case are entitled to qualified immunity on july eighth two thousand and fourteen there was an absence of clearly established law finding a fourth amendment violation based on facts that were similar in this case in fact the lower court was unable to apply to point to a case with factually similar circumstances yet denied the officers qualified immunity and that is where the lower court erred if we look at the undisputed facts of this case if we watch the video we see that these officers are forced to make one of those split second decisions it was a fifteen second decision that the supreme court has cautioned us not to evaluate with the twenty twenty vision of hindsight but what we see you know we see that these officers are put into a situation where they have to make a very quick decision in a circumstance that was very tense  uncertain they had very little information going into the incident and that was certainly rapidly evolving so you would agree that it's only we can only grant qualified immunity where  first the lower court erred as a matter of law in treating the objective reasonableness of the law enforcement officers under the fourth amendment as a question of fact instead of a question of law so we don't have any material issues of fact in this case the facts are very straightforward there are documented in the audio and video evidence that was submitted to the court and there is no dispute as to that material facts of the case so the issue of law with regard to the fourth amendment analysis is whether based on that facts of this case the material facts of this case the officers acted reasonably at the time they shot miss rightly and that's a legal issue for this court to decide in to the fourth amendment analysis and or graham versus conner second the lower court was unable to point to a case that was factually similar to this case and that did not put the constitutional question beyond a bait and so the second step in a qualified immunity analysis requires the court to look as a matter of law as to whether the law was clearly established at the time of the incident and the lower court didn't do that analysis at all in this case they didn't go onto the in the last page of its order page thirty five the district court says what the arguments are in the arguments seem to present a factual the person the nonmoving party then you must take them that janetta was not an immediate threat and it is clearly established if the person is not an immediate threat and cannot be reasonably determined to be an immediate threat then they have a right to be free from lethal force right i would submit that that the court found that there was an issue of fact as to whether or not the officers could infer that janetta was a threat to the officers that's not an issue of material fact that's an am friends or it's a dispute with regard to the character ration characterization of the facts it's  it's the inference is that the court is drawn from that material facts that is in dispute at this time so we can say that there is an issue of material fact we have arguing video that shows that two and a half three minutes what happened in this incident and then of those facts are disputed it's that party's interpretation of those facts that's disputed well seeing from the video are distance from them you can't tell that from the video and there's no clear indication of how she was holding the knife and i believe the witnesses are they differ on that  the witness and the circumstances of her exit the car you can see that so how can you say there you seem to be relying totally on the video but there is other evidence there comes from the eye people standing around what happened we can see what happened on the video to a certain extent the small discrepanc the parties are presenting to the court such as where her hands up where they at eighty were they down those are small discrepancies did that don't elevate those issues to an issue of material fact because we know that throughout the entire encounter janetta right we had a knife in her hand that she didn't drop the knife and that she continued to approach the officers while adamantly refusing to drop the knife so even if there is a question of fact as to what position her hand was  pointing up or if it was pointing down we know that genetic continue to hold on to the knife we also know that and we can see on the video that when the officers arrived on scene she immediately emerged from the vehicle and started walking toward the officers we hear their commands there's no dispute of fact as to what their commands were and there's no dispute as to what her response was there's no dispute as to how long the incident occurred  and there's no dispute as to what that what information the officers knew going in to the to the incident what was dispatched of them so those are the material facts of the case what did the officers know at the time reasonable for these officers to perceive a danger and immediate threat of danger based on those undisputed facts we have different characterizations of the facts of course from the different parties but we know what the facts were we know how long it took them to get there and we know how they responded and the supreme court has recently after after briefing was submitted on this case the supreme court really emphasized the court's obligation to find clearly established law based on the specific facts of a case and kislev versus hughes the supreme court reiterated their viewing court must focus on whether the right was so clearly established that any reasonable officer confronted with the same situation would know that what they were doing violated the law the lower court didn't go into that analysis and we can take the supreme court's direction from castle and say even if these law enforcement officers violated he's fourth amendment rights there was no law clearly established at the time of the incident that would have let these officers know that their conduct was unlawful the plaintiffs decided to no case and the lower court  because there are even though the court found that there were issues of material fact we submit that those there weren't issues of fact based on the record and that this court can then decide as a matter of law the fourth  amendment and i don't i don't think that the court found material issues the fact they found that a reasonable jury could decide differently from the court based on the facts presented so again the material facts are not in dispute it's how we are interpret e mail facts and how a jury could interpret those facts and i think that's where the core erred were not if this case were to go to trial the plaintiff would call probably a police practices expert who would say under these conditions actually a thread but was the force used excessive i mean this is sort of black letter one nine hundred eighty three law so why isn't there a question of fact here because we have to look at this case from the perspective of the law enforcement officers not from the perspective of an expert witness and not with the correct in their opinion what they're supposed to do but we still have to look at the reasonable ness of the officers on scene without the twenty twenty vision of hindsight and the court has to do the analysis under the fourth amendment as to whether a reasonable officer would have known at the time that their conduct violated law so even if we have a fourth amendment violation the court has to take that second step and look at the qualified immunity analysis with regard to the clearly established law and the supreme court has reiterated that that that step is very important that's where we need to focus that even if there was a constitutional violation and the court could find that there was then we go to the next step and determine whether or not the law was so clearly established in july of two thousand and fourteen that would put these officers i notice and we simply don't have that case law the lower court can find it the plaintiffs haven't cited to it and i have yet to find a case where it is held that officers acting within fifteen seconds can't discharge their weapons when they feel that their lives are in imminent harm and i will reserve the rest of my time for rebuttal thank you argument this case comes up from a denial of a motion for summary judgment and the motion for summary judgment was based on the issue of qualified immunity it's well established that in cases of qualified immunity expression lee excessive force cases summary judgment should be granted sparingly and there's a good reason it should be granted sparingly it's because we have been directed the courts have been directed repeatedly by the u s supreme court that you have to look at the totality of the circumstances you have to look at all of the facts and the circumstances of every case individually specifically and you have to apply those facts to a set of factors in determining a balancing of interest between the individual's interest in their personal liberties and the government's interest and in forcing the law any time that you have a balancing of interest a weighing of factors and a looking at specific fact you are rarely going to find that case whereas where there is the golden thread of truth that is the same from the plaintiff's perspective and from the defense perspective and this case is not one of those cases where there just simply are no of facts one of the things that the defense has been most critical on in the argument today is whether there was a clearly established right there was the second prong of the analysis for qualified immunity being why the right was established or whether right was violated in the first instance but if you look at the second prong what's clearly established this idea that we have a question of fact preventing summary judgment leaves from the page we are the court is supposed to look at similar cases how does the court know which cases to even look at in determining whether there's a clearly established right when those facts have been  i mean i i think you bring up a very good point as to how the supreme court and maybe some of the issues with how the supreme court asked us to address qualified immunity a lot of the literature is very critical of how the supreme court asked us to do qualified immunity engaging in the analysis you're asking us to engage in now so how do we get around that case and particularly there's a passage on page eleven fifty four which all read it says in this case huge who was the person who was shot was armed with a large knife was within striking distance in this case a civilian not a police officer ignored the opposition orders to drop the weapon and the situation unfolded in less than a minute and there the supreme court summarily reversed this court for not going with qualified immunity so you've got you've got to get surround that case and particularly that passage how do we do that sure here's how heart with the supreme court has said you have to look at all the specific instances of a case within the framework of the factors that were given and the kiss the court or the kistler case is distinguishable on virtually every factor that you look at there were several facts you know for example the officers were concerned about an immediate threat of harm they were individuals that were within six feet of the person with the knife or the knife was big and the kiss the case we're talking about a very small knife there were no individuals next to janetta riley she was by herself in fact when the officers pulled up she was alone in the van and kissed one of the officers who were behind a fence they couldn't get to these people that were potentially in harm's way in our case there was nothing obstructing anybody's movements there was nothing obstructing anyone's view the parties were much farther apart and given the fact that there wasn't someone that was so in close proximity as these six feet away from the witnesses there was nothing preventing the officers from backing up from giving it some time this wasn't this wasn't a situation like so many of the cases were the threat is so imminent because of they're in a room you know they've had you two they're trying to serve a warrant in their room they can't get out of or maybe they're outside of the room and the suspect is in the room when the off if there's people in harm's way there were if they can get out of the room those are the factors that are talked about by the supreme court that are being that are important and none of them exist in this case instead what you have is there's nobody is in harm's way there's there's nothing blocking the view there's nothing that's preventing the officers from backing up and in fact one of the findings of the court of the district court below was that reasonable juror could find the officers didn't feel that they were that threatened in imminent harm because they continue to walk towards her the entire time they're continuing to walk towards her up until the time they actually file fire the shots they're walking towards her it's illogical to think that they would view themselves an imminent harm and continue to walk for that's the type of a question of fact that prevent summary judgment in this case  because we're not dealing with questions of fact here we're just dealing with whether or not there was the officers were on notice that by doing these spent taking the acts that you've alleged that they did they would be violating the fourth amendment so we're going to distinguish that supreme court case from this year what's the case that you would like us to say see here is the case that put them on notice and it can't be graham it can't be just a general excessive force we've been doing by the supreme court for doing that so you guys gives only specific saying look in this case the officers were confronted with this situation and it was close enough to put the officers on notice here sure i say they save our job easier  to several cases in my in my brief and then the court also cites to several cases in its memorandum opinion and those cases are harris versus roderick corps now versus rich  crest police glenn versus washington to laurie i don't know if i'm saying that right versus rather heard and the loud versus california case even though that case didn't come out that kate the the final case  they they did find excessive force but there's still a wedge in there this supports our position my client's position which is when there is no immediate threat of harm the mere fact that a suspect is holding a weapon in some of some cases go far goes far to say can be a gun in a gun can be much more quickly more dangerous than a knife the mere fact that they're holding a weapon is not enough to justify the use of lethal force those are the kind of cases that support a clearly established right so here we have an individual who is suicidal mentally ill clearly she wants to commit suicide and perhaps suicide  the mere fact that she wants that to happen it lessens the interest that the government has in using lethal force because they're not going after a criminal they're not going after someone who's threatening imminent harm to the police officers they're not going after someone who's threatening imminent harm to individuals simply the fact that she wants to be shot these cases for the proposition and she has a weapon it's not enough it's not the police officers subjective view of whether they felt threatened or not this a question here it's an objective reasonable person standard which i would argue is a question for the jury to determine juries determine all of the time reasonable person standards in what is an objective reasonable persons it was it reasonable for these officers to believe given the situation given the amount of time that they had that they were in imminent danger given all of the facts had they taken the time to slow down and look and see what was there to see that there were no people around in danger that they could back up that while this riley concerned about how that law applies here yes clearly the corps has jurisdiction to determine summary judgment matters i mean they come up before the court there was another one earlier today so we're all on that but to get to make sure we're we're talking  thing this is the denial of summary judgment yes so we're our jurisdiction is actually very limited this is not like the case involving the lady that fell at the restaurant where summary judgment was granted so make sure when you're answering judge ward last question that you're mindful of her concern is that in this context we don't get to resolve issues of fact it's we have to take the facts as you want them and then we decide whether summary whether qualified immunity should have been honored so on the fact stage you win right now in the states oh don't don't don't worry about trying are yourself that you need your you where you want to be it's a matter of then trying to can try to convince us why summary judge are qualified immunity should not have been granted on the facts as you want them to be the co jurisdiction to look at the facts that as they were determined by the court below and has jurisdiction to say ok court below you said that these facts for material and there was genuine disputes about these facts so the court can look at that and they can say do we think that's true if you think that that's true that there are genuine issues of material fact in that decision is categorically under review that's the state of the law and i want to leave some time for my certainly we'll get we'll give you a little extra time i know it's tough when you're going to go first you always eat the other person's time you want to do you want to give me a chance now i'm sorry you want to give him a chance now oh yes all right we'll give you let's do this is  issues that weren't touched on by mr lindh scott earlier is when we're looking at these cases she did a great job discussing the facts but we don't look we're supposed to look at the totality of the circumstances and one of the things it's not really looked at all by the officers in this case is they created the situation that they fell into and by creating the situation they create the fear that they may or may not have had and that's where we saying there's an issue of fact is because of the way they responded the way they ran up the situation the way they pulled their guns the way they approach the scenario they created this emergency that may not have had to happen reversed maybe i'm just pulling out of thin air but i remember there being that case and i i don't how that went on something i did my best along that lines is that still not the sole issue on why you would decide this case that's one of the factors when you're looking at the totality of the circumstances also which is important here is officers had his taser out there was less invasive uses of force of vailable he put it away and shot it so you know that's one thing that you can look at right there that shows that there was a less invasive option available and they refused to use it and that's something that the jury could decide look at yeah that's definitely not reasonable officer wouldn't do that now that that situation also becomes different when you have one controlled situation more officers involved in this situation to help protect i find it interesting too that none of the evidence or statements presented by the officers say that janetta brandish her knife at them they say she lifted it she was holding in her hand but no one said she actually lunged at them with the knife that's an important factor there too that that's not there and if she's not making that lunge or that threat and actions that's one of the  officers and me a likely don't have a reason to respond with any type of force  you asked about a police practices expert earlier and i think that goes to the question too as to whether the officers were competent and what they did and that's a question that would come up with the police practices acts were in fact the declaration submitted with the documents there was a police act practices expert the talks about the reckless nature of this conduct and if we get to that incompetent standard or reckless standard then there i don't think you really have to come and find a case directly on point because you have reckless conduct that in voids that bypasses that factor also when you're looking at these cases i think you find that  is that there was four witnesses two of the witnesses shane riley and officer johnson officer johnson particularly said he wasn't afraid shane said it didn't look like she was going to attack look like she was going to get shot that she wanted to be shot and so you have definite different opinion on the demeanor of miss riley as she's approaching the officers i just want to clear on one procedural point real quick is we're here  there's also the issue against officer johnson for his handling of mr riley after the fact and detaining and that's not an issue that was briefed or part of the qualified immunity discussion that they just want to be sure that's clear there with with those issues in mind that's essentially what i had to add unless the court has any additional questions for me the qualified immunity standard the grant for qualified immunity protects all but the plainly incompetent or those who knowingly violate the law if this court is to deny the officers qualified immunity this court is essentially saying that both officers in officers eager acted incompetently when they both perceived the exact same threat at the exact same time and responded in the exact same way by discharging their weapons by using lethal force so we have to we have to look at this from the officers perception we have to look at what was known to the officers at the time and we have to view that from their perception on the video we see both officers perceive an immediate threat of harm when they react to something off screen we don't know what that is but they both react simultaneously they  backwards and they both shoot at the exact same time they perceive the exact same threat of imminent harm at the exact same time and they reacted with the same level of force now the is argue that they didn't consider less than lethal options two of the officers did in this case and even though a law enforcement officer is not required to use the least intrusive means there are there response does have to be objectively reasonable we have two officers in this case that considered a taser officer johnson said i did consider taser i saw the dot on janetta because officers  had pulled out just his taser i saw the taser and i thought yeah i'll use a taser but by then she was out of range we see on the video the officer ziegler transitions from his gun to his taser and then back to his gun when janetta riley is so close to him that he has one chance to subdue work and he told the investigating officers at the end after the incident that he knew he had one shot and if the taser didn't work janetta was going to be right there and able to st him and so what this court has to do is it has to look at those specific facts of the case and then it has to look at it earlier precedent and see if based on those facts these officers would have known that within fifteen seconds of having an arm suspect coming at them and it's conceded and there's no dispute all parties are moving at this time jeanette is on the move the law enforcement officers are approaching them but it's happening as in she's coming at them so quickly that these officers don't have time to back up they're telling her drop the knife she says no drop the knife no bring it on drop the knife no drop the knife no it would take an hour less than a second to open up her hand and drop the weapon which she didn't do in this case we have no other cases in this circuit or from the supreme court that are factually similar enough to this case that would have let the law enforcement officers know that they couldn't shoot her at that time that it was  unreasonable for them to perceive that i have that a suspect who is coming at them with a knife refusing to drop the weapon adamantly refusing to drop the weapon she wasn't just passively standing there with a knife in her hand she's coming out them they're saying drop knife she says bring it on we have no other case law in this circuit the lower court can point to any the plaintiffs can point to any and if the court can't point to a case that's factually similar to this one where there was a constitutional right violated and the law enforcement officers were not entitle to qualified immunity how are the law enforcement officers in this case to know that their conduct was unlawful i would submit that based on the supreme court's guidance in kis there is no clearly established law based on the vast circumstances of this case and therefore the law enforcement officer officers are entitled to qualified immunity thank you thank you very much counsel thank you both for your argument which actually might be more interesting while we conference and then when we're done conferencing we will come out and talk to you guys for a little bit ok all right and with that we're