good morning your honor my name is robert able and i represent do far more in this case may it please the court your honor is the key issue that i ask the court to focus on was the trial judge's decision to not permit mr moore to have the jury consider his justification defense this is a mr moore was charged in the trial we had with being a felon in possession and really the sole issue with regard to whether or not he presented a prime aphasia case was sufficient to warrant his justification defense being submitted to the jury regard the fifth element of that defense the other four were not contested and the fifth element is that the individual did not possess the gun any longer than necessary and the rationale of the court below was that mr moore had not when his the car he was riding in was stopped just a few minutes no more than four perhaps closer to two after this incident in this parking lot did not at that time re cite the events and circumstances that happened in the parking lot at this nightclub or later after he'd been told at the police station and he was going to be charged as a felon in possession that he did not at that time took place in a nightclub in tennessee and there the court said clark incident nightclub nightclub kicked everybody out in the parking lot a couple people took a shot somebody took a shot at clark he ran back in the club d j at the club games gunning went back out in the meantime the police that arrived and the government argued there he had opportunity to dispose of the gun in some means in between but you know a jury could consider given the situation whether or not his conduct was reasonable and i think that comes into play here judge that you've got just a few minutes morris been confronted with a gun stuck literally in his face his life put in danger and within a few minutes he hops in the car they drive off they have no discussion in the car about what has happened what's gone on he testified at trial he remains dundon frightened and i guess that the two main themes to me are that the courts seem a little skeptical of this defense all right i guess you could imagine why ok that people are going to every time they're caught possession they're going to make something up as to why they have to have it so i mean that's what the case law says that there's some skepticism about it and then it says as soon as possible and so i take the as soon as possible to be part of the dealing with the skepticism what seem to have about this defense well that so this is really hard to look at this evidence and say we dealt with the problem as soon as possible well first of all with regard to the skepticism the court has specified that a promise face a case is sufficient even if adelle credibility i would agree with sure the language i mean if you're not going to rare situations that's the that's the language of my case in respectfully submit judge this is a rare situation i provocation his life was put in danger he reacted instinctively arguably instinctively other people would react differently would agree but he reacted in a way to disarm h assailant reasonably believing his life in danger and just a very few minutes later less than five minutes later after that terrifying incident did not do what you suggested tell officer kerry here's a gun i've got it was that reasonable for him to do in that scenario i think that's a jury question that they should ponder and be able to pass on if they believed a court know the lying goes to that right i mean this this this kind of support the line shows this wasn't just the two minute phenomenon you know still in a state of shock and didn't have time affectively to do k but that's also long after his possession of the weapon is ended because it's been taken into possession by officer terry wright as the car got stopped at the line show that his silence had nothing to do with shock well perhaps the jury would hold it against him that he did not tell the detectives what had happened after he'd been keep in mind this is after he'd been told he was going to be charged the jury may very well hold that against him they may not they may find it understandable under those circumstances i don't know i'm asking the court for an opportunity to allow a jury to decide what happened in this parking lot and decide whether they think mr moore acted reasonably or unreasonably by among other things not jelling the detectives what happened  at the police station after he was told he was being charged so what evidence do you proffer at the time of prime officials showing that it was reasonably necessary for him to keep the weapon after he fled the scene and was beyond danger his explanation was that there was a struggle between more and the other fella a guy named king during the struggle of the gun discharged apparently king was struck with under circumstances that aren't really clear the gun dropped more testified that following the struggle he went to leaves all the gun on the ground sulking appearing to reach for it and felt that he better grab it for his own safety otherwise king might judy missing fled and so why they have to keep the gun four minutes down the road and he ran and jumped in the car they drove off there'd been shots fired the other folks he was with testified and didn't know what had what had happened and they have to think the answer is the end have his wits about him to figure out what to do it similar to the individual in the car case by who's in the parking lot at that club wow what's just happened here what do i need to do  but when his possession ends i mean for instance like in the singleton guys the fella gets the gun and had several hours to deliberate about his course of action obviously that's a great greater period of time the dangers lapse completely different situation  but more hasn't other than i guess throwing the gun out the window of the car as they drove from divas over to broadway which is the i know was a short phones or some means to do so surely could have thrown the gun out i mean the word sesame right that's the word and under your theory of the case if you accept all of your evidence is true it was necessary to tell he got in the  car that's that's he did he that is not always thinking about the period of time on with so short the events that led to him taking possession it was not longer than necessary given this specific and unique context  realistic alternative similar to the individual and clark seemed to me to be throw the gun out the out the window of the car or drive immediately to the police or call the police or something like that and that short period of time if clarke can't be faulted for taking similar action neither should mr moore and he should have been able to have a jury consider this defense thank you  please the court a look at the stickler on behalf of the united states jafari moore was not entitled to a jury instruction on the justification defense because he failed to get rid of the firearm as soon as a safe opportunity arose that's the language from the singleton court and your honor judge sutton used the language from the new can court that a defendant cannot maintain possession of the firearm he is not entitled to the justification defense and less he maintained possession no longer than absolutely necessary and in this case jafari more reached a safe place once he was in the car and away from the davis parking lot and at that point in order to be entitled to the justification instruction he had to get rid of the fire it is it out the window broadly like the gun that's right well in this in this case it was three in the morning but i think if you look at a literal interpretation of that language as soon as a safe opportunity arises somebody has to define it has to get rid of the firearm there are cases where a court says when they're looking at the alternatives that the defendant had he could have thrown in the bushes so courts actually do sort of make this analysis that probably would have been the most responsible way to get rid of a firearm but i think that  that if the law requires a defendant to tell himself to say i have a gun then that seems strange because we're asking a definitive sort of self incriminate here two things about that first if he really does have a justification he's not self incriminating but second of all i think that when you look at the cases here it's clear that this this requirement that a defendant not maintain possession of the firearm any longer than absolutely necessary does require that a defendant tell on himself and get get rid of the firearm tell the police that he has a firearm you raise a good point and that is the vote of the moment implications not that i could find we're talking about we're not necessarily talking about a defendant's right to remain silent we're talking about we're looking at whether or not he meets this narrow qualification of being entitled to to a justification defense that would entitle him to be acquitted if the jury believed it and i want to talk about the case law here not every emergency situation is going to end with the arrival of the police and we submit that this emergency situation indeed before the police ever got on the scene he should have gotten rid of the firearm while he was in the car he even admits on cross examination that he had time to call the police but when an emergency situation in with the arrival of the police and this goes to your question what a defendant does upon arrival of the police is key and the mr able to talk about court the court case but what he failed to mention was that when the police arrived on the scene the defendant actually said that he had a firearm he proactively told the police that he had a gun and it if you look at the court's language and clark it shows at the key time when the police when an emergency situation ends with the police arrival the key time that we're supposed to look at is a rival of the police to when the defend tells the police that he has the firearm it says between the moment when the danger ended upon the arrival of the police when the emergency situation and it and when he alerted the police to the possession of the gone a juror a jury could reasonably believe that during that time of the justification defense in order to be entitled to the instruction and we submit that he did not put on some evidence on this fifth element to be entitled to this instruction so this was for the district court to decide whether or not he made out a prima case and then it goes to the jury to hear all of the facts not just the defendant's version but the government's version as well and then judge credibility i want to talk about it let's assume that he wasn't required to use it it's not clear how record says witnesses say anywhere between two and ten minutes so the car ride was anywhere between two and ten minutes we know that he was stopped two miles from davis but with the traffic stop the record just doesn't give us an amount of time there's no no witness says an amount of time but i want to talk about the sequence of events and the traffic stop because i submit to the court that it was a prolonged stop or maybe i'm confusing cases but this is the one where the first officer waits for backup that's correct so there so  minimum of two minutes and that's this and this will stop that's correct we don't just the record show i mean time it takes for the second quarter it doesn't but the record shows what happened at the traffic stop so we had the initial traffic stop where the officer is telling all four occupants to show their hands and what's not i can see that we have to take the defendant's version of the events but what's not disputed at that when you look at the trial record is that the officer had to continuously tell this defendant to show his hands but stands on the dash to the headrest then judge that you're correct that the officer had to call for backup so they have to wake up wait for the backup to get there then once the backup arrives they one at a time remove each passenger from the vehicle and for officer safety they cuffed him frisk them and put him on the curb and separate them and even according to the defendant's own testimony he's not even the first one out of the car they remove jennifer bates they are moved the driver then they remove the defendant after they remove these passengers from the car they cuffed them and frisk them then we wait for the bartender to get there to make a positive identification of jafar and more at that point they searched the car and they found the gun and well what also is not disputed in the trial record is that the gun was found under the floorboard a sort of pushed up under the driver's seat what is disputed is whether or not at that point officer terry a about this gun even it's interesting because more puts on a defense and calls witnesses on his own behalf and even his own witnesses say that the officer did ask but let's just assume that the officer didn't even ask we have this stop in which the defendant according to the case all had an obligation to tell the court that there was a firearm at that point he's the only person who knows that there's a firearm in the gun and he's a firearm in the car and how do you we're back to an emergency safe situation that ins with the arrival of the police how do you get rid of the gun and i guess you could give the gun to the police but i think police officer would be a little bit leery of you actually sort of handing them a gun standard for whether or not a court instructed the jury improperly properly is abuse of district discretion but the standard for whether or not the district court made a proper decision about the prima fascia case and whether or not a defendant made out a prima probably the best thing the best way to get rid of a firearm is to tell the police that you have it and the case law makes that clear and clark that the case that mr abel talked about the defendant said i have a firearm in new come the new come court cites two cases paulo and smith it's first circuit case and a third circuit case and they say newcomb is it is an interesting case because it's kind of in the middle and i think that that's the best case for the defendants i want to address it that's right we have we have a plethora of cases where defendants that are approached by the police they flee or they lie and all the court say you're not entitled to the justification defense because you kept the firearm longer than necessary you kept the firearm longer than when the emergency situation ended upon the arrival of the police then you have cases where like quark where upon arrival of the police the defendant affirmatively say i have a firearm and the courts say you're entitled to the just patient offense because you didn't maintain possession in the longer than absolutely necessary newcomb is kind of in the middle of the facts are the case just doesn't say but what we do know and how newcomb is different in this case is that the police were actually on the scene to some extent watching these events unfold it's not clear if they saw it all but they at least saw all the three people walking down the alley and they saw either newcomer whoever this other guy was louis there's a debate about who it was but it doesn't really matter how to live it's only moments after all right but what's not clear is how long how much time passed between when the police stopped new come and found the ammunition well i think it's on the care remember exactly where it is in the moment so soon to shoot only for the it for only moments yeah that may be right but i think it's still unclear from the case exactly how much time passed when the police approached new and found ammunition we don't know how long the police interaction was before they found the ammunition but we do know and it was it was probably moments think it was probably a really short amount of time but what we do know the only time the exact time frame that's mention in newcomb is the ten second time frame and after the police see someone discard the firearm in this couch and alley the case says ten seconds after he see the police see the discarding of the firearm the police approach this three pat down new come frisk new come and find th long as the emergency situation last key point is not minutes seconds it's emergency situation you still have the emergency situation if you don't problem so i don't i guess i'm thinking that the clock doesn't have anything to do with this emergency situation could last an hour i think that's right and in this case the emergency situation in did when he got in the car and got out of the davis parking lot so the united states position is that he was obligated to get rid of the firearm in the car but even if we say there's an exception if the defendant's too scared to do that or if he's in shock even if there is some exception for that which i don't think the case all support he saw the taller man turns out to be nukem this is on eleven thirty one put a dark object approximately two feet long into a couch had been abandoned in the alley and immediately stopped and said what's going on around the gun stuck in a scout in the and louis benson made threat about he was going to he's going to go still get this other fellow newcomb tried unsuccessfully to catch lewis and then rejoined the other folks in this party in the alley and then the police show up and there's no indication that mr newcome at that point gave an explanation as the government urging here the court didn't indicate mr newcome was required to tell on himself and couch i thought it was possession of ammunition but in any event there's still no confession that here's how i got it in the government suggesting here that that requirement should be imposed upon more  conceding that it's not a good idea for him to throw in the gun out of the car or to have reached under a car seat with the police officer outside to grab the gun that's creating an unsafe situation there it's he possessed it so the emergency related to the conflict with louis benson and he kept the ammunition only moments after the departure of louis benson furthermore the emergency situation had only ended moments situation while he's in the car and well of course moore is in a different situation because unlike mr newcome moore's life has been threatened mr newcome was intervening his life had not been placed in danger at least  sensibly in places where it makes sense to use it but that here if you draw a line so it doesn't come up in every single felon possession case i mean i think that's what's going on here and the way to do that is as long as the emergency situation is going on fine will always be instructed because what you're saying is you want to say it's not limited to the emergency situation when it ends you want to have an inquiry that says that my client behave reasonably in the setting which i get that's the way i would push the point but if you say it's did my defendant behave reasonably in this situation there's just no way that doctrine only applies or only goes to a jury in rare situations i just don't understand how that could be true well  i think the jury could properly find that is actually that he did not possess it longer than reasonably necessary i grant they'd left the parking lot and driven some few minutes away after his life and been threatened and  fault him for not throwing the gun out the window but his possession ability to exercise dominion and control over that gun ends when they're stopped by the police isn't it a fact  defense and judge keith represent that the evidence indicated the car was stopped moore's ability to exercise dominion and control possession over this weapon and did no more than four minutes after the answers and where his life had been threatened and a jury could fairly find he did not possess it longer than absolutely necessary given this unique circumstance thank you all very much thanks to both of you for your helpful legal pre