fifty six in the court below and again my client miss ariano williams has brought certain claims against the city of chattanooga and the defendant the named defendant police officers on behalf of the minor child j shots that is correct your honor in that this is a case where we have engaged in extensive discovery and as we develop the case in discovering it in depositions we determined that the first volley was justified under the facts of the mr eagle the deceit it was struck by at least one shot during the first volley this is the ridiculous question how many shots are in a volley more than one and we used both my colleagues he went up on his on his toes still for drop the pistol and then that's when we get into the ten second lapse of time between this first volley in the second volley now and the second know that any of the shots were not fatal in would not have been fatal it was the subsequent second volley of fire when mr eagle was struck by between another five and six rounds those were the ones that we've determined and again based upon the coroner report that's in the record those were the shots that were fatal ultimately fatal to mr eagle went up when your when mr eagle dropped the pistol what were your client what do you contend were the pistol was at that point our position on that based upon unhelpful to the court what we saw you have to slow it down that all the evidence you've got the video the video the boston ender's testimony mr diedrich suttles he did put in an affidavit as to what he saw we have the testimony  officers at the scene we have when we look to the number of rounds that were fired and again we focused the court's attention on the second volley where the rounds were actually striking we had rounds striking the ground there was or underneath him that's what we have we have determined and when you look at the bystander cellphone video admittedly it's grainy it's hard to follow but when you do slow it down there are certain frames of that video that mr eagle is observed raising his but said his with his arms forward are they on the ground is he prone he's still on the ground he again you have to you have to look at each one of i understand and you've done that we have it in you go back in you'll see him he's kind of on assad in somewhat of a fetal position and then of course again the video's moving around and you slow it down to that it goes back and you see him looking forward you actually can see his head you can see him looking up in his arms or in front of them almost like he's in a push up position and then they move forward and then the shots are fired and we're now he's got the pistol where the pistol would be near him or underneath him that is correct but there has it's not in his hand and from mob viewing of the video in the court below even concluded that a reasonable drawer could find the mystery girl was not holding the pistol raising the pistol or getting up with the pistol because when you go back to the officers initial statements that they gave after the incident the officers were testifying that mr eagle was getting up with a pistol and drawing the pistol officer griffith and that is why they justified the second volley however the video contradicts that so too does the eyewitness account of  in the most favorable light what what do you say hey since we're here all rule fifty six and looking at the evidence in the most favorable out of the on moving party i think the key question here for purposes of rule fifty six with regards to whether or not these officers enjoy qualified immunity is to whether or not their belief there and again we have to presume that it's a mistaken belief with regard to whether or not mr eagle was getting back up with the pistol well he did not have it in his hands we presume that he did and we presume that he wasn't reaching for it so the officers mistaken belief that he was the question is was that reasonable and could the trier effect find that it was unreasonable for the officers to think that because of  reasonable jury the reasonable jury could conclude that the officers mistaken belief was an reasonable and again we go back to the garner case and the cases that have followed in the years since garner a mistaken belief in reasonable does not the officers that have been sued here fired that weapon had that bullet hit the disabled i know that all of the officers that are named fired their weapons now whether or not each individual officer struck mr eagle i do believe that's an open fact question invited to shot one a very good shot and went over his head as a civil rights violation you think  well your honor of the force was excessive and mr eagle was fired upon certainly i still believe that that could rise to a civil rights violation however when we get to the question of damages if any of the individual officers could establish that their rounds did not strike mr eagle certainly that would be a defense that the individual officer could raise at trial and that would go necessarily go to the trier of fact we're not there yet we're still here under rule fifty six we do know mr eagle was struck in the second volley but somewhere around six or seven rounds as he lay on the ground are all of the rounds the same caliber no your honor there were a belief three of the responding officer had a ar fifteen platform style assault rifles and then to the other responding officers had their side arms their pistols and in i do believe the coroner's report indicated that both types of rounds had struck mr mr eagle and in we go back again when we when we look at the reason oneness of what that was the officers believed or perceived the analysis is that the court has to look at each individual officer and what each individual officer perceived at the decision to use to use force and whether or not that was reasonable based upon the facts and circumstances of the case again our position is that it's an hair it's an inherent fa question and i say it's respectful of the court below but i do believe that the trial court improperly weighed the evidence here and got into making certain determinations based on the evidence and witness credibility determinations the child has even developed his own theory of the case of what could or maybe was doing at that time in respectfully again to the court below that's not the court's function at the summary judgment stage and again we believe the please the court my name is janie varnell of the hamilton county tennessee bar i'm here to argue on behalf of the individual officers in this case presented a half minutes my colleague film city attorney phil noblitt will argue for the latter half of my time of art our time for a map of the city of chattanooga this court should affirm the district court's grant of summary judgment because they did not the officers did not violate a clearly established right their actions were objective lea reasonable considering the totality of the circumstances and they are entitled to qualified immunity the district court in this case rendered a stop there because does it maybe business is right i think it might narrow to whether the firing of the shot can be viewed it was objective only unreasonable the firing of the second shot i mean if we take a gel it down to the last most a sink issue it's whether or not shooting the second shooting was objective really a reasonable would be so viewed that is correct a jerk but let me say we surmount the other hurdle that one has to be surrounded by the plaintiff here yes yes you are correct in that and and i think in order to lead up to that issue i think there needs to be a discussion and a recognition of the totality of the circumstances in this case while it is a totality of the circumstances analysis and we should focus on the seconds immediately preceding the second volley of shots we also need to focus on those facts that form a basis of an officer's conduct and decision that they that he makes to use deadly force and that includes the facts that happened prior to the first volley and i can explain why before the first  have a an intense standoff between these officers and of our eagle for over fifteen minutes over forty commands to drop the weapon were given to mr eagle and as the district court correctly found m eagle would we would routinely drop the weapon an officer would leave his cover position and then he would pick it back up again this happened multiple times as can be seen in the record in the court found that then when we have a situation where eagle goes back into the apartment for the final time and his daughter is left in the court in the court yard sergeant churchwell then again leaves cover goes to grab her turns his back on him court can look to mr eagle's pattern of behavior when it comes to deciding the the reasonableness of these officers and their decision to use deadly force on the second volley  hers where they present at the time that decision was bringing his daughter picking up the gun of all that stuff i believe the testimony by the officers was by the time the first shot was fired every person every officer was on scene they may not have seen the mr eagle running back and were raising the weapon but they were present for the first volley of shots so then after the first of shots mr eagle goes down to a fetal position during the ten seconds of time that this plane if would have the this court hold that mr eagle ceased to pose a threat we would say that the district court was correct your clients when they testified to the effect that he was no longer a threat after the first round to look i saw something like that on the record i don't i don't believe that to be a case to be the case here respectfully judge i believe they testified that once he fell to the ground he he he either dropped the pistol some even thought that he still had it on him some thought that it will and as the district court found did that would allow you to do that makes that makes the argument that no juror could say that it's unreasonable for the police officers to shoot him or i think when determining whether this was reasonable what we have here was a ten second interval of time and if you listen to officer cobbs in car camera footage the first volley of shots happens at twelve a six and zero seconds at twelve o six and seven seconds we start to hear yelling on the video and this yelling it starts at seven seconds and then gets louder and louder and louder for the next three seconds until the second volley of shots during that ten seconds which officers at the same officer who pitched the child that goes in approach is you know you're on it  the ten we still have action going on within the ten right is that within the ten yes so after griffith i don't i don't know at what point after twelve minutes or twelve a six and zero seconds that officer gryphus starts to move but i know that once the second volley of shots goes off he is within six feet of mr eagle so he's begun to move we can tell has right and so what we w goal to did they testify what his purpose was his purpose was to secure the weapon because once the end circling back to judge versus question the yelling are they telling him don't move it's it's hard to make out what the yelling is because officer cobb it's his microphone that's picking up everything and he's yelling get the gun get the gun get the gun is there any testimony that any officer told mr eagle don't move not that i can call no no sir i think anything to that effect i think the testimony was don't do it somebody said don't do it somebody said drop the gun somebody testified to saying he's got the gun some they were from the perceptions of these officers he was either making a move to get the gun he already had it and he was raising it this dramatic movement that these officers saw formed the basis of their split second decision to fire in the second volley and respectfully that is exactly the type of decision that qualified immunity protects all this time  decision was on the ground that were likely that he was on the ground in the fetal position after the first volley and some time immediately prior to the second volley of shots he does a direct dramatic sudden movement going from a f position to essentially on his stomach with his arms stretched out forward and that's what i mean was he doing a push up or not it's a push up which would have him elevated him it's sense to get the gun i don't or is he stretching out to surrender i wouldn't say he was stretching out to surrender and i think that the case law is clear it must be a a clear measure of surrender i think rush the city of lansing holds that but i think that this dramatic movement can't be understated because he literally goes from a fetal position to on his stomach and shoots his arms forward and directly in facing  that's within six feet of him and when you go back to the pattern of conduct of mr eagle before this drawing that officer out of cover and then grabbing the gun again we think that you have your point thank the chattanooga bar the chattanooga city attorney at this point time i represent the city of chattanooga and i'm also the attorney for three of the individual officers in connection with this case officers mitchell mosse chris palmer and jock weary there were some questions your as to what people saw when they got there this incident was going on for about fifteen minutes officer boss and officer weary were in different locations they were there early on the scene and they were observing the actions of barrio eagle that day mr eagle actually called and dispatched the police to this location was making incoherent statements officers of all testified in their statements about crazy statements he was mike in there at the scene at a district court have have looked at  not use that weapon to hurt other officers and that is something that police officers have to be careful about when they're proceeding towards a person to try to secure the threat the threat was still there in the possession of mr eagle at that point in time the court determined in connection with this that none of the actions that we're showing on any of the video evidence in this case establish that that gun just went flop and somewhere else in connection with this matter and it was not available for him to be able to use so that that was the basis for the determination of whether these officers were acting objectively reasonable or not based upon the to tell me the circumstances how far were they from the decision when he was shot to say well it got different officers coming from different directions all of these officers are having to independently determine officer where he was in one direction over to the right officer griffith here was closest to them and in fact officer moss was trying to proceed forward as well as officer problem palmer at that point in time officer mahsa ended up having to shoot a forty five in three directions off the side because he was so close to the location of officer griffith at that point in time and they were concerned because they thought their sleeve destroy a threat coming in their direction there's no question in from the officers testimony they perceived a threat at the time they fire their guns in the second volley is as you're aware though the to scenes argument is or his his survivor say why didn't you just leave him alone you taunted him you know he got fearful the argument was hey should have not approached him what about that argument i know that the officers make the argument you could have let him bleed to death and that would be an officer argument of a violation under section one hundred eighty three that we had failed to render aid to someone who was in bad condition we tried to make sure at least if someone has been hurt or if they are still a threat because this is occurring in the courtyard of woodlawn homes location in chattanooga mr eagle had called people to that location there are numerous people that are still in this area the child has been removed at this point in time there are cousins and there is mr  dendrites last name here the fellow that was taken the video in part who is off in the distance as well and you have to be careful about whether that gun would be used as two others so that that was something that these officers were having to deal with at the time this incident occurred they actually rendered aid whenever they got to him they actually provided him medical treatment there at the scene and then he was taken on the hospital when he were ever he succumbed where these officers and th probably about ten or fifteen feet so it was closer than that distance on there to close it and the other officers were behind them moving forward trying to secure the weapon at that point in time and you know we had a couple officer there was some question about the types of weapons used  here they had a couple of officers officer weary and officer were using forty five pistols officer palmer we had a two to three assault rifle at that point in time that was moving forward in this process there is testimony in the opinion quite heavily between page fourteen and twenty of the district court opinion that talks about how the officers were doing in reviewing whether there was some type of reasonable force utilised by all of these officers in connection with this case i do think it's really important that you look at the time and we dealt with this quite heavy at least with the video evidence that was involved in this case johnson and mcfarland a gate on scene about twelve o six and they had actually fired because he was approaching officer churchwell as he was trying to retrieve a child from a situation where the child had actually been held up with a gun very close to her in connection with this the video established is that at the time that that said the first  i was just wondering how you would distinguish that case from this book the issue i have looked at in most of the case law of reviewed is the aspect of whether there is a threat or a potential threat of someone it's obvious that you cannot just go and shoot someone who has not got access to a weapon or the ability to retrieve a weapon or be some sort of danger to the police officers the concern in this case is that the officers all perceive that as did the court and because it is the determining factor the fact that there was a gu by the by the the say didn't or before he was a dissident he had a gun in his vicinity is that the determining factor here why your officers get qualified immunity i believe that the fact that that gun was accessible that it was available the officers testimony also there was movement i take it it's a combination there is some movement by the now shot victim there's some movement with the argument that nobody knows that the gun has been removed arguably that's the problem so the rule for future cases if we were to adopt your theory would be any time someone has a gun in their vicinity and there's a any movement after they've been shot they will  will be qualified immunity and clearly the officers were trying to tell this person to drop the gun not to do that at that point in time they were disregarding the officers orders i don't know what else the officers ability is under those circum just having trouble not seeing that as a jury question i'm just you're trying to make it a bright line rule i think i'm trying to deal with the aspect of it being the totality of the circumstances on what they had observed as did the judge in this case and he had observed m eagle do similar activity earlier in the day that was part of his ruling the fact that the you know these officers are they are in observing this guy basically when he's told to drop the gun he'll flip it out there and the officer starts trying to come up to the scene and then he runs and wasn't shot obviously he was not shot into those circumstances but the concern of these officers after the band was charging towards another officer and the child at that point in time when the first volley went off his ability to be able to use that weapon is there available to him so that that was the concern of our officers at least at that point in time now the concern of the court and you all had a bunch of i guess expert proof submitted in the record in this case was that basically there were all sorts of things that potentially could be an issue for the i guess the the the city's novelty in the office or your time has expired oh my yes man it only just did but rebuttal your honor and to clarify what we were discussing earlier when you go back and you look at the video he goes from the fetal position moves over to that push up position then he moves his arms forward as he's getting shot the officers that he dropped the drop the pistol there was testimony that this was observed getting the ground and bouncing i mean that's all in the record and then again when you look at the bystander cellphone video you don't see him raising up with a pistol and when you compare what the video shows to what the officers initially testified that was the basis of their justification for shooting him there is a contradiction the qualified immunity doesn't require there that they be correct of the circumstances right in it and the gun being cannot be said to be inaccessible to the deceiving right that i mean we all agree that the evidence has not eliminated that the opportunity to get the gun again that is correct but again i think when you go back to the factual analysis and looking at if the officers belief was mistaken was that mistaken belief reason reasonable right and they were in an open court yard in the middle of the day the sun was out and that you this wasn't in a darkened alley this was an open court yard and when you look at the fire response we look at how many rounds were fired where those round struck again that's indicative of a reckless response this was not coordinated you had officers that were oster griffith was in the line of fire of his own officers was it from mr eagle shooting at him it was from his own officers also griffith testified around struck near his feet and he had to jump out of the way and we had rounds that struck the back part of the apartment i think that was a door or a window frame that had a bullet lodged in it will he have officers trying to shoot a man on the ground clearly they're not you know something's not that they're not lined up they're a lot of socks off or they're not you know aiming at him there's a discharge and in i think if you look at a tally the circumstances this is one that should be decided by a jury should go to a jury in resolution of this case and rule fifty six three would decide that it was unreasonable for anyone to fire at this individual at that time where the gun eagle at the time you shot the second valan reasonable yes that was unreasonable to shoot him because he was not raising up with a pistol holding the pistol or otherwise brandishing it or threatening others with it we'd know it was a pistol right yes or subquestion about back up and then this all culminated in the shots at rafah in the first volley in the ten seconds he's on the ground second volley is fired and when the weapon was recovered at the scene it was still jammed and the slab was locked back in  sword or if you know again this was not it's not in the program we only need it to what happened what's worrisome is right there during the ten seconds right that's where we are yes your honor that's where we are and that's where i think ultimately this has to be decided and i government will study the matter carefully you'll see an opinion in due course thank you and with that we will be able to