your argument seems to me you've got a very fine magistrate judge to then on the bench a long time in a very fine district judge and it looks like they've got much of this case correct where they disagree as you all know is the second or in all in about the mag judge where judge land disagreed with him on three issues as i recall the one that concerns me the before the four shot was fired here's what bothers me i went back and read edwards affidavit testimony where he says in effect i saw him rises and the gun come out from behind his back and then on the first shot that is not what i saw on the video the video does not show anything until after the decision against a fall and then there is a gun falls out to his side as it looks to me like  he's already been shot at least launch because it appears to me he's falling so we've got it seems to me a contradiction here between the the that they did not see the displaced well look on they didn't see any gun at all until after he'd been shot i want somebody to tell me why that doesn't present a classic genuine they have to might split second decisions and dangerous situations that's why the supreme court of the united states created the doctrine of qualified immunity but it just seems to me and florida you have you have the magistrate excuse me you have the you have that the district judge also repeatedly drawing inferences adverse to the non movement here the plaintiff in this edwards did the other two really didn't know and edwards knew this fellow in his testimony was that he had had fifteen or twenty encounters with him previously and he had never had any kind of violent reaction  or interaction with him no crimes that he's been convicted of other than he said he thought that there was a he had heard there was a disorderly conduct all of this sort of stuff judge is sort of made up after the fact that  we had heard that he had sat or had his mother we heard he had you know there's no criminal charges they underuse no evidence of any of this the edwards simply threw it out there as something to try to make this fellow appear to be a honor raised also with regard to the statement that edwards gave shortly after the shooting where he said that i saw the barrel of the gun start to come up and i and that's when i fired your are it's clear if you issues in this case are with the again with the seizure itself your honor i don't disagree that the police when they got this call and went out there they had a right to make some inquiry about what's this about but when they got out there they didn't see a gun they didn't see any any activity the magistrate ruled with with the with all these issues the district court overrule as was reported was consistent with what the officers who were familiar with him i had previously experienced and back you know the general area where it was to have occurred and that's when i found him with those are the only two incriminatory things to make about him waving a gun no that's not the testimony that the transcript does not that's what the nine one one dispatcher told one call it's a different situation than an anonymous tip respectfully i don't know that telephone line it comes in over is that much of the nine one one is an easy number to remember the police department's number is one more difficult the fact that he happened to get out more and more and i don't think should lend any more credibility than if he had called to the director of the police tend to we have a nine one one call about a number to see situation basis for the tipsters knowledge like i did hear reports of contemporaneous event and contains information about the person it's consistent with law enforcement experience in dealing with that person bad that takes it out of the realm of che al i mean the caller welsh she didn't know benny welch then she said she didn't know him today that was the day of the deposition she didn't know anything about him she didn't know if the informant ever provided any information to the sheriff's to for that  she knew nothing about his identity other than that's who he said he was she knew nothing about his honesty or a liability order allowed her to the information he gave she she didn't attempt to corroborate any of the information she simply passed it on and she passed it guy waving a gun exactly manes if he was in a crowd of people possibly so in a rural oh twenty fifteen miles to excuse me five miles out of town i don't know that waving a gun is something that is illegal unless there's somebody there that is being threatened or minister and there was nobody he was alone out there on that roadway at all times nobody ever saw anybody in the vicinity  or creating some sort of commotion or disturbing the peace he's doing none of that but that's certainly how the officer took it when when the roadway being lazy to just when there he didn't see any of that activity occurring that should have been the end of it there's no basis for it terry stop him the when he got there and saw nothing of the sort that was related in the tip then that he had no basis for organisers the other two officers that went along with him they are also liable under them that the jackson versus assault case is close to being as on all fours as you can have in that sort of situation the shots occur before you can see the gun in the video i don't think there's any question about that and if this were based solely on not i think this would be very easy case and it still still might be the rape you might be right i don't know but i'm going to tell you what i think complicates this case and i'd like to ask you to just address it briefly and part of it you started to address but it's the officers prior experience with this individual it as i understand the record and i'd like you to clarify for me were you think i am mistaken this officer edwards had been called to deal with mister  mr stewart because he was the one who could best deal with him because mr stewart other law enforcement officers had difficulty dealing with them and mr edwards had a way of being able to keep him calm and deal with him and in the past that he had he was aware in his prior interactions with mr stewart that mr stewart had engaged in violent conduct lots of violent conduct you say that there's no evidence in the record to prove that and that it's just the officer saying so so i'd like to hear a little bit more about that because i think that's what makes this a little bit more complicated because if in fact the officer had prior experience dealing with this individual and this individual was unpredictable and violent in his prior experience in dealing with him then i don't know whether under the circumstances in this individual's running away from him and then stops and refuses to put his hands up for several seconds and otherwise follow directions that the officer has to wait to be shot for or he can try his again there's he denied any knowledge of any first hand knowledge he said what he had heard is that he had on other occasions there had been these kind of things i'm looking for the where i have my something involving but ever came on the force he had heard that about the bicycle trains the about his mother he went out there on the call and he said i didn't see anything except he was out there by the shed we didn't see any of well it is he he took it as being true and it also is too easy to invent your honor in these sort of situations where he where the police officer who shoots somebody in his claim to have done it wrongfully where he he has no prior knowledge direct knowledge that he can claim of this this this person acting about only he is has a license then to oh i had heard that he had  character was russian a video no but it will take a little bit of explaining because i agree with you to the extent that the video does not show the gun in his hand until after the shot for shot is fired however the video does not confirm or deny whether or not edwards was able to see the gun in his hand at the time he shot and to explain first half of edwards affidavit recalls is his recollection of how it went there he remembers seeing the gun in this and in this rapidly evolving situation that's what he recalls seeing the gun but wouldn't you agree with most that when you read into affidavit testimony very carefully it contradicts because the one of the things that we were unable to tell is when was the shot fired and it had to do with the sound for one wasn't seeing to what the but to the point how the forensics expert determined when the first shot occurred was by freezing frame by frame and you can tell the first shot because the slide on deputy edwards pistol comes back at that time  was it was a i believe it was a it was a glock yes your honor so when the slide came back at that moment deputy edwards camera was at chest level so it was a times obscured by his arms in the shot at that point due to the movement we can't see edwards excuse me fletcher's arms and the shot cause of his excuse me causes his arms to come up which again blocks the view of the video now what he was able to determine is that picture and we made sure to note this in the brief so as not to attempt to deceive but the picture with fletcher with the pistol in his hand is around was taken around a half second after deputy edwards fired that first shot but unfortunately the video does not capture what was occurring in depth the edwards line of vision when he fired the first shot but in light of that as judged to be seen as asked why does that not create at least a material issue of fact on that issue well it doesn't create a genuine issue of material fact because judge lands opinion presume that that presumes that deputy edwards did not see the gun before he fired the first shot which is why that an officer can use deadly force because he thinks somebody has a gun no but there are cases to support use of force if there is probable cause to believe that there is a dangerous threat and what we had in this case is to go back to the beginning of the stop we we have the report from the dispatcher that he was waving around a pistol when deputy edwards arrives on the scene he says fletcher at first turns in the other direction and then he flees into the woods now one of the things that's important about his previous dealings with with with fletcher is deputy edwards yes he knows that he is potentially violent and ill tempered but also their previous their previous interactions deputy edwards was able to reason with him and talk him down and so while fletcher may have had other issues with law enforcement he didn't have it with edwards and so the fact and  testified at deposition is that he didn't have any reason to run from him and deputy edwards surprise is captured contemporaneously on the radio traffic when he states is he running f me it not only records that he was running but it records his surprise and then when we get to the scene situation itself into the woods where deputy edwards he says the show is hands which he does deputy edwards also asks him to turn and face the other direction which fletcher does not do he then says tell me where the gun is which for sure doesn't respond there's no response i don't have a gun or it's a b b it's a b b pistol he says nothing and instead despite orders to show your hands show your hands he proceeds to quickly reach behind his back into the area around his right pocket in under those circumstances it was a situation where had he had a pistol there he could have within seconds fired  then look at fletcher stewart's coat see because the video as he's moving around the video is shaking what indicates the movement is that his coat it was a position like  one of the municipal officers was approximately five feet to edwards right and the other officer was approximately five feet to that officers right person and it would have saying would have been the want to the left because of the hand that fellow and the gun you showed the gun for the first time in the video was it not in the honor and so that looking so you know edwards would have been to the right and then would have had a municipal officer here and i mean just cos are over here and both of them testified but now both of them did test file if they didn't see the gun they did see this movement so seventy year old mentally ill man who had a hatchet now it was recorded on a video as well and like this case it didn't capture everything shortly and during the shooting the man's arm on the camera the estate argued that there was a genuine issue of material fact as to whether he was in an attacking position and with this court said is it didn't it didn't matter because he although he was advancing although slowly he was in a position to where within seconds he could have raised the axe and attacked so it didn't matter whether he was holding the axe down above his head or behind his back because officers are not required to wait until the person uses force in order to take steps to protect  and well also we have is different except this in this instance because we're using we're dealing with a firearm and not a hatchet while that individual may have been able to use that in seconds we're talking these were milliseconds and milliseconds that deputy edwards had to make a decision about life or death the fact that he believed that there was a pistol as a pistol is represented on the video because he directly asked him where the  was and the facts been there were facts that supported believe that he could have had a pistol and the movement which was indicative of someone that could be grabbing for a pistol which could be used in less than a second doubt that the the photograph is after the shot has taken place it's only  it's less than a half of a second before that gun is there except that except that if if there isn't a gun is there is because he's following and he's just reaching out his arms i'm not sure that necessarily tells us anything if if i one it tells us the guns in his hand two tells us that if he has if he has fallen within that amount of time he could certainly be pulling it out with intent with that amount of time let me ask you something is your client's position that any of his prior knowledge of his dealings with mr stewart and those colleagues dealings with mr stewart in any way had have any bearing on how we should look at this but yes albeit testimony was not really as represented now what edwards testified to is that he personally had not had any trouble some other officers in dealing with fletcher stuart and some of surprise when he had run but dition lee he went out there are numerous calls including one where fletcher stewart held a neighbor down with an taser so that it was burned or he also was there when fletcher stewart had picked up a  large cinderblock apparently he was a strong individual and was threatening to hit another police officer with that i believe russia's goal is what he said in deputy edwards had been able to calm him down and talk him out it come across a situation where fletcher stewart was fighting with security at a hospital and he was able to again talk him down and actually on that occasion took him home and so yes they had a decent enough relationship that edwards felt like he could talk to him and calm him down but no it is incorrect to say that he did not have knowledge of other innocent instances of of him being violent but let me ask you sort of a my fundamental question which is do you think his knowledge officer edwards involving police officers telling him edwards about fletcher beating another officer with a bicycle chain and apparently he was hospitalized now i would point out that in  the in the shaw the city of selma case one of the factors that they took into consideration in the use of force is the the shooting officer was told the man will fight you in a minute in another case  williams v deal this involved an officer who actually knew the individual and it he they ended up getting it he pulled over for a traffic accident they struggled there was a shooting what this court took into consideration the officer there was an additional use of force claim in addition to the shooting itself because when dealing tempted to get out of the car the officer forcefully put him back into the car what the court took into consideration was this officer is personal knowledge of what he had been told that he had known that he had beaten his girlfriend that there was another officer that he had an altercation with if he told of a report that said if that officer shows up again it'll be the last time he shows up these were factors that this court took into consideration the officers personal knowledge which should be taken into consideration because officers have to act on this every day what they know about this particular individual records never really been established on that there apparently he was never diagnosed believe one of his relatives testified that he was you know to quote retarded  the you know to get straight to it and then i'll answer your questions if you have any to speak directly to what mr sikes said that the question in this case for our office for these officers is whether they are conned at the t clearly established in a law as unconstitutional it's undisputed in the in the plaintiff's counsel has conceded this that it was fine for them to respond to a call for backup that's their job isn't undisputed th knew it was deputy edwards responding to a call about fletcher stewart and that supposedly had a gun course they had not seen it yet they didn't know that for sure but that's what their information was it's undisputed that when they got there and it's on video there's contemporaneous conversation fletcher is running into the woods he's running from edwards and edwards is going into the woods behind him with his gun drawn so these two officers followed in with their guns drawn which is what they would have been taught to do which would have been reasonable under the circumstances and there is no case in the circuit or the u s supreme court that said they could not they never made any commands they never told him anything today they did not far a shot they did witness the movement of his arm moving behind his back i will say just for point of clarity for everybody here as my understanding that these two officers were on the other o the right thigh that deputy edward so he was actually on the side where the gun where he would have said where he would have seen the gun first regardless they did that they didn't see the guy but that he made a quick motion behind his back players argued to the court that jackson sauls was i think he said basically on all fours here and he also argued three other three or four other cases would give us clearly established law notice which i can address if the court would like for me to but i'll speak to sauls specifically since he would rule quickly in sauls that's the case where the undercover police officer see some guy in a blue pontiac and wonder what they're up to they think maybe there are other police officers or something when they realize they're not they say they were going to go about their way but this blue pontiac holes and by dumpster at a mechanic shop and these police officers decide to go check it out because they've decided that the guys are acting funny in the car and that pontiac's are easy to steal they get their check out the car nothing about the car indicates that it has been broken into or any problem but they enter the mechanic shop anyway  drawn screaming yelling the substandard a standard by to get on the floor and the people who were doing nothing wrong and there think they're being robbed and she data and that case the officer who did and of course the officer shot back in that case the officer who didn't hit the plaintiff who was not the shooter said i should get qualified immunity because i didn't hit the shooter and the in the eleventh circuit i think rightfully so said that was an orchestrated effort you were a part of what was going on  you made the decision with the police officers in the car you went in and you participated in that action when there was basically this chaos of shootings that you know with all due respect comparing that to what these two officers did and the circumstances is and there is no comparison and it is our position that the magistrate judge found correctly that there was no case our statute that would have provided notice to respectfully i think that the i think that stopping a video and watching it over and over again which is what we've had to do in this case and others is the very thing that qualified immunity tax i think that what edwards saw from his perspective in a split second when he was the person with the most experience with fletcher fletcher had always been responsive to him i do not think he had to that edwards had to wait to be shot at to shoot back he didn't he didn't go out there to see anybody these two officers didn't and i think the fact that they didn't see the guy on until i think it was when it dropped or certainly after the shot was fired speaks and nothing to the protection that should be provided to edwards and the moment he had to make that decision i think that these officers were very clear what is very telling to me in this case and it's a it's a very sad case obviously it was tragic he was he was not mentally he was not he had disability we don't know what extent he it was a b b gun and not a god it's definitely one of the cases that makes you sick to your think it is so telling that all three of these individuals had some level of knowledge brian edwards alive and had been able to deal with and as sad as it is i do not think that there is any law that requires him to have actually seen that done before he shot i think that probably all happened so fast i think he was shot to about the way fletcher was probably acting i think the officers were surprised that he was just not being compliant i think the fact that he fled and the information they had about him takes it completely outside of jail for edwards and of course for our officers just to be perfectly plot i can't imagine what the law would be if they were told they could be held responsible for what happening at a neighbor fighting with hospital personnel beating a police officer with a bicycle chain and assaulting his own mother those are the four they put in their brief here's the testimony and i'll give you the deposition page numbers from edwards and i'll give you the quote from edwards out of his deposition testimony regarding the taser incident and was testified i didn't see it occur that's at page seventy four of his deposition the record is ninety to  dash page seventy four with regard to the alleged fighting with hospital personnel edwards testified that he didn't see any of the incident at the hospital that that page seventy and seventy one of his deposition regarding the alleged assault on his mother and was testified he did not witness it he said quote the only thing i saw when i got there he steward was they have a shared out by the house where he worked on a bike he was out there working on it he edward said he never saw anything other than stewart fiddling with his bicycle on that occasion page sixty seventy six and seventy seven his deposition regarding the bicycle is a rare and unique i would say novel situation i didn't find in matter of view of the case law i didn't find a single case reported where the shooter knew the person he shot  we have that circumstance here but it removes a great deal of the uncertainty that a police officer has when he walks up after making a police stop a speeding ticket walks up to a seat except in this case the argument they're making is that actually contributes to the uncertainty i mean that's the argument they're making there are has no basis there are no facts that indicate that these officers or this officer except that this officer doesn't have to have personally experienced that if he believes that these things have occurred and if somebody's a fellow officer even if it happened before he joined the scribed round up in the hospital as a result of something that mr edwards think understand i understand that and i think let me just say this because i'll tell you i think this is a very very hard case i mean as i said before when you look at the video i think if you look at the video in a vacuum there's a big problem and easy it's a much easier case but when you consider the context that's what makes it challenging so let me do this if you don't mind let me make but i think it's the best argument for the officers and you tell me what's wrong with  i'm not saying that this is necessarily in my view a winning argument but it would help me to hear what you think is wrong with that the argument would be that based on edwards knowledge of this particular individual mr stewart not only from his own dealings but also from his collective knowledge i guess of what he learned from his fellow officers and his belief that this individual  who was erratic sometimes in his behavior and had been violent in other incidents with police and in view of the fact that when he arrives at th he's chasing this individual mr stewart and mr stewart is not responding to commands he finally does stop he is told to put his hands they can be seen and he does that but then he later puts them behind his back and isn't following instructions at all at that point under these circumstances where the officer has reason to believe that there is a gun that's involved where the individual who is previously dealt with on all of these other occasions and has found to be able to deal with them but now i can't deal with him and he has this other now age that the individual is u can i can remember all of what you ran through a number of things that i'm sorry i'm trying to i'm not finding fault there but that's all right that his person his own personal knowledge of overt over a couple of years after he did join the he is allowed to consider this prior information he has from other people or there's a there's a credibility issue there you're out of that but i understand what your position is on that because we've discussed it before but let's just assume that he's allowed to  mean are you saying that if he is allowed to assume that then the shooting then the shooting was one that a reasonable officer might have done well are you saying that even if he's allowed to even if we assume there that it's still not something that a reasonable officer could have done that is that would be very helpful to me to now think is reasonable under either circle k so can you speak to the second situation where we where he is allowed to assume these things and he does in fact believ assume that and he's still not allowed to take the shot and no prior instance was there any sort of it was there any involved there was a bicycle chain and i don't know some or is that they knew this guy knew him not to be violent that is what they knew from or edwards knew from his prior experience never had any violent encounter with him all of this other stuff that  he'd heard about that occurred five and ten and fifteen years ago so it should be weighed we look at the totality as are you saying that we have to look at whether or not we have to decide whether or not this this was something a reasonable officer would have done we need to look at whether it was reasonable for officer average to believe what his fellow officer weighed against what this guy himself personally knew about him interacting with him fifteen or twenty times that greatly out ways he knows him in a way that you can't no one from here and something around the police locker experience within the last two or three years or one or two years even where he never exhibited any of these kind of tendencies outweighs that your honor he has never seen a gun when edwards fires the gun fires at