gregory morning just keenan judge floyd may please the court my name is george harper our present the appellant in this case damon wilson summary judgment should not have been granted in this case for two reasons one a jury question was presented to a genuine dispute of material fact existed and still exists the police shooting of mr wilson fi officer gill was not objectively reasonable for several reasons mr wilson never pointed the knife at anyone but himself he never threatened the police officer or anyone else with that knife the district court opinion and order recites that as a fact and there are also affidavits in the file that indicate that to the contrary mr wilson was attempting to stab himself when he was shot he was attempting suicide moreover at twenty feet when he was shot according to mr wilson at twenty feet after gill's gun had already been drawn the sequence of events that's relevant to that fact is that while mr wilson beyond the twenty feet point had been approaching officer gil officer gil had given him several commands and had drawn his gun when he had refused to drop the knife which was one of the commands so that fact already it is also in the district court's opinion so what we know is that at the point that mr wilson stopped the gun was already drawn and ready and that's important because if the jury found the mr wilson was twenty feet away at the time that he stopped and that before you stopped the gun was already drawn and ready then officer gil had plenty of time to defend himself even if mr wilson had committed some sort of threatening act toward officer gil note that i'm not conceding that he did threaten him i'm simply asserting the the argument that it's extremely important that the gun was already drawn and ready mr harper i'm struck by the fact in this case that there were five shots fired yes does the record show what happened is their testimony as to what happened did any of those shots actually hit mr wilson yeah it's ok you don't know and the shots were rapid fire they were not separated by any significant period time ok so in emphasizing the distance of twenty feet are you saying that that is a conflict with the expert testimony because the expert testimony seem to rely on pulling the gun out of the holster and how long it would have taken and you're saying since the gun was already out of the holster you have a dispute as to the  really that whether the expert testimony has any value in exactly  so in this first section of the argument because he was attempting to stab himself and was attempting suicide it seems an unassailable proposition that shooting dispute as to material fact the officer indicates that he was eight to fifteen feet away at the time that officer gill shot mr wilson it strikes me as odd that one would adopt a range that is one hundred percent in error and in other words eight to ten feet that sounds like a an estimate someone would make eight to fifteen feet not really but i'm not here to assail the credibility  underscoring your point about where did this is a jury question yes i mean you're you can't undermine the credibility of a witness in front of this court you can only point out that there are disputes right and i'm not here to undermine his credibility i'm simply here to point out that a jury cou ld find that that's not credible and the the mr wilson says it happened at twenty feet a jury could well find even though i would disagree with this proposition a jury could well find that at eight feet it was reasonable to shoot the plaintiff excuse me mr wilson even though he wasn't at that point threaten the officer i'm not saying that's a position supported by the law i'm simply suggesting that different jury results could obtain based upon whether or not they jury accepted the eight foot estimate or the twenty fo that my client never point of the knife at the girlfriend never pointed the knife at the at the officer and only pointed it at him and fact tried to stab himself but he wouldn't drop the knife it was a he said he was not a drug that's right and then the only action that you that he undertook thereafter was to stab himself repeatedly which the officer even admits made it appear as if he was injuring himself things in the way the record where north and south down ninety five because there was a man who went in commit suicide on a car they stop people in cars north and southbound this lady is she was the object of the slap right right  she's behind him he's coming forward is no for her to go right now go in the house according to record the police officers was actually between the two right exact but the house was behind her they were on a porch to the front entrance of a multi day unit dwelling and so she could have stepped inside and did he come from a long distance oh yes he came from a different neighborhood and vala followed down a up a path a mark a sidewalk and got within twenty feet when he was shot but at the time he was shot and he said ave self right he was stabbed himself and he was stumbling forward from the pain that he was in from the pain and  out before the briefs in this case were filed it is a new fourth circuit case it is handling the versus price it was handed down seventeen november two thousand and seventeen i have the the number it's number sixteen dash twelve ninety four i don't know if it has a proper cite yet because it's so it's so new in that case hensley was shot because he was holding a gun he never threatened the deputies similar to this case with that gun it was held in that case for circuit case that it was unreasonable to use deadly force or to assume that the assailant or the suspect posed a threat merely because he held a weapon and hensley relied upon an earlier case cited in our brief cooper vs hsien of also fourth circuit opinion in that case it was held that mere possession of a deadly weapon is not enough to permit use of deadly force and that involved a shotgun it is significant that this case involves a knife something which ordinarily at twenty feet is rather harmless the lower court relied upon the case versus chapel hill but in sigman the suspect broke a window in full view of the officers who shot him and threatened to kill the police and a third party in this case no such threats were issued by mr wilson and sigman was ten feet away when he was shot the district court the lower court also relied upon myung versus montgomery county and j and g and that's also a fourth circuit opinion but none was shot when he was only two feet away and he had already resisted a frisk and escape from a frisk and he also pointed a box cutter at the officer backed the officer back to her cruiser so he was obviously threatening the officer with the box cutter at the time and the lower court costs the dischord also relied upon minor versus prince george's county but in minor minor reached for a gun when he was shot in this case there's no allegation that my client reached for a  understands that in this case the laws applied in this manner but that's really not the issue in qualified immunity qualified immunity has to do with whether or not the rights are clearly established the fourth amendment is clearly established and the fact that it protects against excessive force is clearly it's very clear that qualified immunity does not apply to a defendant who is not a state employee and that was not the case here thank then that brings up my point why in the world would you have a basis for thinking you're if you've already hit somebody once what would be the basis for firing another shot at them well that possibly be reasonable there's nothing there's nothing to indicate that the officer shot waited shariat again waited shot again this is a rapid fire as counsel indicated there was a soon as the officer shot he shot his quickly as he could and stopped  steps so he was really not a twenty feet even if he's stumbling forward he's yeah but he's dumb and you could otherwise someone is stabbing themselves in the chairs that is near the heart is pretty thrown is near the juggler so  but he's a boy you've got to know you've got to accept that remember don't remember we're here we're not here to term in fact dispute these twenty feet away trying to cut his throat stabbed himself in the chest stumbling forward and you shoot him five times you've got to accept that now you behind him and not a jury question as to what his intent in other words was he threatening the officer then or not or was he merely a person bent on doing harm to himself stumbling forward in isn't that a classic question of fact for a jury i don't believe so your honor because the officer doesn't he's not verbalizing what he's intending to do us and connor the conner this court no but i'm saying as to whether this man whether this man presented a threat mr wilson why isn't that a classic curie question was mr wilson really attacking or could the officer have reasonably perceived that mr wilson with attacking him or was this a man stumbling in the act of trying to kill himself well why wouldn't why would not make a big difference and why isn't that a just it seems to me it's a classic jury question i don't believe so you want to because he is this of bade the officers command what i'm saying what does not only close to me if in fact is the question whether or not he's stumbling after trying to kill himself and it's clear on the record your honor that the officer waited when he saw him by forty feet when he pulled his knife he he took his gun out in johnson the ex girlfriend or the family members were out there and behind him and he had no option when he kept on backing up once he was in front of the apartment door he did not have any other options it was not an avenue of escape he could have run inside an apartment  point yes you're the one of your lawyers yes what is your point ok what i'm trying to and get across is the expert indicated not just that he would run but if i ran towards your honor and if you had a gun and if i had a knife if you fire that fire where you would strike me if it doesn't take me down i could harm you with a knife that i would hope that i'll be holding that's been here when you have to have a ten millimeter testimony predicated on the amount of time it would take to get the gun out of the holster to yes but we are here and we know the gun was out of the holster so how is the expert testimony of any that all you to your point of view it seems to me it's  one feet for him to just fire five shots at i don't suspect depending when those bullets would strike the suspect as he's approaching the officer if that if any of those bullets whether they struck him or not they don't take him down then the approaching a person who is not suicidal but i do yes and he's suicide by actual active conduct which is one trying to cut his throat one he's already stabbed himself in the chest for three  responded to the domestic violence call he knew that mr wilson had battered his girlfriend that he had broken the door that he had thrown down her cell phone down the gutter and told her that he wanted to kill himself to him to know he never did iran he didn't he didn't know that he didn't win a conversation with no testimony from mr johnson from mr wells and that he told anybody that he was trying to commit suicide so at that point when once he returns and walks towards the officer and mr johnson who are behind him her family officers he was holding a knife and officer struck him he fell down he did not drop the knife officer instructed him to drop the knife and he was on one knee and one he was about to stand the officers shot and killed him in this court found denying i'm sorry affirming a denial of qualified immunity the officers said if an officer directs a suspect to stop to show his hands or the like the suspects continued movement like they will raise in the officer's mind objective gentiva the grave and serious suspicions about the suspects intentions even when those intentions turn out to be harmless the officer can reasonably expect the worst at the split second when he acts it's similar to this case your honour's when sense that what he's doing is he's trying to kill himself and not only his thinking about it he's doing it so when you said he's not complying certainly does not comply because he's trying to kill him so there is a common sense  well he wouldn't comply no because he's busy trying to kill himself other cases where you know comply you're there you're right in the police officer face put it down your hole and put it down here no i'm busy trying to kill myself that's why i'm not complying you see same case but it's only you know these litany of cases you can't just wrong common sense are going that's what he's doing he's not that's why he's not comply because he's trying to kill himself maybe is crying out for help but he's feeling himself in the meantime and didn't drop him at all he kept on progressing towards the officer and mr johnson who was behind and this is the officer gil was was facing a situation a domestic violence case where the suspect after he battered her after he left once he was yes your honor yeah i was it was it was waiting for a question regarding to a qualified immunity run or a believe indicated in my and my brief that since the officers says officer gill's actions were reasonable under the circumstances and the facts that he was facing there's no reason for the court to to out to do the two step analysis and regarding the state constitutional claims since their pay also based on the officer's reasonable  the deputies responded to a domestic disturbance call which involved an armed individual acting irrationally just like mr wilson was in this matter and judge fred said the volatility of situations of a involving domestic violence makes them particularly dangerous dangerous when officers respond to domestic abuse call the understand the violence maybe lurk in the next explode with little warning indeed wasis are killed or injured on domestic violence course not only on any other type of call this is similar to this case your honour's of sigil was was based in a volatile rapidly moving situation where his actions too and his perception that he believed that mr wilson wilson was an aggressor that he believed that he was under threat people behind him were under threat is reasonable and i would ask the court to affirm grant a summary judgment know why don't we know in this record what the extent of self inflicted wound are you know what i'm asking you if there had been i can say hypothetically outside all records it's not a hypothetical question this is why it is nocturnal factually it's a question about the record why do we not know the extent of the self inflicted wounds of your planning in this record he was unsuccessful in penetrating his skin he hurt himself physically in the same way that a blunt object would hurt the chest but the knife never penetrated the clothing in the skin so there was no blood there was no  of emotional distress lane seems to me that's just a huge stretch what are you relying on here i would agree with court and i don't want to waste the court's time on that i have only two things to add one is a citation to page  because it does indicate that the expert's opinion is based upon the idea that at twenty one feet he used for some reason this is a magic number twenty one feet it is possible for someone to take four steps and cut a police officer before that police officer can pull out his gun and that's the opinion and it's page ninety one in the record and i listened with interest to the recitation of all of the acts about which the officer knew that the defendant had committed in the past before the situation had occurred all of those acts that he had allegedly committed of the assault upon the the the young lady who was behind the officer all of those acts that it emitted before the officer even saw this gentleman all those actually be relevant to the issue of probable cause for unrest but no arrest was attempted in this case lethal force was used which took in lethal force the quest the question is not what threats occurred in the past but what what threats are occurring in the present