video i'm sorry body cam video that i hope that the courts have the opportunity to review that captures most of the relevant facts in this case it's our position that the district court err in granting summary judgment as we believe that the evidence sufficiently shows for the purposes of summary judgment that reasonable jury could find in fact supporting a violation of constitutional right that was clearly established at the time of dependents conduct the use of deadly force is justified in the th amendment only if a reasonable officer in the defendant's position without probable cause to believe that there was an immediate threat of serious physical harm to themselves or others and it's been specifically established and this this is a quote from the case that we we cite  suspect was not charging the officer that had made no slicing or stabbing motions toward him that it was unreasonable for the officer to use deadly force against that suspect applying those principles officer gertner used object of lee unreasonable and excessive force in this case in particular at the time that he was shot by lieutenant bacon officer gertner mr ross was quote armed that the use of deadly force under such circumstances is unlawful without justification but tenant pick an officer gardener shot this man dead in his garage who committed no cam evidence and concluded that we would would you agree again that they had that they could use deadly force well i think your honor i think that that's the classic  issue of fact for the jury to decide i think that it is possible that a jury could interpret the bigio that way yes but for the purposes of summary judgment  it and it's our interpretation again of the evidence and i think a reasonable jury could find that that's just a defensive stance that it was at that moment that they began using deadly force  in your your argument he said that he was in his garage in fact he wasn't in his garage was he he was in the garage of his ex wife who had called the report the police and asked them to remove him  how does that affect your analysis in terms of him he was trespassing yes yes yes and no i think that when you look at the entirety of the rare record at about six o'clock he was at the house of his ex wife and his former house he still had possessions there including tools in the garage she don't allow them to be there and then he actually even let let him her her car he took the car longer than she had anticipated came back around nine o'clock she believe that he was intoxicated and it was at that moment  that she did call nine hundred and eleven and say rather calmly if you've heard the nine hundred and eleven call that you know my ex husband's in the garage i think he's drunk he won't leave and that was th out so essentially there's a there's a couple of issues one of one of the issues that we have with the district court's decision is back in and include that in any way or give it any weight and his in the court's decision it's our position that there was no reasonable suspicion to even search mr ross some of the circumstances let alone probable cause to arrest and that goes directly to the issue of whether the officers conduct themselves was reasonable and and how they handled this and whether or not their own conduct under our versus muskogee contributed to the to the situation we have with regards to  seems like you have to separate windows of time in entering the garage and then them when they're confronting this rubble us when he raises the hammer so you now you're going  the st window of time when they enter the garage in seventy s the majority interpreted alan to say that in al of course the guy has a gun he's not hurting anybody and the allen including said he would suggest that it was clearly established that they get this call you just pointed out that the nine hundred and eleven call doesn't express any alarm they have no reason to think that this guy is like this baseball bat wielding man inside the yost or like the fellow in his driveway holding a gun suicidal and al and they have no reason to suspect that this is going to escalate they walked calmly into the garage at that juncture would you agree that they haven't done anything remotely like sabio several correct at that point when they entered iraq yes or at that point in time i mean i do believe it was an appropriate for them to  and it's at that point that i think it just completely got out of control what right and what case what case would have alerted these officers that if you have someone raising hammer with  same weapon it's a tool in that it's hammer in his garage ok so it's not a we're not talking about a man with a gun it's at most a primitive weapon and similar to the weapon and is not threatening the officers with the mc not charging them not making a stabbing or slicing motion then it's it's unconstitutional to use deadly assuming a defensive posture or a hostile one is it is it your position that it that the video unambiguously shows that it was just defensive or are you saying that there's some ambiguity about that i believe that i believe it has a big u s but i i would concede that that somebody else could maybe come to a different determination and again that's that's a that's a classic that's a classic issue of fact and that the courts even qualified immunity on summary judgment are still to examine the facts in the light most favorable to the plaintiff in this case that didn't happen because it's a very reasonable interpretation i think i think  that this as they're closing in on him and he's saying no no i didn't do anything wrong is in his garage closing in on and yelling out him with their guns drawn  not would here representing lieutenant brand of beck and officer joshua gardner since we have a video in this case and the facts seem to be very little in controversy i will jump different than this case that case involved a call to the police to try to get the police to help a family find their suicidal son who was missing reportedly  blade that's two inches long open it to his wrist and according to the witnesses the police officer shot and killed him from a distance of twenty eight feet away that it's not this case well there are some similarities i mean one in both instances we're dealing with someone who is not currently in possession of all of his faculties here they know that this guy's intoxicated right oh  are not and while they might not twenty feet away they're still pretty far away unless you're dealing with or the founder guard god to throw a hammer and isn't the over arching eight to ten feet based on the video on it i mean that would take a lot of force to throw if the guy charged at him with a hammer i think you have a right to shoot but it seems to me it was pretty precipitous to shoot him when he doesn't have a weapon that can easily reach you and he's not coming towards you  with you about that or the fact that it's so close that that's literally two steps that the suspect would have to pay before he could get to officer gurney so  i would have to respectfully disagree with you about that aspect of it about it or not if the jury should get to decide now i mean that there's a there's a district have their use of force found to be constitutional this court has made recent decisions i think one of them was that the idea versus doj case wit where the court talks about you don't have to wait until you see the glint of steel before taking action because if you wait longer than that it may be too lengthy and i think that also comes out of the or emotionally distraught individual they have a heightened obligation then when they're dealing with someone he's not employed and i don't think just because you're intoxicated puts you into a new  him slur his words we can address the officers and for the purposes of the record because the officers didn't rely on it in any way we didn't include any of the post  soviets he wasn't holding a gun he was holding a baseball bat obviously the baseball bat could extend ten to twelve c and they were also enclosed like they were here so that they could have retreated they could have increased the distance and yet the binge already found out only that it was a constitutional violation but that it was a violation of clearly established a constitutional right to you know to fire holding a baseball bat and so why doesn't seven goes based on its interpretation of alan provided the clearly established source for a violation of them shooting and mr r with somebody who's the range for dangerous and has a dangerous instrumentality we don't know that the danger does not arise in this case until all three officers are inside the garage   and this is from his versus hughes supreme court case that the clearly established law prong does not require a case directly on point for the right to be clearly established and i think that the existing authority that we cited has sufficiently put them on notice that this was unconstitutional thank you thank you thank you to both counsel we appreciate your arguments