thank you for the opportunity to address the court this morning for three years while preparing this case the plaintiff relied and frame their case strategy around as your honour's are aware from our briefing alexander versus city and county of san francisco and billington v smith the ninth circuit's provocation theory and you now know that that rug has been pulled out from under you by the supreme court now well aware that i feel almost literally the rug was pulled out from us with regard to  court did say and we had actually yesterday afternoon arguments in mendez i mean then i would if he knew that i wasn't aware the same case in which the k issue is the issue that was left to break your case into it timeframes if you will and i want to understand the effect of your concession there's a concession that the last fifteen seconds the police officers acted reasonably is that a fair statement of what you said i don't want to use the word unfortunately judge but clearly that was our strategy for three ok a strat is that so let's put it to litigation strategy that that come the case comes to us in that context like i said i still distinguish litigation  which is what's left in the case tell tell me why the police officer's conduct during that period violated clearly established law so i believe that in the record there are many it doesn't have any particular reason to stop it but he's heard there's an accident he before he comes to the car he runs a plate and it doesn't match the car correct he then asks the driver of the car for registration the driver doesn't have says he doesn't have registration he smells marijuana coming out of the car things proceed a second officer arrives it's discovered that the person in the car has switched the plates it's discovered that the person in the car has a suspended washington license and all this takes less than an hour so i'm trying to figure out what constitutional deprivation occurred during that hour now in the last fifteen seconds something violent happens but  you as you said you made the strategic decision not to focus on those fifteen seconds so tell me what what the constitutional violation is that occurs during everything but those fifteen seconds i will but i just want to state to the court that we did take that position blome district court i'm not so sure that we are forced to take that position now well and i can well it seems to me you can't ask us to reverse the district court because you've changed your mind  the district court made a ruling based on a position that you took and so it's therefore difficult for us it's difficult for me to say we should say to destroy he's changed his mind now go do it all over again but so for purposes  question you can come back to your second point tell me what was wrong with the encounter constitutionally wrong with the encounter up until the time of the shooting yes sir i took the inflection of your tone your honor as though honor the hour here are approximately forty eight minutes right so i was not was not a long time and i would argue strongly that it was a very long time even though they're investigating they think they may have a stolen car they then discover that the guy in the car has not been telling them the truth about various things he has a registration even though he's told them he doesn't have one they think there's marijuana in their car he tells them that he switched the license  plates surely there's some period of time that they're that they're allowed to investigate this now of course your honor being a former assistant u s attorney there is there is time and for law enforcement they need to know whether a crime is afoot and whether or not they need to detain they learn that relatively shortly here based upon the officer's testimony you may have done something different i may have done something different as law enforcement but these officers testified  own that for a moment some of the time they got there alex was never leaving that morning but now handcuffs and the record clearly supports so what's wrong with that once you find somebody with a car appears what appears to be a stolen car and he can explain why the plates are not he can't satisfactorily explain why why he's driving a car with plates that are not for the car well but what i believe your honor is wrong with that is that this was an example of this case of law enforcement no that they were going to arrest someone even for something that he didn't do but what they thought he may have done and didn't do that for the sole purpose of trying to get further incriminating statements you suppose you're right that all that i still don't understand how after mendez and given your concession about the fifteen seconds and i know you think we should be bound by it but let's a reasonable officer would have used less intrusive means in the last seconds when the when the farm was spotted by law enforcement so you're going there for your case depends on now on lifting the concession about the last fifteen seconds well yes or no i'm not being bound by that because everything happened before that it is because you're not making any kind of proximate cause argument i mean if you car up here and said well look i didn't know about the proximate cause argument i thought i could get by with a well i thought i could rely on provocation so i want the alternative but you never you haven't done that to this day so therefore i don't see why anything about what happened up or no answer in other words in your case at this point all we really should be talking about in all we should be talking about is whether you're bound by your concession on the fifteen seconds because if you are you don't have a case well let me answer that ok thank you well if i'm bound in the last fifteen seconds that with we said that the act officer's actions were reasonable in the last fifteen seconds for purposes of  the decision and the appeal factually that still is something that we would argue would be a problem before the jury we can stipulate i've had cases that i've tried where we've stipulated and juries  and that goes to the that goes to we would argue there that that the court is now if you if the court's making decisions on facts that we believe we're serious all and france's can be drawn to reach different conclusion x or mr court not disputed we have it we have a videotape of what happened and so the question is whether or not under the immunity doctrine because this is in one thousand nine hundred three case it is there's some clearly established law that would have led these officers to know that they were acting on reasonably so i den and what we have is a guy who takes a gun out of a glove compartment the cops may have acted too quickly after they were told not after he was told not to it down that they can't resort to deadly force hum i'm going to answer right away i don't have that case but i do have facts that i strongly disagree with your honor's conclusion on them and i would ask for the opportunity just for a minute to tell you threaten anybody and was and the only evidence was they told her drop the knife and she didn't and that was determined to be within the qualified immunity privilege because there was no case in which a similar thing that happened right and i don't i don't necessarily agree with this account second of all he was specifically told to get out of the car he got in the car he was told not to get caught for the gun and he went for the gun so what would the police think the police thinking that he was going to use the gun was unreasonable why else was he going for the gun that's what i'd like to answer if i may why we believe the facts create inferences really inferences based upon the testimony that when he went back into the car he was told not to go for the gun he was also told not to go in a car right and they let him into the car five times but that's what he said don't count my car and he got me let's talk about the last fifteen seconds as you've instructed me to do alex goes ahead and he wasn't told to hand on the marijuana bottle either but alex goes ahead after the officer said don't touch the gun he goes ahead and takes the marijuana pill bottle and hands it to the officer after he was given that instruction argument is in alex's mind there's inferences for a reasonable jury to conclude that he was then going to hand the gun to the officer but the one player says after that don't touch the gun disoriented and specifically said alex may have not quote understood unquote well you officer said at that point it's a great it's a great jury argument i take all this is true my question is even if taking all that is true once a suspect reaches for a gun after being told not to whether or not he points it at the officer and then is told again put down put down the gun and doesn't do it give me the case that tells me that the police act on reasonably at that point by using using deadly force that's what the supreme court tells us we have to have a case to some level of specificity under those facts it's as deadly forces and reasonable clearly the dissent set forth in the case to be candid this court the ninth circuit tried a different approach to these cases and was told by the supreme court don't take that different approach and so that's under all that occurred while this case was on appeal obviously but that's that's the difficulty with an argument in my view i understand and i don't want to be here arguing against the supreme court we can you can't with all due respect to the court but i can do whatever i ha inconsistent statement one other time and that was that we said at one point in this brief that these facts were not in dispute that's what something i'll have to deal with this is a trial lawyer i'm arguing before the court now that i'm not i'm not don't like having to do that so you see the larger problem is that you made that concession for a reason the reason being that it's probably right that's probably well with all that i mean everything is a trial lawyer saying that after twenty two years of alexander that i felt comfortable that the best way for having credibility in front of a jury would be to not talk about the last fifteen seconds ok thank you very much and thank you for your argument thank you for your hono minutes and then i will yield five minutes of our time to mr johnson and i will keep track of my own time for that there are three principal reasons why the decision of the district court was correct first as the court has noted the estate conceded at the district court and in its opening brief that the use of deadly force was reasonable not just the fact that the as he just said fifty years of precedent was reversed and therefore the legal premises on which she was operating just appear affect the viability of any concession i believe that the concession does affect viability viability of the claim so i what i do believe that the concession stands here it affects the viability of his claim the claim does not go forth and i will point out that the district court even with a concession in the opening and even with a concession at the district court in their response to the summary judgment the district court analyzed this case under gr analyzed this case under the provocation theory and it found that the shooting was reasonable kind of focus on your client for a second yes he was not the shooter no i'm having a hard time figuring fact that he was there at the scene that he was doing what that he was the fact that a deputy terrifying or was present at the scene he didn't have any role in the actual fatal shooting correct he was there for cover right i mean but he didn't he wasn't wrestling with the gun he didn't he didn't shoot his weapon now your honor he was part of the detention that led up to this point in time but so it once we take the provocation theory out of the case even if we only focus on the last fifteen seconds and ignore the concession i had a hard time figuring out why your client is responsible for what happened in those last fifteen seconds i understand why mr mcdevitt is responsible it may be blameless he may not be but i know how many a hard time focusing on what your client is responsible well i have two clients that the sheriff's office right right but you but you are sheriff's office liability flows from in this case i think in this case found that absence of a constitutional violation correct do we need to for that you can address either prong you can address the qualified immunity that there's no clearly in court told us we ought addressed a qualified immunity prong i right in thinking that and i've watched the last fifteen seconds for more than fifteen seconds he seems to just be still just standing up there yelling as opposed to doing anything that applied to deadly force  that's correct there's no there's no allegation in this case that they that they planted concert to use deadly force that's correct your honor so maybe i should have asked mr graham about this but i'm having trouble trouble yet just i'm just looking at this record it is my understanding and forgive me if my understanding is a bit brief on this but it's my understanding that when an officer is present at the at a scene where there's a use of force or something like that the ni potentially liable for the constitutional violation of the for example if they were a set of officers there and nobody gave a warning so therefore all the people who didn't give a warning knowing that there was a possibility of the shooting might be liable but in this instance there was a warning i mean it seems to me what really happened here and the reason why nobody's focused on this is that the provocation theory assumed that what happened before the shooting everything that happened before the shooting this court has recognized in the supreme court has recognized that an officer may conduct inquiries incident to the traffic stop the detention of mr may injury you know was reasonable from the inception of discover croes argument is either they should have if they said if they wanted to arrest him they should have done it before hand or they should've let him go i'm not i'm not buying into that argument but assuming that's his argument what your response my response is that this court said in united states v turbaned that a driver does not have the right to be released the instant the steps check his license his registration and warrant and to write a ticket to have been completed and this court is also recognize that an officer is entitled to continue to make inquiries when he is add a traffic stop when the suspect is giving inconsistent invasive misleading statement any reasonable suspicion of any crime right i disagree your honor when they won't when they went up to him to begin what for your honor before they check the plate before that report police officer check the plate before you approach the car before you check the e car that mr miranda reno is in to check and see if this is the car that he believes may have been involved in this car accident that was called in to shoshone county dispatch before he got out of the car he radioed dispatch and asked them to run the plates on the car when he returned to the car after observing the car that it was not the one that was involved in the crash that is when he learned that the license plates that were displayed on the sign on were not those that belong to it in response to mystery injury no that it was mr post rats mark post rats and mr ranger you know had no response to that if you want to give your colleagues some time yes thank you so much for your time about the concession and the impact of that what i'm going to start with is the fact that the district court in this case correctly analyzed the case to graham and held that there was no clearly established right constitutional right officers had acted reasonably and what i want i don't we why shouldn't we on appeal ignore what counsel now says he was she hadn't done which is make this concession why shouldn't we address the case and merits that's exactly what the district court did is that addressed it on the merits as judge present just pointed out the district court didn't focus on the concession even though it was in the brief mention it didn't mention it so it focused on the merits and what i want to do is take a minute to go through the material facts that really the court focused on first and supported by all the case law the officers had to react in a split second second this is unlike some of the other cases where they resistant when he was twice told to move to the back of the cylon and ignored those those warnings and i understand that that's not a basis for them to use deadly force but that begins to start is further in cooperation when the asked him to move to the back told him to move to the back of the car as he left to change though and he way had not legation to follow her orders he has a yes he does but he can passively the point is is that the case of passive resistan because he has no means to be detaining me so you have to be resting on the fact that there was at least a basis for keeping him in well sure and that's very stop the sense is that what you're saying well yes and even though as you point out this did start out as a traffic stop there was a reasonable basis for the detention and as the as as the judge has pointed out this was actually forty minutes thirty minutes of which to mcdevitt was there and if you do the timeline on this thing you will see that the prolonged time frame was the police officers essentially said we knew we're going to arrest him much earlier on in the transaction and we then when the shooting occurred even if you assume that there's no constitutional violation or have a right to be arrested they had a right to continue their investigation based upon what mr mannering a was not telling them he was not telling them the truth he was making up stories as he went along we don't know why that is the fact that is the fact that he was making up things as he went along you know and i want to continue with this you know when the pistol is observed ok and you know we can argue about i think one of you said that well maybe they didn't act they acted too hastily that's not the case at all there was no towards that pesto as it is if you touch that pistol be the last thing you ever do and i know he's going to get to that not only was there a warning not to go toward the pistol but the but there was a warning as to the dire consequences would be if you did he becomes mr mattering to becomes actively resist it when he refuses to comply ignores or does not acknowledge that order and you know it isn't like there's if you look at the tape there's probably about a seven second lapse before he when he's transfer in this what he claimed to be the marijuana in his pill bottle to the officer and you can see when that glove box is first opened up deputy definitely or takes that kind of a as ready stance he puts his puts his right hand on his weapon doesn't draw his weapon at that point neither one of the officers pull their guns and shoot mr mannering the soon as they see the pistol he's given the warnings he's told don't go near the pistol he's told what t reno he ready some self trooper mcdevitt doesn't draw his weapon and shoot mr mannering even though he's now got he tries to he acts with great restraint he tries to disarm me by lunging into the car and trying to wrestle control now there was testimony that the weapon was pointed toward on several occasions toward trip mcdevitt face or body and he first is successful in pushing the weapon away points based upon the questions that i heard in the answers given mr mander reno was killed based upon the tape that you watched at eleven forty eight and forty one at eleven forty eight and forty one seconds with ten seconds earlier if you listen to the tape as you did i did had to listen fifty times to what i'm about to tell you now the plaintiff's position mcdevitt was heard saying do you understand me to mr may in the reno and mr main to reno says no now mcdevitt says he didn't hear that  i don't know if that's what was said or not and let's assume that's ok and second so that's the case and listen to the tape and it's not clear to me who's saying no but it's an inference judge ok so fair enough so your client says the police officer says put that in effect put down the gun or off to shoot you do you understand me and he says no and keeps the gun in his hand why does why does that change the calculus because because i have somebody now doesn't he doesn't even understand the order and that's why the the plaintiff's case which we believe can clearly be established on the inferences that just like the pill bottle that mr that trooper mcdevitt did not ask for mr miranda reno voluntarily took it and handed it to him and that's what mr mander reno was doing with the gun and based upon the physical evidence if you'd watched the video depositions of the transcripts you would see as we put in a footnote that it wasn't was there any language problem here i don't i don't i need to as an officer of the court i do not know of any like there was more there were long discussions before that clip clearly clearly but that doesn't change what occurred in that heated when mcdevitt was saying what he said as your honor pointed in the record ok that makes me more obvious than that i mean i if they said otherwise i'd would not as i said before i don't know why his obligation to follow their orders was but he was pretty obvious that that some there was some sort of violation so all these cases about how long one can keep somebody to give a ticket for a traffic stop don't seem to be very helpful in a case in which the cascading set of events tell the police officers that somebody has got marijuana in the car he's got a suspended license there's misremembering i never said he had he had no marijuana in that well the police officer said he smelled marijuana correct yes and and and he switched license plates yes sir and he under suspension so there's this cascading set of events is not a traffic stop to investigate a violation of the traffic rather to investigate what he appears to be a very suspicious situation agreed in my last statement is but it's a cascading set of events that law enforcement put in place to get more incriminating statements when the suspect knew he wasn't free to leave as they've testified and they testified that he wasn't free tonight thank you very much thank you thank you