morning your honour's please the court tony say in about half a fresno police department officers their sorrow and price i respectfully like to request to reserve approximately three minutes for republic like yours the court should reverse the denial of summary judgment on the basis of qualified immunity for two reasons first on the undisputed facts of this case under all the precedents that are actually analogous one a suspect who is reported to be armed who is believed to be armed makes a threatening gesture reaches for a waistband draws an object that is believed to be a gun under those circumstances case after case tells us that the officers use of deadly force is reasonable as a matter of law and secondly the issues of plaintiff's state law wrongful death claim are decided by the exact same standards as the federal force related claims and therefore the claim is inextricably intertwined with the federal claim and the courts should exercise its pendent jurisdiction now so i have some questions if i may just do you can you hear me you are yes i can your own i thank you ok i have watched the video and i far find it are really some more disturbing from the following respect th arms were pointed down and at the time that he was shot below his waist at that point and they did the shooting continued  many times after he had already dropped the object and turned away and i and didn't want your responses to war and those factors don't create an issue of fact that would prove klute qualified immunity certainly are well firstly it is undisputed in this case and there is zero evidence to the contrary that the officers were told that the object that he had in his possession was a gun in addition as revealed on the video the officers contact the suspect mr centeno in the street they identify themselves as police officers and order him to get on the ground at gunpoint within two seconds of those orders mr centeno then moves his hands from the area up by his sternum down past his waistband and reaches his hand into his pocket now the case law including george ninth circuit case and cruz also on the circuit case both from before september two thousand and fifteen incident de those cases your honor tell us that just by reaching down into the area where a weapon could be concealed deadly force is authorized as a matter of law from that point forward within less than a split second about point eight six seconds from the moment in time zero point eight six seconds from the moment in time when mr santana reaches his hand into his pocket and begins to pull it out providing an object that the officers have been told was a gun used to commit an attempted assault with a deadly weapon on a woman in her home from point eight six seconds from that moment your honor they begin firing and all shots are completed within approximately one and a half seconds now it's undisputed in this case that all the officers were aiming their shots at the front of mr centeno it's also undisputed in this case that all shots were fired when mr centeno was still on his feet and that from sarah's perspective he stopped firing only when he sentinel start to fall down to the ground now if you look at the video your honor you'll see that the shots begin i'm sorry the shots and the fish shot and at approximately forty one seconds point eight six and eight six into the video so that's approximately two point three three seconds from the gun drawn move this one shot and and at that point mr centeno is still upright officers who sarah has testified that he began firing because he perceived the gun drawn moved by mr in danger of his life and then he continued firing when mr centeno turned and began to flee at this point officer who sarah believed that mr centeno was a fleeing felon that he was still armed with a gun and was about to go off into a residential neighborhood and threaten somebody else so he continued firing and if you watch that video you're on or the point in time that you're referencing from when mr centeno was facing the officers with the gun in hand to when he's starting to turn away is less than a second less than a second and the supreme court has instructed all of the courts that when evaluating the reasonableness of uses of force courts are to consider the force from the perspective of the officer not with the twenty twentieth's hindsight there is no evidence in this case that the object that was believed to be a gun was dropped before shots and did in fact the testimony is that they saw the gun drop afterward but in any  given the short amount of time that the officers had to react and the short amount of fire time as much as we would like to separate these events out into a very long time and that's just not consistent with the video evidence or with the testimony so you think the closest case here is what in terms of a ninth circuit case there are two cases that are directly analogous they differ from our case in that there were disputed facts here there aren't any there are no disputes of facts in this case as to what happened during the incident the lower court ruled that there was a dispute as to whether or not the shoot of the shots fired a reasonable that's not a factual issue that's a legal issue but in terms of answering judge shortest question the two cases are cr and george and both of those cases this court instructed other courts that if a suspect reaches for a concealed area that that could be justified deadly force you know in georgia he had a gun that was a gun y waistband in crews however what turned out is that after shots were fired the gun was found not in his waistband but over on the passenger seat the court held in cruise however that if that had been undisputed in that case if it had i can't i can't see any case where there's just a report that a gun was brandished your honor there are multiple cases where there is no gun at all where the supposed is actually an armed and just by making the threatening gesture the court has found that the use of deadly force was reasonable for the officer believes and there's evidence to corroborate the police that the suspect was armed the play a case for example comes to mind where the officers were confront a burglary suspect who was reportedly armed who then ignored at gun point commands by the officers reached into his pocket and pulled out a dark object and the video supported this i'm sorry that was  plane of sight to the testing cage which is a post incident case it's actually twenty sixteen case but in that case the officers had been specifically told that the suspect was unarmed and in a cage the court of course found that the use of deadly force was on a reasonable that's different than our case in our case the officers were consistently told that mr centeno had a gun that he pulled it and pointed out a woman in her home and they saw an object they believe to be a gun so on these particular facts case after case tells us that point zero point two seven seconds before the first shot was fired approximately zero point eight seconds eight six seconds after he reached his hand into the pocket in first place and the cases tell us that just by reaching into the pocket the use of deadly force with an authorized at that point but certainly by the time he brings out the object that the officers were told as a gun that they believe the gun that they perceive as a gun and believe he's about to raise it and pointed at them certainly at that point the use of deadly force is reasonable law and in fact multiple cases including george the reynolds case also a ninth circuit case and i believe the schaffer case tell us that officers do not need to wait until the muzzle of a gun is pointed at them before the use of deadly force is reasonable now it's important to remember that the supreme court has mandated that we are not to second guess officers life and death decisions in the field that we are not to analyze these from the comfort of the courtroom with the tw twenty perspective of hindsight but to put ourselves in the scene and only evaluate the case based on the information known to the officers at the time and it's undisputed in this case that the officers here never knew never believe never thought never perceive that the object of mr centinels hand was anything other than a gun and had they waited had they waited they believe they were going to die they had a split second to make this decision as the video evidence showed and they made it in case after case tells us that on those undisputed facts they are entitled to judgment as a matter of law as to the reason of this of their use of force how far away were they when they are shot i believe your honor that they just once was for roughly fifteen feet tactical vest with a badge on their shirt on the outside the best that they identify themselves of police officers an emerging from an unmarked car that had the red and blue flashing police lights on identify themselves as police officers gave to at gunpoint commands at gunpoint commands to get on the ground mr tenet did not comply with any of those commands that instead he reached from his sternum area down to his pocket and pulled out the object and lead to god time yes there are approximately two seconds passed from when he was given those commands until he reached for the gun that's play a time to drop out of the gun certainly our student plenty of time to drop out of the ground certainly enough time to reach and pull out a gun instead of complying with the command to go on the ground he decided to pull out a that's correct your honor and we cannot analyze this case with after the fact it's hard information both graham and all the other cases including george tell us we cannot do that and even though he had not actually  so the information known to the officers was that this was a gun it wasn't till after all the shots are over with that we find out it's not a gun and because we don't know that when the force is being used that the fact is it in miscible for purposes of legal analysis this object was a gun and that's how we have to view it from their perspective at the time that force was used i see that my time has expired thank you  from plato to aristotle to realism there is one objective truth this is the foundation of western thought justice is described as a search for the truth and reality is not a matter of perception or belie it's a toy gun and it may turn out that it's a spray bottle and it may turn out that it's a cellphone but they have nothing to go on when investigating other them the report here of a citizen who have no apparent motive to lie to them so why aren't they entitled to investigate where they believed to be i got far that's an excellent question just a scraper and and the answer to it is they are entitled to investigate and in fact i think from what you've said in questioning of helsel regarding your  viewing of the video itself i think is the same kind of viewing a video that was done at the trial court and it's laid out very simply in the twenty three page order that the judge issued and we are here's here's my problem with that if if the officers are entitled to act as as if the suspect is armed until they know otherwise it does seem to me that our presidents are pretty clear that if someone is reaching for a gun deadly force is permissible and that is what  and your faith believed at the time they acted is now no because the video itself shows that he's not preaching and bets the distinction that's an important distinction that the trial court drew the and the video itself shows this this is not a reaching case because in fact at one point did he reach yes but then do we see with objective evidence not not belief of the officers do we see with the objective evidence of the video that this man takes an object out of his out of his pocket he looking confused standing completely frozen and he takes it and he holds it down below his waist and that that's exactly right yes and it isn't our president to the effect  what supreme court case or ninth circuit case says that you can be holding i love let's assume for an actual fire are when officers have told you to drop it and you're on the ground thousand and thirteen case it did conclude that in a situation with the barrel pointed at the ground that it would be excessive force so i mean i mean and there are there are other also and then we but then we have crews which this case a jury would have to answer just one simple question did the police see crews reach for his waistband if they did they were entitled to shoot well that's how how is that different if  information they had at that point was that it was a firearm that well my difficulty with your position is that it didn't turn out to be and that's the sad part of these cases where people don't follow what they were told by the police but that was the information they had from someone that had no particular grudge against this guy but the information that they had was not just because the object remembered at the tr court they brought a motion in limine a on this very issue the issue of whether in fact it would be part of this record that this was not a gun and the trial quite rightly ruled in favor of apple lee's that the consideration that this was not a gun would be part of this record now counsel just here today is arguing is that all the officers could at the time perceive this to be a gun but that was really a child will factual issue as the appellate in this case are fully able to go forward and have their day in court in terms of these facts just as as as counsel has argued about about whether it's twenty twenty hindsight and all the rest of the facts here they're really really losing nothing and look and the and the court  well you're off site of unity is meant to protect against having to go through trials so it isn't i think correct to say they would lose nothing i mean that's that's the point a qualified immunity if they're entitled to it they're entitled to it now and if they're not entitled to it they have to go to trial but that seems to beg the question of course your honor and i know that when i asked her yes question the district court said that upon arriving at the scene both reasonable officers would have correctly perceived the object in his and to be a black plastic spray nozzle and not a gun is that that really a jury question think your honor and yes it is and i do believe this when we look at the undisputed facts that were set by four and you have pointed out one of them that i was going to present that when we look at what the court actually determined it's interesting that part of the hinge points of the of the appellate argument in this case is the question of whether the mr centeno in this case made a quote unquote harrowing gesture or whether he made some sort of a furtive movement or whether in fact he was reaching but importantly the court the trial court who we should give all due deference to on the center lockett's were appeal made a determination in looking at the video and by the way i don't believe really it's  the it's the trial court making a determination so much as that when you look at the video that's what you've seen and what the court said in any very important part of the of the course decision is that he took out an object and that his hand was still held down below his ace his waist he stood you know he stood motionless as we can see in the video at page's twelve to thirteen of the reply brief the appellant's never accept the mr centeno still hill the big down below his waist when he was shot and instead they argue importantly they argue that officers receive a looser on price fired when they quote believed mr sentinel began to raise a case which did not find qualified immunity the easily case you know it does that's a recently decided case i don't have the cite here in front of me but in that case the in these leaked case what was happening was that that was it now there was a dynamic situation with someone who did grab an object from the waist down and then who began to extend their arm and if you look at the video of the oral arguments before the court in that case there was great importance placed upon the fact that the man in that case first of all it was that night the acts of the actions were fluid and rapidly evolving and the man began to extend his arm and he could have turned and shot at the officers this case is this case that we have before us is dramatically different in that respect justice scalia in the in the scott case talked about how a court in this particular instance instead of having competing affidavits or testimony from witnesses has the ability as we know in scott versus harris that was a police pursuit but has the ability to actually look at the objective evidence of the video and the determination then applying the lot of the facts as to whether the officers are entitled to qualified immunity gun the object being you know help being pointed at the ground but then you know we also have there's there are several of them but i would also point to the fact that in the b k case which was have a toy gun much more threatening object and this it had a it had the orange chip removed it looked like an actual gun it was held playing young man had it pointed at the ground or at least that was an issue as to whether he did or he didn't know video there by the way no video of whether actually was pointed to the ground and the court there found no qualified immunity that's the ninth circuit examining the same kinds of precedents that apply here and in fact this object which is a plastic post date the incident the only reason is is that because it's and it's a good question your honor because you're right to raise that question in fact in hughes first is to sell at the supreme court as you know the court went into that and sort of addressed that issue very directly about whether it should be based on when the incident occurs what the clearly established law was versus whether it's when the case was decided and they do they do come down saying it's when the case is decided the reason i cite the state of lopez for says gill house case is that lopez relied on george in finding no qualified immunity and you know counsel here today has relied upon the georgia case but the ninth circuit in lopez the way basis was that the deputy yellow house i think was his name had contradicted himself numerous times and his testimony directly was contradicted by  as you do and yes i do i understand your concern because your honor you are right about there was this question of whether the young man there actually based some sort of a turning movement or not and there are some disputed facts about that but i think importantly one of the in your case one of the other officers testified that he knew that it was a real where we think is quite different than the situation here i understand i  still believe also your honor in hearkening back i think to something that you said about the viewing of the video is that you know there were at least by the way to shot shot here this can clearly be seen on the video which is objective  centeno had his back fully turned in the object out of his hand when they shoot him two more times as he goes to the ground but i really think the important part is the part where we see him frozen standing as the court pointed out in the  his hand down below his waist you talked about your honor about what they could do as far as the investigation goes and and you know sometimes the best thing to do there with bullet proof vest behind the doors of a police vehicle an unmarked vehicle by the way sometimes if they in fact had the folder appropriate police training the thing to do is is to wait for the facts available because they truly were not in danger i even think from the demeanor of the officers when you look at how they did this they didn't give a true gone martyr a warning they didn't say stop or i'll shoot you on the ground get on the ground and then they start shooting and it's almost immediate with a man who's frozen and who is not threatening them and they don't appear to be afraid at all when you in response to just a short of question about the trial court's finding about whether or not the officers should have known that it was a gun the supreme court addressed that kind of issue in the sheehan case and it stated that it is not a jury question as to whether or not the officers should have done something differently even though plaintiffs expert says differently and even though there's a plausible claim that the officer should have done something differently you don't analyze these cases that way you analyze them based on the facts that were known to the officers at the time and the judge's finding of a jury question on that fact is exactly the improper analysis the kind of analysis that is barred under gr in response to counsel's questions or counsel's arguments about the gun not being raised again many cases schafer reynolds they all stand for the proposition that officers do not need to wait until the muzzle the gun is pointed at them before the use of deadly force is reasonable you can ask them to go but they do have to give the person a time to comply with their orders and they did your honor well that that i'm not so sure the time that passed your honor in this case was three seconds and in that amount of time and this is the fact that players council time had passed from wind when from when they first made contact with him until he reaches for the gun or the object they believe to be a gun is about three seconds that's about two seconds of commands until he starts the gun reach they then switch from commands to self defense so in terms of asking for compliance they gave him that time it's not like there was nothing that happened between them giving the commands and then firing the thing that happens that changes the entire circumstance is that instead of getting on the ground he reaches into his pocket and pulls of an object they believe to be a gun that's the game changer and you cannot say well they didn't give him time to come comply with the commands when that changed the entire incident at that point they had a split second to decide what to do and the video corroborates this less than one second passes from him reaching into the pocket until the first shot is fired and then one point five seconds passed until all shots are completed this is exactly the kind of split second incident that graham warned us about and that we are to a judge from their perspective so a lot of the undisputed facts of this case shot are we are asking the court