good morning your honour's may please the court my name is dana son and i represent the defendants in a felon to the three city of stockton police officers and the city of boston i've got a lot to cover but only i'd like to reserve two minutes route for rebutt i will start with patrick mayer the officer who st approached mr smith the plaintiff and respondent in this case and pointed the gun at him the undisputed facts combined with plaintiff's version of the facts show that officer mayor didn't did not violate clearly established law the high level rule which the district court correctly cited is that an officer can point the gun at a suspect when he reasonably perceives a safety risk here officer may or reasonably perceived perceive the safety risk the undisputed facts are that officer mayor new plaintiff was wanted on a felony warrant an officer may or could see the plaintiff was a large man he was moving around in the back of the car while officer mayor was pulling him over and looking back at officer mayor's car all of which aroused officer mayor's suspicion and plaintiff and swung his door open and exited the car this all happened before officer may or  when the mayor pulled up and exit his vehicle what was the position of the i think mr smith exited slightly before mr mayor exited that's what do you mean by slightly well i don't think the record is clear about about that i think it's a matter of seconds probably under five seconds but i don't think this is clear evidence either the officer order him to get back in the car no we did not no evidence of that but he approaches the car and these things were in his words quote unusual especially one mr smith swung the door open officer mayor's concerns as he testified became quote heightened and quote he testified quote i don't know what he's going to do i don't know if he's going to stand there and just challenge me or whatever else and so offer some officer may or june and pointed his gun in response to those things and this in addition did did smith when they have a face to smith's hands and arms showing i think the record is not clear but we're not going to contest he was hiding his hands because there's no evidence of that but he was also standing next to a car he could have had a gun or a knife or whatever and whatever else in his pockets in his waist in the car how far with the standing away from the car to record is unclear your honor very close to the car he had just gotten out officer may or was about two car lengths back from mr smith and mr smith girlfriend was in the front seat of the car could have had all sorts of weapons as well so neither the district court nor a plaintiff's case making it illegal for officer mayer to draw and poison anything any evidence in the record that the woman in the front seat of the car was anything strange no there isn't but but there was a child in the back seat as well correct correct your honor there's no evidence officer mayor knew who was in the backseat whether it was a child or anything else he saw somebody driving a car he knew somebody else was in the back seat he saw these what we've described as furtive movements in the car and it raised this is fission there's no case we haven't seen a case the district court didn't cite one implanted plaintiff didn't cite one that says it's clearly established that you that you cannot point a gun in those circumstances and it's plain to see burden not our burden is placed this burden and the plaintiff did not meet it and the district didn't court didn't find that any of the facts i just listed are in well so when we do there's a reasonable fact finder or jury could find a constitutional violation on these and on these facts taken in the light was favorable to mr smith correct correct so is it your argument that no reasonable jury as a matter of law cases the district court cited but none of them are even close to the situation your honor none of them are even close and the supreme court has tighten this up so much lately as the court no they still they still haven't said you need a case on all fours you do not need to be on all fours but a must and that's a judge mueller went judge really with your very careful analysis and she she was very cognizant of the need to look for cases that you know there are in the general framework and she says that very clearly she cites supreme court case l way different facts were individuals an addict not accused of any crime they didn't know he that he what they did they had no idea what white why he was in the attic and multiple officers go in there and they point to got to him by point blank range and they shoot and kill him there was there was no i think it's the whole the whether if in fact he was harmed it goes to the question of damages i mean he may not have much in way of damages here that you don't need under nine hundred and eighty three can get harm for emotional distress understand your honor my only point is that the facts were nowhere close to the facts of this case that the supreme court says the cases have to make it quote beyond debate and quote the case as this case has to squarely govern and nothing espinosa makes is beyond debate nothing  honor that's correct in robinson that it was clear the suspect was not armed the court makes a point that he was not armed and it was clear that he was in the open with  and when i remember it well and when mr pay and when whistle when missed when the police officers arrived mr robinson voluntarily exited his house came up to the officers and said hi i'm the one that shot the dogs and the th circuit makes it clear that there was no indication he with his pockets weren't visible your honor and what was in the car wasn't visible and it's reasonable to believe at least it's possible he would have a gun as opposed to robinson who the th circuit found the officers knew he did not have a gun so not even close your honor and the other case is technically in cameron or not even close to the situation the one case that is somewhat close your honor is the th circuit case of thompson versus rar case from two thousand and eighteen which was a traffic stop and in that case the th circuit specifically caution lower courts they have to treat traffic stop cases specially and the supreme court said that in arizona versus johnson in two thousand and nine as the thomson court this discussed and those two cases say that all of the courts must give officers more leeway with traffic stops because traffic's stops are quote especially fraught with danger to police officers in cote quote and those cases recognize the need to use force in a traffic stop to manage what thompson said was a quote potentially not actually but he quote potentially volatile automotive arrest situation so you don't have to wait for it to be actually volatile you're authorized within reason to take appropriate steps to prevent it and control it from the outset so the finding of qualified immunity in thomson five years after the smith incident really compels the finding of qualified immunity in this case the thompson court held the officer was entitled to qualified immunity even though he pointed his gun at thompson's hit nearly point point blank range and threatened to kill him to spite the fact the suspect was was searched and had no weapons and was sitting quietly on the police and the police car by contrast smith wasn't searched and could have had all sorts of weapons in his pockets or or in the car i think you answered this to a question judge has asked earlier but just to clarify on the point in the gun and the use of the dog and i understand it correctly that your argument that with respect to the pointing of the gun i'm going to leave the court with the with the with a quote from selsey versus katz which of course is the central case which is that officers are entitled to qualified immunity with the situation is in the quote hazy border between excessive force and reasonable force and quote here the situation isn't a hazy one it really isn't but even if it were present when do you address the shooting be happy to your honor so the officer  approaches the car and what he sees when he approaches the car is that mr smith is fighting with the occupants officer harrison approaches st and she holsters a gun because she doesn't see fighting at st but then they start fighting so she  gun officer pres and holsters his gun it's a very i mean i don't think anybody can dispute it's a very tense situation officer as testified that carjackings are no joke carjackings are serious situations and they're often done they're often done  gunpoint and the district court just at the time that they shot isn't smith's version of the events that she was doing a superman pose a both his hands were out and you would have been able to see that he had no weapon correct that is his version is exactly what he test and it actually is evidence in the record for mr kirk contrarious that he actually put the car into gear and if he drives that car line down into superman pose he's going to he could hit somebody so that's one risk the other risk is that he's fighting with these people now he may have got superman pose for a nd but he's fighting with knife and then you've got people who were did and officer prez wasn't going to take that's their chance in a highly volatile situation like that and in a carjacking situation i think you've got to give a little discretion to the officer to do what he thinks is appropriate and so he shop and all and there's no clearly established law there's no case even close to that and the district judge did even try to find a quick case close to that she relied on the orally saying it's it's beyond dispute that this could be illegal if it's true but there's no there's  no analysis from her all that so officer present title to a qualified immunity officer harrison the to the evidence is undisputed that she heard a gunshot she didn't know where it came from she ran to the front of the car to take cover and she shot as well don't we need to have the version of events that she can see his hands out in a superman pose be the version of events for her to she she could see is the hands that a superman pose but she also testified she thought she saw something under him yeah but how would he have shot a gun of his hands or out like this well  split nd his hands go from left to vet i mean that could happen and if you're an officer out in the field and these things can happen in your dealing with multiple people's lives not they're not just the two officers but the three the three car owners and the other people in the area so i think i think both officer harrison and officer present title to qualified immunity i haven't seen a case in point that says they're not ok what you want to say you sometimes i'd like to you ok thank you very officers self serving testimony about what happened in the incident and completely ignored as your honour's pointed out mr smith testimony other officers testimony at the scene and the findings the district court meet as it must taking all evidence in light of mr smith as a non movements position and all reasonable inferences there are up so up a balance either quoted each officer self serving testimony at length or said i don't think that it's clear all of these are sure signs that this case must go to the jury in their briefing appellants took the position that they did take the position that  be imported to the clearly established law questions in order for your honour's to consider them which means this court as we pointed out in our answering brief has no jurisdiction and i want to walk around us well let's just go but let's just start with the gun for just a moment point of the gun they say we're not really arguing that a reasonable jury on these facts taken the facts in light most favorable to mr smith but was it for sentencing or for yes yes it was there for arraignment there is no information in the record as to what officers we just know that there's a bench warrant out for him that's correct so that's what they know and he gets out of the car quickly i guess there's no dispute about that and then if the officer points a gun ending what you know what cases that would kill an officer looking at is in the situation  the laws clearly establish that you shouldn't point the gun well your honor in that recitation of the facts st of all that is defendant's version of the facts that is not the version of the facts taken in the light most favorable to plaintiff the idea that mr smith had furtive move movements which they incorporate the idea that he suddenly i thought smith a minute that he kissed his kid or something that there was some movement in the back of the car so i'm not sure that accounts really do differ it seems like taking smith's version he did some movements ok let's take a look maybe just set aside the movements so what case is there that says someone who saw it for a felony warrant a chance have a gun pointed at them if they're getting out of a car at a stop when you wouldn't usually expect them to go car a there are numerous cases that stand for the idea that just because somebody is suspected of a crime and your stopping them you can't immediately point a gun at their head so hopkins is an example in two thousand and nine case from th circuit that after a traffic accident officers went to the home of somebody suspected of drunk driving and fleeing that accident and they entered his home pointing a gun you can't do this robinson of course stands for this proposition that you cannot just point a gun at somebody just because you're stopping them there was no information that mr smith was likely to be armed or dangerous defendant's version of the qualified immunity question imports the assumption that he was officer may or reasonably believed he was dangerous there is no evidence to the record i guess i don't know if that's i mean maybe they just thought they needed to point the gun to scare him away from running away which actually is what happened but  we know that shooting would be another thing you can't shoot someone unless they're danger is them imminently at risk right there that they're posing an imminent risk but pointing a gun is a serious use of force but to capture someone who is trying to escape from a felony situation how do we know that that's not ok well for example in cameron two thousand and thirteen case from the circuit that happened actually after this incident but in that case the th circuit found that it had already been clearly established that you can't point a gun at someone suspected of a violent crime near her children in this case mr smith had been in the car with his girlfriend and small child which officer may or knew because detective harrison had radioed it to him he got out of the car as officer harrison testified nonchalantly so technically further amplifies robinson i mean i'm sorry cameron further amplifies robinson saying that this was clearly as well wasn't a felony and karen i'm trying to look she was accused of i think stealing misusing a credit card but this court has also made clear that the distinction between a felony and a misdemeanor you can't assume violence based on that and the supreme court held that in tennessee v garner that given criminal law and how it's developed you cannot assume because of a felony that it's violent and you cannot assume because of a misdemeanor that it's non violent in fact the officers had information that mr smith's nobel warrant was for a dui which would indicate nothing about a weapon nobody had any information do you i with injury though right a dui with injury but nothing concerning a weapon nothing concerning he was likely to have a weapon and a very key fact here is that officer harrison saw him leave his house she did not see a weapon and one of the things your honour's asked about the facts that your honour's asked about when opposing counsel was whether you could see mr smith's hands when you got out of the car it's actually this is not just viewed it at all officer may or testified that smith did not seem to be carrying anything when he was getting out of the car may or did not see anything in his hand took robinson on bank it said specifically to establish as a matter of law in this circuit that you cannot point a gun at an unarmed suspects head so robinson clearly indicated this at the time and there's been a series of cases as you're on this pointed out since robinson that indicate this court means exactly what it said and i think cameron is a really important robinson does talk about the crime being at most a misdemeanor the right robinson did discuss that but again in tennessee v garner and other cases the supreme court in this court have made clear that really the distinction is about whether or not you have cause to believe somebody might be dangerous or violent it's the threat not the nature of the crime in fact there are and thompson is an example of this in thomson this court said that fell at the very boundaries of when an officer might get qualified immunity in thompson the officer before he pointed the gun at thompson saw loaded revolver in the backseat of the car they knew they'd been he'd been reported with a weapon and they saw a weapon literally within his reach in the car and this th circuit found that was the very out our reaches of qualified immunity the district court explained at length why this is different from that case it was not night time there was no weapon there was no reason to suspect a weapon this is broad daylight there was no command to mr smith to get out of the car i missed one just i don't want to spend a lot of going to address the shooting but the dog the officer releases the dog was that after he started to run before he you know what when did he release the dog i couldn't really tell it's hard it's hard to tell that's a decision a fact the jury's going to have to make what officer may or testified is that he and mr getting out of the car may or pulling out his gun unrolling the window to release his dog officer may or testified that all of that happened in a quote very fluid motion within seconds and so what we believe the facts will show and the jury will find is that the two accident the car their cars basically at the same time and then mr smith testifies and explains he was actually a carcass there was a young child in the car and he had reason to believe that if anything were going to happen he didn't want to be near his son and officer mayor himself testifies that basically it was one fluid motion he gets out of the car points has gone on rules the window to release a stop so there  warning there is undisputed that there is no prerelease warning to mr smith of officer mayor saying warning that he will use the dog that he will deploy any force and so chew could not be more closely on point than this and she has been established for a long time that you cannot release a dog under these conditions again there is no evidence that mr smith was dangerous at all did mr smith testify th the dog was released before he took off mr smith does not know when the dog was released he took he testifies that he took off because he saw a gun pointed at his head and so he does not know when the dog was released there was no verbal warning that the dog was going to be released he testified that once he saw the gun pointing at his head he thought he was going to be shot so he turned around and ran but to make a difference if the dog was released after he started to run no your hon well st of all this court wouldn't have jurisdiction to consider that if the facts aren't established for that but no your honor it would be just because the threat level isn't any different those black letter law garner stands for this proposition that you cannot use force and serious force even if it's not necessarily considered deadly force at serious force you cannot use force against a fleeing non dangerous felon there was no evidence that even if mr smith took off and ran away from a i would like to address the shooting i think when you go there really can't be a serious dispute about whether garner itself which is actually similar on the facts of this case prohibits the officers action under plaintiff's version of the fact torres in this circuit in two thousand and eleven talks about garner and also further establishes that i think it's also to important that this court consider haagen which is a th circuit decision that the supreme court overturned on qualified immunity but not on the constitutional question that case is very factually similar to this case where you clearly have established that you cannot shoot somebody who is attempting to surrender you have no evidence that there is a weapon and somebody that the testimony is that the officers were both yelling at him put your hands up mr smith put his hands up and he was promptly shot he was prone in the car he was he was prone in the between the back seat and the front seat that's right he was laying over the consul right there was testimony that officer harrison could clearly see that the man had gotten under control had locks of she put her gun away prepared to go hand hands on and there's testimony that pres came running up the d o j reports as he was closing in on the car as he fired yelling put your hands up and he himself testifies that he saw a plaintive move his hand so he shot after he said put your hands up is there is it is a fundamental precept under mr smith's version of the events were the passengers in the vehicle s u v they exit the car at the time of the shooting i'm not sure i'm not under his version of the i'm not sure mr smith testified but the boys who were in the car the young men testified that they were still in the car at the time of the shooting at the time of the shooting one said my butt hadn't even gotten out of the seat now officer press testifies he didn't even look that he didn't know if there was anybody else in the car at the time that he shot into it he said he didn't look to see if there was anyone in the backseat he doesn't know if there was anybody in the car before he started shooting at it as he's running towards the car firing so your opposing counsel talked today about starting the car having the car running and so having the risk the movement of the car i don't really remember that being a focus of the argument for before i thought it was more some risk that there was a gun somewhere can you respond to this idea of the car was on and that he could drive the car or something there is no evidence that the car was on or moving the evidence it's understated officer harrison  testifies he was going for the steering wheel i think he testified that she might have been trying to turn the ignition on but there's no testimony that the car was on that the car was moving that the car was dangerous or that he'd be able to get away  at all and again haagen would say that even if the car were moving this still isn't allowed but i think defendants really try to import their own version of the facts into the th amendment questions here today they seem to have given that up but if you look at the for how defendants spelled out the qualified immunity questions in their brief they import where the officer has information indicating the suspect may be dangerous where there was furtive movements when there is probable cause to believe the suspect poses a significant threat of death or serious physical injury they import their own self serving version of the facts every time they state the qualified immunity question and that's clearly not allowed  their questions your honor thank you very much you have a few minutes for rebuttal thank you again your honour's st with respect to the testimony about the car running i'll tell you where it is it's page seven hundred and seventy four of the anyway so that's that that's the testimony in the record is undisputed and he's prone between the seats yes from the front seat to the back seat and he runs he's crooked i think he's relatively i could he have the have wound it i don't  relatively straight up this is the steering wheel and he's lying like this i think but you know it's not exactly clear on the record so the so that's the that's one point i want to make nd point i want to make about the dog is that it's undisputed undisputed that mr smith s something challenging to officer mayor in deposition smith said he didn't remember and that the th circuit is clear that a failure to remember does not create a triable issue affect smith also smith also expressed he testified the mayor told him quote don't move and quote and what does smith do he runs up the hill rd when smith began running it's undisputed mayor said stop again smith said he didn't recall but finally it's also undisputed that officer harrison said to him quote stop or just heard he doesn't say anything about officer harrison what he says about officer mayer is he doesn't recall a conversation between him but he expressly admits that officer mayor said don't move that's understands what he testified to so that's with respect to that what i'm hearing about the gun about officer may may or pointing the gun at mr smith is that apparently there's new law that you can point a gun at this suspect only when the suspect has a visible gun because that's what i heard counsel say and that's absolutely not the law and so and so i just watch wanted to make that point the other point about robinson your honor is that i want to make is there was no outstanding felony warrant there that was at most a possible misdemeanor but no felony warrant where somebody was already convicted as is the case with with smith finally i haven't really