessary for this court to address that specific thing because of the large number of facts that she got at least our evidence would show completely provably wrong the inconsisten statement and ultimately the question i think that your honor alluded to even by her testimony she saw brooks standing there with his hands by his side and she shot him twice indeed shot the fatal shot we believe according to our medical evidence after she saw him standing with his hands by his side in this court held in the george case and is held in a number of cases that simply having a firearm shot as he was exit in the vehicle or was he completely out of the vehicle when the first volley was fired the circumstantial evidence indicates that the first shot that hit him was only when the door was only partially open based on the trajectory of the bullet in his leg and into the door of the vehicle she started shooting even before he got out of the vehicle at all when she could not possibly have seen a gun in his right hand is what she says both with regard to what she saw when he was she said she got out of the car as fast as she could and started shooting as fast as she could and i think the jury could easily find and i think what we will argue happened in this case is she realized that she put herself in a bad position because she had made a stop under unusual circumstances and hadn't taken the ordinary precautions and this man was now getting out of the car and she was it was late at night and she thought she was going to die and she got out of the car and simply started shooting without saying what she way but stop and think about it they usually tell you keep your stay in the car and you also say put your hands on the will we can see if you're great and we're i'm not arguing that her actions were unreasonable because they weren't good police procedure what i'm arguing is that she acted on reasonably because she realized she'd not followed good police procedure and she perceived a danger that simply wasn't there opposing counsel said your i think said that your  valuation of the physical a limits of that of the cabin which she claims she saw this and also the description of what she said the gun was which was a four or five inch thin barrel which is completely not what this is at all it's much more like a windshield that's not my question my question felt more specific please it my question is that the really goes the fact that the gun was found on the driver's seat and i understand that another police officer said he picked it up and so what was actually discovered is not where the deceit would have left it but my question is quite specific i think the record is very clear it was the to see this gun they kept in the car they kept it under this blanket right so my question is forget whether he picked it up and meeting gesture with it is it can test it that he picked it up and moved it out from under the blanket at all no we don't know the only evidence we have is officer homines testimony that she didn't move it and then the officer tiffany's testimony or officer burke test where i'm sorry that he in fact did move it in violation of police procedures and these are situations where a jury could say we simply aren't going to believe anything except what we can see with their own evidence because there is clearly indications here unusually strong indications in my experience of doing a lot of these cases of police testimony not being consistent and being inconsistent with physical facts in ways that are are very concerning and i think a jury should hear to debate these determinations unless the court has other questions at one point out that this case has been here for two years since the final briefing was done this is a an example of how these interlock tory appeals are an extraordinary burden on the rights of people to have juries make these determinations of of whether officers that's the hearsay issue it was rank on its face in the district court should have ignored it with respect to the inconsistency is among the officers statements plain counsel is misapplying that standard the court looks to inconsisten among the officers statements who were present at the time of the shooting the clearest example i could find of this is opinion issued by this court approximately two weeks ago in c v versus city of anaheim where there's an issue about whether or not the decision actually picked up the shotgun and pointed it in the direction of the officer some officer said yes officers who were present at the time some officer said no officers who were present at the time in this case these statements that have been deemed quote inconsistent are attributable to investigators of another agency who were present at the time of the shoot it doesn't occur doesn't it create a problem that that we need to figure out how these other officers agree to that impression no they play menace no no and again level upon level upon level of hearsay it is not indicative of officer high ohman making inconsistent state of the other officers just made up stuff they screwed it up they messed just they've made the mistakes and they messed it up and the district is particularly egregious the plaintiff continues to argue when they know that officer tiffany who this statement is attributed to has disavowed it under the district court noted that officer heilman current account was consistent with both her report and all of her statements the inconsistency is came from investigators who had no firsthand knowledge would you please turn off the cell phone and if anybody else has an a cell phone in the courtroom please turn it off also with respect to the panicked that's a subjective standard both the use of force analysis and qualified immunity requires an objective standard not whether this individual officer panicked but whether objective flee it was unreasonable under the circumstances and that leads us to clearly establish because that is the essence of qualified immunity was the law so clearly established at the time of the incident such that this officer would have known any reasonable officer would have known beyond to doubt that their conduct was unconstitutional the district court didn't even undertake that analysis and the only case identified by the plaintiffs in this case is colonel which is completely in opposite the facts in that case were completely in opposite to the instant case the supreme court has made it clear qualified immunity on the clearly established law prong has to be defined added level of specificity that is relevant to the case so in this case the question on qualified immunity becomes was the last sufficiently established at the time of this incident such that a reasonable officer who mistakenly believed that a suspect had a weapon in his hand and exited the car and pointed it at her and in fact the object turned out to be a wallet would have known under those circumstances that her actions were unreasonable constitutionally infirm no case law has been identified and mr ford just conceded he didn't believe there were any cases dealing with an application of deadly force out of a fear when the officer had a mistaken belief about whether or not the suspect was armed but it is that what you've just put your finger on something that's quite different separates this case from many many many reported opinions and that is there's a real question about what the circumstances were that actually confronted this officer your honor in cunningham on interlocutory review this court said yep the allegation is that these officers fabricated evidence but you know what there's literally no evidence in the record that these officers fabricated anything there is no evidence in this record zero that anybody other than brooks pappa now retrieve that gun from the zippered pouch under the blanket on the passenger seat the eyewitness was present on the scene from the moment the suspect and the officer exited their vehicle and stayed there until other officers arrived and medical aid was present he didn't talk about seeing officers rummaging through mr pappano house car the allegation is that the officer discharged her weapon in fear then searched his vehicle got lucky enough to find a weapon hidden in a zippered pouch under a blanket on the passenger seat that happened to be registered to mr pappano and retrieved it mishandled it officer burke says with the pierce county sheriff's department they were the investigative agency and he responded as backup that is not attributable to officer heilman and brooks and hymens testimony is consistent with respect to where the gun was found at the time of the incident prior to burke's handling it right you've got over your time i let you go over your time i appreciate thank you thank you