it please the court jeanne homan on behalf of tacoma police officer christopher clarke i would like to reserve three minutes for a rebuttal please officer clark was involved in a shooting in october of two thousand and eleven the facts which are material to the excessive force claim against officer clark are not in dispute in the record and yet the district court committed several errors on summary judgment the district court did not undertake run through your version of the undisputed fact the facts that are material to the question of excessive force as emphasized by this court in wilkinson is we must view the facts as perceived by the officer at the moment they fired the weapon just give me your i want to hear your narrative ok or clark had positioned his vehicle in the parking lot in a place that was narrow and intended to contain mr orne as he was sitting in the vehicle with his partner officer rose mr oren was coming down the parking lot and driving directly at the patrol car fearing that the car would be rammed the directly at the park but trolley car seems to be interest peters facts for one thing mr excuse me  mr oren as i understand it says he wasn't driving directly at the at the patrol car and some of the other officers who were present didn't see the  didn't see that he was aimed at at the car we have not got to the point in the event your honor where the decision where the imminent threat was presented to the officer in the decision to employ deadly force that it was more like he wasn't driving directly at the car he actually was your honor and i think that plaintiff would concede that when the vehicle was positioned in the parking lot mr oren was driving directly down the aisle of the parking lot towards the patrol car officer my understanding is that there was room between two cars and he was aiming for that room between two cars no your honor you have the wrong point in the events can you see this is this this is your five hundred and thirty five is this a diagram that accurately represents the scene yes but the point that i'm describing is prior to this point in time right but this thing here is like a speed bump or something correct yes ok i think i understand ok and so what was happening is as off as mr oren was driving towards the officer he exited his patrol car moved off to his left to a small median to get out of the way at the same moment that he exited the car he saw his partner reaching for the door he believed officer rose had exited the patrol car as well mr oren approached the patrol car excuse me that's what designer stand had said it emphatically several times that when they spoke about it afterwards officer clark said nothing about trying to print anything that he thought about mr officer rose that he said he was trying to protect himself he never said he was trying to protect officer so officer excuse me therefore and so least and a bit of a fact as to whether he saw officer doing anything your honor i would respectfully disagree officer rose testified that they had a conversation and he didn't recall officer clark mentioning it officer clark's written statement documenting this event was written and dated on october th two thousand and eleven it is in the record at and ninety nine dollars in his written statement and in his interview with the officer involved shooting investigators he expressly indicated he believed officer rose had exited the vehicle so his statement with respect to his belief as to officer rose's position was contemporaneous with the events can just keep going on the past is i'm ok if we can also so officer clark has exited the vehicle and moved off to the median on the left him there is conflicting testimony as to whether or not mr oren came to a complete stop or simply slowed significantly officer clark scuse me mr or and then began to pull around the friend end of the patrol car up onto a grass median believing that he would not be able to come off of that median officer clark moved from the left of the patrol car to the right corner of the words he is he standing behind the bumper here he is standing as i'm standing on the podium at the corner like this and the car is coming around the cars coming around this ok so how is he at risk of getting run over from that position because mr orne as he is pulling over the berm was intending to go north officer butts backed his car up block that avenue mr or and then yarded the wheels to the right the officer is standing right at the corner and the car is coming directly at the corner  view i'm looking to see if you can help me with this diagram if you standing behind the bumper the rear bumper on the passenger side of this car is going to go past him and he is not going to be the car is not going to be coming at him he's protected by his car he wasn't completely protected because the horn vehicle was aiming directly at his patrol car where he was standing and he's trying to move back to get out of the way and the wheels are still turned to the right and he's now put his left hand out and he's backing away from the car he's pulled his right hand up and the st three shots that were fired went through the side of the vehicle the wheels were still stuttering stop right there ok because i have this diagram which is your five hundred and eighteen which shows us the very st shot it looks like enters from kind of the back almost the back side which suggests that when he fired the st shot the card or you passed you diagram that you're looking at you will see two hand drawn lines on them that actually represents the approximate range of the st shot plaintiff's expert left the st shot off the diagram so during his deposition i had him identify ok i see i see those but they are still fired straight through the passenger side window meaning the car has are obviously cleared your officer he is directly adjacent to the car and the wheels are still turned to the right there are parked cars in the area and he's afraid he's and your honor the law is clear if the question becomes whether or not his perception of the imminent danger is reasonable not whether it's accurate because a mistaken but reasonable belief that the suspect presents an imminent risk of death or serious bodily harm does give rise to probable cause to support an application of deadly force event but if you are standing behind this car here and this car has already passed you i don't see how you are at any risk yourself of getting run over you might be fearful of people downstream i grant you that but i don't understand how he can claim with any degree of reasonableness i mean when the officer was standing at the bumper of his car he's not directly behind the car he is out far enough so that he can take up a cover position and he's issuing commands to mr horn ok mr horn's vehicle struck the patrol car right where officer park had been standing and all of this happens and happens and in the west stand no was standing and then he's moving back your honor ok i see all of this in the quiet of this courtroom is easy to piece out but we have a split nd when the car came off the berm i group but but we have testimony maybe it's conflicting that the car was literally going crawling along at four miles an hour so the uncontroverted testimony that is relevant to your analysis is defined by the acceleration mark on the pavement there is in the record and it is contained in my brief with accelerated just before that but several other people said it accelerated after the shooting so let me clarify the record st off which the period you're looking at i'm looking at page thirty three of my brief review and i can direct you to the excerpts of record as well if you like and in fact the best  of the excerpts of record so let me clarify the record with respect to what the testimony was officer but said that as it was as mr oren's vehicle was crawling around the front end of the patrol car going maybe four miles an hour because different officer gave it a different speed officer rose said that he thought it was going much faster but here's the part that actually matters we all agree that what you see of the excerpts of record is an acceleration marked on the pavement left by the orange vehicle that is as it leaves the berm it accelerates enough to break traction and leave a mark on the vehicle there is an opinion in the record which is utterly uncontroverted from an accident reconstructionist who did a crash analysis of this and puts mr horn speed at that point in time at about ten or eleven miles per hour at the time he hits the two cars that are in the parking lot after he's cleared officer clark he's going to twenty two dollars and at the time he hits the dumpster he's doing twenty five  hunter's this contains things like twenty to twenty three miles an hour on the impacts he did the park chevrolet that's what i was looking at ran toward the car and shot through the back window correct six or seven times pricked right and as to that he's not claiming any danger to himself and not to himself he says that he thought car even though he wasn't out of the car needed seemed at the car now is that reasonable yes officer rose testified that he did in fact attempt to get out of the car and as mr horn came around the front end he had to scramble back and to protect himself but here's where is that it is going to be on page one hundred and nine of the excerpts of record page fifty four dollars of the deposition beginning on line six ok i'm doing a very good job of finding things thank you officer officer clark's situation is truly no different than what happened in wilkinson this court in wilkinson said in wilkinson the person was out of the car was known to be at the car and any issue  whether he was actually run over but he was definitely out of a car correct but the question the way the court analyzed it in wilkinson is even if he was safe officer tourist his belief was reasonable and all of this goes to the substantive analysis on the excessive force claim that still leaves us with a qualified immunity the district court did not engage in any qualified immunity analysis the supreme court has ruled that i mean you're right about that which would have deprived officer clark of his qualified immunity the only case that the plaintiffs cited was adam v spears which is so factually in opposite that it isn't even close so why wouldn't  if we construe the record in the light most favorable to the plaintiff as we have to do here this should do why couldn't a reasonable jury on on that set of facts conclude that number one officer clark himself was never at risk of getting run over because the car was moving too slowly to pose any real danger to him given his position he could just as you said take two steps back and he would be fine just that that would be part one and then part t is that even after mr horn rounds officer clark's vehicle and is now going to try to proceed out of the parking lot even at that point he's not driving like a bat out of hell driving recklessly where he's going to likely endanger anyone who might be downstream well we don't so you know just how to text well just so in that sense even if officer even if you're even if officer clark thought officer rose was have out of the car and was sort of lurking in the area there wouldn't be any reason to use deadly force to stop mr horn from proceeding but that takes that takes the entire pursuit out of context the district court and again the courts obligated to take the facts in the light most favor newer version of the facts in correct if i construed in the light most favorable surely because if you put it into context prior to that point in time mr orne had already committed several felonies which he did in danger play well in fact st of all son i mean one option was to stop pursuing him it was your honor and during the course of this mr orne committed several felonies well you're saying that what they tried they and presumably the prosecutors charged the ones they thought they could prove he was acquitted the police have no control over what the prosecutors charge and the acquittal is based on a standard that is wholly different from civil the qualified immunity analysis requires that either the plaintiff or the court identify specific case law which would leave it beyond doubt that the officers conduct in this case was unconstitutional neither the plaintiff nor the court did so there is no case law that the defendants have been able to identify which would have been unquestionably clear and in stanton v sims the supreme court actually characterized clearly established as the equivalent of incompetent if you're saying that the officer was incompetent then you have to be i think it was absolutely incompetent i don't say that to be able to point a snake in law not none of his actions make any sense if if you credit the danger of being run over and the guy and mr horn is driving so slowly and non recklessly as not to justify the use of deadly force to kill him from driving through the parking lot that's the plainest version of the fact i don't you don't need a case that says in that scenario you cannot kill someone to prevent them from leaving a parking lot but the cases you're on are that have been decided by this circuit and others all suggest that if the officer is in a tight space has a split nd and i  mean he's only space because when he was he was in a safe space at one point he was on his grass on the other side of the car and then he decided come over to the side  was that because it's his obligation to them to take mr orne into custody he believed that mr oren's vehicle was going on so he could have been perfectly safe he could have just stayed where he was he wouldn't have been able to see mr orange vehicle because his patrol car was be deadly force to arrest somebody who was known crimes and i understand you say there were others but they're not substantiate anywhere that i know about were driving without his lights on and and there's testimony in your honor in the record from officer bordal about the deliberate swerving of his vehicle towards officer border causing officer border to pull out there's testimony from officer rose that said that mr oren committed the crime of felony alluding when he drove into the oncoming lane to avoid the application of spike strips there's testimony in the record from sergeant morris that talked about the felony reckless driving that occurred when mr or and drove down a no on page one hundred and nine of the record page fifty four of the excerpts at the time i kind of braced myself for the impact from what i could tell mr oren swerved at what appeared to be the last minute and he went around the front end of our vehicle and as he was coming around the front end of the vehicle i started to exit again and then he turned his vehicle hard to the east which would put him roughly parallel to our vehicle right next to my side so i stopped coming out fearing he would actually strike the door as i was exiting he continued past and struck the right stop he had his weapon drawn he had taken a position of cover he had his weapon pointed at mr oren's vehicle he was giving mr orne commands to stop to exit the vehicle mr oren testif heard those commands he saw the gun he testified he didn't intend to aim his car at officer park but he also testified that when officer butts moved his vehicle up it were presented to judge layton and i'll just go ahead and read in this is on excerpts of record page nine judge layton repeated what the plaintiff had said which was in addition to the multiple significant differences between what officer clark told investigators versus what others observed in the admissions clark made to his partner donald rose the evidence does not support clark's claims about she would you not read that i mean i've read that probably two or three times are you just reading from the district we're talking yeah i just read that come on how about if you start with taking the facts from the vantage point of officer clark and tell us what you disagree with what you heard your opponent describe from his vantage point ok your honor i guess i'm confused as to what the what the role of that would be since it's since the standard is to look at the facts in the now that's in the most that's what she was claiming to do we have to look at the world through officer clark's eyes not through your client no absolute through officer so you heard her describe what he was seen and and why he thought that what he did was reasonable so just what is it that you disagree with that factual merit ok make your own or do you want me to start with the totality of the circumstances which is what we're supposed to do so this is just  the circumstances begins far before officer clark says that he's either an officer clarke's testimony is not that he was right here he has no idea exactly where he was when i deposed him he talked about there being an entire radius around him and he could not accurately say exactly where he was the fact of the matter is he was somewhere around the back bumper but he never says that he peeked his way out he never makes any claim like that whatsoever that's just simply in accurate based on the testimony that he gave me in his deposition he never said that at any point during the the in any of his declarations or any other part that i'm aware of and he certainly didn't s but it would be helpful and can if you could give us in chronological narrative sure what from the point in the evidence most favorable to the pl what officer clark reasonably did well i don't think anything he did was reasonable all right but your honor look but here's my understanding of it is that there was a direct order that everyone was to stay in their cars they came from the pursuing sergeant sergeant morris and or it could have come from officer johnson i'm not exactly sure who and the relevance of that and is that they were they were this is a part of the reasonableness of what officer clark so he ignored a direct order he parked his vehicle so that it was in a roadblock which was against departmental policy knowing that it would precipitate some sort of use of deadly force because if there's a roadblock god forbid miles per hour but in any rate if i pick back up where i understand officer rose to tell his story he's in a place of safety as you suggested of the clark i'm sorry officer clark keeping the other in the grass on the other side on the so he's over by the mailboxes well actually is not by the mailbox by the berm where there's a whole bunch of parking off to the side let me make perfectly clear that he could have stayed there he could have stayed there he got out before officer rose did anything officer rose testified he didn't wait and look at officer rosen see if he was grabbing for his door to get out he parked that car so there was perpendicular to the roadway and he got out he didn't do anything to look for officer rose and that's what i offer officer rose testified to in his deposition was that there was no deliberation when he looked two when he actually parked the vehicle so at any rate he gets out he has his vehicle already drawn and remember t p d went and looked at whether or not this was a pursuit or whether it was a failure to yield it went back now there's only the criminal case that we're looking for that looked at these facts but tacoma police department looked at these facts too and found that there was nothing other than a fail to yield and that it was not done well they didn't say one way or another because it wasn't even a pursuit but the idea that this was a felony so don unless you pursued it clearly was a pursuit to i how many police cars were there  twenty to your honor yes twenty two followed him and yet t b d came back and said it was a failure to look at since you've gone back to the ok my suit what do you disagree with your opponent statement that your client was driving recklessly rammed his car into another car drove into oncoming traffic yes i do just based on the review after the fact course i wasn't there and i don't know but what do you have to this view that i'm sorry the i apologize your good did the police report say  that he never got out of lane or he never drove into oncoming traffic well there's various testimony at least with regard to the review that was done after the fact by tacoma police department this is not the criminal case but of course the criminal case tried to understand it well i don't deny there are hard to understand other than the fact that he and his mistaken belief thought that if he got to the back to his wife who was working in evening shift that perhaps t p d would not tow the vehicle they go ahead and let his wife take the car course that he knew he was going to go to jail at that point because he was driving without a valid license but in his mind he thought ok if i get the car back to the apartment complex  drive over spike said as he eluded them by going into a lane where they worked well he avoided them i guess i'm having a problem with deludes and well i mean i'll give you a void but you avoid spike strips by going around them that what he was doing my d m s call that was closer to the time of to the what they're there now at the apartment complex and that was ok so that they are there at the apartment complex the order goes out to all of the officers to stay in your cars let the dogs get in fact you can hear it throughout the recording which is you know the dispatch that's coming out there's a head of dogs arrest something you know they say let the dogs get him so there's an a reasonable conclusion based on what has happened so that at any rate that's the command officer clark for whatever reason decides to use his vehicle differently he's in a position of safety mr or drives the opposite way not towards dr officer clark at that point but he goes around the grass berm and my understanding is that officer clark leaves the position of safety and then he goes behind his vehicle  can't testify exactly where he was behind the vehicle and the idea that it's undisputed fact that he was peeking out is absolutely disputed but any rate he is there and then officer butts moves his vehicle as mr orne is going around in his mitsubishi and mr orne so that he doesn't run into officer butts goes by he does touch the the back bumper of there hav butts move his vehicle and so that he wouldn't hit officer bud's he turned the wheel to the right but that there are two material disputes there which are number one was he really in the path of mr or and when he was going by and number two what was the speed this city or officer clark excuse me keep saying well there acceleration marks but in his deposition their expert says acceleration mark only means that the wheel is going forward it has absolutely saying it just means the car was calling us plus knock on move for all it means is that the traction is moving forward that's when the acceleration mark is that's different than a skid mark or a hard accel aeration mark all of the different things that there could be but it any rate my understanding is based on the testimony again of officer rose who was still in the vehicle is that the contact that is made with the bumper is so slight that he does not even feel the vehicle move from the grass berm he was on to the back of the car he mr owen was stopped in front of vehicle that's the testimony of the officer that was immediately behind mr or so he stops he's not going isn't any easly isn't my understanding what's at no stop instantaneously me for a very short time yet for a very short time he stops the vehicle and then he drives in the opposite direction to from where officer clark is i don't wan that narrow area which is close to the weather where the patrol car could have gone somewhere else as far as well i suppose he could i'm trying to understand if he's going to stop yeah i could stop right yeah he could stop but the fact that he didn't stop in the fact that he was rolling along does not therefore necessarily mean that the use of deadly force is something that you know what i'm trying i'm trying to understand is whether when officer clar was he placing himself in more change or in some yelling fashion than he was in before officer clark yes yes and and that was the body positioning recommendation from the use of force review board with it to come a police department is you've got to know where to put yourself and if you know officer should leave a place of safety in order to put themselves in a bad position in a quickly evolving situation that is simply he was on the grass vermin he was safe he shouldn't  anywhere but period regardless of what's happening elsewhere correct if you're in a position of safety you're outside of your vehicle and you're dealing with a moving vehicle don't put yourself in a bad position it's not reasonable to do so well i assume that you case law that says if there's a threat out there either to the officer or someone else and we look at you we look at the graham factors to find out how mr or and if they were chasing a murderer right might be yeah or even in some of the cases that clarke has cited where an officer has been actually hit and there is the potential for continued violence or some sort of danger immediate danger right after we don't have that in this case at least that's a disputed area of fact officer going to give him well i guess it was after that after the obvious or car moves that he did hit two cars a little bit he did but that's after he shot in the spine your honor the best testimony is he you have the car going by and it's going by at a very slow rate then officer clark without aiming because he has to put the gun above his head is either walking or running alongside the officer clark says he had his hand on the car but there's no clear evidence of that and he says it's on the run fry or the right front bumper which would not match up with the fact that the naturally just goes down on the accelerator and it's an end that's and what about he then later shots well there is your position about the record i'm not as to that it's undisputed that it's after the car is going away he's it at all again he didn't know where officer rose was officer rose testified that he didn't ask him or say anything when he parked the car and went to the st berm off to the left are those shots less important because he was off i mean the injury that cau paralysis had already occurred well i would argue that they're not less important they still hit him and cause him to hear damages for example i mean if somebody i mean there are cases where somebody thinks well the st two shots may have been ok but after that it was a reasonable well he all hit him and then three out of the remainder i don't know if the st three shots in fact i don't think the st three shots hit him your honor i think at least one of them did and i think both of the experts agree that it came through the rear passenger window came down and in it we actually went through the upholstery of the what he was hit by some of the original shots at least one and then he was shot multiple times in the neck as fine as he went when he was already passed that's officer clarke have reasonably felt in danger i'd like to direct you to the diagram which is contained on page five hundred and sixty dollars of the record it is part of the accident reconstructionist analysis it shows the position of call both as it approached and as it contacted the patrol car it is in the bottom right hand side of the page it does far better than i ever could with words describe why officer clark reasonably felt that he was in danger i mean mr horn accelerated off the berm there is one other thing i would like very much to address if i may mr cochran just told you that acceleration marked means the cars moving that's not accurate and that's not consistent with the record you will find mr hunter the accident reconstruction is testimony in the record it was put into the record by plaintiff's counsel it is on page two hundred and seven of the record where in he says an acceleration mark means that it is a weight shift sufficient to cause that tire to break traction and leave a mark cars  margins that's a meaningless statement what that means is the car when it came off that grass berm and the front tires impacted the pavement was under acceleration hard enough whether that was five miles an hour ten miles an hour hard enough to cause the traction of the tire to break from the road in spinning the tires yes basically tensional so let's remember where officer clark is and how far away this is a six thousand pound vehicle which is literally a car length away and it is under acceleration hard enough to spin the tires and the diagram on page five hundred and sixty shows you  haven't shown it your honor the placement of the oar in vehicle in relation to the corner of officer clark's or in the blue cars the patrol car ok so why does this show conclusively that officer clark was in danger here i'm not saying it shows that he was an actual danger the question is whether or not his perception of danger was reasonable give officer clark's actions in going from the safe place he was when he got out of the car and into the place where where where he was at the time the car was moving forward is not pertinent to the discussion another words that we should just be focusing as i understand your position it's that you just start with where he was  at the point that he perceived himself to the in danger and you don't ask any questions about what he was doing there i have two answers to that st stop what plaintiff is basically arguing is that i understand that's the that's the intimation is by moving from a place of safety to where he was police officers put themselves in danger all the time that's what we pay them to so this whole set of events was because a man was driving around paris lights on the importance of of arresting this guy as least somewhat lower than if he were chasing a murderer does that make any difference as to whether it's fine for him to put himself in danger and and polo gun and contemplate the use of force a deadly force certainly under the graham factors the circumstances make a difference but the single most important factor is whether or not the suspect presented an imminent risk if you take a hypothetical officer attempts to pull over somebody for what is a traffic infraction and then that person pulls a gun of course nobody would dispute that the officer would be entitled to it but he was there by that  point he is there next to the guy with the gun but this guy was not next to the person with the car and he put himself next to the person her and i think this court's analysis in billington is probably dispositive of the question your honor is asking even if an officer makes bad tactical decisions that are negligent and puts himself in danger that will not change the analysis on but it was only going to plant something dangerous that he put himself in a position where he was contemplating  vehicle their weapons are drawn ok they give commands to the individual and the felony again was in this case felony eluding assault and there if you would like me to identify the places in the record for officer bort