the morning of may please the court shane hayes of our somebody half of the police officer defendants appellants and i would like to request three minutes for both granted thank you if a police officer fires his gun at a fling robbery suspect and it is virtually hits an innocent bystander there has been no violation of the fourth amendment if on the other hand a police officer fires his gun directly at an innocent bystander under the mistaken belief that he or she is the suspect then a violent then a seizure on the fourth amendment has taken place that is how this court described the law in berg versus allegheny county in the year two thousand and there has been no change since that the district court concluded noted rightly that mr davenport was quote not the suspect in this case that is a page forty of its opinion nevertheless a district court don't brenden versus california to hold that she was seized when the police officer shot at the driver mr burris brandon versus california of course held that all passengers in a vehicle are seized when a police officer pulls the car over to the side of the road and justice souter's opinion for the majority in that case came to the commonsense conclusion that a reasonable person in the passenger seat of a vehicle would not feel free to terminate the encounter when the vehicle pulled over by a police officer but it is an entirely different question whether a passenger is seized when she is accidently shot at a bullet no doubt aimed at the flame driver but we need to separate the actions of the various officers to whether we have your section if this court does have jurisdiction that the district court clearly held that a reasonable jury could find under these facts that the police officer violated constitutional rights that is a finding that qualified immunity should be denied and constitutional rights were violated if the plaintiff's version the facts is true that it is a proper subject for appeal because we're not asking this court to review whether the district court properly question of whether the car posed any danger at that time this car i mean watching the video of the car appeared perhaps at least arguably to be no longer a threat to pedestrians on east course right and this was at the end of a five mile chase that b doesn't matter what happened before what matters is what happened at the time he fired short but  this year the supreme court in white versus hallie held that a police officer arriving late to the party is free to assume that proper police procedures have taken place before his involvement b n and so what happened here would that doesn't change the fact that there is a possibility that based on the video that at the time officer gorecki fired two shots i think the corps at that time no longer posed a threat here already been  i'm not going to put my eggs in the basket of the video doesn't show the gun kickback i don't see it but that's not my argument what happened here is that the vehicle driven by mr burris is pin bowling pin bowling off vehicles and he's carson street and the video last in the chain he's not a second incident or later incident he simply the last one before mr burris crashed not because he failed to stop under the commands of police i mean did he simply crash and mr there and he also jumps in front of the vehicle to get on the driver side and it's a big argument for missed every port that these officers are on the passenger side the officer greggy moved to the driver's side to neutralize the threat and as you say he fired two shots and the threat was neutralized by the crash was stopped by the crash and there's pictures in the supplemental panix that show massive damage to the front end i believe it was disabled yes so there's a big factual dispute he fired after it was disabled i don't see how those cases help sure and that is a fair parsing of the facts of the case that when we get to the end for the shots fired after the question of shots fired after the stop if there is a genuine issue of fact or preventing summary judgment there then that's discourse conclusion but we're here on on the case as it as the four officers and so if you're finding that the last officer has some legal problems that prevent summary judgment that's ok that doesn't change his actions prior to that you know last shot and the other three officers before him all right i think the question judge hardiman ask though initially we know we have to sixteenth and seventeenth across the street and he engaged the burress vehicle right after mr burris failed to heed the command of police to stop his vehicle after he ran a red light and after he crossed the center line and drove the wrong way on carson street specifically to avoid stop stress and so this is a person failing to heed the commands of police to stop his vehicle and the police engage him that is exactly sacramento versus not constitutionally problematic under either the fourth amendment or the fourteenth amendment and again i appreciate you want to look at the individual officers as you should but we all we all should also look at the individual occupants  fourteen one year after the events in this case and in footnote four of that opinion the supreme court recognized the split of authority language from two courts of appeals going one way that a passenger does have a fourth amendment seizure claim and language from two courts of appeals going the other way that a passenger doesn't so judge the cone didn't have the benefit of own home when his decision was rendered he didn't but that does or should we just remain the case for for rehearing under in light  no because this is a legal question and the district court is in no better position than you are to determine whether constitutional rights were violated under it undisputed facts and whether the law was clearly established at the time of the in note that in that same footnote for plum hoff's noted the circuits what but then cited its own sacramento versus lewis case which held that passenger injured by police activity towards the driver has no fourth amendment claim and that's it and my argument doesn't need him to be a dangerous suspect my argument needs to justify the police and gates rid of him and what justifies that is his running a red light and failure to heed police speed at that intersection i believe it was forty five miles an hour and somebody who doesn't wear body armor and has children i think that's pretty fast in a highly populated bar and restaurant district especially at night and  if you don't your lockers can pull it up on google street you can see how narrow the street as i'm familiar with think about this car flying in there forty five miles an hour at a time when the district recognize it's highly populated now we don't have video of the entire track at the end you can see people jumping out of the way the disher court stated that these officers were reckless and consciously disregarded the danger to miss davenport sacramento versus lewis determined a conscious disregard to be a mid level of fall between negligence and a shock the conscience standard and it held that police officers waiting to competing interests the desire to stop a suspect and the possibility of danger to suspects and their passengers remember that was recognizing the lewis case there's a passage in there reference the danger to passengers and the supreme court held that a police officer in circumstances calling for non deliberate fifth quick reactive activity doesn't shock the conscience when he engages a suspect and i just want to point out it you mention the speaker's fish or the fish record notes that this chase began at one thirty eight am and the brief of missed that report on appeal states that paramedics got to her at one forty seven am that's nine minutes from running a red light to the paramedics being on scene this was a high this was a highly dramatic and fast chase into a highly populated area of pittsburgh and so we asked this court to vacate the denial of qualified off her question judge fisher how fast was the first car moving at the time officer sweitzer unloaded four bullets into the passenger side of the car well in his deposition he said he first saw the car twenty five yards away seventy five feet he's standing at the intersection sargent ripple has the traffic backed up so that city block is literally empty of traffic remember commander perry has already told all these offers and they all admitting that the chase has been terminated well before this point they all heard it on the radio their testimony so well lit area streaming well that everybody agrees on that but in any event stops the cars he stands in front of the stop lane to traffic he sees the vehicle twenty five yards away seventy five feet i ask him what happened next he said he and holster his gun took about two seconds the car's at two seconds he then unloads four show us one directly in the passenger side door just under the door handle robert  the criminal lawyer just testified as to all four shots now a car traveling seventy five feet in a twenty mile an hour would be past them a car traveling at twenty miles miles an hour would be covering thirty feet a second this car seventy five feet away from him he's been told to let the man go the homestead officers testify yes the chain started in homestead which you know is about five miles away from the point where this happened but the car did not travel more than forty miles an hour forty five miles an hour down east carson street it was a slow speed chase why why does the slow speed matter in light of plum hof and i know the district court didn't have the benefit of plum hoff this but the shooting in plum occurred when the car wasn't even moving oh the car was speeding in coming off and the guy is spinning in place in place because and now he was a danger well the driver the driver here was active he was driving a motor vehicle and he was driving across the yellow lines the double yellow lines yes we see that plainly in the video we see pedestrians running out of the way as he's coming down east course and yes that's a lot more dangerous to the public than a car that engages in applying deadly force if the parent he did it the case the car is moving obviously in the wrong lane because it's passing some cars to get around the intersection but it's travelling at the same speed it would be in a school zone now at that point officer schweitzer fires we have the car deadly force it's not clearly at that speed is not endangering anybody well at that time but but that's my point under plum hof the supreme court's decision i think requires us to take all of the facts and circumstances of the chase into account because if plumb off just looked at what happened at the time the shots were fired it would it would be very consistent with the argument you're making now they would say well wait a minute this car was spinning its wheels it wasn't even going anywhere the officers had no right to shoot at the vehicle but the supreme court said now the facts change the facts change once he gets past sixteenth street and magic over each intended to interact with the vehicle and then switches lanes does what it does continues to go do you know why doesn't why isn't are on it at that point why isn't it reasonable for magic overage and kennedy to believe four times and officer kennedy shot once it started to pinned up pinball down around fifteen street and fourteen street past them but medical beach also says that he saw his bullets hit the windshield of the car there is no bullet damage in the windshield he said he shot a shot at the driver remember those cases talking about shooting the  driver in the seizure this case involves we're saying an intentional shot at the passenger willful shooting at the passenger who has no but not of the driver but not of the he said he was directly perpendicular to the passenger now passenger door the officer said himself he was three or four feet away now had an argument  made that you can shoot directly at the passenger and were to stop the driver who is the source of the danger and inadvertent shot maybe but there's a genuine material issue fact whether schweitzer shot at the passenger door see him do it i thought it's i thought it's a given fact that he shot at the passenger door what's what's not a given is what was in his mind at the time he shot at the passenger door well his motivation we have to look at it objectively so and that's why i was surprised when he said he was trying to shoot the passenger not the driver because of lee common sense would indicate that a officer trying to stop a vehicle fleeing from the police would actually try to stop it by shooting the driver not the person that's not driving the vehicle he tried to shoot at the driver in in his deposition he said he aimed at his chest and if he's on the passenger side of the vehicle at the time he shoots necessarily the bullet would travel through the passenger compartment before it got to the driver yes that passing through the passenger or her eyes as it did in this case because remember he says he's four or five feet away and we have evidence that it's well it one witness white in the shooting area it's in a reply brief sees a male driving female passenger so that shot was reckless it was the application of force without any basis in fact or in law facts that one may not believe it because he says he saw the bullet spinning and then he saw them hit the hit the windshield in an effort to show you shooting right at his at the officer was pinball ing as i said before as he saw it coming from seventeenth street which white's or it was but neither of those facts are true the crib and the crash report which is in the  appendix shows that all the damage occurred after they passed these two guys and put is doesn't the video show that the coroner was driving in the wrong lane at least twice it was afterwards after he after they fired eight or ten shots at the car that was up it only travelled in the wrong lane after mount a covert in kennedy fired their shots it was in the wrong lane when it pulled into the outgoing  i'm struggling mr lewis with you know the implication i think of your argument is where we need to divide up the conduct into small pieces and i'm struggling with that because if you think of scottie harris for example have you seen the video in that case yes right that was so real so the police officer it was high speed which is different than this case but what sort of striking perhaps about that case is at the time that the officers pushed the vehicle off the road by force there's no one around there in the middle of the country all you see are woods right and apparently the supreme court  allowed that conduct because of a lot of the things that had happened previously namely running red lights high speed so the guidance i think from that ca is that you have to look at the conduct as a whole and that conduct as a whole in this case would include not some five hundred yard illusive action but a five mile pursued involving multiple police departments and sometimes the coral was not a danger to anyone but other times you see you see citizens running out of the way you see the car go back to these other officers it's only the knowledge they have and in all those cases there was not an order from the commander to hate do not stop these well they don't need an order though they just need to know what's happening right here that's true main went once that at least as to some of these officers and some of this factual situation mean that the law is not clearly established and if we have jurisdiction the officers here judge i would think it's obvious that innocent party a passenger the same as the bystanders intitled to the same standard of conduct from an officer because he's innocent and if he had been what they found so you know what's an officer to do in that situation when he's trying to balance the risks at one thirty in the morning yes your honor i understand that the position is his vague as to the two officers that shot weapons they recovered a fragment from her brain which they could not identify but it's clear that they were the only shots fired now as perverse to allow mr burris is placing of his own mother between him and the police to work against the legal claims of the police in this case well there's no indication that he placed you there to protect himsel you know but he did cross the center line and so just geometrically she is between them and the police and that's why the bullets are entering the passenger compartment and the hood lando rivera the court held that there is no fourteenth amendment claim as well this statement by mr lewis on in his argument was that the shot taken was reckless that's all we need to win this case a reckless shot taken that mid level of fault does not rise to the level of consciousness shocking under sacramento vs lewis this does not negate any state law negligence claims are the state law punitive damages claims for recklessness all over here on is the one hundred eighty three claims but if the car was disabled at the time correct he fired you would have to concede that that's an actionable constitutional tort yes and so and no seizure and that the shot taken doesn't shock the conscience well maybe the district court got it right for the wrong reason though i mean i asked the officer directly sure i do think th way where is there no you have to show us i think that there's no issue of fact about whether that core posed a threat at the time even though we need to parse the facts and analyze each actor in this story individually we do not need to analyze them separately officer directly was at the end of the line  we do not want the law to be officers second guessing their decisions to engage suspects you know in other words we don't that the law does not require no clearly established law requires officer directly to hold back and see if mr burris is going to continue on the law encourages and we as a society encourage off cigarettes to make sure the threat to society is neutralized here it was unfortunately misstep in court was injured in that process but no clearly established wrong law you just said the threat was neutralized yes as it all depends on the timing of when that threat was neutralized visa v correct he firing his weapon right i mean what if the threat is neutralized if it's over if it's over a police officer can go up and shoot people i agree with that but if it's not over see plumb off then the officers can shoot and all the judge said here is there's a material issue of a fact in dispute as to whether this was over at the time correctly shot and if this court agrees with th report then the opinion should read that the that there is qualified immunity for everything that the last shot we're going to have a trial in the last trial but i do think officer misconduct as a whole at the end of this narrative