to mr smith are you ready to proceed with your argument i am your honor thank you and good morning your honor as alex smith for the appellant nicholas wade this is an appeal from the district courts erroneous grant summary judgment to appellate on qualified immunity grounds thereby dismissing mr wade strobl claims for excessive force and deprivation of medical care in granting summary judgment to a bally's the district court failed to take the facts in the light most favorable to mr wade and failed to draw a reasonable inferences in favor of mr wade which demonstrate that a reasonable jury could conclude that a pelleas conduct violated mr waits constitutional right now i'd like to focus today on two of the district courts most clear errors and that relates st to mr wade's clan against investigator jones for the use of excessive force and pistol whipping mr wayne in the head and mr wade's claim against investigator daniels for the wrongful use of deadly force and shooting mr wa against a suspect who is not resisting arrest posing a threat to others a jury could conclude that no reasonable officer would have believed that investigator johns could have used grievous extreme force and pistol weapon mr wade in the head that's  because it was undisputed at summary judgment that mr wade was handcuffed disarmed and that he'd been shot three times including once to the head when investigator jones pistol what's mr wade the facts taken in the light most favorable to mr wade show that a reasonable officer an investigator judges position would have known that mr wade posed no threat to the officers and that he was not resisting arrest warrant in the use of grievous force  you the court rely on the fact that he stood up and used his hands to free himself and the fact that the car had not been cleared of all of the weapons and another factor that we take into consideration is the severity of the crime he was wanted for the murder of a child of the lady who was in the car with him and the car had not been cleared of all he used grievous force against mr wade and drawing all reasonable and princes in favor of mr wade is of course the district court and this court is constrained to do its summary judgment shows that investigator jones was close enough to hear mr wade's plays with investigator b h that her restrain on his head was causing him to to suffocate on his own blood and thus that investigator jones would have known that mr wade was not posing a threat by simply sitting up so that he wouldn't suffocate on his own blood investigator daniels that he saw investigator be to remove the shotgun from the vehicle and handcuffed mr wade so therefore we know that he was at least within the vicinity of the vehicle and then mr wade and his declaration submitted in opposition motion for summary judgment stated that investigator beach began to purportedly render medical aid and that he was playing with investigator beach to remove her hands from his head so that he wouldn't suffocate on his own blood he states that when he sat  up so that he wouldn't choke on his own blood this investigator jones then immediately hit mr wade in the head with a pistol so therefore it's certainly a reasonable inference that this court should draw that investigator jones was within the immediate vicinity of vehicle when mr wade was playing with investigator beach and of course doesn't have to be the most probable inference for this court to to draw a reasonable inference it simply has to be a reasonable inference and materially similar case law as well as this court's clearly established principle that i've discussed previously barring the use of significant force against a suspect who is not resisting arrest nor threatening others shows that investigator jones violated mr wade clearly established right when he hit wade in the head with a pistol this court's line of cases that forth in our brief and had lately in slicker cases provided investigator johns with fair notice that significant force was unlawful in this circumstance as against a suspect mr wade who was handcuffed and he was not posing a threat or resisting arrest when the facts are taken in the light most favorable it isn't that that isn't that a question of of fact at this point wade a reasonable officer an investigator jones's position would have known that mr wade was sitting on complete for the nine purpose and i think it's critical that we take it to consideration the totality of the circumstances at the moment that investigator jones used griev and in the baltimore case that we side in our brief to this court can constitute deadly force to blunt force trauma to the head and there's no reason the officer an investigator jones's position would have believed that the possible need still didn't they wait also state under oath that officer daniel said he'll be dead in a minute i saw him in the head that's correct judge pryor he did and  that and that goes to our claim of deprivation of medical care which which i'm certainly happy to get into as well of the fact that the officers stood around for that an officer acted with deliberate indifference and delay in providing access to medical care when the officer ignores without explanation and suspects medical need and that's exactly what we have but how but how do you have how do you have in the record any  evidence that he was being ignored i mean the moment the good shot happened they call for they they ask one of the other officers to call for an ambulance each goes in gets the gun secures the gun and then proceeds to render aid so i guess i understand under under the cases that you're talking about there was a situation there where is there in those cases there clearly was evidence that there could be an inference from here what is the inference that could be drawn or your honor the inference that can be drawn is that the officers did delayed requesti medical aid for four minutes the district court relied on investigator wilson's statement and his declaration submitted in support of his motion for summary judgment and finding that investigator wilson purportedly immediately asked another investigator to request an ambulance and i'm reading from documents fifty dash for it page seven in which investigator wilson simply states that i instructed investigator ward him to quest evidence whether he did so within five seconds or he did so in four minutes and so based on the record that we have before us drawing all facts in favor of mr wade demonstrates that the investigators waited four minutes law based on the nature of the injury inflicted which here we don't question we have a life threatening injury and a gunshot wound to the back of the head as well as the justification for the delay and that's what we're missing here is the justification for the understand why a reasonable officer wouldn't have perceived mr wade as a threat to who was in the car because the officers knew that wade was accused of murdering the child during the car ride the officer overhe a discussion where mr wade said to bell you brought the folks meaning the police to me and she said i'm so scared they were side by side in the car and wade was pointing a gun at him self while facing her so couldn't a reasonable officer have perceived him analysis is whether the surrounding circumstances would indicate to a reasonable officer investigator daniel's position that mr wade intended to inflict immediate harm to others now there's no evidence in the record that mr wa had defied any warnings of the officers or that he was acting in any erratic or unexpected manner other reasonable officer would have simply perceived mr wade's actions and pointed a gun solely to himself as demonstrating that he was suicidal and mid intended to inflict harm to himself rather than others and of course this court is held and the paradis versus you since the case that we cite in our brief that merely the fact that an armed individual holds a deadly weapon does not that courts have always played over and over again is we want we do not want to look at this from two thousand and twenty hindsight vision law enforcement officials who are involved in situations which are tense and dangerous and rapidly evolving and so  junket him in the mouth with a gun i think as judge wilson properly pointed out mr wakefield was at the race even after he was shot even after he was handcuffed and even according to mr ways  declaration and his objection to the magistrate's recommendation he was handcuffed implant and so he still maintained the mobility to move his hands and so removed investigator beaches and from his head in making this determination and here it's pretty clear from this record that st of all wade was already in handcuffs when he was hit in the head with the  and he had been severely injured by three gunshots including one in the head and so i mean if we look at the facts and the light most favorable to wade as we are incapacitated to where he was completely steel and completely compliant because he was able to move he was able to have mobility and apparently he had enough strength to remove investigator beeches hands from his hand and so i do not think and and i want you to tell us why this summary judgment on the depravation medical care claim against these three officers for their delay and requesting an ambulance should be sustained on appeal for four minutes after someone has been shot three times in the head before you call an ambulance to me seems like a long time and  a jury could make a determination that that's an unreasonable length of time to wait before you call an ambulance to secure someone who's been shot three times including once in the  time one of the officers called for an ambulance the record is actually silent as to what time the record is silent that the shots were fired at two o three if that helps you i mean there is no evidence in the record that investigator wilson even her investigators say that and so i do not think that a jury could infer that based on investigator daniel's alleged statement that there was some delay in providing medical treatment according to mr wade he told officers she needed to move her hands so that he could breathe and that blood was filling his mouth and i don't see in your brief where you ever deal with the claim that she used excessive force by continuing to apply that pressure miss mcdonald made relating to mr waits claim against investigators daniels jones and wilson for the deprivation of medical care miss macdonald claims that the record is simply devoid of evidence of exactly when the shooting occurred but that's that's simply not true and that's what mr wade pointed out on page eighteen of a reply brief to this court that investigator wilson himself stated in his the cap county police department statement form just hours after the shooting occurred that approximately at two o three we noticed the subject nicholas wade had a shotgun in his car with him and he pointed the weapon and that is when investigator daniels fired his service weapon striking the subject in the donald points out shows that it to a seven and investigator did finally communicated over the radio that shots were fired and judge wilson you pointed out to miss mcdonald in your questioning  mr investigator daniel's statements during that four minute delay and what the district court relied upon and what pelleas have relied upon is purportedly distinguishing this court's clearly established law that a jury deliberate indifference when an officer ignores without explanation is requiring that mr wade put forth some evidence that the investigators were acting out of place self interest or for that there was some nefarious called in there but it's critical to know that it's the delay in and of itself that's actionable it doesn't matter if the investigators delayed providing medical care out of self interest or if they did so because they were holding and boozman that a jury can infer that intentional chel meant the deliberate indifference when an officer ignores without explanation and so the time lapse the four minute delay in and of itself is not actionable but it's the thank you and mr mcdonald you're just doing your job thank you