we'll hear argument now in the case of mason funk against the city of nina was constant police were called to the scene they were told it was a hostage situation they including officers walker and ross who are two of the respondents in this case were told that there was a single hostage taker and multiple hostages the police as set by nina police rules was obligated to protect innocent sausage is even if it meant the risk of their own lives but when mr funk tried to escape from the hostage taker while the elliott behind the shop officers hoffer and ross shot and killed it the district court correctly recited the summary judgment standard but the district court in a failed to plot failed to apply and instead the district court concluded that the officers decision to shoot mr funk was constitutionally reasonable mr manning look at my principal question in this case is how one could how your client could overcome a defense official immunity official immunity applies unless the officers have violated clearly established right this is a case where u s district judge after full opportunity for briefing found they hadn't violated any rights at all how are we supposed to say that the district judge is so clearly wrong that any reasonable officer would have known that the u s district judge was completely out to lunch as to the district court's evaluation whether race were violated your honor the core of our their case which i will call the merits phase of the case is that there was disputed evidence i understand everything as a district judge thought but on the evidentiary record your client's lost on the merits and now in order to get a reversal what you have to persuade us is that an officer in the heat of a hostage situation officers who had just been fired had to know that it was clearly established that what the u s district judge later thought was crackers how can that be right three reasons your honor first of all the district court's decision indicated the district court felt that it was our burden to show one case which was if not all fours with the spec situation close enough that it provided clear guidance to the officers that is not the law under hope and subsequently d cases if you have a robust collection of cases and i mean i don't think you're getting my question forget what the district judge said about immunity and address the question i asked about immunity as the seventh circuit ever felt that when a district judge says on the merits that the defendants were entitled to do what they did that number will last the law was clearly established that so clearly established that the district judge was wrong the damages can be awarded that's the question i ask you your honor whether it qualified immunity exists depends on the underlying facts of the i wish you would address my question the law that when a district judge says the law is x that the law is clearly as so clearly established the other way but damages are permissi so clearly established the other way that damages  damages are permissible if the law is clearly established the other way i would respectfully submit here the question is whether under facts that could be found the law was clear step the supreme court once said that immunity is appropriate whenever just whenever federal judges disagree about the merits if we reject the district judges view of the merits we will have a situation in which judges disagree about the meri that one would think is a functional definition of the law and not being clearly established and as i said that's what the supreme court once said was the standard for immunity your honor if the district court finds that the facts are indisputable is such that they support qualified immunity and if the district judge is correct then i would agree in that case qualified immunity applies and the case is over but to me the core issue here is was the district court's conclusion that based on the facts the wall was the other way that there had to be qualified immunity your honor i would respectfully disagree with that the core of the merits part of our case that if the district courts conclusion with the facts compelled qualified immunity is thrown against the district court wait and see if that evidence there was other just evidence in the record from which a jury could have found facts that would under clear case law which is cited in the qualified immunity portion of our briefing that there is no qualified immunity that the author officers were on notice of facts if those facts are found in a certain way by the jury that what they did was unconstitutional that it was an unreasonable use of force if i may continue your honor  just like briefly to review what we think it was that the district court did as far as weighing in sifting of the evidence goes there are three basic aspects of the facts that govern the question of whether there was constitutionally unreasonable force be in a situation where they have information if they did hear that there were innocence and perpetrators they have to make every reasonable effort to distinguish between the two they can't just go into a chaotic situation in a shop where a jury could find the head no factual basis for believing that mr funk where everybody else in the building was a perpetrator they have to make an effort to distinguish they didn't do that here case law also establishes concerning mr of behavior in the alley that the fact that mr funk had a gun and the fact that it one point he was turning briefly in the officers direction is not in and of itself enough to create an imminent threat  the case was stable shows that there has to be something more than that there is to be threatening conduct for example a direct threat toward the officers were towards somebody else pointing a gun charging the officers running directly in their direction there was evidence of the district court discounted we think that was a jury's function to weigh that evidence indicating that this was not the situation again that the officers knew there were hostages we believe they didn't reasonably it was not reasonable for them to come to the conclusion when mr funk was in the alley that he had to be a big there is evidence particularly the videotape that shows the mr funk who could have been in there was a definite possibility at this point that he was a hostage it could not it was he could not say as a matter of likelihood that he was not a hostage there was evidence he did not point the gun at anybody he did not run at the officers are telling thing is at the time mr funk was shot it was not when he was approaching the officers there's evidence from which the jury could find he was running sideways to and away from the officers officer hawker himself said he was running and had to have ninety degrees to me at the time he shot it and the final thing is the warning requirements of the governor cases that you have to give a warning before using deadly force unless a warning is unfeasible we agree garner itself is not guidance to officers hoffer and ross with sufficient specificity to cover constitutional fireman's but the thing is there are other cases which made it clear that he under the circumstances of this case they did have to give a warning that a cases like  officers on notice that you have to give a warning before using deadly force except in a very narrow set of circumstances for example where a subject is shooting at somebody or is pointing a gun or has indicated that he will fight with fully regardless of whether the officers might do there is evidence in the record from which a jury could find in this case that situation than not exist mr funk was not targeting anybody there's evidence to that effect he was not point to get a gun at anybody and indicated that he would flee regardless of what the officers did simply because them they never gave him a warning alerted him that he they were in the area in that he should surrender plate thank you but with that i would just conclude by saying this there is no evidence in the record from which the jury could find that it was unreasonable for the officers to come to the conclusion based on the information they had that mr funk was a bad guy not a good guy and there is evidence from which a jury could conclude was no imminent threat again there's evidence particularly on the videotape that shows mr funk was not targeting anybody he was not charging at the officers at the time he was shot he was running sideways to and away from the officers that's not somebody who's imposing an imminent threat at least a jury could find its image and finally once again there is evidence from which the jury could find that because there was no such threat a warning couldn't should have been given perhaps the most telling piece of evidence that would support a jury in that conclusion is officer hoffer's testimony that he good gave a warning that he thought he gave a warning even though it's undisputed that he didn't give a warning so judge easterbrook again and i apologize if i am i am not getting your question fully but what i am trying to say here is the district court found that under the facts that are was qualified immunity here but we submit the district court found those facts play taking you very selective view of the evidence by taking the evidence cherry wing and sifting process out of the jury's hands we think that was improper and we ask you to reverse the district court here grimmy and this matter for trial unless any of your honor says any other questions i'll reserve my time for but for the fact that thomas funk appeared in the alley outside of the hostage situation with a gun in hand because had he not appeared in the alley with a gun in hand he would not have shot the very first person officers hoffer in rosoff after being shot at twice and hearing a third erasure of gunfire in the alleyway was mr funk in the alleyway brandishing a weapon standing by the back of a pickup truck that was adjacent to the motorcycle shop it was the drawn handgun that led the officers to reasonably believe that funk was not a hostage but a perpetrator who had on two previous occasions and we're talking a very short period of time here is we're talking minutes between the first shots that were fired at the law enforcement officers and when they saw funk in the album with the cop now this situation was an hour and secured hostage situation what i mean by that the area was not secured it was called  hasty team that went in to try to save the hostages would you call that i tasted like hasty to act in haste and they were robbed quickly assembled by the supervisor on scene the officers that were there they had a five minute countdown they received from the dispatcher that said if you don't if someone doesn't get here the hostage taker no one knew who the hostage taker was  start killing people inside here then there was a one minute countdown where if you're not here in one minute the hostage taker is going to start killing all the hostages so an assembly of officers was put together in the most heroic of nature and entered the back door of the motorcycle shop not knowing what they were going into in an attempt to save the hostages it's at that time that the food that the warning and the indication from the officers to the people inside was given in the first warning was police show us your hands down on the ground that was returned with a barrage of gunfire gunfire and the smoke filled room during this two officers fell down a flight of stairs officer hoffer the defendant in this case was shot in the head except the head is home by the grace of god the bullet didn't go through his home and kill him within two minutes after that took place another officer yelled inside if anyone in there can hear me talk to me and another barrage of gunfire came out at that officer so the officers ran to two sides of the alleyway one to the south and one to the north within a minute or so and another barrage of gunfire comes out of this place and that gets the attention of kafir in the rocks that are at the south side of the alleyway there's no one else in the alley there's there's there's no one or no officer in the alley behind an officer that's got a shield and they step out into the alley and they see fuck they don't see the front of farm they see the back of funk and they both have testified that it looked like he was assessing targets like he was moving as if you were looking for targets in fact the next thing that happened in this is in three east now i want to count this down for you from the there was nine forty five thirty six and nine forty five thirty seven that one second is when they saw frank in the alley in the next second nine forty five thirty eight they see he's got a gun they notice he's got a gun and my god who is this guy they start processing this who is this guy is he hostage is he it is he is a perpetrator he's got this gun what do we do we have to  but the perpetrator and with that process and that going through within those three seconds they made the decision since the site was on secured and they were exposed to shoot mr fung is there something that refuses or my reaction to that means there's that somebody who comes out of there with a gun why he didn't use it while he was in there if he's not a perpetrator he may have used that while he was in there there was a barrage of gunfire right before you there is a possibility actually he was part of a gunfight there is absolutely that that's a reasonable assessment an officer could make was that remember what shortly before the officer saw funk in the alley there has been got there was gunfire within the built next thing they do is they see funk in the alley so you see there is a possibility that it is named for the niece front did actually shoot this you know in reality no no no no no it's from the officers perspective i'm giving this to you well i guess from my perspective yeah i mean if you're in there and you guys of there and he got shot correctly from when the court countermoves qualified immunity yes they found on the merits qualified immunity applied that the officers in that situation that their determination was reasonable from a fourth similar circumstance or situation a chase that will put officers on notice that when you're in a hostage situation you've taken multiple gun fire and someone appears in the alleyway and has a gun immediately after gunfire that you should you should somehow or objectively reasonably not think that that's a hostage not think that that's a perpetrator in this hostage and remembered in this court your honors and in this case your honors there was  argument also in front of judge perry spike in this case it wasn't as if he came to this decision on the merits and some on the summary judgment in the back i mean both sides of her were there we were there going for over an hour i'd like to address if i just can a second one one issue i think that's very important because of this three second timing and the quick aspect of what these officers had to make and determine in their minds there's an absence of the processing that takes place as we all know and i know that you've heard cases along shooting cases before in cases where officers have to process what's happening well you know barry you don't have to wait till the gun is pointed right actually or firing at you before you take affirmative steps to stop them and that's what they did yes it was a mistake but it was a reasonable state who who would believe that someone would come out of a hostage situation and multiple gunfire with a gun in their hands he made no further efforts at all to raise his hands to drop the garment to do used as an analysis in this particular case to put these officers on notice of anything as far as having to give a warning and in in garner there's that very brief statement about a warrant when feasible and the supreme court hasn't expanded on that and no one has really expanded on that at at an appeals court level that it at least in this in and in this district and what we have to look at is just what was cited though by the by the plaintiffs and they cite whole study and then their kids there was a man who was inside of his home and he was threatening to pile driver one of his children at them last his father showed seconds you know case that was a minimum of three seconds that the officers had to respond in that case there was no sudden action call state court said this is the ninth circuit there was no sudden action  holding the kid up in the air who didn't drop him or move them around in our case there was a sudden action trying towards the officers and there was no weapon in the hall state case relied upon by appellants in our case there clearly was a weapon and in our case officer clearly felt that this weapon was a threat to kill them if they didn't act quickly  really unless there are some other questions i could go on but hearing myself speak isn't most important thing for me to do so i would be happy to entertain any questions you may have i believe that you should affirm the decision of the district court which  judgment on the merits and that these officers are entitled to qualified immunity thank you thank you mr goh to anything further mr ren going to discussion of the merits would be an excellent closing argument before the jury but the fact is there's another story that the jury could believe on a reasonable weighing and sifting fence the jury could conclude that the officers came to the scene the information they were given was one hostage shooter you know where one shooter or multiple hostile acts they came to the to the incident knowing that the police department's policy was you have to protect innocence you have to go the extra mile and even if you put your own life at risk the jury could find it was dark and chaotic in the shop nobody could see i think the officer the admitted they could not tell who was shooting picture that mr funk is running at the officers at the time we shot the videotape shows different a jury could find differently he was running at a ninety degree angle to them perpendicular and away from he have mistyped running forward in their direction he was running away from that time as far as the warning goes mr gunther put great emphasis on the holes that says that's not the constitution and guidance for purposes of avoiding qualified immunity because the facts were different but that goes back to the fact that under hope you don't have to present a case that is on all fours what whole stood and also for you cheat too is very clearly state there is a narrow category of cases where you don't have to give warnings  that's limited to where there's a direct threat where the person is in mr funks position shooting at somebody making threats approaching somebody putting it was in a situation where literally seconds matter there is evidence to the contrary  if the jury found that way that there was no imminent threat then the fact that there was no warning given constitutes a violation of the clear notice that or you ch