keep our eye on the clock we'll try to help you but ok i appreciate it the appellant's position is that this case appropriately went to trial following denial of an m s j there was no appeal filed and the reason it appropriately went to trial because there were disputed issues of fact and some of those disputes included what shocks struck mysteries that whether mr reese was  holding or brandishing the knife in a threatening manner towards deputy rose whether he was advancing when he shot what was the distance whether there was an immediate threat of death or serious injury to deputy roles at the time the shocks were fired and other factual disputes as the quarters where the case went to trial and not only did the federal jury permissible when the officer believes there's a threat of serious physical harm so that question seems to go to prom one of the qualified immunity issue it was their constitutional violation but i violation of a right murali says that is for the judge to decide and that it should be based on factually similar cases that you disagree with that i do not disagree well i in agree in part i do agree and i think there's been a lot of cases recently about qualified immunity and about whether you need a case on all fours or not or similar facts as you're so well the supreme court has told us and no uncertain terms that we should be looking and they've they've reversed us numerous times that we should be looking for a case with closely similar facts yes so i believe the answer to question fourteen goals both to the first and the second problem but it doesn't it doesn't tell us anything about case law so i'm not sure why i had to as well the reason the second prong is supposed to be according to our allies is to find that as of march twenty seventh when occurred there was a case fairly close on point and we said moralities the judge has to find that was the reason it does from the plaintiff's perspective is because this this is somewhat unique because we're looking at the second prong of qualified immunity post jury verdict and so we have to assume that all the facts in favor of the plaintiff and there is numerous cases not only were they were factually not particularly close which fact which case do you think is actually the closest well i think they're all important for the following proposition we have deadly force and the courts told us not to look at general proposition say says look at the circumstances the factual circumstances of the case they've struck us down on numerous occasions for for doing  principle but the point is is that all of these cases involve weapons guns and knives it's clear in the law was clearly established you cannot shoot someone merely for seeing a gun in their hand or a knife in their head you can go are very sympathetic but which case is on point i would say every single case that we cited in including in the rule twenty eight so harris is the ruby ridge sniper case they were a mile away when they pick the man's wife i mean what why is that factually similar if you're asking me if i have a case with similar facts to someone who is in their apartment and they're knocking  yes sure that was as soon as he opened the door he shot within a second that shot missed him he retreats into his apartment having committed no crime at this point he drops the knife well the jury didn't find that sad they couldn't see even i well that's a reasonable inference and we have to take all the reasonable in but that's a fact and at the cherry but it's a reasonable in the not summary judgment where after trial i know but i believe your honor that we have to take all reasonable inferences to support their verdict and so they may have disbelieved deputy rose entirely that he ever saw a knife at all deputy rowe said he was hiding when the door was open and if he saw a knife one wonders why he'd wan that distance deputy rose himself admits he never saw a knife so from our position every single case that says you can't shoot someone just because you see a gun or knife in their hand there has to be an immediate threat that governing here because there was no immediate threat to death but you rose i think mr reese testified that he only heard one shot which seems to support the district court's observation about the fluid nature of the events and i think deputy rose testified something like it was a millisecond when all of this happened so doesn't this sort of create this instantaneous fluid events that occurred so it's not necessarily something that's long and drawn out as it seems to appear in the brain well i don't think i can answer your question did it happen over a relatively short period of time ye however i think there was significant time at least two seconds perhaps more in between the first shot and remember deputy brownlee immediately observed the threat and stopped that's why he only fired  because he saw the knife lower he saw mr rhys stepped back there was no more threat two seconds later deputy rose approaches and without seeing a knife at all without any advancement any command any warning shoots him in the chest from three feet away in his own apartment yep but yes with respect i think you know i i understand these kinds of cases a great empathy for the victims  excessive force but i also am very much aware as my colleague has pointed out the supreme court is chastised our court repeatedly and well as other courts for not seen things from the perspective of the law officer on the scene in the milliseconds involved and when there's been a brandished man which clearly occurred here with the knife in your client first came out and you indicate it was very quick as a matter of second course you know anybody that's been in a frightening situation your adrenaline is up these officers with the brandish what you can see why they would feel that they were under threat we don't know what rose saw exactly and i think the jury found that  unless i'm mistaken so aren't we stuck with the fact that for the framed supreme court's first back to they say that only a most incompetent or reckless officer would not understand whatever law governs here in this case he comes out with a knife that's clearly a threat they really would have a right to do something there if frozen didn't see him drop the knife and i don't know what evidence there is of that couldn't he reason to believe that they were still under threat to the knife is a dangerous weapon it's a dangerous weapon but without seeing it and we believe that it was dropped and not in his hands and without a i respect that i understand what you're saying but i'm saying from the perspective of the law enforcement officer again we're talking seconds a guy comes out he's got a knife the first officer clearly thinks they're under threat he goes in he maybe is on the floor but does russia know that and if he doesn't know that isn't he entitled to shoot i would say no what case would you cite for that well i would one of the cases i would cite as one of your cases that case was six years after the eighth and sally well as something that we can you can read and i agree with my colleague on that as well but the point is the cases that are cited for the law being clearly established in that case  understand that and in this case and the lopez ever raised they are the whatever was there got in this case though with respect council you've got a man with a knife  guardsman really clear if there's a brandished a law enforcement officers if they feel threatened they have an ability to protect them so that's why i respectfully disagree because i do agree he opened the door everyone agrees he had a right to have a knife or gun in his hand he didn't know who it was he's in his own house it's four thirty in the morning he shot within a second i don't think the jury ever found a blan anybody he had the knife visible they said it was someone in an elevated position but when they were asked the specific question did he brandish that knife at deputy rose either generally or in a threatening manner they said no officer on the scene in that second whether he in this case perceived threat the matter with the jury i think it does it clearly does because the case well the jury clearly established an act as defined it another case may i may i make three points because i see my time is dwindling away first of all on the bay now and the one of the things that i think is going on here is that the issue becomes attorney fees could be obtained either by the fourth amendment or the ban act there the judge seem to to i don't want to say ignore that might be too strong of a word but again there was an opinion written by judge smith on the brain act that in two thousand and thirteen that basically said a fourth amendment violation i believe it was cameron  violation there was a follow up opinion of child three and then our twenty eight letter we submitted a recent opinion from the court of appeals all that say a fourth amendment violation is a bane that violation so we believe the jury instruction given to the court jury was correct on that and the brain actually be clearly reinstated we also believe that the training of the officer when he admitted himself that he knew you can't shoot someone just because you see a knife in their hand and there has to be an immediate threat of death or serious bodily injury under drummond also adds to the analysis that the law was clearly established we simply feel that the defense has failed to create i understand the arguments i understand the thoughts they were made to the jury and disregarded we don't live with the evidence with respect to the section four seventeen conviction ok so i'd like to address that briefly if i may the allegation was he brandished a knife on this brittany shurtleff this is the witness that they wanted to have come to trial that didn't go to trial the the four seventeen plea had no victim named it's the  plaintiff's position she was the victim of that for seventeen which is supported by the record in this case that he had a knife when he had this prior encounter with her there is no evidence that says that conviction was against any particular deputy it's their burden under had the humphrey to establish that in even if that did occur which we believe the jury specifically found it did not we still don't believe it would have precluded the finding here because the question is what happened in the split second when he opened the door is different that what happened two or three seconds later when ro shot in fact the jury may have discredited rose's entire testimony because they're the ones that are judging credibility good morning honors me please the court my name is john white fleet i represent deputy rose in the county of sacramento i want to briefly address the two issues the qualified immunity in the ban act that are  appeal by mr rose and then the cross appeal issues and i want to highlight certain aspects of those but basically because the qualified immunity issue is one for the courts to decide the real issues is in two thousand and eleven was there case law that existed that put this officer notice there wasn't and the case that we cited i wanted to focus more on the the period between the judgment and today that both parties have submitted to this court for the additional cases that for the courts consideration let me ask you this question most of the cases that we unfortunately think about excessive force different situation here where in fact judicial process this is got to go to a jury it went to a jury the jury made certain findings is our analysis of qualified immunity post trial post jury verdict the same as it would be under peers and pre trial in essence your honor i would go back harken back to the sauce here before the court had talked about first you decide the constitution issue then you decide whether the law was clearly established i did in the order that we can and now that now the order is gone and  are from our perspective it's really a matter of was the law clearly established because assuming a constitutional violation as as a core pointed out of assessing force then the question is was that the on before a trial unfortunately we see that all the time it's really quite unusual for us to see a case where a case has gone to trial a jury has made a determination of certain critical that may indeed bear upon whether the officers position was reasonable and now the government is coming in saying well you really can't consider that because there was no case on point at the time so what i'm looking for is some help on whether we apply the same analysis trial that we do pretrial and i'd like you to give me some case law that would buttress your position  the the jury only the jury can decide the disputed factual issue is well only the judge can decide whether the right was clearly established once the factual issues are resolved and i believe i believe that's essentially the same position we have here and finding of  force and then the issue of whether the law was clearly established so i for me and the n l analytical framework doesn't have any difference because the way i see the idea that the disputes of fact have been resolved and then a large majority of the court's decisions are going to find a dispute of fact before qualifying meaning unity can even be decided and so now that we have those facts result i'm going to agree with my colleague which is that  at this point proceeding we rely upon the jury for a determination of the facts but it's the judge's call whether or not there was a case on point to put the obvious or on notice and even at this point if decision in woodward vs city of tucson but now published at age seventy f third eleven fifty four which we provided to the court in our rule twenty eight j a letter is fairly on point as well and because that one it was a stick that was being brandished over the head and the court found qualified immunity in that case and the other cases that plaintiff relies on are simply too fa distinguishable to be able to provide this court with any guidance under the facts of this case so for example plaintiff cited xi'an versus county of orange and that case the officer shot eighteen times nine of which were occurred after the suspect was already down on the ground and prone and there was some video that contradicted the officer statement and so in the end where there's a dispute of fact that doesn't help plaintiffs in this case because there is no case at the time that said that was an appropriate it was just a dispute of fact in that case your honor in terms of the but i would just say we have case law now which we do makes it very clear disputed and this case of the officer is a little unbalanced and he perceives threats all over the place he's been there so the military got p t s d and he sees somebody who thinks they're taliban person he shoots them and i have any threat at all is that ok and that probably would go back to the weather a reasonable officer would believe that's an objective standard and obviously a reasonable officer perhaps wouldn't perceive those those instances and so  milliseconds and then heard the shot and then turned into the doorway and was surprised to see mr rhys there i saw in the in the record that i think in response to defense counsel's question to officer rose the question being when you saw him that is mr rhys standing there on the threshold of the door you did not see a knife in his hand would you agree with that and officer roach i would agree with that and he went on to say it's because he never saw his hands so he never looked in that area because his focus was on his body and where his hands were at the time and so in the end the jury found han the in the in the millisecond that he took to evaluate whether he was still a threat or not he believed he was because he couldn't see anything and you go from this to to this unit can you tell whether there's still a knife in his hand or not really the jury found that he rose didn't see his hands so he wasn't in a position to be able to see whether he had a knife or not well and similarly officer brown testified that he only and he said said this he only fired one shot because from his perspective after he fired his shot the threat stopped so how do how do we evaluate those types of statements and testimony in the posture that we're in here from the different perspective of the officer because deputy brown was twenty thirty feet away had a clear view of  could see him after the shot fired retreat debbie rowe's didn't have that vantage point and so he seizes the knife coming through the threshold sheers the shots fired and then just disappears in that millisecond rounds the corner of the threshold the door and he sees him still standing there three feet away and that's why deputy brown's vantage point doesn't necessarily mean that deputy rose didn't raise the perceived threat so sections we believe that the district correctly determined that once the correct analysis was there had to be some independent action of threat for which is that was intended to interfere with a right what was the constitutional right here the the right to be free of excessive for i would assume that would be a fourth and  and so what do we do with the language in camera and be krag which says there's no california right different from the rights guaranteed under the fourth i'm and so the elements of excessive force claim under the pain act are the same as under section intended act to interfere with the right and  the cornell versus city account of san francisco was a recent california appellate decision and i think it's important to look at that because that case actually found that a specific intent is not necessary for the officer to  eight the right that was it and from our standpoint the fact that the fourth amendment is a passive right not something that somebody exercises per se was but something that inherently enjoys and the idea  that that cornell case now is saying that there must be evidence of a specific intent to violate that right means that the district work can be affirmed on those on the basis is something the the interpretation of the pain act is if excessive force is a something that we should certify to the california supreme court because there is now there's really no california supreme court guidance on how the brain act applies in this context particularly when it's only excessive force and because unfortunately cornell is also an unlawful arrest and appointing of a weapon which is akin to the robinson case but it makes the distinction between search and seizure versus excessive force the manner in which the seizure occurred usually isn't it is a connection with an arrest so here there is no issue about on awful arrest on lawful seizure and this is just an application of force and so i believe that in order to effect the state plain language of the brain act requires the necessary independent act for six hours searched vehicles hospital test found a drug negative and then he had ended up getting fired so the court easily found that this was there was some intimidation and threats to to of the brain act requirements separate element required is their right i would disagree your honor in terms of because that that one was about an unlawful arrest and the pointing and so that's why there wasn't this independent act really about the cross appeal there's two issues we want to address that the argument that the four seventeen conviction and sentence barzee act and here's why we think that the issue about the victims being the police officer is because the only evidence in the case was that the victim was deputy rose that was the only testimony that knife was raised in italy after the  conviction as i understand it the conviction the original charge was a two forty five c which is is actually against an officer the second count was a four seventeen which we would submit it is just a secondary up to forty five c and so what happened to the two forty five c it's not in the record as it's part in just in terms of the docket the criminal docket is it is but it's not the ultimate conviction correct and so even with the evidence that you state is in the record with respect to the four seventeen conviction is that sufficient to meet your burden here it is your honor and in so far as as the how can the conviction for seventeen be reconciled with with the jury's verdict of saying he did not brandish the weapon at the deputy rose and so we have a conviction for brandishing and a jury finding that in our view is simply inconsistent the last issue