qualified immunity and whether the district court properly denied his motion for summary judgment on qualified immunity grounds so the legal issue is whether that be doing or to violated clearly established law when he shot and killed stephen thompson one of the tally of the circumstances the core qualified immunity issue the district court's order while it recites the standard for summary judgment motion and it cites the standard for qualified immunity law it does not engage in that proper application of those standards in this case much like the claims against the sheriff in his official capacity the mon el claim and in his individual capacity the court does not engage in the qualified immunity analysis with respect to officer wayne or what do you make of this officer yodelers two different statements about the gun and one statement suggesting he didn't touch it the other statement suggesting he kicked it which explains why it's fifty feet away which how does that work right same person it's the same person so  testimony in his deposition was that he kicked the gun away when they first entered into that corridor or he and p d could sophia's were approaching from one end and deputy wingert and clark were approaching from the other into the hallway where deputies had been firing and as they approached he saw the gun was still in proximity to the suspect mr thompson and kicked it away to secure the scene now in the initial statement that was given when he mentioned he did not touch it my understanding of that was that it was in the context of once the weapon had been secured so that the crime scene was kind of locked down it was supposed to be a statement after being kicked yes that's my understanding a clue or in the deposition i don't believe are points out this is one of the issues the court in its order denying the summary judgment motion it says as facts as disputed facts it takes what are really allegations and arguments of the plaintiff elevates them to facts what the court did not do which is how you apply qualified immunity analysis is determine the operative set of facts that are supported by the record view those in the light most favorable to the plaintiff with a non vent and indulge any reasonable inference yes i guess what the district judge would say is listen this gun's fifty feet away that's really strange and i'm going to credit the yoder first statement he didn't move it so now looking at the taliban of the evidence nobody puts in the vicinity of of that weapon in a position to do that there are already at the time that happens there are several deputies in the hallway officer weeks who is a lot officer looked in at one point the testimony of the deputy law enforcement personnel is uniform they peaked in the media after the shooting as soon as it stopped and subsided for a few seconds they basically looked in they saw the gun in the general area of the plane of the there's a minor discrepancies as to the distance that they saw it from there but then there is the evidence that was kicked but in light of not only that evidence but the evidence that there was a recovered shell casing from that gun covered projectile it was fired from that gun in the vicinity that deputy wingert says that he was at when the shot was initially fired at him by mr thompson you have to look at th the evidence and whether that one fact whether that one piece of evidence that these of evidence that detective a serious came in at twelve forty am and measured the gun at that distance away is enough to preclude summary judgment but the court didn't apply that analysis  the court didn't accept that fact and say based on that fact there was a violation of a constitutional right that was clearly established the court just kind of applied a summary judgment standard and said there's  is what we have here another example of a something that the court described as a fact but then also it's just said that the plaintiff disputed essentially deputy winger it's account was about the description of the suspects he set the court in the document says that the suspect was wearing black athletic shorts with a white diamond on the side of them but that ignores the record evidence that the paramedic who treated  thompson at the scene removed a pair of clothing to help assess and treat the injury and there was an all black pair of cargo shorts that was recovered by the pool of blood at the scene so it's not taking into account the collective evidence in the record it's just cherry picking certain pieces and going with inferences that no reasonable jury could support based on the totality of the evidence and testimony we vacate in remand for the district court to apply the proper test on qualified immunity no your honor we believe that the court has the benefit of the record here the court has the benefit of oral argument the records before the court the court should go ahead and do the analysis it would not serve judicial economy to send the court i'm deborah clubber along with my partner ken miller from alex or pettus and here on behalf of scott israel in his individual capacity while i agree that deputy and linger under the facts of this case is entitled to qualified immunity my argument today isn't based solely on that determination i'm here to address the supervisory or individual liability claim against scott israel now the former sheriff of broward county the supreme court recently called supervisory liability claims a misnomer because they really don't involve the supervisory actions it's an individual liability claim these cases involve exceptional circumstances and the eleventh circuit has applied an extremely rigorous standard to them this claim requires scott israel's personal involvement on some level that can be tied to the alleged constitutional violation by the deputy here even the district court agreed that scott israel was not present at the time of the shooting was not aware that it was going to occur and that his actions in showing up after the fact to see what happened can't be causally related to the purported violation  this officer langar i'm sorry what do we make of them yeah i mean the investigations and all of the discipline and other things that were handled by the sheriff's department to the extent that they stay in a claim w office for falsifying records of social misconduct the battery the suit the sheriff may have been aware of that information there is no record evidence that he was in fact aware of that information much of this responsibility had been delegated to others within his command to suggest that the sheriff it's almost suggesting that it's a vicarious liability or a spondee out superior or because he's the sheriff therefore he must know these things but again we're still not distinguishing between the sheriff in his individual capacity and the sheriff in his role as the sheriff of broward county the the argument in the brief essentially is very circular since scott israel is the ultimate policy maker since he is in the role as the sheriff and since this incident occurred with deputy winger it will therefore he must be responsible when violated policies and therefore wasn't being supervised the vast majority of the supervision and training cases in the one nine hundred eighty three context are municipal or official liability claims they're not individual claims he and all of the allegations here really talk about what sheriff israel may or could or should have done in his capacity as the sheriff not some individual personal action by scott israel the individual as opposed to in his role as the overall sheriff of broward county and there's an additional factor that applies here that doesn't apply when the court's addressing an one thousand nine hundred three claim under mo now here because it's against sheriff israel in his individual capacity we also have the question of whether the law is clearly established and in a number of decisions that have been cited in both of our briefs in the context of an individual claim against a sheriff or a police chief the courts have found that the law is not clearly established there is no set of examples of how sheriff must discipline his employees how a sheriff must train his employees that if you don't do it this way or you haven't done x y or z therefore a constitutional violation is likely to occur so the distinction here all of the allegations it really is a combination of buzz words this is a moan l claim with the added buzz word of individual and some deliberate indifference and things there's a very high standard and a number of hoops the plaintiff has to jump through to state a claim against the sheriff and his individual capacity a history of widespread abuse that has to be obvious flagrant rampant and of continued duration if those other instances i have to be substantially similar to this case the there must be deliberate indifference this is also a stringent standard on the part of him and his individual capacity not in his overarching role as the sheriff of broward county that somehow led to a policy or custom that's causally linked to this violation respectfully none of those standards have been matched here the bottom line is twofold there's been no constitutional violation by scott israel he wasn't personally gauged or involved in a way that was s'posed him to that kind of liability just as importantly even if it could be shown that they were linked somehow there is no clearly established law that put him on notice of what exactly needed to be done that some particular use of discipline or some specified training would have been necessary to avoid a constitutional violation by his officers we believe qualified immunity bars the claim the individual claim against sheriff is real and that this court to reverse the denial of summary judgment on that armstrong use me if i may please the court lewis rhinestone on behalf of the broward county sheriff in his official capacity i'm up for three minutes since these issues are carried with the case regarding the sheriff in is official capacity i want to start with  judge prior's comment about well should we vacate and remand to apply the proper analysis of qualified immunity if that's the question then it also would be to apply the modell question but like counsel mr cochran is that it's now before you this court has jurisdiction over the sheriff's office because the district court's order makes clear that it found the issues against the sheriff's office to be inextricably intertwined with denial qualified immunity to  israel as to why anger there are two examples in the district court's order on page eight where the court specifically says we're setting aside whether israel was negligent in implementing hiring supervision or intention policies of the sheriff's office and then focuses on and then on page ten where the court said well count five hinges at least in part on whether wenger violated thompson's constitutional rights and then goes and ignores the modelling elsa's this court can also find that the handling of share of israel's qualified immunity claim is also inextricably intertwined with the sheriff's office claim because the lower court said so the lower court treated them as one in the same i mean practically speaking i get it that the man now claim disappears if there's no underlying cla has to come up here with us because of course once it's here you not only decide that first question but then you have in front of you the middle question which is quite different yes your honor and judge sudden you it's correct that if the court was to  appeals and for jurisdictional purposes turns and what the district court thought seems very odd to me well and if that's their judges as a result could create jurisdiction that of the wise wouldn't exist that can't be right except that the the sheriff's office that is faced with the district court's order is is only faced with what is in front of some what we have the opportunity to respond to and so because the district judge didn't make the moon l analysis but said that it's treating them one in the same and because this case is now before you and it does and the pending jurisdiction does you do arrive appendant jurisdiction if it was being looked at separate and distinct maybe you wouldn't find it but because the district judge found it and because this case is before you on qualified immunity they're both they're all now before this court on a do over review and while reviewing the record this court can also find that the district court did not apply the law to its review of the claims against the sheriff's office when it deferred to its position on qualified immunity and did not even consider the mon el case if this court looks to buckler of the israel for example the ross similar claims against the sheriff's office in that case and this court agreed with the district court and held the palin's have not provided sufficient evidence such that a reasonable jury could find that be associated a widespread customer practice well this can be found in this case too but the district court did not do this analysis and now while it's before this case before this court and it didn't over review you can find that and as stated in buckler quoting true sarasota county a section one thousand nine hundred three claim requires proof of an affirmative causal connection between the defendant's acts or missions and the alleged constitutional deprivation that action must also be proved to have been pursuing an official sheriff's office policy which caused the injury the district court does not apply the standard hire or hire on behalf of the appellant pelley mr thompson's sister is the personal rep yeah evidence before the court is diametrically least speaking for myself my concern is this taffy gives a completely different version of what took place than seven other officers at the same you know she does not if you take a look at what has been said everything that we have put in is supported by the record evidence as well as the testimony of the various officers who chose the conflict in evidence and it shows let's go through the evidence let's go through so she says thompson was not armed that's correct she was not armed he did not fire at mr wingard that's correct chasing him down to hallways and that there is a distinctive two shots fired at him and then he sent forth a barrage of twenty five shots killing this man shooting him eight times in the back and then shooting him while he's on the ground in the groin and he's saying he still keeps shooting because he's seeing him squeeze the trigger he's sixty five feet away in a dark if holmes it's not  facts were as wenger stated them he would be entitled to qualified immunity they are not don't forget you have eyewitness testimony they are the people powering behind the apartment in the apartment what did the one person here she didn't hear stop rod to stop i'm police she near anything like that what she heard was i'm going to kill you motherfucker and then she heard a barrage of twenty five shots the audio that you're listening to is not at the beginning of the shots you're listening to the barrage of shots there is no distinct one shot and then a barrage of shots which you're listening to on the dispatch tapes record and the audio and i'm talking about the statement of the eyewitness where she says i'm going to kill you motherfucker that's not an audio that was a statement made by one of the eyewitness to the incident wenger confirms that prior to the shooting thompson said nothing to him so clearly that was not thompson saying i'm going to kill you motherfucker that was when you're saying it you also have problems with the gun itself the gun is a semi automatic when it's collected fifty one feet away and when you're saying that all these officers are agreeing with weiner that is not correct michel and weeks the officers that were not with b s though confirm that the location of the gun was in fact fifty one feet weeks when he is allowed to peak in after winger tells them it's ok seize the gun down the length of the hallway michelle who is guarding the door  had come out of says oh yeah i saw the gun a few feet away that is consistent with it being fifty one feet away you also have a gun that doesn't have a bullet in the if he left for thirteen minutes did not allow anyone to come in the gun came in through the sophia's and yoder the shell casing shell cartridge and projectile came back with winger what is and what is the evidence of that specifically that the gun came in through those two officers in the shell casing they were they were coming in at that location ran out when weeks was allowed art during this important time period looking for a suspect suddenly goes for thirteen minutes to move his car and then he comes back in again and then it's out now obviously it's circumstantial evidence but it's not unreasonable it's a very reasonable what is not reasonable that you have seven other officers from different agencies all say that wingert did not go back and get a gun and plan it and so they also say when or it himself says he came in back in when they're saying he never came back in again and you're talking about seven individuals from different agencies that is not correct you have two people who are not in that department weeks and michelle and they both concur that the gun itself was fifty one feet away now you can't state you have a statement by wenger and yoder we didn't move the gun now conveniently we've completely evidence the physical evidence and the statements that conflict with each other shows how did you depose yoder yes jus clarify this question about when he said he didn't move it whether he was referring to after i was fifty one feet away or when it was near him i think it was clarify there was no question he was talking about where you're from the other side said that was not that's not there we'll see what the opposition says the deposition speaks belief for itself but i mean it is new and chipper taishan of it is that he didn't move it after rejected well that's one interpretation that's the whole point of this but you had a chance to you to post them didn't you yes you pose yoder yes well among the seems to me that's on you is to clarifying what it meant whether it was moved there was no question in our mind when we deposed him that he had come up with a new angle we question him oh you said before you didn't move it oh yes i forgot i did  down the kick it down the door of the hallway so you know there these are conflicts that's the whole point that's what tolan talks about is you cannot just you look at the conflicts you have two different versions our version is not speculative our version is based upon the statements the conflicts in the statements and the evidence the physical evidence and these statements you can't ignore you can't just say oh gee this man got shot eight times in the back and once while he's on the ground because this man perceived that there was a gun or perceived that he made a mistake he didn't say i made a mistake he didn't say oh i thought there was a gun he made up that gun he made up shots yoder also said in his first he didn't make up listen to the dispatch tape you hear a methodical boom boom boom boom boom boom boom there was no reason for any of this and to all there would be no reason unless two shots were fired at him first except there's no evidence to support two shots were fired at him and and you don't hear that on the audio you do not hear two shots fired let me tell you i went through this case like a fine tooth comb if there had been two shots fired to justify this action we wouldn't be here there is not this man winger it has lied consistently from beginning to and when it convenient when he needed to he changed his story yoder supported him cause sophia's supported him to say gee this couldn't have happened because seven people back to him up they didn't back him up they walked over themselves in terms of doing his bidding now let's i would say move over to israel guy says one more thing about wenger to me so he's had all these investigations did any of them lead to findings that he had violated you know you've not and that's my whole point my whole point is they have presented you with supervision that supervisor scene that they do i have a whole list here that i talked about they report all use of force supervisor required to go seeing supervisor filled out use of force deputies trained to deescalation tactics the m p notices are required that came about in two thousand and sixteen what was in place at the time of this shooting was that the officer determined if you did a report he was the final arbiter of what was put in that report the supervisors simply rubber stamped it and in terms of the e there were six prior to this shooting six e i pino disses to say hey this guy's got a issue now one of his supervisors even knew about those notices and none of them acknowledge them now what did dale do his said israel second in command i asked him when you came in any issues with use of force  you force no no everything's fine ok if you take a look at their own records in two thousand and twelve they did a study about their use of force two thousand and twelve said self reporting there must be a mechanism to verify the use of force the records are incomplete two thousand and thirteen incomplete need to scrub for completeness and accuracy and use of force forms again fourteen only select info in inconsistent fifteen use of force complaints are not adequately track that's the record that you have on israel you also have the record that israel personally signed wanger its reinstatement after he had been found not guilty beyond a reasonable doubt no administrative hearing was held mediately put some back on the road put some with canine hey nine is one of the least supervised units in the in the agency so you have the fact that israel personally signed it you have the fact that israel went to the scene and he has to personally participate in the alleged constitutional violation itself you know he does not he has to have a war or that there's a causal connection between his actions and those of wingard and that what our president stands and that's exactly what we're talking about we're talking about the fact that they knew prior to two thousand and fourteen that their use of force were not being properly investigated that their officers weren't being supervised that they were being allowed to give their own version and that that would be said ok and you have to you can't ignore dale's testimony dale who comes out and says ok he signed it personally but i'm the one that decides on the hiring and firing ignore the fact that he signed it doesn't matter and as far as the e p a goes oh gee they they said we over reported there was this great study about that it is a lie there is no study this man had the audacity to come into this deposition and another deposition and make up something in order to try and protect the agency and to protect israel those are the facts we have submitted evidence to support everything we have said it is not speculation thank you very much  jury that's that's the result of that with respect to the comment that by nature of signing documents sheriff israel was personally participating would be akin to the president of a university signing all the diplomas for the graduates it doesn't mean he had any personal involvement in the situation with respect to the issues with deputy wingert the burden on the plaintiff here is to prove that there is no entitlement to qualified immunity it's not disputed that that deputy  was acting as discretionary authority here the plaintiff claims that the that thompson was unarmed but there's not evidence of that it's merely hearsay there's a testimony from one named money key that some unidentified individual known as nate the bottle man said that he didn't see him have a gun that night that's where they get that from or just the evidence about where detective a serious measured the length of the gun at the end of that what about the thing th neighbor heard right so the testimony of the neighbor is that she heard before any shots were fired at some point for any shots were fired i'm going to kill you mother f or and she doesn't identify who said that she was actually  the proximity door apartment and the way all the physical evidence and all the testimony was would have been closer to thompson than she would have been to wang hurt and that comment would have been consists more consistent with him saying that before the initial shot was fired  because it's undisputed based on the evidence that the initial shot was fired by thompson and not wang so that does not create a genuine issue of material fact that especially when it's an identified who she is even talking about to two friends of thompson imani key in the oss randy moss who said he did they saw thompson that day and he didn't have a gun well to their knowledge he didn't have a gun rights well that would be consistent with all the officers testimony that when thompson was initially confronted outside of the buildings before he started to flee he grabbed at his pockets or waistband her crotch depending on who testified grabbed in that general vicinity took off and then later shot a firearm that he had a firearm concealed so they wouldn't necessarily see that he has a concealed firearm neither of them testified definity you that he did not have