for the plaintiffs the votes family and with the court's permission i will address the district court's finding about objective reasonableness as a matter of law and then turn to the qualified immunity  question that the court is identified and one of the reasons for handling it in that way is that the court of the district court's decision about objective reasonable is also impacts all of the other issues all of the other cla record dismissed because of that finding our position is that this was a case where it was clear that non lethal force should be used it was not a split second kind of case it was a case where there were ten officers at the scene they were there for a long period of time before the events that that the tragic events at the end of the situation that led to mr vice live losing his life there the in addition to the overwhelming force that they had the ten officers had tasers there was a canine unit they had  their police cars in a defensive position so they had cover with armored car doors there was a forty millimeter at least one forty millimeter lethal and nonlethal weapon that was the ploy possibly a  second there was they had discussed what would happen they knew there was no gun they knew that most mr vice had scissors and was acting out they believe that at least had information that he was not acting out had to people who weren't there and the other kinds of actions that he took that he was at least likely to be mentally disturbed meaning under this court's cases that ordinarily less intrusive means would be used and other means would be used to talk him down he just mentioned other court cases why isn't this case very similar to la l a l versus california well i think the reason it's come completely different from law is rock six feet away from the officers with no non lethal alternatives available they did they'd call but they weren't there and there wasn't this was a more immediate threat and i think immediacy is really the key here well here though your client was in a back a back room i guess after having displayed very uncertain sort of behavior threatening speed you know towards the towards the officers who were who were lined up there to try to prevent i guess other people from being hurt i don't think that that part's true i think that all the bystanders were were well away from no bystander situation it was all the police officers at the front of the that they had gotten people out of the way so so they're standing there with their cars but he comes running out of full speed well i wasn't that and immediate threat especially in light of the supreme court's recent case and casella well i think that first of all the can sell obviously those who qualified immunity as opposed to the underlying fourth amendment issue and i think that our position is not that it was not immediate as a matter of law our position is when you take all these factors under the court's cases that a jury should decide there was a tribal issue of fact about whether there was an immediate threat justifying the use of deadly force at that point talking can i read you a quotation just as holmes and see if you can distinguish what he said from the case  in the video detach reflection cannot be demanded in the presence of an uplifted knife therefore this court at least is not like it is not a condition of immunity that one in that situation should pause to consider whether reasonable man might not think it possible to fly with safety or disable his a say would rather than kill him think that they they had reason to believe that it might be a scissors given what happened before us and that the night was reported to them that someone had think cut and in fact it was a relatively small cut in the in the clerk was able to report it to him i mean i'm trying to justify a kind i'm just saying that it was not like he stabbed some i mean there was a the clerk tried to get the scissors away from him and there was a cut there's no question that that happened and there's no question that officer christie got some information about how he was behaving at the time and that he was behaving in an unusual looking like a mentally disturbed way one of the other officers said is this crazy bill kind of thing at the scene that the point of the immediacy is an important issue i agree your honor that if in fact officer kresge came to the door right away and was confronted with mr vice with a hook or a scissors or whatever it was right there he could have shot him to death no question about that as in law if he had a football sized rock six feet away there's no question that he could do that what happened here that was different they had fifteen minutes to get into formation to give themselves cover to come up with a plan the plan was to use non lethal weapon that was the plan and they said if he comes out with the scissors we're going to shoot him with a forty millimeter and what happened is he comes from sixty feet so it's not right there it's sixty feet he's in the he's being shot at basically a twenty five feet with a non lethal weapon which would have stopped them and they had ten tasers and a canine unit they didn't have to wait for him to come in the way that justice holmes talking about  sated glenn and there are other cases where at least for the fourth amendment analysis if there's a clear reasonable alternative to deadly force which there was here a jury should decide whether it was subjective out shoot him and the testimony is that shoot him to officer shannon who's the guy would the forty millimeter now there's some dispute about whether the two officers ferrous and henry heard that or whether they shot in response to that but that was the plan and the plan was non lethal and in fact i mean if you if you look at the negligence question for example in their head is there's no question that under h a jury question as to whether the precinct and then whether it giving an order to shoot rather than making clear that it's to the non lethal person rather than the two guys that have a ar fifteen so these are issues that a jury could find that they're pretty sure in kind of lead to a death that was unnecessary how do scott versus harris fit with what you're arguing this little thing is on video yeah no i mean there's no question it's on video i mean the jury could take a look at what that was and decide whether it was subjectively reasonable for two guys to shoot somebody to death when the plan was to shoot him with a non lethal and when there are all these other alternatives including shields cover tasers canine unit they had it all worked out so that mr vice didn't have to die and yet how close would you say boss had to get to the police officer with  before they were justified in shooting at i think that if in fact they had they they ordered the forty millimeter person to shoot if he actually had not slowed down they still had three or four seconds at disagree if he kept coming and the non lethal is didn't slow him down they had plenty of time they had ten guys with with with with two guys with a r fifteen s and the rest of them had their office revolvers and cressy had his out there was plenty of time before he reached the doors before before they could kill and if he kept going they could have killed him i agree with that but but but i think it's a jury question both on the underlying fourth amendment violation and the negligence claims in the ban act and all of the things that turn on objective reasonable as i don't think that the court was it was right to say that based on the fact that you see this video with the guy running that that's the end of the story that  matter of law means it's not a fourth amendment violation i think that this court has a much more sophisticated analysis about immediacy about what the nature of the crime is this was not a serious crime under the court analysis so i think if a jury should have been entitled to do that then of course that leaves consult versus use and qualified immunity which of course only really applies to the section one hundred eighty three claim not all the other claims because the california claims are not governed clear reasonable alternatives to using deadly force that those steps should be taken before a life should be taken and i think that that should have put them on notice that they should not have taken away the non lethal option when they shot then there was a plan they were going to take him down with a forty millimeter and these two officers pre amp did that by killing him you will see them i'd like to vs sacramento case including the fact that in law all the plaintive tried to defeat summary judgment by presenting a an expert circle aeration saying the officer should have pursued different strategies because they were dealing with an obviously mentally disturbed person who kept asking the police to kill him and they should have used non lethal alternatives etc much the same arguments as are here the main differences between lao and this case are that there were more officers here than in laos and in lao he was walking towards the officers in this case mr vos was running what does and does it bear that they had non lethal options it's a relevant factor within in the use of force and they attempted the nami fall alternative was of the same type as the shooting b know i didn't mean for everyone to shoot you even though i said shoot i only meant you know basically what he was saying i only meant that the officer who we had said which the less lethal force so i'm trying to figure out how does that what  went very very wrong to the extent they could call it up a plan it was kind of very casually discussed well the what the reasons why officers henry and officers faris shot and i disagree with mr hoffman there isn't an issue  fact on this is from the officers testimony they feared for themselves and their fellow officers unless they use the a r fifteen officer faris testified and there's no contradicting evidence there is that clear i mean where is that clear i lead had said this is how we're going to approach it and saw he never he never said we're going to start with the most lethal force that's correct your honor the two officers who shot are the two defendant officers who are left officers there is an officer henry officer farris testified in deposition he did not hear the order shoot him that's out one supplemental excerpts of record four five and seven henry testified he heard it but did not act on it second excerpts of record one thirty one one thirty two and one sixty three henry fired because he was scared boss was coming to kill him or one of the other officers to s c r one four seven one six three farris was afraid vos would kill him or his partner as he our one one hundred two one one nine the reason why these officers fired and with their other officers who didn't fire there were other officers who didn't fire at the same thing and he was vs casella one officer dropped to the ground and fired but that's we don't want to have a fourth amendment standard where every officer has to feel the need to fire or else the use of force is unreasonable also i have to point out that the the question of whether the officers fired in response to quote shoot him unquote is irrelevant both to the fourth amendment cause of action and to the california negligence cause of action it is irrelevant to the fore and then the cause of action because and graham onward at least that the officers subjective motivation is not what defines liability it's the objective reasonable this over there an objective officer in that standard would perceive an immediate threat and the other gra standards and in under california jurisprudence as described in the california supreme court for the case of hayes the fourth amendment standard applies to negligent use of force it is only in braces a wider array of behaviors because they don't need the intentional action can you have negligence and you can consider factors before the shooting whereas the fourth amendment focuses on the time between the threat arising and the time that the u lethal force is used but in this case there's ten officers there eight of them do not shoot corellas at reasonable it is reasonable for an officer and eight of them did not shoot and you say that's reasonable two of them shot and you say that's reasonable how do you reconcile those things and if you can tell me when would an officer not be protected by qualified immunity when they shoot and kill somebody it well i'll answer first question first if these two officers were armed with the ar fifteen rifles other officers were armed with pistols they had arranged themselves strategically and for two officers to armed to fire while the officers did not certainly does not take away hard for the mr vos to get to them it's in the in the seconds that he was running out of them if he feels they didn't have to wait for him to wind is way in and now the three to four seconds of my client that my colleague talked about that's from running towards the doors and reaching the officers the the pace was much faster as he was approaching the doors as the videos show and they didn't have to wait for him to wind its way around the various officers including the ones that are closest and and stab whoever was available that the fourth amendment does not call upon officers to risk their lives or safety due to avoid using lethal force neither does doesn't that raise fact questions about under the questions isn't that for a jury to determine and not for a court to declare as a matter of law what they did was reasonable under scott versus harris if the facts the historical facts of what happened are established you don't follow the rule that you view the world the facts in the light most favorable to the plaintive even the facts in the light most favorable to the obvious record here video the cases where this court has ruled that the use of force is a jury question are generally cases where the question of what happened below is in question whether where one officer has a version and others do others don't the case that's focused and the shooting officer said no he was assuming a shooting stance now that's an issue of fact that should go to the jury in this court so ruled here the historical facts are established even some of the questions of fact that they say  exist in the reply brief aren't questions of fact for instance they say it's they say that it's a question of fact whether they tried to communicate with him whereas in their response to the separate statement in support of summary judgment they admitted that sergeant those officers were how do you reconcile this and does that create the issue that you're talking about right now i does not created issue the only question is whether we have a lot sir in that position as opposed to these particular officers and the decisions they ma whether was reasonable for that officer to shoot or not to shoot scott versus harris says that when the underlying facts are undisputed that's a question of law for the court not a question for the j why we have to address both valid and whether the use of force was reasonable as a matter of law because as i've mentioned that's relevant to california negligence and also under the she hand title to a claim if we're going to keep we under ninth circuit precedent we do have to keep applying it but since the fourth amendment analysis has to take into consideration whether the person paan who forces to be used is mentally disturbed it's a factor they have to consider there really doesn't seem to be a difference between the she had title to analysis and the fourth amendment reasonable briefs as an example of i'm reasonable use of force and it's hard to answer judge more as a question to say what use of force would not be subject to qualified immunity under that case unless there was a case directly on point either from the supreme court this court or a robust body of authority as the supreme court said in was being al qaeda that that  an officer had violated the fourth amendment by using that use of force because in his sela the woman was standing at her with a knife at her side not making any threatening gestures she was six feet away from he turned out to be her roommate she hadn't was not guilty of any crime she'd been hacking up a tree which is unusual but not a crime and an officer still without giving any warning dropped to the ground and fired into the fence and killed her that seems to be the outer continuum even to me of where he would use qualified immunity certainly more extreme than here where where mr vos was running with a prong instrument in his hand raised as if they stabbed and stab hockey highlighted that's it up and right just up until before the individual came running out i mean in terms of what the officers were doing that they didn't communicate they didn't come up with a better plan do we look at  extent you look at it you look at how patient they were beforehand as in law they were waiting they didn't go in they didn't invade they waited and while they took all the measures that mr hoffman said they should have taken including trying to communicate afterwards he could have called on mental health profession or professionals or a swat team or whatever mr vos forced the matter matter to the fourth amendment claim it's irrelevant because what you look at is the space  time between mr vos running out of the back room with his with his hand in the stabbing position and the officers using force to end the threat so if i understand your answer george mcgee is questioning my earlier question qualified immunity is absolute immunity it's it's it's not absolute immunity if there's case law on point either from the distance from the circuit or the supreme court or will bust body of authority telling a reasonable officer at that time that doing bad under those or similar circumstances violates the fourth amendment and so the level of generality is in a political it has to be on all fours before you could have qualified immunity it does not have to be on fours it has to be similar precedent that strong enough to put beyond debate that officer doing what that officer did violates the fourth amendment and you couldn't tell me when an officer is on just a few quick points one i think is that the issue for the jury under the fourth amendment is whether the officers ferrous and henry's subjective fear was objective lee reasonable and in order to do that under these court this court's cases you take into account issues relating to the severity of the crime whether the person is mentally disturbed by their non lethal zz there's a whole set of cases that about that which the district court ignored basically by finding that as soon as you have a tape of this person running that that was dispositive of that i think that was error the jury a jury should decide all of those issues and decide if it was objective lee reasonable under all the factors that court has indicated and the video itself is not as a matter of what dispositive the scott case does not stand for the proposition that videos or despise of the very few cases of then that scott itself the reason that scott came then the way they did and altered the normal summary judgment ruling was that in sky the the the plaintive made an argument about how he was driving normally in didn't wasn't putting anybody at risk and the and the videotape completely rejected that it was blatantly it blatantly contradicted the plain of story the video in this case is part of the story it's not the whole story it's part of the story as part of all the other factors that a jury would look at with respect to qualified immunity can sell versus use and i certainly don't really know what the supreme court is doing on qualified immunity in terms of sees a woman with a very big knife six feet away from somebody else that he thinks is and then ger and he shoots under enemy believing that there's an immediate threat to that person and that turned out to be wrong but it was not it there there all the red in there they know what the situation is it's not somebody coming at the last minute and confronted with a threat it's someone running in that they know is mentally disturbed had a scissors they know he doesn't have a gun he runs to the front they've got a plan they've got t forty miller meter ready they tell them to shoot it and these officers preempt what was a perfectly reasonable nonlethal plan of action that would have preserved this young man's life in all likelihood they decided because of a subjective fear even though they're behind armored cars with ten officers and tasers and they can and you know right there they decide to shoot their weapons now there's an issue of fact when the negligence question about whether in fact they shot because they were told that should these are two marines that had done their duty in iraq and maybe when they here should that's what they did and that would be a negligence claim and enough itself if if there wasn't a careful beach policy manual in training about all the things they did wrong in this situation that would lead to a negligence finding under hayes and i think also supports the fact that this was not objective we reasonable and i'm qualified immunity as all i can say that this court has been very clear i think over a long period of time to say that when there are clear reasonable less intrusive alternatives to killing somebody that those need to be used and any reasonable officer would