please the court my name is david abney representing the appellant's my heart sank a little bit when i heard you were all three former prosecutors and then i realized that was pretty foolish on my part because you have been the proponents and opponents of photographic evidence motion pictures video tapes and videos and you know better than anybody else that the evidence doesn't just speak for itself it has to be interpreted and here the point is that's one of our basic points who gets to interpret it it would be the jury when reasonable people can differ about what the evidence shows and here i submit to you the reason people could differ about crucial points in that videotape is to exactly what it showing at the if we go forward to the eight minute and seven nd mark or so in the video and just before that we have dylan getting up from being tasered and then stumbling forward but where is he going is he is he trying to edge or around the wall to his right is he heading toward the police officer doesn't even know where he's going at that point reasonable jurors could say well he could beat a trying to attack the police officer  and what a recent police officer should have done under the circumstances is something you really have to take a lot of time to figure out that means really it's the fact finder has to look at that video has to play that video over and over has to play it at regular speed at slow speeds as frame after frame whatever they need to do to make sure that they understand it and my colleague across the aisle says well that's unfair to the police officer because he doesn't have the time to look at things in slow motion but we're  looking at this in hindsight what we're trying to do is have the trier of fact reconstruct as well as possible what a recent look police officer should have been perceiving and it takes it takes a lot of effort it would probably also take a video expert to try to  to improve the video so that is closer to reality but you may have noticed after you when you were seeing the video that it's one of those fish eye lens of sorts a little bit distorted at the edges yes let me ask you this is that the supreme court recent years casella which is the green court case where our th circuit was reversed in a case in which someone was holding a knife an officer shot the person in the knife holder stepped forward that seems to me a very bad case for your side and so i want to hear from you because we have to write something in this case we have to write something to explain why we think you're right or why we think you're wrong and we've got to deal with the supreme court precedent so help us understand why casella is not the bad case for you that i can guarantee opposing counsel says it is oh it's a miserable case and the death but the difference here is that we have a video we can actually see what is going on and the jury can see what's going on and try to understand exactly what a regional police officer should have been perceiving what a recent police officer should have been doing under those circumstances it's certainly important that this young man is moving forward with a knife in his hand but here we have an opportunity to try to reconstruct those events and take an unbiased view of what the police officer was doing me when he got up from the tasing knife still in hand i take it is your argument that he may not have been going towards the officer who fired the rounds restaurant that he may have been going to turn the corner yes you're on it wasn't there a police officer there know you're on and the individual's hand and took the knife away no he was he or he was just getting to this is just before he got to the scene and he's off to the left he's behind officer her not fernandez confiding so he's not he's not an actor and is a whole at this point  it's just the two of the police officers and the video so let's say we disagreed with the district court's finding that everything that was done was reasonable but up held the dis records qualified immunity finding by saying that there's no case that would put the officers on notice that their conduct violated the constitutional rights of mr liberty so let's say statute what would you point to as either the wrongful act neglect or default that caused mr liberty's death i'm glad we're shifting a bit into state law because if i had been in charge this case the beginning would have never moot would never put a federal going man because you get the qualified immunity defense and it gets very confusing and very narrow but looking at state law the st point would actually be at six minutes and seven seconds when officer bailey out of the neglect that that can't be negligence so you're left with wrongful act or default as i read the arizona wrongful death statute and as i read the ryan opinion so what would you point to as the wrongful act or default that could have been responsible for the death of your client that would allow for liability under the arizona wrongful death statute ok the initial one is the six minute seven nd start the kicks opinion it says on page six thousand two hundred and sixty two dollars of the reporter the only claim supported by the facts here is an intentional battery which macdonald deliberately neither pled nor tried to the jury and they would never they had some sort of theory going that they had to do negligence and i never figured out why it's really the is the intentional tort here is what leads to the wrongful death case what specific intentional tort or torts assault battery wrongful arrest ok and were those advanced by you to the district court in opposing the motion for summary judgment and your papers to the district court point out that either of those or any of those three things those three intentional torts that you've identified just now were reasons the district court shouldn't grant summary judgment on the wrongful death claim issue right there i was made that under state exist there were still existing causes of action no matter what i understand that did you argue to the district court that any of those three intentional torts did you use those words either false arrest  or battery or the rd one that you mentioned that those were reasons why the wrongful death claim survived in the district court should not grant summary judgment to the defendants know the lawyer was not that specific but he did say under state law we do have a cause of action and it's just on a reasonable this is you use any of those three intentional tort descriptions by name in your opening brief to us i i talked about the wrong statute and right i have but did you talk about assault battery false arrest by name in your opening brief history and i believe i did and if i did if i did and i was it's subsumed under the wrongful death act i know we talked about it in detail the reply but i believe i did in the opening brief as well and that's the point here is under state law we have a situation where as in them and in this case there comes a point where the police officers have done something that kicks off the final result that it's the proximate cause and under arizona law all you have to do is contribute just a little bit to that final result dillon's behavior comes in as a comparative fault kind of defense in arizona you can have the comparative fall effect you're required to compare the fault of all parties that are involved in an event like this even if they're committing an intentional wrong and they're saying of course dylan was committing an intentional wrong by supposedly attacking the police officer so under state law i guess there is there are claims that need to go forward under simple wrongful death theory there is a claim that needs to go forward because you have these events starting off at six minutes and seven seconds that just well two minutes later result in a fatal shooting and if those events at six minutes and seven seconds had not happened a reasonable juror reasonable jurors could say there would have been no wrongful death and that is the crucial part of the case the other part of the case of course is what happened  at the at the end but that you know that's that's a subject for debate why the police officers grabbed is another mystery to me they can repeatedly said to him sit down sit down sit down but he's a citizen he's allowed to stand if he wants to  stand who wants to sit on a hot pavement and on a scottsdale summer nobody and he didn't he didn't tell us why he didn't want to stand and most people didn't want to sit most people would probably just caved in the police officers and sat down but the st six minutes and six seconds of this encounter are are extremely important for what they tell us about the credibility of the police officers and about don't themselves he's clearly under the weather he's clearly a little bit distracted he's clearly a little worse for wear ology report shows substantial use of methamphetamine right it shows that there was a large and i think the wording was a large amount of amphetamine methamphetamine in his system but there was no expert testimony at all that said with this level of metabolite at any particular point in the past he would have been acting out of the influence of that drug to the effect that it would make him wild and uncontrollable there is a huge change in his a fact though after the st six minutes and six seconds and then the attack and after the attack it's night and day and if you ever if you ever find a case where somebody has been scared out of their wits they have scared this young man out of his wits and and he's not reacting well he's at the at the end he's pacing he's upset he's angry pulls out a knife of the stupidest thing anybody could possibly do and what is he going to do with that i mean he is he is going and it all started off at six minutes and seven seconds and i've got about less than that so i'd like to reserve my time it please the court lorri davis and i represent the city of scottsdale officer fernandez the an officer bailey in this action from the officers perspective that's what this court is charged with analyzing the facts as known by the officer corroborated the belief of the officer and through the officer's perspective well that's what were charged with looking at in part on qualified immunity that's correct not you not on the state law justification etc the district court never ruled on the district court found that that no reasonable jury could differ or that the conduct of the officers was reasonable and at the hearing and that the transcript reads a little strange but if you look at the context of the conversation that was going on at the time the court was speaking and counsel was speaking in terms of a reasonable miss analysis and qualified immunity which i think was the clearly established but was was using synonymously clearly established counsel i obviously wasn't there and i have the transcript and i don't see anything in the transcript that could be reasonably interpreted as plaintiff's counsel saying if we lose on qualified immunity we lose plaintiff's counsel said the state law claims i think i think they'd survive on a reasonable in this theory so the district court said no no the everybody agreed that if you lose on reasonable notice you lose on everything i just don't see that it was in context i'm not here to argue the transcript you didn't in your brief and i agree that the transcript does not read well for that but i also  will agree with the court that that was the flavor of the conversation at the time but when it was translated it didn't come out that way irrespective it doesn't matter if we're looking at the state law claims the only state law claims raised in their complaint are negligence and wrongful death based upon that negligence and you keep right in on that judge bennett when you were talking about the assault and battery claims were not raised in the opening briefcase certainly were not even if they were and the one thing that is in complaint there are some descriptive terms of assault and battered and false arrest and false arrest sure but the claims themselves were left out the original complaint had an assault and battery claim the amended complaint left that out  we have the initial disclosures under the mandatory additional disclosure project that also asked the plaintiffs to outline their legal theories the only legal theory theories outlined was were negligence so i  colleague if we were to uphold the qualified immunity finding not on the ground that the actions were clearly objectively reasonable but on the ground that there is no case that would have told the officers that they were violating the plaintiff's constitutional rights why if we were to make that finding what is your argument as to wrongful death based on a wrongful act under twelve eleven that we that we should affirm the district court's findings since the since the district court went on a different pronk of the qualified immunity analysis well i think the analysis as to whether or not the officers conduct is justified or not is is markedly remarkably similar to a reasonable ness analysis and i think the court would extensively went through from the moment of detention through each use of force that the officers actions were reasonable i think perhaps look at the conduct it's that they're accusing of one wrongful death it is the firing of the weapon which is an intentional act but ryan it strikes me leaves open the possibility that if for example the wrongful act  which causes the death of a person is say false arrest in a proximate cause sense and i'm not saying that that this is a finding that would be made but if the district were to say there was a false arrest and that proximately or that could have proximately caused the death because it's set in he said in line the set in motion the events which are alternately led to this tragic shooting why wouldn't that be possible under ryan well st of all that's not the facts that we have here the district court did not find that there was a false arrest i understand i've actually and that and if that but if if we were to say there were facts which could justify a claim of false arrest and that that could be found by a trier of fact to approximately cause mr liberty's death why would that be barred simply because we upheld the district court on the federal claims based on no case giving guidance to the officer at a at a specific enough level judge bennett i am not sure i'm following you with this because we don't have a false arrest situation in this case and i think that that is  or default and so you can have a wrongful death claim based on either the negligence in arizona correct you can but that's the only part of the claim that they raised the the only thing that's in there committed complaint  factual allegations that the stop of mr liberty was without either reasonable suspicion or probable cause i mean they make those there are those statements in the complaint and in the in the operative complaint i mean specifically paragraph sixty one have reasonable suspicion of criminal activity afoot that would justify absolutely the physical force used what your colleagues trying to force mr liberty to sit down so that would be with with regard to the detention itself there the officers had reasonable suspicion that mr liberty was certainly not well they believed him to believe be under the influence of mind altering drugs which in toxicology was proved to be true that he was on methamphetamine his aunt also confirmed that day that she knew he was on meth and was the highest he's ever seen him other people saw what these officers saw that corroborates their perception that he was jittery he was pale he looked like a drug tweaker there are many things many other people corroborated so at this point we have to to problem to stop we have a terry stop and we have a community caretaking stop at this point which the officers had reasonable suspicion for both under that point mr liberty and to ask him questions what was there that justified the use of force to make him sit down i mean i looked at that video and it seemed to me that in general he was answering the officers questions he gave his name he gave gave his address there was a little confusion over to me like the officers thought he was giving a false name when he when he said his last name was liberty but what was there that justified the use of force to make him sit down clearly the your honor the officers were exceedingly patient with mr liberty giving him six minutes where they tried to engage him in conversation which progressed into giving commands because he was making them more and more concerned for their safety and for the safety of others because this is a busy shopping center right after five o'clock there are people coming and going from sprout so they're becoming concerned and graham tells us that an officer is allowed to use a reasonable amount of force in an investigatory stop and i can't imagine anything more reasonable than placing your hand on another person's arm she didn't punch him she didn't tase him she didn't do anything at that point other than say sit down and when he pulled away he resisted he escalated the situation by resisting and so everything went up from there and the officers to their credit were progressive lee using everything they could to the least degree that they could at the time they were responding to a person  school they were responding to both a nine hundred and eleven hang up call which was it became a welfare check yes and when officer fernandez got on scene a patron flagged him down and said i know who you're looking at he's been pacing in front of sprouts he looks weird something's wrong with him and so that's what got there antenna up and further laying eyes on him to see yeah this guy's not well right now and so that's part of their community caretaking function that they  are concerned about his health and that's very clear i think from the on body camera very clear they're concerned about his health they're concerned about the safety of other people and so that's what they were doing at that moment to detain him and when he refused to sit down voluntarily after twenty two times that he was told to do so the officer said all right you're moving around too much i need you to sit down now the other important thing i want to make sure that i see my time is starting to  endell away i want to make sure i do cover something the only thing that planes council has brought up with regard to there being a difference in crucial points in viewing the video is the idea that he wasn't reading toward the officer he was running away and that's the only thing that i've been able to identify from their briefing as well to see that that's the the one crucial point that a jury needs to consider so i think your honour's need to consider that number one in the hearing below plaintiff's counsel admitted that he was carrying a knife that he was running in the direction of officer fernandez to fight who by the way was the officer with the gun pointed right at him so in less than two seconds time he gets to his feet he runs with the knife towards officer fernandez in the direction of what they've admitted to was it reasonable for officer fernandez to believe as he stated he did that his life was in danger was it reasonable for him to believe that was it reasonable then for him to have believed a reasonable police officer to believe that had he taken that right turn around the wall there that other people lives would be in immediate danger a busy parking lot a busy center we have several eyewitnesses to the shooing shooting there were people there would it be reasonable for an objective officer to have believed that that was a danger and if the officer fernandez was wrong that he wasn't headed toward him isn't that a reasonable mistake fact and i think that the court the united states supreme court and casella as well as she hand are instructed to this court that this court should find this conduct reasonable we have erratic behavior we have disobeying commands we have a deadly weapon and we have mere seconds to assess the danger and the action that's necessary and i think every step of the way from the detention to the application of force to the pursuit to the taser to the deadly force officers who responded as reasonable objective officers would respond now i want to wish want to what a couple other things very quickly since i don't have a lot of time the idea that and i think i pointed this out in the the motion regarding the video clips the idea that a jury needs to study this video and they need to watch it over and over and put it in slow motion and freeze frame that's exactly what the officers don't have the luxury to do in this moment they had to every act and that's what us that in circumstances that are tense and certain and rapidly evolving these officers have to make that decision like that and if they're wrong they could lose their life they could become seriously injured and under tennessee versus garner i think it's very his weapon which is the operative point that the court must look at the moment that the weapon is fired and at that point and if you watch the video officer fernandes to fight he takes two or three steps back and was tripping on a bush had he not done that when you watch the video over and over again in slow mo with your clerks you will see that mr liberty crossed over where the officer was standing reverses hoyt tells officers they don't have a duty to retreat but it's very clear that this officer did not want to have to rivet resort to deadly force he was compassionate with this man from the beginning of the stop he wanted to get him help and unfortunately mr liberty escalated the situation to a point that the officer had no choice but to fire his duty weapon so we believe that under the totality of the circumstances taken from the perceptive of the reasonable officer on the scene from an objective standpoint everything these officers did was reasonable  slice at his throat and says kill me shoot me in the head something to that effect gets up and runs at the officer after the officer fires again on the ground he begins slicing at his neck and on autopsy six slice incisions into his neck and one gash that's an inch and a half deep and thank god we have the on body camera video regarding this event because originally plaintiff said we planted the knife on him and it was just a stick and once they were able to look at maldonado's video it was conclusively shown through that video we have an actual knife and this was deadly force that was justified thank you very much  my colleague across al talks about the luxury of being able to look at the video and actually i think it's more of a duty for the trier of fact to look at that video to try to figure out what happened certainly the police officers at the scene are not seeing things in slow motion they're not having the opportunity to replay the events before the act but the trier of fact has got to figure out what happened and the only only objective witness we have is that video we have this object of police officers talking about what they did and what they perceived they talk about what he was trying to circle us before we grabbed him he was trying to edge into our space and surveilling at one point said well we got to sit down because we weren't sure why he was running away from us so the video rebuts many of the things that the police officers put in there are subjective reports but more important it is stablish is wrongful acts that result approximately resulted in a wrongful death that six minutes and seven seconds the police officers attacked this young man they did not have the provocation to do that they can tell him to sit down if they want but he doesn't have to sit down if he doesn't want and he chose not to and you can see from the st six minutes he was he was contained he was  quiet he answered the questions that they gave to the best of his ability when they didn't understand his name he spelled it for them he gave his correct date of birth ninety two the officer wrote down ninety three you can see it right on the video and when she got that wrong he corrected it for he was doing everything possible to be polite and this contact with the police the one thing he didn't do it in want to sit down and so at the six minute seven mark he gets of the qualified immunity analysis i think it's clearly established the police officers don't have the right to shoot people unless they recently reason to believe that they're in danger how could that not be reasonably established by all the cases that have gone forward graham versus all the other say the same sort of things that any police officer should have known we would submit that it was unreasonable to shoot now a reasonable juror jurors could look at this and say you're full of baloney mr abbe no what we see is a police officer acting completely reasonably and doing what he does but surely it would be i would think it would be hard to find jurors who would say that grabbing dylan at the six minute seven mark that started off down this path the proximate cause that led to his death two minutes later is is what the key event was and it would qualify under the general rubric of wrongful acts this is not a negligent kind of death this is not hoops i pulled very much your honor thank you very much thank you to both counsel for your argument brief in this case and i want to thank the audience for being patient as this case was obviously the one you were here for not for the swimming pool case and i appreciate your patience that we called you last with thank you very