all right we have three cases on our morning docket i think counselor from the lighting system one of the thing i'll say is that the panel has read the briefs are familiar with the background so you should use your limited time by diving right into the argument and with that our first case is morrow versus meacham we'll hear first from mr james whenever you're ready sir please the court and good morning my name is david james i represent the plaintiffs  the surviving family of austin the twenty two year old who was killed by defendant ethically jonathan each other during a police chase in texas this is from summary judgment on the issue clearly established law the district court correctly included the plaintiff's evidence could convince a jury that meets him use of reasonable deadly force because man posed no significant threat to anyone but they just court erred and they clearly established law affirming here would effectively give police at least license to deliberately kill a fleeing suspect so long as that suspect is exceeding the speed limit in a motor vehicle what is your best case that there's a previously clearly establish block the material distinction the material facts of a dead man robot were that the police and brow down from one hundred miles an hour to forty five miles an hour in about nine seconds and then swerved in front of the oncoming cycle so essentially he turned himself in the roadblock very similar to the whether to what extent that's a swerve versus an attempt to sort of narrow the passage of the motorcyclist on the left or the right hand side that i mean that's a question that we can determine ourselves looking at the video just like a truck or fact is that is that the standard correct needin the most cyclists that stopped and then resumed and that was how the motorcycle us was approaching from it's i'm sure when you say stop you're talking about the time of the guest at the gas station he gotten off the bike i guess it was hiding behind him i don't know if he got off the him on one in three and so is that is that theory that for the appellants that it would have been it's it's on the police officer to create a non deadly and road block you know and since they're going hundred fifty miles an hour a space you'd have to have a long empty stretch of road to create a road block to allow the motorcyclists perhaps to perhaps to stop at the new roadblock or perhaps to turn around and go the other way and flee a third time but what was the police officer supposed to it's it's not really before the court for these questions i wanted to finish what i'm curious about i don't think it really affects the outcome but i don't see anything in the record about why moody blues wouldn't stop in the there's something about he had warrants out of the things you'd alternative basis for the holding was that the deadly force involved kind of shooting at the vehicle in an area where maybe a few mr going to hit a house or somebody i think that that automobile as opposed to other cycle i don't think this case turns on it being a motorcycle if anything the motorcycle militates in favor of less danger because it's got less and less i think because in the litle against barrack nanny case it was a force i think an officer of course with a gun knows they're using deadly force there is you know the defendants argued in this case maybe that he didn't think he was using deadly force but the objective gather a branch or something it looks like a maybe it's a surveillance video or something you can see the police officer go by at one speed and then you see that motorcyclists go by it another speed and i don't know if we have exactly know how fast and as it was going to lose a lot faster than the motor  it and we saw we do know that at one point moving was going up two hundred fifty miles per hour but the objective evidence from the actual collision shows that most he was going under didn't at that point in this case it's a seventy five mile an hour zone so speeding we agree speeding is bad but the the officer here testified by given the conditions in this road maybe on hundreds and you can drive safely so i think that when we're just talking about fleeing we're just talking about this bead on this road and basically perfect weather conditions the evidence shows that there is not enough said repeatedly that a consensus of first ways of authority clearly established law and in this case you know those those are decisions dating back decades so i think even in the absence of jamieson in the y that go the other way it's a motor spoiling motorcycle case it does involve a motorcyclists an avenue your honor but that motorcyclist was intoxicated on that and that i mean he had run a stop sign and he was  i don't understand exactly from the decision about he's he's trying to pass vehicles even on a sharp turn and had collided with police officers during the chase so all of those i think any of those indifferent independent factors would put him  record of page twelve thirty genuine issue material fact existed for trial as a matter of this there was the trial court actually did did not adopt the recommendations of the magistrate relative to the merits of the claim and basically said i don't need to address this because based upon the second based upon qualified immunity summary judgment is proper therefore i don't need to died in it so there that was not a finding by the trial court there was a genuine issue of material fact relative to  relate so as a relates to kind of why we're here i believe that you can you ask the judge open i believe what what is the best case that the that the plaintiffs have the cases that i have are legion and they're out of the supreme court and this court you've got more nicks which i think i believe addresses the qualified immunity standard and it also addresses a case involving a high speed chase and ban the use of deadly force and in that particular case the court said the court is that never found the use of deadly force in connection with a dangerous car chase to violate the fourth amendment let alone be a basis for denying qualified immunity but in me in  suspect who's in his vehicle and is intercepted with of with a rifle a police officer shooting from an overpass had said on the nine one one call or a phone call the police i have a firearm in the vehicle so as the officers were making the critical decision to use deadly force against the suspect they thought he had a firearm turns out he didn't have a firearm if i recall correctly but they thought he had a firearm and so doesn't that go to the reasonable miss of the decision of the police officer to use deadly force think that he needed to use deadly force to respond to a deadly threat is the enemy yes ron i agree if that's one factor that that was applied and more next but if you look at the case molex also addressed the other cases that are very similar to this case including the scott versus different but there's a common theme and that's high speed on the roads that poses a threat that poses an inherent threat and an inherent risk to other members of the roadway and if you look at all the cases have a consensus of other thord from other circuits that that support the plaintiff's argument in fact what you have is direct case law from the supreme court and this circuit that in fact a group pretty much established that this offers on top of the qualified immunity but not only entitled to qualified immunity and this is where i think the kind of the two standards kind of interchange in this particular case the officers conduct was objectively reasonable based upon the existing precedent relative to two dangerous pursuits you had this week and i don't want to get into the underlying fact disputes relative to whether or not officer meachem new moon was behind him whether or not he knew the exact speed because we don't have to do that i can take the plaintiff s evidence as true that's what i'm supposed to do in the in the first think inquiry or in the analysis and what was known is that and what is undisputed he was going fast he had already passed other vehicles on the shoulder there were vehicles there were there were innocent motorists on the northbound lane of one eighty three that were in the presence of this this event so you had a guy go real fast on a motorcycle you had the presence of the essence of innocent bystanders and universally the cases that have had those facts have not only found that the officer had qualified immunity but they found that the officer actually acted objectively reasonable and  not violate the plain motorist constitutional rights and all that in the case law says that any time any time a speeding suspect destroying on a traveled road that the officers are able to use deadly force danger to two potential motors on the roadway and then because now you've got a balancing act and it gets under speeded but the first dr of the the balancing test for reasonable is is the seriousness of the the underlying offense correct and what the courts have focused on when they're talking about in here it's it's you're on a roadway on a in a in a vehicle or a motorcycle and you're going really really fast and it's it is of you making and so now the officers are faced with a scale split second decision they've got to they've got to weigh the interests of the the innocent motorists that have been put in this position by the by the actions of the three motorist you know who's going to lose in the violation those are legal questions for the court to consider so assuming assuming of course that the that the there that the facts dispute is not genuine i mean there's got to be a genuine issue material fact and so in that particular case i believe in scott and then in thomson versus mercer the courts basically said look we're not going to get into a hey is this is the is the public is or is an innocent motorist a hundred feet away a thousand feet away are there fourteen of them are there twenty of  them they look to basically again they go to the inherent danger is this are they on a roadway or where the motoring public is and they don't get into how far and how or how many but do they exist and if they exist you know there 's not really a fact issue that was that would be genuine to make something like that go to trial that would be basically there to the officer then that the officer did his job and that job is to to that paramount public safety what your position is in reckless conduct and reckless conduct meaning going very very very fast with an innocent members of the roadway present that the that lethal force to terminate that pursuit is constitutionally permi e and so and that's kind of where we are relative to the question i believe again general and you you asked does do the cases that address high speed pursuits in the context of a vehicle apply to motorcycles in the abbey versus coach opinion without of the fourth circuit that was a that was a motorcycle case and in fact the the court said there is it's a distinction without a difference as a matter of intervention technique is high in either circumstance the motors they were throwing to was that lingers i mean it's a distinction without a difference as a matter of fact motorcycles motorcycles are can be a lot more dangerous than an actual vehicle because they can go on a lot faster they're a lot more maneuverable and they present their top paedos but work the risk to the motorcyclist between a precision intervention technique as you call it is much much higher than it would be to someone driving a pickup truck right i mean you can bump a pickup truck off the road you can disable a pickup truck you can stop a pickup truck at a roadblock you can put rumble strips down and stop them a pickup truck but if a motorcyclist it's a rumble strip one hundred fifty miles an hour there's going to be a issue is not the issue is not  intent of the officer relative to the damage he thinks he's going to create is not relevant and i believe that is written to the constitutional analysis and i believe justice scalia and scott even said that whether or not the officer intended to kill the individual when in terminating the pursuit is not relevant to the constitutional analysis because deadly force was applied regardless of the intent the issue is is it objectively reasonable to terminate the pursuit even if that means de force is applied and so we can get into and so deadly force and the base look at the wrist i mean to give us that you look at risk and hope ability in the risk is much greater that you're going to kill someone in a motorcycle than in would tell you i think that would be a worse result than what occurred here because now you've got a bolt it's had an innocent motorists i mean so i think you know would he be entitled qualified immunity if that happened you know probably because again there's there's first of all there is there is not there are no decisions that place what occurred on june twenty fourth of two thousand and fourteen beyond debate relative to the qualified i mean there are a handful of circuit decisions involving and you know i'm asked this year you from the other side from other courts involving police officers in passenger vehicle and green individuals on motorcycles where the police officer bumped a motorcyclist off the road didn't kill the motorcyclist but cause serious injury and they're all said and done in the appellant's brief and recognizes are out of circuit cases but his point is this is a consensus there aren't really any cases that say where you you have no reason to think that the motorcyclist creates any risk to the public other than the speed right there's no gun there's no threats there's no outstanding warrants so the speed is the threat that using deadly force is is unreasonable but in this case yes the speed is a threat and also the presence of in a similar sense in the path of the the speeding motorcycle which again to me that that brings this within the context of not some circuit extra circuit decisions that may or may not be different that have different that pattern but squarely within the the holdings of the supreme court and relative to the consensus standard it actually it's constitutional right can be clearly established by decision of the united states supreme court or this circuit or in the absence of controlling authority by consensus own your point about it's always reasonable for a policeman to situation where there is controlling authority that would somehow obviate qualified immunity for an officer placing the situation i mean they addressed prior in the mall next decision and said there is no controlling authority here that would that that an officer should that is placing the issue qualified immunity or the actions of the officer beyond debate but what they do establish legal proposition that you cannot use deadly force simply just a motorcycle going really fast you have a motorcycle going really fast on a roadway that is occupied by innocent members of the probably also two attempts to enter bean before the deadly force is applied so i understand you don't necessarily need that legal rule but yes i mean i think to judge dave's point he that you need more than simply driving really really fast to justify that deadly and your honor that may be the case i mean these are difficult these are difficult cases they're difficult questions as a matter of fact the courts recognize that the hazy back but i believe that the language is the hazy backdrop of of addressing these high speed pursuit cases in the relative liabilities of the op the officer may face when they're faced with these circumstances and that's that's kind of what we have here  upon the particular circumstances of this case i mean that's the standard that the courts apply what does that mean and in real life and practice i mean that's why we're here they are never going to be endemic and you know that i mean what what in your right you honor a kind of what you do is ok what are the what were the circumstances that led to do to them all to the lawsuit or to the circumstances that gave rise to the claim you know what was going on and the courts have to analyze they've got to dig deep into the facts to address it  but what the courts have done essentially is said these are factors that we're going to look at to determine the reason most of the officer's actions and one of the factors as you know who created the problem you know the fact this was a routine traffic stop to begin with is kind of irrelevant to the inquiry because now this is no longer routine traffic stop stop this is a we've got to stop and what may on a motorcycle it's going to hundred fifty miles an hour and we don't know why he didn't stop he could have he could be a murderer for all we know we at this was that was an intercept that was a road block the where they they said they set it up and i agree not to me how different is that from what we have here where the officers arguably pulled in probably prevented him from patching only and i mean if issue so again that's why when you talk about controlling authority of the consensus the consensus is only in the absence of controlling authority here we have controlling authority and so you know with that case be decided differently now here i don't know but that's a factor to consider but what we do know is this what occurred what resulted was was was deadly force it wasn't a road block but it was a collision the courts of has said have said even an intentional even intentionally trying to stop a vehicle even intentionally trying to stop the pursuit does not constitute a violation of the slain motorist constitutional rights under these circumstances an assault on which sometimes it does well your honor i would agree but in this particular case i believe that the facts are sufficiently close to the rulings by the supreme court and this circuit relative to high school speed pursuits that would place that that would place the circumstances of this case squarely within the there has been no violation of constitutional law and and and clearly there is no controlling precedent of which jonathan each of should have been aware that would deny him qualified immunity in this particular  thank your first the district court explicitly adopted its entirety the magistrate judge is reporting recommendation that's on record page twenty one seventy seven and the defendant specifically objected to try to change the ruling i think counsel also just described and the court held assuming without deciding whether the financer correct it would not change the outcome so it needs to have the material questions that would give fair notice to reason the officer and in this case we have that authority we have brower and jameson and more recently the lidl versus a our county case went on could go to trial because the evidence supported that violation counsel absent referred to a legion of cases i heard mullin explained often scott as we address in the briefing all of those was two specific threats to police officers and the driver was approaching police officers who were trying to stop him without killing him so the supreme court even taking the  that officer had fired the shot then this person who had threatened to kill police officers was about to be stopped right in front of police officers and then climb higher but doesn't that cut the other way in the sense that they had a rumble strip underneath the overpass in my own x so they were going to stop the vehicle and as i recall that surviving you stayed over there the fleeing individual in that case said you didn't need to shoot a with a rifle from the overpass because you were already going to stop the vehicle there's no way whiskey was going to survive and so i should he was going to survive there is no way he was going to be able to continue after going over the rumble strays yeah exactly so the point was stopping is not enough to end the threat in mono mix because if you stop him and he's alive and his threat is true he pulls the gun and the officer who the dogs on the overpass knows that there's still an officer underneath where this rumble strip is so essentially the ramos trip would give him the opportunity to make good on those threats so the reasonable ops are going to conclude that the threat would not be in data unless that they force was deployed more concerned with this specific threat to actually try to kill people which was no there's no indication that moon was ever trying to hurt anybody there was no there you know and spun off they they were pete they were saying look he's there's all these factors on top of the speed so those are not far from controlling authority those are kind of the ceiling where an officers are probably more likely reasonable not just in the murky area whereas