officer browder san diego police department and an avoidable shooting a shooting and should not have happened just to start off i want to focus on the most important factor the graham factors the immediate threat of serious that there was an individual that matched a similar description that had used a knife to threaten someone threatened to kill some threaten someone yes and repeated the threat inside the bookstore yes so that's what he knew driving up correct so there and there was a report of a knife it's important that officer rather never believed he claims he believed that he saw what he believed was a night but never a gun that's not part of this record so i want to know more about i was the threat is a t he said he showed me a knife and said he was going to kill someone right that's right  we don't have the actual radio call in the record though do there's a summary but i i didn't see it transcript of one that i missed and i believe it's just the summary  the so the in hayes v county of san diego that's nice circa two thousand and thirteen there was a suspect domestic disturbance and there was a call where one officer two officers and they said to the suspect show us your hands the hands were raised from about sixty feet away and the suspect was then shot when it was revealed that he had a large knife and was moving towards the officers so that case was not that was not a summary judgment case the important part was the deputy said i thought the moving towards me even with a large knife that i felt that that was a threat and the court said that's not enough possession of a deadly weapon is not dispositive and the court a simple statement by the officer that he fears for his life is not enough absent objective factors justify deadly force in this case you have officer browder saying that for doing was aggressing him and that subjective belief is not enough for summary judgment especially here where you have watching the video and undisputed the defendant's experts even agree that for doing was walking at a colony relatively slow pace below average and by the end he had actually slowed down or even come close to stopping and turning away from officer rather before he was shot two witnesses to these events that that they heard  that's correct your honor officer browder does mine with the officer say that doesn't remember giving any warnings another witness said he didn't hear anything so there is a disputed factual issue ever whether warnings were given there's no deal or your third witness andrew nelson who saw the officer browder hold up as hand like this meaning stuff that's correct but two witnesses say they heard stop drop officer browder identify himself as a police officer may be but just to sort of set the stage a little bit i mean the officer arrives there's been some discussion a brief about well it was a misdemeanor call for someone with a knife but to me it's a heightened risk situation doesn't really matter if it's a misdemeanor or not the officers confronted with somebody that's acting in a dangerous way and threatening potentially threatening people when the officer knows that sometimes people make  false calls on nine one one and they can't assume that everything is accurate and i understand that but it's still it was a heightened risk situation the officer was confronted with right i think that's right what out what i wan on i think it was the officers obligation when he arrived at the scene to actually evaluate what happened when he got there because when he arrived there was no crime being committed and no one was being threatened what he witnessed was someone walking at a casual slow pace down an alley and not doing anything to anyone so i think that's that's important focus here but i i agree and i understand your understatement about that so the so you have sometimes ok thank you part of the record we knew that all of us i'm sorry we all reviewed it ok thank you and long gorier there was also a video this was a different type of case it was a traffic stop the suspect led the police on a seventy minute chase was resisting but in that case summary judgment was also reversed because the officer testified that he saw what he perceived as the shooter's stance the video the court said that was not perceptible in the video i think that same thing applies here officer brodeur said he saw him aggressing him focus on him the video doesn't show that and the expert witness testimony even of the defendant's just said he was casually walking along so i think that's that's  it matter that the police officer was shown the videotape before he was questioned yes it does i believe it does because we think there's there's a material issue of fact as to officer about his credibility and whether or not he actually perceived the knife or should have that so at the scene before he was before this five day later statement he said i didn't see there's no weapon there's dispute about what that meant but he said there's no weapon five days later is the next time yours interviewed after being coached by his attorney able to watch the video multiple times with his attorney then he said he was aggressing me with a knife that we think there's a factual issue there as well we also put in expert testimony that officers are trained to just ascertain the difference between a weapon and a non weapon in the hands of a suspect that was an issue in long oriel as well because the officer there was a material issue of fact over whether the officer was it was reasonable for him to perceive that there was a weapon in the hand of the suspect turns out there wasn't just like this case it was a blue pen that's all hindsight i mean the officer hire a situation somebody is coming down the alley they've got something on there in their hand whatever it might be even if it's been a knife assuming it was a knife with the officer it been justified in using deadly force in this case if it still on reasonable even assuming he did perceive a knife i think from that from that the distance he was given that there was no objective threat whatsoever no no slicing no stabbing no moving no moving the hand over the head justin and the undisputed video evidence here is someone walking casually along in an alley and then he to get actually slows down and turns away from the officer i also think given the the video evidence and if he did hear stop or drop it which you know justice hawkins pointed out then he may there's a there's an argument and immaterial factual dispute over whether he was trying to comply he was slowing down turning stopping at the very end right before he was shot and that's the same as the hayes case to sit in long oriya that at the end of the day the court held that the video evidence alone raises material issues of fact as to the reasonableness of the officer actions i would i would say the same applies here but the video evidence doesn't show the officer extending his wrist ninety degrees and the stop motion does that that's correct video evidence does not the defense has raised a twenty one foot rule officer browder testified about the twenty one foot rule which is the suspect is within twenty one feet they can reach you an officer by sprinting they can get there faster than the on holster remove the safety and raise aim shoot a gun so in this case a twenty one foot one has no applicability whatsoever officer browder during the entire encounter had his gun already pointed aimed and ready to shoot only took a split second the pulled the trigger also you have to have a suspect who is sprinting in this case undisputed he was walking at a below average pace never sped up in fact he actually slowed down and they have stopped and turned away from officer brother also important from from glahn because we have that in this case too there's expert testimony that the escalation to deadly force was unnecessary too quick we submitted expert testimony from roger clark a prominent police practices expert on this the same issue that this was an avoidable shooting for multiple reasons there are obvious alternatives putting taking cover behind the car to give officer broader more of an opportunity to actually see whether this was a knife or not and evaluate the situation there was the use of a taser was within twenty one feet there were no adverse weather conditions so one more case briefly ninth circuit georgia the morris two thousand thirteen this was this was a case of the suspect had a gun pointed down and the court said if the person is armed or reasonably suspected of being armed a furtive movement harrowing gesture or serious verbal threat might create an immediate threat here we have none of those no herring gesture nothing no serious verbal threat let alone anything it's undisputed for doing said nothing didn't threaten officer brother in any way and officer browder testified at the moment that he case where you just cannot shoot an unarmed sub's suspect who poses no threat that would be tennessee garner among many other cases if you get more specific there is one case i'd like to to point you to which is revers madame two thousand and fifteen eastern district california case it's in our papers the suspect was told to drop the knife and refused he moved his foot and was shot multiple times by an officer rule fifty motion was denied on qualified immunity and the court there said there are multiple opinions issued before two thousand and ten establishing that police officers may not use deadly force when faced with a person armed with a knife and similar situations they go through many other cases from different circuits the idea and the upshot of it is suspect unless charging threatening slicing stabbing some actual threat when they have a knife that should not be afforded qualified immunity that can't just be it's not enough that someone is just holding a knife and had qualified immunity the court that affirmed that rule and in reviewing this case that the trial court in appropriately construe the facts in your client's favor no the material facts  dispute is there any more important the tiriel fact in this case the officer browder perceived in the middle of second before he fired his service worker that's the heart and soul of the cases that is a very important part of the case and in the walkthrough after the shooting the investigative team they all confirmed in context they were asking him when he was back at the scene three hours later when they were going to walk through were there any weapons found here and that is explained in the record yes but if you look at three nineteen which is what browder first testified to he was asked there at the scene did you see any weapons and the two homicide investigators confirm that on page four of six of  many del rio is testimony as well as for thirty nine for thirty eight of michael hastings that's the one the other investigator that that was the context in that conversation he had at his deposition he said he thought th had a knife and he did he actually testified that right before the shooting it appeared to him that the knife was being pointed at him the suspect was focusing in on him and the expression of the suspect unfortunately that the security camera doesn't show the face of mr knee high are you asking us to resolve that their children's lives i don't think there's a factual dispute there it's just that there's nothing to contradict what the officer said as far as the expression of this menacing look amiss from the hog so there's there's not a contradiction there's just not a video recording of that as a many no witnesses there was a menacing look of the witnesses basically say he was paraphrase shuffling down the alley well actually the military police officer although he those are my words but essentially there's witnesses that say they didn't perceive any threat or any acceleration as he's with the military police officer he noticed the shiny object the same metallics shiny object that officer rather saw my son make a difference reaching the same conclusion that he has a weapon that that supports the notion that this was an objective analysis by the the office over ip so i'm going on i said a hypothetical let's assume he had a knife i would that make a difference in our analysis under his well his can be distinguished on several rounds from what happened here in addition to the fact that we have a very short timeline here first of all there was no command to stop in hades there for seconds after the the person that was shot raised their hands they were shot and the reason articulated in that case why that use of force was on reasonably a reasonable is because there had been no crime by hayes hayes was in his own home he had not threatened anybody with a knife he was biomechanical expert and he was with in fifteen to seventeen feet at the time he was shot what's very critical about that's expert testimony is he said there was constant gate but agree he's got these bright lights in his face he hears a stop there's no stop or i'll shoot it could be stopped what are you doing stop have you seen somebody stop or you intoxicated it's not stop or all shoot and you know part of it when i looked at that videotape multiple times it looks like the officer essentially shot from the hip the single discharge which in my experience is dealing with police cases when there's that sort of threat out there usually multiple shots or if it's a very close multiple shots it almost looks to me like an inadvertent discharge because i don't see any and i just see pull and boom and i'm not you know i'm not expecting officer to be superhuman i'm not being critical in the abstract as it was a very stressful situation but it almost seems consistent with me to have been a state that's on the last part to have been a mistake well look at the context of how this occurred i understand what i'm saying there's no there's no sort that that type of thing that you typically see this person's a threat multiple shots sort of a you know almost a no name all a sudden there's his discharge you see that what i saw was what in terms of a timeline you had this call to nine one one at twelve o six am the officer arriving i hope hand and immediately confirming the suspect was the same one that scribe the one that was threatening to kill people i'm asking what you saw on the videotape in terms of my question to you from it appeared to me what the officer testified to that he pulled his weapon and shot him up with the you're point has never said this in a missing way he had a knife i fired that's correct and he better body mass that's what they're taught to the and and the officer fahed he was coming forward to stab him which is predict that with what he reasonably perceived in this alley but if you look at the tape there are bystanders were just standing there within about the same justice as the officer looking pretty unconcerned about this guy but what was their testimony their testimony  the military police officer i thought it was a weapon i thought it was a guy hit me son with a weapon but they certainly were reacting to it as though there was a weapon i needed to get out of the sand they're just kind of lounging around while they're off to the background  expert on the on the plane of side says just tactically this didn't make any sense because the officer in effect had the ability to walk backwards and assess the situation or figure out what was going on to do something else but he drove pretty much right at this person i don't mean at in a negative way i mean just you know everything had to happen very quickly because of where the officer positioned the car and i'm not faulting him for that he wants to see what's going on but once he sees this person sort of shuffling using that phrase you know it's just my phrase but walking and one of the x one of the witnesses said kind of almost like a drunken way not ambling like a normal human being shouldn't we defer to the experts and not try to substitute our own judgment for what an appropriate police response would be in terms of reasonable use of force when you're dealing with a tactical situation with a community in that neighborhood who might be mentally ill it's late at night there might be intoxicated people there's a whole host of totality of the circumstances issues that perhaps should come into play but with respect to the expert mr clark he did not estimate distance he did not measure anything he agreed that the suspect was a problem seventeen feet away from the officer and he had knowledge that mr nouhad was moving when he was shot and most importantly he admitted that if a person is with him has a knife and is seven to fourteen feet away it is a dangerous situation  you get to shoot everybody that has a knife no it does not but in a but terms of the other expert here the biomechanical expert his estimate was at the pace that mr knee high was going he would have been at officer browder between one point five and two seconds and there would not be enough time under that scenario to do anything else except get in the car and at the officer explain getting in the car he was a  if you construe the facts in the light most favorable to your client sure but if you construe the facts in a light most favorable to the plaintiff it appears that there's there's a factual question for the jury because of the timeline it's not really clear there is a factual dispute i mean that it's all happened within thirty three seconds when the officer arrived at the time he shot and there was only one and a half to two seconds left before the suspect would have been right there what he thought was a knife but you would agree if he stopped if if the suspect had actually stopped at the church that there would be no justification for the shooting if he had complied with the officers command and actually stopped but stages that he had actually come to a complete stop that but looking at that video of the last step that the expert says that point reaction time would not have been enough for brodeur to realize he had slowed down and  son jury question but i mean you're erect that's your expert's opinion why isn't the jury question because there's nothing to dispute that in the record even mr clarke you know he did not take any measurements or dispute the speed or anything that  who then expect the officer to do some less intrusive means the ultimate result is you're expecting them to be superhuman that's what the court opinion says and the result of that is you're going to deter police from trying to protect themselves in the public which is going to create a situation that is not a good situation because it would in tangle the courts and second guessing and that's  appellants are asking this court to do is to second guess what an officer bid in response to a call that a man was threatening others with a knife had lunch that clerk and was in the alley threatening people with a knife and he had to make a split second decision when he saw this chinee object coming towards him that appeared to be a knife with this menacing look on the suspects face that was look i think it's important andre nelson this was the only witness who was behind officer brodeur and could actually was looking after june he described him as non aggressive i think that's important too and he did only react inadvertent discharge i wondered about that too because he's right after the the shot he ran up to for doon and tried to help him and it seemed like if you really thought there was a knife there might have been more careful i think this goes to the credibility issue and what justice hawkins pointed out that when he was asked were did were there any weapons he said no five days later watches video meets with attorney prepares then