ready to hear our first case conor oberst thompson mr el back to the fact to the conclusion of the cited facts by the district court yes the conclusions from those facts or the particular conclusion that they were disputed facts which justify material facts just the finding of no constitutional violation and also no clearly established own right the facts are this found by the district court the those facts the district court concluded created a dispute or made the conclusion that they were material and time that circumstance even if the officers eighty feet away if the seat was just standing there holding the line what is unclear about police officers prova vision of that shooting some we've got mr carr who was at the top of the steps oh mr mccullough first comes into the house goes up the steps says we've got a route where you we're going to get you something starts to come down the steps here's whether he is looking for a hand rail whether he's and paper and laid against the wall he continues to come down the steps so whether he goes impaired or whether his gait is normal i think we have probable cause that there was a threat of serious physical injury to the officer or dollars ok in this case we have mr karr coming down the steps and i don't care condition makes him more dangerous to are serious physical harm he continues to come down the steps to approach the officer so whatever distances between those two that distance is now frank and we are at the point where out on the steps leaning up against the wall holding life in the same as opposed to evidence from the defendant that he was moving forward and had life if the trier of fact  that talk about the situation where he's eight feet apart he's been given multiple commands he has threatened the officer of course we've got what is the objective reasonable officer going to do but in all of those circumstances compiled together the tally of those circumstances there has certainly not been any presentation of any case law that says that there is a right mr karr has clearly renew if if but just to not have waived it our motion to dismiss this appeal prior to the briefing in this case we did follow action to dismiss until the court is entertaining the motion today or rather the hearing today and  were heard to proceed of course we do want to renew that for a lot of the reasons that we just discussed it is not always appropriate in a qualified immunity defense to act simply on the fact alleged from the district court or from the plaintiff or from the tenant in there and it's easy to get lost in the case law when simply citing what to make that determination but in this case we moved to dismiss the appeal prior to any briefing because the district court made specific findings of fact that precluded the qualified immunity analysis under circumstances are that are significantly material and of consequence violated adam carvers clearly established fourth amendment right when when in a matter of seconds to arriving at the home where no law had been broken were no the crime had been committed he engaged his far arm and killed now as to the second point that will bring up later but it is very important because these issues do cross we have taken significant issue in our brief with the way in which the facts of this case have been characterized and that also cuts towards what we're talking about with regard to the proper words finds fact let me go beyond that because  to hear what i just heard i think for a case that beyond doubt shows that a deputy who was simply responding to a nine one call was attacked by a dangerous man with a knife and had no other option but  thank you with a group that faxes found of the district order that's all we go by something just station indeed your honor we do and we agree with that and i and the district court was very specific in those facts he highlighted three said chief among the chief disagreements between the parties or and he highlighted three very specific material facts that i have not seen in their brief nor have i heard today can be overcome now  claims of excessive force wasn't even cite in their brief not once the supreme court case that details the primary factors and they've been called the graham factors that recently just factor  now the three grand factors are important because that is what we used to determine whether or not the police's conduct was objective we reason it certainly cannot simply be what deputy thompson's account of the incident is if that were the case it would be tantamount to requiring an officer to admit liability in it all nine hundred eighty three actions so there has to be some object of analysis in the grand factors are how the court goes about determining that analysis right off the bat without discussing this case anymore two of the three grand factors aren't even met the first one is of course whether what the severity of the crime being committed was to justify the use of force no the crime was being under anyone's interpretation of the facts in this case the second grand factor the only one that perhaps could apply if you take deputy thompson's account of the circumstances as true the subject of work recalling the account is in immediate threat to the officer or others now no it's not a threat it's not a risk against an immediate threat to the officer or others the third factor is actively resisting or evading arrest the first and third factors have no application in this case the only way we ever with what actually happened and what deputy thompson was confronted with phrases like closing the distance on him closing the gap without any other time text into the exclusion of all the actual evidence and testimony in the case makes it sound almost reasonable what they're arguing but those simply aren't the facts of the case the facts of the case are and we've discussed in earlier and i don't want to go into too much detail but the fact case for that no law enforcement was ever even contemplated to be involved in this situation until the family members had call this health facility and received no answer it was only then that they contemplated calling  we talked about steps in it's it's in an appendix your honor no it's for carpeted steps he was not quickly descending a large staircase he was not rushing down towards the door there are four steps that open not into a very large area he was coming down the steps before deputy thompson came into the house he was coming down the steps when doc deputy thompson came into the house so he characterized his impending attack on tippy top so as coming down the steps towards him is this to the exclusion of any context think it was just conceded mere feet away from this incident testified that no such behavior occurred in the district court frankly noted that and this experience trough were judge considered all that evidence very carefully when he determined that these are two tiriel to engage in a qualified immunity analysis of this point no threats of violence no crime the only evidence unfortunately and quite tragic reasons was that mr carter may have been a danger to himself and in fact this was characterized in the briefs and by the district court as a cry for help that was the reason that nine  more had engaged in a reasonable evaluation of the circumstance in which he was being presented that that is what is clear at least from the record at a minimum of what he now within a matter of seconds deputy thompson engages his forearm shoots and kills or that's not disputed although deputy thompson's initial account of this incident and correct quite frankly its credibility is going to be an issue at the trial because he has not been consistent in his account of what happened that day his first account of what happened when he was interviewed by s p i agents was that he was there from three to seven minutes now in the briefing to this court it is a matter of seconds perhaps under forty seconds and we true but if if the if the facts are here to arise in such a way that deputy thompson's version of them is what must be dispositive and then we would submit that his version of of those facts is not consistent  defense and probably the chief among those cases is sigmund versus chapel hill the problem with qualified immunity cases in this context your honor is that if we just pull quote citations from it from cases we can probably justify any legal conclusion we cannot engage in this analysis without context and without facts their use of the chapel hill case is a perfect example of that in the chapel hill case you have a thoughtful decision that used and apply all of the graham factors in favor of a very reasonable police response that had the conclusion that it should have had a gentleman in his house was threatening his domestic  partner with her life he had a very large butcher knife two police officers arrived he attacked the police officers through the window when they arrived he said things that the opinion states that i don't need to  e but chief among them were threats of violence and death to both the police that arrived that day and to its domestic partner but strikingly in that case that they rely on so heavily the police response actually cuts in favor of their of their use of it today whether the police do they stop to police officer stopped they backed up from the house for police officers then came multiple police officers came in gauged in a dialogue they tended to  deescalate the situation and it was only after that when this man came out with a knife running in one of the officers that they used deadly force now i'm not not trying to engage in any kind of hindsight with regard to the reflection of the facts in this case but it is important to know that the chief case they saw it was probably one of the most reasonable police responses that you could have asked for contrast that to this case it was a mere escalation of force within seconds  was killed now part of the fact that they point to in there and they are facts this case that he was asked multiple times to drop the knife and that's absolutely true deputy thompson as they asked him to in this is in mr boykins deposition is for the record he saw it was about to happen within a matter of seconds this deputy had drawn his weapon and pointed at him harder and yes at that point they pleaded with him to drop the weapon because they knew he was about to be shot killed and so that is a factual distinction that is certainly appropriate to some context not just pleading to drive a weapon failure to comply with with the request and  being forced to engage with your side are very different that's why the facts matter in this analysis the other two cases that were cited that much attention was given to your honor was the elliott case i think that that he pointed at two police officers through the window mere feet away with his finger on the trigger and that using that case as a defense in this case is is is a good example of how you can get lost in the qualified immunity chase law if you just cited propositions without facts i refer to cases like that and maybe this is not best way to characterize them but i am for those kinds of cases gun grabbing cases the kinds of cases where law enforcement officers rightly so are forced to decide within a few seconds even sometimes wrongly as some of the case washoe but no nevertheless forced to choose within seconds that an individual may be grabbing a firearm and using that against law enforcement that  a very different type of chase then it is strange distraught young man with a small pair and knife across the hall who needs to be transported to a mental facility it's just a different kind of case and those officers that have to make those split second decisions in all the cases that the courts are protected them in should have been protected and were protected but this is not one of those cases the last case that i do want to talk about before my time expires is important we decided it to the court in a subsequent citation of authority because it was decided i believe jane where eleventh was the publish date but in enjoy stackers opinion for the poor she highlighted the distinction between what an objective we reasonable law enforcement officer reacts to a person who is emotionally distraught versus any reaction in any case and there is ample authority in that opinion that that clearly addresses that a reasonable response to an emotionally distraught person is not the same response as a violent criminal like all the cases that they out from that opinion is that and it does bear relevance to this case in law enforcement response is being determined objectively reasonable that that individual was not armed either and i concede that is also a distinction from that case however the important part of the holding is an escalation of force with an emotionally disturbed person is precisely the thing not to do when confronted with that situation and this case that we talking about today is the showcase example of that the escalation of force is what led to adam carter's death it was a powerful situation that the two gentlemen in the room described being anticipated happening by defeating thompson escalation of force and we don't mean and i said i said suppose the response will certainly be this is engaging in twenty twenty hindsight we're trying to go back and say what he could have or should have done but that's not that's not what we're saying what we're saying is what is an objective lee reasonable response is it pulling out your side arm and engaging the individual or is it p t s collating the situation in gauging in at least more than a few seconds of dialogue at least it has to be that and the case law that they have cited that shows the police encounters with violent criminals brandishing weapons and threatening to kill everyone around them are not a pol concede all of the points about them being unpublished and don't present them as i having authority to the court but we would point out that the case lawyer used in those decisions for the for the holding is is is very destructive of this case and pino versus porter they made the same arguments that the defendants are making in this case which is essentially the mere presence of the weapon to the exclusion of all other evidence is so is sufficient to engage and we force court rejected that night case in that case it was a far it was a long rifle that the individual had not to or not and not in had way versus ella bush very strikingly similar circumstances that the lady who was killed in that case had scissors or shears where some sharp kind of knife like object in her hand the officer said he was she was closing in on him with those shears and he engaged in was  pharma killed her and frankly in that case the facts were worse because in that case the officer was more employees went into the house that she was dangerous in fact he was there to interview or about a stabbing that occurred previously so he had even more circumstances that cut against that particular use of force so in conclusion your honor that for all the reasons cited in our brief this incident the crime at issue this assault with a does well with an attempt to kill or inflict serious injury this is not a stationary point in time this is a fluid point in time and those were the actions that caused the officer to have to do what he did the second point exactly the extent to which the suspect poses an immediate threat and yet it's undisputed the plainest i know that says eight feet apart multiple commands actively resisting arrest or attempting to have that he has been told there are less than three times i don't know what could be more actively resisting the officer than failing to discharge and dispose of a deadly weapon that