record your honour's on the night of october third two thousand and ten a lot of what happened initially is not in dispute between the parties there was an officer gross who was an officer of the baltimore city school police was eating some food at a wendy's where an individual came up mourn him that there was a robbery occurring across the street on north avenue in baltimore he left the when his in his car went over to the family dollar and he looked inside the doors were i believe locked but he looked in and he could see a robbery in process where three individuals three individuals that he identified as suspects those three individuals at some point came out and officer grosset backed up  approximately five to ten feet at that point and all of that your honor says not really in dispute when they came out the three suspects one of them was my client mr jones you own in this case another one of those that was not mr jones was holding one of the employees with what appeared to be a weapon there's some dispute over what type of weapon that was but he appeared to be holding that so those fact before this court and i'll address those and the addressing the legal standards that are there are arguments as we set forth in the brief are essentially one argument that has two parts one is that the district were below apply the incorrect legal there that were clearly incorrect as to what the correct legal standard as that order said that is common standard just yet that way isn't the standard basically reasonableness based on the circumstances in each case it is it's whether the  should reverse and remand for that reason only so that it can apply the correct standard applying that correct standard based on a reasonable new standard to whether the officer there was a significant threat to that office or any other individuals nearby we believe there are very significant disputes of genuine or genuine disputes of material facts in this case when i leave aside the facts that i think the biggest dispute is whether the gun was fired and let's set that aside so you down drop the weapon multiple times and then at some point they threw the girl down and started running and they also filed two or three shots at him and want to die and he ended up on the ground twenty feet from that place that sound right we were just some of those facts are disputed by the appellant one of which backed the fact that the three individuals who were standing there why officer gross yelled to drop the weapon and we're all standing together when that happened my client's testimony was that immediately exiting the door the family dollar it mediately turned to his left and ran down the street without hesitation there is no testimony in his deposition and we cited this and in the record as well we cited in our opposition to the motion for summary judgment that we believe as one of the clear disputes material fact of whether at the time officer gross shot fired his shots whether my client was standing in front i'm with the other that is one of the significant disputes is that he was saying that he was running in only white the curia well your honor we believe that that sets it up so it's a difference between the types of facts that you see and the tennessee v gardner case where the where the main issue and that was whether it's constitutionally reasonable to shoot a fleeing suspect that poses no harm to anyone or whether it was a situation where the officer was shooting at three suspects th which aren't those a danger if you believe my client's version of the facts he immediately took off running when the situation arose when they came out of the family dollar he was running away it was almost the full distance of the store when supports the argument that he was fleeing the scene of a crime certainly i'm not here to justify what he was doing there that night and he's paying the price are sort of star for that crime but once the officer rose he began to run away and he began to flee and the language in gardner and also the language that we cited and henry v perino makes it clear that even if a suspect is is running away even if they're going to get a way reason deadly force is not allow in that instance unless the officer believes that he is in immediate danger or other threatening or others and that's correct your honor and there's no there was the one employee of the store that was at the front door my client got shot as he had run a officer when shots were fired and that's really the crux of our argument that he was running away he was at his back to the officer well i think that's supported that real question i suspect is what is the you have this big developing circumstance where they held somebody hostage and they have a gun one of them has a gun the other two they don't know why he didn't know quite what they had they had something there and it would turn out not to be a gun but they pushed the girl down and broke  officer says there was a shop fire but we're set that aside you still have three guys who were kidnapped in honesty told him and robbing a place one of which was armed and breaking up and he fired a shot  n which is cited in our brief does talk about you can segment events when you look at this analysis when you apply that reasonable standard and we believe that the ensign that they came out of the store when officer gross  saw the store employee there thought there may be a weapon there at that point a very well may have been reasonable we probably wouldn't be here today if he shot my client immediately when he came out of that out of the store what we believe happened is that he was running away and he got shot in the back and that's when my client testified to during his deposition and if you apply that standard from streeter and waterman that you do look at the differently and there was one where i'm an officer thought somebody had a knife he shot him twice in pause and then shot him to understand how that statement could be made in a memorandum we're not limited to this will that's correct good and that's why we've argued the other facts that are there i mean where we know that this may be a difficult case to prove to a jury but we believe that there are sufficient material facts and earns including the credibility of the officer who says he saw a muzzle flash if you believe my client's version of the stories that it was it not only a b b gun but an inoperable b b gun because it was so old and the didn't work and that  you were in your judgment we don't review opinion so what we're firming is the judgement yes although it would certainly seem to call for me for some commentary on how we could have been  says i'm saying isn't another way to do it just in this i just never seeming like the i believe that it best judge mots was trying to describe the white officer grosser seeing and that he was seeing in one going conspiracy what he was seeing is a crime being committed by three individuals they were acting as agents for each other so what one man was doing was imputed onto the other man and i believe that's where he was saying that he was not being the act was not completed until the loop was divided what he was trying to say is that perhaps this wasn't one going conspiracy and what we need to look at i believe when they're no longer acting thing in concert with each other at this point what we have in the facts of this case is three men using a human as basically a shield there is what appears to be and mr jones actually admits that officer gross could believe it running towards him he does not confirm that he saw the bullet go into the chest but what he does say is everyone with moving it's no dispute that there was constant movement everyone agrees including mr jones that he never stood still so what different would back as opposed to well pushed related to me and i shot it that's the difference i believe that what mr jones actually says though is that it's quote within seconds so was used and that moment is not in dispute it's not what the injury was playing it's not what the consequence was of the force it's at that moment that force was used and at the moment force is used it was within seconds which is actually three individuals in the store there is evidence that there was a hostage there's also evidence that the i'm officer had called for backup so we do know all of that we do know that there were others and we know that at the very least the hostage was in danger and the officer was danger mr jones saying he fell twenty feet while that is not very far away he also admits but i think it's more important that it was within seconds and therefore that immediately upon leaving  i do believe that again we did the standard here is graham versus conner we also have to look at the facts and the proceeding cases such as andersen versus russell that does allow for an opera search to use force even if the individual is not armed so that is not actually a necessary fact it is not material that mr jones himself did not have any type of gun on him at this moment when the force was used the three individuals were acting in concert with each other they were actively willing to gather and it was within seconds of exiting a threshold that mr jones turned at that time we know that there were multiple shots fired at mr officer gros does say that they were facing him but as everyone is moving up there mr jones obviously turns that's not in dispute again that one of the bullets did hit him in the back but we do know that it was all within seconds we also  it is very clear though that under the controlling law which is graham versus conner that there was an objective the reasonable action done by officer gross and as and with the proceeding cases as well anderson the russell is very important in his shoes would not have believed that he was violating the constitution he was faced with imminent danger to himself and the hostage at the very least also knowing that there were other individuals in the in the family dollar at the time and that he had already c for backup so i believe that we need to only look at the facts as they are right now and what we have presented that are undisputed nicholas jones doesn't meant that they were masked men running out to gather as one unit  whether or not the officer had seen something in the hands of the other two that did not have this b b gun i direct the court's attention to a one forty one to a one forty two were officer gross expressly testified earnest observation that he never saw anything in the hands of the other two individuals one of which is mr jones in this case so i think the facts are undisputed that at no point did officer jones think or see that my client had any weapon in this and when th certainly someone doesn't have to actually have a weapon in order for an officer to recently be concerned with the safety or the safety or the safety of others writing to me that the stronger argument is the possibilit individuals outside of the family dollar store that night other than the three suspects the officer and the employee should act what you're suggesting and the real question is what is the message we're given to police officers but  jesting that in this circumstance the officer should be inducted this mission analysis of the term and whether his use of force is reasonable and then after the fact the citizens in the community saying why didn't you stop these three guys they were armed reason with the immunity is to give the officers some protection when they're making these fast decisions so long as they don't know they're violating if they're deliberately violated because they should know and that's one thing but if they're trying to do on those on the ya know the standard i know the standard and a but not my point is that the whole purpose of qualified immunity was to give the officers some protection in the carrying out their jobs and in some level of that doesn't require perfection in their results or in the way they do it what it requires is some good faith in respect to the notion that they're not deliberately violating the constitution and this man is facing a hostage situation with the people one at least who is armed or maybe all three are a girl who's life at risk they break up and that one point even jones says we're all running this direction  whether the officer knew he was violating a clearly established and i think it's one of the the officer had an objective belief that the suspect that he shot a danger  officer from having to go through a trial and the discovery what's not on the other it's you look at it from the officer point of view and and accept the facts now that disputed facts from the  be mainly whether whether the fellas fired a gun or not but i don't know if that changes the situation of whether the officer was doing the right thing as an officer on respect  it and all know that one of the main arguments of the appellee is that there's no disputing factor of that moment the force was used there is the officer said he returned fire that's why he shot he said that in his deposition my client said he was running away and that there was no fire and we believe that that's a clear dispute about that moment that they claim is so critical so for that reason your honor your honor sweet ass that the court reversed her remand this back for further british proceedings consistent with clearly likable all right