Legal Case Summary

I ask case of, I guess it's the last morning. Number 12, dash 2715. The United States to be low. Mr. Epstein and Mr. Zosmer. Is Epstein Epstein? Yes, Dean. Okay. Good morning. Please, this court. My name is Robert Epstein. I'm here today on behalf of the appellant Mr. Sean Lowe. It's a court submission. I'd like to reserve five minutes in my time for a bottle. It's fine. Thank you, Your Honor. The issue on this appeal is whether the police had reasonable suspicion at the moment that they seized Mr. Lowe. I just have a, just a plain, blank common sense question. What would need to have happened here not to have seized Mr. Lowe? So what would need it if the officers could have approached them and sought to engage them in a consensual encounter that the officers could have done. They did not, and there is no dispute between the government concedes that the officers made a show of authority the moment they got out of their car and they admit four officers approaching four o'clock in the morning demanding that Mr. Lowe stop and then he raises his hands. The government doesn't dispute. That's a show of authority. He was then seized at that very moment because he submitted by staying put and not attempting to run away. Well, there's a dispute here. You acknowledge that the police had the authority upon approaching him to say show me your hands or put your hands up. No, you don't. You know, because I don't. Because they did not have reasonable suspicion. That's something else that's not in dispute. The government concedes that when the officers got out of their car, made that show of authority the man that he raised his hand. They did not have reasonable suspicion. They were relying on an anonymous tip of a man with a gun and the Supreme Court have made clear 13 years before that in Florida versus JL that that does not provide reasonable suspicion for a stop. So the government concedes that point. On a Terry, can you say that on a Terry stop when they approaching a man, he's got his hands in his pocket, that the police can't say show us your hands. They can if they have reasonable suspicion that the man is engaged in criminal activity. There's no dispute

. They didn't have reasonable suspicion here. So they cannot make the demand as unconstitutional. And the Supreme Court's made clear that a man faced with an unconstitutional demand like that can ignore the police and go about his business. Okay, so your basic position is that the officers were violating Fourth Amendment when they told him to show his hands under the situation. Yes, sir. Yes. And he was seized at that very moment because there's no dispute. He did not attempt to run away. He stayed putt. There's a conflict on the officer's testimony as to how quickly he raised his hands. Officers are handled, testified, Fourth, Separate, Times, that Mr. Lowe, in fact, did raise his hands and he never testified to any delay on Mr. Lowe's part. So your argument is that what they should have done at roughly four o'clock in the morning and they have this anonymous tip that there's an African American with a hood that had possibly been involved and murdered a short time before. What they should have done was what go up and say, excuse me, can we ask you some questions? Is that it? And the suspect of that, let me just back up this said because your honor has some of the facts respectfully. No, no, no, no. There was no suggestion that was the murder before and there was absolutely no suggestion that there was a report of a gunshot an hour and a half earlier in the neighborhood. That was it. But that was it. There's no evidence that the tipster was aware of that gun. No, no, no. But the police do have a right to piece those two things together, right? For whatever that's worth, it might not be worth much. Yes, they thought. But here, even the district court judge testified. I mean, the district court judge acknowledged. That would be a quantum leap. And if you look at Panic site page 203, Doug referred to that as a quantum leap. It was undisputed. How could the district court have denied your motion in the suppress? Well, the district court judge denied it based on his determination that the officers had reasonable suspicion from what he termed a refusal on Mr. Lowes' part to raise his hand. Now, nobody testified that Mr. Low refused to raise his hand. Officer McGinnis testified that there was a delay. Officer Campbell didn't testify that there was no delay at all. But the judge was wrong for two reasons. Even if what he meant to refer to was McGinnis's testimony that would have delayed raising his hand, there's two problems with the judge's conclusion there. The first is that Mr. Lowes already seized before any alleged delay. And he's going to his hands because he submitted by saying put, the judge didn't determine the moment

. So, they put her back up. Didn't somebody testify that he backed up? Well, McGinnis, the officer who testified to the delay and raising his hands did not testify that he backed up. He testified to the contrary. He testified to the counter. Campbell said he backed up. Campbell said that he kind of started to back up, but that there was a fence right behind him. Now, that point, he stays put. There's a fence right behind him. Campbell didn't say how many steps exactly he took. But from the, he testified that there was a fence because the house next door, these are row houses. The houses are right next to each other. The house next door was undergoing construction. So there's a fence right there. So if he backed up, it would appear that he backed up a footer to it. And then he stops, he stays put, he sees. He is submitted to the officer's show of authority. He is not trying to run away. And Campbell says he raises his hands. And then they order him to go put his hands on the wall and he goes over and he puts his hands on the wall. We have several witnesses here. And wouldn't you admit Mr. Epstein, this is a very fact bound inquiry. This, this is fourth amendment stuff is always very fact dependent, is it not? Yes. And we've got varying, sometimes conflicting testimony from the officers. Absolutely. And we have a trial judge who heard the evidence, had a full blown hearing and then indicated that findings would be made. And findings are never made. Correct. The government indicates in footnote seven of its brief that perhaps remand is appropriate. Why shouldn't we just summarily remand this case because it would be speculative at best for us to try to reverse engineer what findings of fact the district court made consonant with its denial of your motion of suprice. I don't think the remand is necessary here because if you look at any of the versions provided by any of the four witnesses. The officer did not have reasonable suspicion under any of their versions. He's submitted to the show of authority and the officer did not have reasonable suspicion to seize him. According to him, he didn't raise his hands immediately when they told him to show his hands. But that went when he didn't show his comply with the officer's command. And what's that, some suspicion giving them the right to then for their safety to a frisk, make sure he had, what's it arm? No, you're honor for two reasons. First of all, before any alleged delay in raising his hands, he's already been seized. Once they get out of the car and make that show of authority and he doesn't try to run away, he is seized. Well, as far as we disagree with you that the mere presence of the officers, even in number, is gone a seizure

. They're there because they've told that there's a man with a gun and there's been a gunshot report in the area. Now, just because the officers are there, that doesn't mean that his fourth amendment rights have been violated immediately. Does it? It's not just because they're there. It's because they get out of the car. The government doesn't dispute. They make a show of authority. They don't just go up to him and ask him, hey, can we talk to you for a minute? They demand at gunpoint. McGinnis testifies he takes out his gun and they demand that he raises his hand. And then he get up against the wall. That's a show of authority. Did they all testify that the gun was drawn before he was spoken to? No, no, I don't want to mispeak. McGinnis testified that he took out the gun. He took out his gun as soon as Mr. Lowe didn't immediately raise his hands. What do the others say about the gun? Officer Campbell testified that he wasn't sure when, if and when, McGinnis true as gone. Well, wouldn't it be proper for an officer to take out his firearm when they tell him to show his hands and he keeps it in his pocket? No, your honor, because they don't have reasonable suspicion to support that demand in the first place. And the Supreme Court has made clear over and over again if the officers don't have reasonable suspicion, individual is free to ignore them and go about his business. This court said the same thing in Johnson versus Campbell. The officer goes up to Mr. Johnson in a car and is demanding that he roll down his window. Mr. Johnson refuses and this court says no reasonable suspicion. He's within his rights now to roll down the window. But the officer here had a reasonable suspicion. They were told a man with a gun was in the area and it was reported that this is four o'clock in the morning. And certainly this is not high noon. It's a high crime area. It's a high crime area and there's a report of a shooting or a gunshot report in the area. They approach him and the first thing they say is show us your hands, right? Yes. Why is it unreasonable for them to say show show us your hands? And if he doesn't then proceed to take out the firearms and do a security check of his a frisky of him to make sure he wasn't armed. It's unreasonable, your honor, because they don't have reasonable suspicion and the government concedes that they didn't have reasonable suspicion. An anonymous tip of a man with a gun. The Supreme Court said in Florida, first of jails, that doesn't even come close to provide. I think we all agree. An anonymous tip is not reasonable suspicion. But the fact that it's a high crime area, four o'clock in the morning, there's a report of a man with a gun. This person matches the description. He has a match of the description. There's a gunshot report in the area

. They approach the man and say, show us, raise your hand or show us your hands. And if at that point he doesn't, don't they have reasonable, at least Terry stop authority to frisk him to make sure he's got his hand in his pocket. You can have a gun in his pocket. They don't for two reasons. By the time they get to him and at one by the time they ask him to remove his hand from his pocket, he's already been seized because he is submitted by not trying to remove his hand. That's why I'm throwing a laugh. That the Supreme Court made that clear in the Brenland. This court's decision in Johnson versus Campbell makes that clear of the six circuit in Johnson, the second circuit in Simmons. By the act of staying put, he submits, he's been seized. But he's standing on the street talking to his girlfriend. Police walk toward him. By standing there, he's been seized. So anytime, so you and I step out for lunch now, if four police come walking down the street towards us and we're standing there chatting, we're seized by the police. If they make a show of authority, and we don't stop... What's the show of authority? Well, in this case, the show of authority is the officers, four officers getting out of their police cars at four o'clock in the morning approaching and demanding that he raises his hands and that he stops. So the show of authority is show us your hands or raise your hands. The show of authority isn't the police walking toward him. And making those demands. So you're saying the police don't have the right to tell them to take his hands out of the hoodie. Correct. And you're relying on jail. But this is a bit of an extension of jail. I mean, jail, there's a guy at a bus stop. It's not a high crime area. It's not four in the morning. There wasn't a report of a shot fired. There's just a report, hey, there's a guy at a bus stop with a gun. Am I remembering those facts? That's correct, that's not correct. And that's a tangent of what we have. And that's someone at a bus stop who's not, you know, have hands placed in a location where he might have a gun in his hand. And they just go up and just go at the guy in Terry Friskham. Right. Correct. So these facts are remarkably different. I want to say they're different at all. And far too versus jail, they don't have reasonable suspicion at the time they approach jail. Here, no dispute

. They don't have reasonable suspicion at the time that they approach Mr. Love. So far, they don't have the right to ask him to remove his hand. Are you saying that government has conceded that the police don't have the right to ask him to remove his hands from the creed location? The government has conceded in their brief that they can, the police did not have reasonable suspicion at the time they made that demand. If they did not have reasonable suspicion. No, but the question is, we, we, we, the question is reasonable suspicion. Perhaps they've conceded they did have reasonable suspicion to walk up and just do a Terry Friskham the man. But that, that doesn't mean that they've conceded that they didn't have the right to ask him to show his hands. If you don't have that. You know, we response right because any shows his hands and says, hi, hear my hands. Then under your argument, I think you have a very good jail argument that they can't do anything more. When they say, show us your hands and he keeps them in there, then does that not up the ante? No, for tourism. They can go up and try to engage him in a consensual encounter as part of that consent without reasonable suspicion. That's conceded as part of that consensual encounter. They can say, hey, we feel more comfortable if you take your hands out of your pocket. They can do that. They didn't do that. And he has the right to ignore them. And he has the right to ignore them. They didn't do that here. Instead of trying to engage them in a consensual encounter. Unless they just distinguish these facts from jail. But they didn't, what they did here was to get out of their car and immediately make a show of authority. And there's no dispute about that. And to make that show of authority, they need reasonable suspicion. When he stops and stays put, he has submitted. I mean, that's clear from this court's decision in Johnson versus Campbell. Offsets goes up to Mr. Johnson on the car and is demanding that he roll down his window. Well, it's Johnson. They didn't have the fact pattern that these officers put these officers on in this location. Now, why didn't these officers have, at the very least, a Terry stop authority to approach the man and say, look, we'd like to talk to you. And while we're talking to you, we please take our hands out of your pockets. Why is that a legitimate Terry stop? Because all they have at that point is the anonymous tip. And they have the fact that it's a high crime error. But the end of the fact is 401. And he matches the description. And there's a gunshot wound reported in the area. God, so let's take each of these

. So if I make an I think each one by one. How's that given off for reasonable suspicion for a Terry stop? No, no, your honor. And let's take each of the high crime error. It's nothing here in this court's decision in the United States versus a Roberson makes it active. The drug should be with other factors. High crime error only is relevant, only is primitive. If the police observed something suspicious that relates to it being a high crime error. So in Roberson, judge back writing for this court, it was a hotspot known for drug sale. There was an anonymous tip that the defendant was on the corner of that hotspot making drug sales. But when the police are out, they saw nothing suspicious in regards to the defendant on that corner. And judge backer said the fact that it's a hotspot adds nothing here because the police haven't seen anything suspicious. And judge backer found, and this court found, that high crime error plus anonymous tip in those circumstances doesn't even come close to reasonable suspicion. Here, what are the police observing? See a young couple engage in conversation on the steps of the woman's home. They see absolutely nothing suspicious at all in their behavior. This is a case like Roberson. It's not a case like Connolly or some of the other cases that government sites were the police. It's, and Connolly, it's an error known for purse matching. We imagine the scripture of the suspect that they were told. That was the exact same in Roberson, and it was the exact same in Florida versus JL. That doesn't provide any reliability to the tip of of criminal wrongdoing. It just means that somebody could have seen that person out there and is trying to harass them. That's why the Supreme Court in Florida versus JL said anonymous tip. Even if it's right in terms of the clothing, doesn't come close to reasonable suspicion. Thank you. We'll hear from Mr. Zawsman. We'll get you back on the rebuttal. Thank you. Good morning, your eyes may have pleased the court by Roberson on behalf of the government. The most important thing I think the Mr. Epstein said and gets to the court of this is he said the police need reasonable suspicion just to ask this man to show his hands. And that is incorrect. There is no court decision that we know of that has ever said that. And in fact, we think it would actually be shocking if a federal court said that a police officer walking up to somebody, I don't care whether high crime area or not, cannot ask a person. Wait, wait, wait. Well, only they can't be true. I mean, again, you and I now, Mr. Epstein doesn't want to go to lunch with me. So I'm happy to hear

. I go with you. We're standing out there on markets. We'll have our hands on our pockets and two or four police come up and say, hey, show me your hands. We don't have the right to say to free country. No thanks. Absolutely. Absolutely you do. And here's where, and this is where the analysis, he said no thanks here. Didn't he for a while? He froze. He did. And then he was at least slow according to some of the testimony, which was all consistent. I would say he wasn't just slow and I can come back to that. And we one officer pulled his gun because he was repeatedly refusing commands. We have clear indication here that he was not complying. Oh, the point is he depends on who's storing the gun. Mr. Weatherstwin had a different story. I mean, they run out of the car very quickly. And when he doesn't raise his hands immediately, they grab him. Well, that was her testimony. But on this, we have a very clear finding effect by the district court. This is what the district court is like. That's the whole problem here. We don't have a whole lot of findings. We don't. But we do have a page 205 of the appendix. The district court said that's the reason your argument fails significantly. Because once the orders are given, your client resisted complying with a reasonable request by law enforcement that did not intrude into his constitutional rights. But he does not depend on which witnesses the district court found credible. And we don't have any. He doesn't explain which witnesses he finds credible. He does sort of guess. Well, I think it's more than a guest, Your Honor. We know the district judges ruling ex temperaneously is here. Do not and are not required to state chapter in verse. This is a very clear finding. It's very clear that he found the officer's credible. Every officer credible. Which one? Because the officers testified at cross purposes on several issues

. Well, let me say, and I still am going to come back to the important analysis of reasonable suspicion. But on on removing his hands, McGinnis is the one who's confronting him directly and says, I told him repeatedly. And as he didn't do it, and as I became concerned, he pulled his gun. The officer who somehow has not been mentioned this morning is officer Paseca, I think his name is pronounced. Also omitted from the defendant's reply brief. Paseca is right behind the other two officers. He says, essentially, this man never complied with us. He was backing up. He was being told repeatedly to pull his hands out. He didn't. He briefly put his hands up on the wall. And then he took him down in this whole fracas ensued as he continued to resist. Campbell is the one they rely on. Campbell is not the scene where Campbell and McGinnis, right? Well, they were the first two. Paseca was right behind them. He parked right behind their cruiser. He was just a few feet at the hindermost they walked out. Well, what he said initially was he observed the other officers engaging the suspect upon arrival. Well, he did. And he said, and I think it's page 140 where he says he never complied. And he speaks quite a bit about him not taking his hands out. Campbell is never pressed by either side on the exact details of when he raised his hands. The quotes that Mr. Epstein is relying on several times in cross examination. Campbell has asked, and so he raised his hands and he says, yes. What seems to be, what happened here is that there does seem to be a consensus that he essentially stopped. And the frog maybe took a couple steps back, but he didn't try to run. And then they come up and they say, put up your hands and perhaps he was slow doing that. But that sounds a bit like the brown case that we had from 2006 where the person put his arm. In fact, that brown put his hands on the hood of the car and then started running later on. That would sound like brown, but those are not the facts here. The facts here is that as they were walking towards them on the street, they were immediately telling him to which rise hands. There's nothing in the record that contradicts that. What price of case like the Johnson case from the 6th Circuit in 2010? The Johnson case here on her, if I recall correctly, is where the person... He actually yielded. He stopped. He put his hands on the car

. He looked at the officers. Well, initially ignored the orders to stop and stay. Then upon reaching a waiting car, he stood at the passenger side door and turned toward the officers. And of course, he had stopped enough. He had basically submitted to their authority. And the fact that he later didn't put his arms up and what not... Doesn't mean that he wasn't seized at the moment that he stopped by the side of the car. That's right. He was seized. He could stop. He didn't yield. He had his hands on the car. And then later they say to him, could you raise your hands and he doesn't? And what the 6th Circuit says is, you can't consider that because he's already been seized. That is not this case. And so this person here wasn't already seized. He was not your honor because the best you could show on the defense side, the best you could say, is that he was told simultaneously to stop and withdraw his hands. And here with your girlfriend at 4 o'clock in the morning and three police cars come up and they jump out of the car and they tell you to stop and you do... I mean, you'd be frightened out of your mind, wouldn't you? I probably would, your honor. But that's not the record here. There is a discrepancy as to whether he stops. We acknowledge that as we have throughout. McGinnis says he was frozen. The other two say he wasn't. The other two say Campbell says he was back sort of backing up. Pazaka very clearly says... The other two says he was frozen and witherbrood... That's right. And the quay... Here, if this court finds it significant as to whether he truly stopped, then there does need to be a re-event

. I don't see a scenario in which this court should outright reverse and say he was stopped, where you have no factual finding that he was stopped. And you do have this discrepancy. What did they have to approach him in the first place and tell him to put his hands up? I mean, he's just there with his girlfriend on the street. Well, I myself think it was a reasonable thing for the officers to do. They have a report of a man with a gun. It's a high crime area. It's four in the morning. And shots were fired at the house. I was thinking the shooting was somebody we shot up. In fact, they were just shots. The shots were fired at a house within an hour and a half before in the same neighborhood, which is notorious. It is reasonable for an officer to walk out. But the important point, and this is where I started and what I need to get out, is that let's say they're wrong. Let's say they should not have said to him, remove your hands. And he does not remove his hands. That's because the seizure either has not happened or is happening at that moment, they can consider as part of the totality of the circumstances of reasonable suspicion. What his reaction is. There's no rule that, as Mr. Epstein said, that they can't even ask him this. The police can walk up and ask anything. They can ask him probing questions. They can ask him to stop. They can ask him to stand there. Everything you're just saying, Strikes Mr. Zalzer is weighing in favor of a remand. Because we have a different fact pattern than JL. We have a different fact pattern than other similar cases that we've written on in this area. The government strikes me as asking for a little bit of an extension or modification of JL based upon what perhaps are better facts for the government than the facts that the government had in JL. Why would we ever write an opinion of that magnitude and that difficulty without detailed fact finding by the district court? That would strike me as almost, it's very aggressive. It's not reckless by the appeal of court in my own opinion. Why am I wrong? I'm not quarreling with your honor. If the court feels that it needs a specific timeline of what happened, then there has to be a remand. I'm explaining why, just based on the refusal to show his hands, which I do think is immediate and supported by the testimony of all of the officers and judge joiner found it sufficient. He didn't find it necessary to go into what happened as he backed up, put his hands against the wall. He found it sufficient that right at the outset they asked him to show his hands and he did it. I think that's sufficient also, but your honor is right. If your honor does not... We just don't have cases. I'm not aware of a lot of case law out there about this whole dispute about show me your hands. I think you agreed with me that if we walk out there now on Market Street, the police cannot require us to show them our hands. So I assume the distinction you're making is, well, Market Street at lunchtime is not high crime neighborhood four in the morning, a report of a man with a gun in an area where shots were fired an hour and a half earlier. That's exactly right. And that's by the way what explains the Burton case in the forest. The whole forest circuit, all they had in Burton, was an officer walked up to a man for no reason whatsoever and said, show me your hands. But they're the officers repeatedly asking to take his hands off his butt and he didn't do it. That's right, but that's all there was in Burton, where I hear you have all the other factors that we've talked about. In terms of case law, your honor, you're right. There's not a great deal of case law. But let me talk about two cases that are important. One's not that important because it's not presidential, but the Samuel's case in this circuit is very closely similar. The officers come up on a man, he's backing up from them on the porch of a home. They tell him to stop and show his hands and he shows, excuse me, he shows one hand. And this court says they've got reasonable suspicion at this moment of criminal activity to pat him down. But the other case is more important is the Supreme Court's case in Illinois versus Wardlow. And this is also what defeats Mr. Epstein's argument this morning. That you don't even have the right to ask somebody to do something that he has the right to refuse to do. Wardlow is a case in which all the officers do is pull up and the man runs. Now that's something that if somebody has the right to do, but nobody ran here. No, that's right, but let me just explain what I think is the legal analogy, your honor. If I'm standing on Market Street with Judge Hardiman and the police pull up and I run, that's not reasonable suspicion. I have the right to run away from anything I want to run away from. And yet, the Supreme Court says, even if you have the right to do that, an officer can still consider that in the totality of the circumstances. And what is the plus factor in Wardlow that leads to the finding of reasonable suspicion in this court has affirmed it in subsequent decisions. Is it a high-crime area? So flight in a high-crime area, in other words, you can always take innocent things that happen and put them together. That's the RVZU decision. The defendant's position is he was seized with the four police officers who initially came there and before he was even frisked. So that, sure, the frisk, they've got a gun. But his position is that the officers seized him immediately upon being there and asking him to do something which he didn't have to do. There was a show authority and so he was seized before they even found the gun or had a right to look for the gun. What's wrong with that type of gun? Well, that's incorrect for two reasons. One is, the officers simply walking up to somebody. Four officers walking up. They didn't walk up. They ran up, basically. Four officers coming up on someone in any fashion is not a seizure

. We just don't have cases. I'm not aware of a lot of case law out there about this whole dispute about show me your hands. I think you agreed with me that if we walk out there now on Market Street, the police cannot require us to show them our hands. So I assume the distinction you're making is, well, Market Street at lunchtime is not high crime neighborhood four in the morning, a report of a man with a gun in an area where shots were fired an hour and a half earlier. That's exactly right. And that's by the way what explains the Burton case in the forest. The whole forest circuit, all they had in Burton, was an officer walked up to a man for no reason whatsoever and said, show me your hands. But they're the officers repeatedly asking to take his hands off his butt and he didn't do it. That's right, but that's all there was in Burton, where I hear you have all the other factors that we've talked about. In terms of case law, your honor, you're right. There's not a great deal of case law. But let me talk about two cases that are important. One's not that important because it's not presidential, but the Samuel's case in this circuit is very closely similar. The officers come up on a man, he's backing up from them on the porch of a home. They tell him to stop and show his hands and he shows, excuse me, he shows one hand. And this court says they've got reasonable suspicion at this moment of criminal activity to pat him down. But the other case is more important is the Supreme Court's case in Illinois versus Wardlow. And this is also what defeats Mr. Epstein's argument this morning. That you don't even have the right to ask somebody to do something that he has the right to refuse to do. Wardlow is a case in which all the officers do is pull up and the man runs. Now that's something that if somebody has the right to do, but nobody ran here. No, that's right, but let me just explain what I think is the legal analogy, your honor. If I'm standing on Market Street with Judge Hardiman and the police pull up and I run, that's not reasonable suspicion. I have the right to run away from anything I want to run away from. And yet, the Supreme Court says, even if you have the right to do that, an officer can still consider that in the totality of the circumstances. And what is the plus factor in Wardlow that leads to the finding of reasonable suspicion in this court has affirmed it in subsequent decisions. Is it a high-crime area? So flight in a high-crime area, in other words, you can always take innocent things that happen and put them together. That's the RVZU decision. The defendant's position is he was seized with the four police officers who initially came there and before he was even frisked. So that, sure, the frisk, they've got a gun. But his position is that the officers seized him immediately upon being there and asking him to do something which he didn't have to do. There was a show authority and so he was seized before they even found the gun or had a right to look for the gun. What's wrong with that type of gun? Well, that's incorrect for two reasons. One is, the officers simply walking up to somebody. Four officers walking up. They didn't walk up. They ran up, basically. Four officers coming up on someone in any fashion is not a seizure. That's black letter law. That's not a show authority? It's a show authority. But what a seizure is according to Haudailles is a show authority plus submission. That's the key. And this guy froze. But again, as I said, at best, he's being told simultaneously, freeze and show your hands. Freeze, we don't know. There is discrepancy. Well, the four of us told us to show his hands. The four of us approached him in a rather abrupt manner. At that point, could a reasonable, objectively thinking man conclude that he was free to go? No. Why wasn't he seized then before they even told him to show his hands and he refused to do that? We are not disputing that there was a show authority. And I hope I'm clear on that. And he seized not a bunch of authority. But what he objectively have the right to say, at that point, with the four officers around him, he's not free to walk away. I agree with that. That's why to show authority. No, because he needs to submit. And he does not submit in taking out his hands, which is the first thing he's told. The officers not only testify, but they're telling him immediately as they're walking towards him, show your hands. They follow what Johnson did if I got to that. Excuse me? I prefer to follow what Johnson did in the six-circuit. This is pretty much an all-forced that even if you start backing up later on, once you say, you stop and you sort of stand in place for even a moment, you've submitted to authority. What's crucial here, and it's unfortunate that these cases come down to these fine facts like this. What's crucial here is when the order is given to show his hands. Here, it's as they're walking towards him, immediate. I mean, what you're arguing is that maybe he was froze, but there's two things he had to do to submit to authority. He had to stop, and he had to show his hands. He may have stopped. There's a fractural question you claim about that. But since he didn't show his hands immediately, therefore he didn't submit to authority. I think what I'm saying to be precise, you're underage, that what's the relevance of a seizure? Why is a seizure important? It's important because that's the moment at which this court has to assess reasonable suspicion. We need to pinpoint that moment. Whatever is happening at that moment, the officers in this court can consider in deciding whether there's reasonable suspicion. If it happens after that moment, you can't. And what I'm saying is, at that moment of seizure, he is doing two things at best. I want to agree that he's frozen in place because there is discrepancy. But at best for the defense, he's doing two things at that second. He is in place, and he's not showing his hands

. That's black letter law. That's not a show authority? It's a show authority. But what a seizure is according to Haudailles is a show authority plus submission. That's the key. And this guy froze. But again, as I said, at best, he's being told simultaneously, freeze and show your hands. Freeze, we don't know. There is discrepancy. Well, the four of us told us to show his hands. The four of us approached him in a rather abrupt manner. At that point, could a reasonable, objectively thinking man conclude that he was free to go? No. Why wasn't he seized then before they even told him to show his hands and he refused to do that? We are not disputing that there was a show authority. And I hope I'm clear on that. And he seized not a bunch of authority. But what he objectively have the right to say, at that point, with the four officers around him, he's not free to walk away. I agree with that. That's why to show authority. No, because he needs to submit. And he does not submit in taking out his hands, which is the first thing he's told. The officers not only testify, but they're telling him immediately as they're walking towards him, show your hands. They follow what Johnson did if I got to that. Excuse me? I prefer to follow what Johnson did in the six-circuit. This is pretty much an all-forced that even if you start backing up later on, once you say, you stop and you sort of stand in place for even a moment, you've submitted to authority. What's crucial here, and it's unfortunate that these cases come down to these fine facts like this. What's crucial here is when the order is given to show his hands. Here, it's as they're walking towards him, immediate. I mean, what you're arguing is that maybe he was froze, but there's two things he had to do to submit to authority. He had to stop, and he had to show his hands. He may have stopped. There's a fractural question you claim about that. But since he didn't show his hands immediately, therefore he didn't submit to authority. I think what I'm saying to be precise, you're underage, that what's the relevance of a seizure? Why is a seizure important? It's important because that's the moment at which this court has to assess reasonable suspicion. We need to pinpoint that moment. Whatever is happening at that moment, the officers in this court can consider in deciding whether there's reasonable suspicion. If it happens after that moment, you can't. And what I'm saying is, at that moment of seizure, he is doing two things at best. I want to agree that he's frozen in place because there is discrepancy. But at best for the defense, he's doing two things at that second. He is in place, and he's not showing his hands. That means at that moment that that's where we freeze the picture and say, let's look at the totality of the circumstances. And at that second, the totality of the circumstances includes that he has refused to show his hands. Mr. Epstein points out the first question I asked him. What should they have done? Instead of jumping out of the car and really in a very aggressive way showing their authority, what if they had done, excuse me. I want you to talk to you. The person standing by the way, just in case something goes wrong. There's been a shooting an hour and a half ago. There's been a tip given to us of a person that meets your description somewhat. And we'd like to ask you some questions. Why not do that? Well, they could. And I'm not going to be the one to tell police officers on the street that, if we're in the morning in this area, we're shots of being fired. Exactly how to do their jobs. They chose to tell him to show his hands. And I think it's pure common sense. Not only do we accept what the officers say and judge join it clearly did that he gave this order. But it's common sense that you're walking up on somebody with his hands stuffed into his jacket. At 4 in the morning with shots of fired, you have an anonymous report, except it's anonymous, but exactly describing this person. I think an officer would actually be fairly crazy. Nothing ever came into any type of evidence that this was the person who did the shooting the hour and a half before. No, absolutely not. So your honor, what I'm saying is that I think what they did is reasonable. And that's what the Fourth Amendment is all about. But even if it's not reasonable, the reason this prevails is because of the way the Supreme Court for better or worse. It's to find this whole area of law through Haudari. What Haudari basically stands for, Haudari of course is the case where they're chasing the guy down the alley. And the Supreme Court says we will assume that they did not have a basis to do that. And it's obviously what compels the person to toss them narcotics. And they say there's been no seizure because he hasn't submitted it. So the way the Supreme Court has framed the inquiry for better or worse is it's not just the show of authority. It's not just you and I discussing should the police have done it better, could they have done this better. It's what actually happened, what happened up to that moment of seizure. And what I'm saying is up to that moment of seizure, judge joined him in a factual finding. He did not show his hands. That's the moment we freeze the picture. And that's the moment we say what do we have? That's what I'm saying to you is that is a stretch beyond standing. And it's submitting to authority could be just standing in place. And if it was determined that he stopped and he essentially stood in place, he maybe took a step or two backwards. He basically didn't try to run and to go any further means you've now hit a seizure

. That means at that moment that that's where we freeze the picture and say, let's look at the totality of the circumstances. And at that second, the totality of the circumstances includes that he has refused to show his hands. Mr. Epstein points out the first question I asked him. What should they have done? Instead of jumping out of the car and really in a very aggressive way showing their authority, what if they had done, excuse me. I want you to talk to you. The person standing by the way, just in case something goes wrong. There's been a shooting an hour and a half ago. There's been a tip given to us of a person that meets your description somewhat. And we'd like to ask you some questions. Why not do that? Well, they could. And I'm not going to be the one to tell police officers on the street that, if we're in the morning in this area, we're shots of being fired. Exactly how to do their jobs. They chose to tell him to show his hands. And I think it's pure common sense. Not only do we accept what the officers say and judge join it clearly did that he gave this order. But it's common sense that you're walking up on somebody with his hands stuffed into his jacket. At 4 in the morning with shots of fired, you have an anonymous report, except it's anonymous, but exactly describing this person. I think an officer would actually be fairly crazy. Nothing ever came into any type of evidence that this was the person who did the shooting the hour and a half before. No, absolutely not. So your honor, what I'm saying is that I think what they did is reasonable. And that's what the Fourth Amendment is all about. But even if it's not reasonable, the reason this prevails is because of the way the Supreme Court for better or worse. It's to find this whole area of law through Haudari. What Haudari basically stands for, Haudari of course is the case where they're chasing the guy down the alley. And the Supreme Court says we will assume that they did not have a basis to do that. And it's obviously what compels the person to toss them narcotics. And they say there's been no seizure because he hasn't submitted it. So the way the Supreme Court has framed the inquiry for better or worse is it's not just the show of authority. It's not just you and I discussing should the police have done it better, could they have done this better. It's what actually happened, what happened up to that moment of seizure. And what I'm saying is up to that moment of seizure, judge joined him in a factual finding. He did not show his hands. That's the moment we freeze the picture. And that's the moment we say what do we have? That's what I'm saying to you is that is a stretch beyond standing. And it's submitting to authority could be just standing in place. And if it was determined that he stopped and he essentially stood in place, he maybe took a step or two backwards. He basically didn't try to run and to go any further means you've now hit a seizure. So whether he didn't raise his hands quickly enough, that's an after the fact matter. No, not if he didn't raise his hands quickly enough to use your honors words before that seizure. And they testified, and this was the word before the seizure, but the seizure occurred before they told him to raise it or before he actually raised his hands. In other words, when does the seizure happen? This is when you were standing on the street, the police come up and they go to you and judge Harteman, okay, stop. Raise your hands. If you stop and you don't raise your hands, you're telling me that's not a seizure. No, what I'm saying is in this case, I'm looking at the facts of this case, they're telling him not to raise his hands as they're walking towards him. This doesn't happen where they casually stroll up to him and say, oh, by the way, could you show your hands? This is happening over the course of walking several car lengths towards him because they're very quickly. Whether it's quick or not, they're concerned for their safety. They say they have to tell him multiple times as they, and Paseca says they're walking towards him. He's walking back and they're telling him multiple times. There has not been a seizure at best, as I've said. There's this simultaneous stop, but by that point, he has not shown his hands. That's the district reports finally. We can send it back and I'm fairly confident that you know, don't show any more clearly articulate the finding that he made, but it's evident in the ruling that he reached. That he was asked to do. So if I could just say one other thing just to preserve it. We don't agree as just a second variation that doesn't have to be reached. That this really was a stop. Even if he did freeze, as it was said, and then he was back down. You mean stop or seizure? A seizure because what this is is momentary compliance. This is different from Brown. Brown, these gentlemen are coming out of the store and they actually stop. And then they're told, go get put your hands on the car so we can frisk you. But again, I keep coming back to Johnson from the Sixth Circuit. It seems like this case is remarkably close. Well, but it's not because here the person backs up and then he just basically bolts in Johnson, by the way, the person never resists. The only issue there is in assessing reasonable suspicion. He wouldn't raise his hands. But what this case is really like is Valentine, which I just counter wrote with the proposition repeatedly stated in this court, the momentary compliance is not a seizure. This guy is weighing his options as he backs up with his hands. How do you distinguish Johnson to Campbell? The case where the basketball coach is in the car and he's got his winded down and he won't always carwind the down. And we said that's the solution. That's right. But the same thing, he never left. We didn't have the issue there of momentary compliance. Valentine is the case that's really on point. And Smith, of course, two steps toward a car. Well, Smith, the guy took off

. So whether he didn't raise his hands quickly enough, that's an after the fact matter. No, not if he didn't raise his hands quickly enough to use your honors words before that seizure. And they testified, and this was the word before the seizure, but the seizure occurred before they told him to raise it or before he actually raised his hands. In other words, when does the seizure happen? This is when you were standing on the street, the police come up and they go to you and judge Harteman, okay, stop. Raise your hands. If you stop and you don't raise your hands, you're telling me that's not a seizure. No, what I'm saying is in this case, I'm looking at the facts of this case, they're telling him not to raise his hands as they're walking towards him. This doesn't happen where they casually stroll up to him and say, oh, by the way, could you show your hands? This is happening over the course of walking several car lengths towards him because they're very quickly. Whether it's quick or not, they're concerned for their safety. They say they have to tell him multiple times as they, and Paseca says they're walking towards him. He's walking back and they're telling him multiple times. There has not been a seizure at best, as I've said. There's this simultaneous stop, but by that point, he has not shown his hands. That's the district reports finally. We can send it back and I'm fairly confident that you know, don't show any more clearly articulate the finding that he made, but it's evident in the ruling that he reached. That he was asked to do. So if I could just say one other thing just to preserve it. We don't agree as just a second variation that doesn't have to be reached. That this really was a stop. Even if he did freeze, as it was said, and then he was back down. You mean stop or seizure? A seizure because what this is is momentary compliance. This is different from Brown. Brown, these gentlemen are coming out of the store and they actually stop. And then they're told, go get put your hands on the car so we can frisk you. But again, I keep coming back to Johnson from the Sixth Circuit. It seems like this case is remarkably close. Well, but it's not because here the person backs up and then he just basically bolts in Johnson, by the way, the person never resists. The only issue there is in assessing reasonable suspicion. He wouldn't raise his hands. But what this case is really like is Valentine, which I just counter wrote with the proposition repeatedly stated in this court, the momentary compliance is not a seizure. This guy is weighing his options as he backs up with his hands. How do you distinguish Johnson to Campbell? The case where the basketball coach is in the car and he's got his winded down and he won't always carwind the down. And we said that's the solution. That's right. But the same thing, he never left. We didn't have the issue there of momentary compliance. Valentine is the case that's really on point. And Smith, of course, two steps toward a car. Well, Smith, the guy took off. Well, he did. And here, this guy, as soon as he put his arms up, he put them down and he was reaching for the gun. He struggled with them. They had this huge fight. He was injured. This is not Johnson versus Campbell. Johnson versus Campbell, this court says when he stole the second time to roll down the window and he complies, there's a seizure. Again, it's always that second part that sometimes it's present and sometimes not that you have to submit. So no, my primary argument here, of course, is he didn't remove his hands up to the time of the seizure. And that could, and Judge Jordan did it exactly right in considering the totality as of that moment and finding that there was reasonable suspicion. Not probable cause. A reasonable, articulable suspicion that this guy was up to no good because he wasn't showing his hands. I'm only saying his second very important. If his hands are not in his pocket, they have no right to do a Terry stop. That's probably true. If he stands, it's still and it doesn't go anywhere. So the whole case comes down to the command to show your hands, the alleged refusal to show the hands. And the timeline would seem to be critical regarding when the gun was drawn, when the command was made to show the hands, what response was made. These are all critical facts. Are they not? I agree. And this is one of many cases in which it turns on facts like this as to whether the police could do what they ultimately did. Here again, I rest on Judge Jordan's finding that, and I think it's implicit in his finding, that he didn't show his hands as he was repeatedly told to do so up until the time they finally got control of him. If your honor thinks you need to know more about the timeline, then I completely respect your honor, suggestion. So let me just straighten that. So your basic position is he was never seized until after they discovered that gun up to that point they were doing a Terry stop. And for their safety purposes, they were telling him to take his hands up. Right. Now that's my backup position that he wasn't seized until he was finally subdued. But your initial position is not the Terry stop that he was always seized after they found the gun. Your basic position is my initial position. They had a right to stop it in the first place. That's right. My initial position is if you assess reasonable suspicion as of the time of the seizure by that time he has been told repeatedly to remove his hands, he hasn't done it. You add to that middle of the night, high crime area, description, recent shooting. That's reasonable suspicion. It is not for a person to do that. Reasonable suspicion for a Terry stop. For a Terry stop. Which would allow the Frisk, which in which they find that

. Well, he did. And here, this guy, as soon as he put his arms up, he put them down and he was reaching for the gun. He struggled with them. They had this huge fight. He was injured. This is not Johnson versus Campbell. Johnson versus Campbell, this court says when he stole the second time to roll down the window and he complies, there's a seizure. Again, it's always that second part that sometimes it's present and sometimes not that you have to submit. So no, my primary argument here, of course, is he didn't remove his hands up to the time of the seizure. And that could, and Judge Jordan did it exactly right in considering the totality as of that moment and finding that there was reasonable suspicion. Not probable cause. A reasonable, articulable suspicion that this guy was up to no good because he wasn't showing his hands. I'm only saying his second very important. If his hands are not in his pocket, they have no right to do a Terry stop. That's probably true. If he stands, it's still and it doesn't go anywhere. So the whole case comes down to the command to show your hands, the alleged refusal to show the hands. And the timeline would seem to be critical regarding when the gun was drawn, when the command was made to show the hands, what response was made. These are all critical facts. Are they not? I agree. And this is one of many cases in which it turns on facts like this as to whether the police could do what they ultimately did. Here again, I rest on Judge Jordan's finding that, and I think it's implicit in his finding, that he didn't show his hands as he was repeatedly told to do so up until the time they finally got control of him. If your honor thinks you need to know more about the timeline, then I completely respect your honor, suggestion. So let me just straighten that. So your basic position is he was never seized until after they discovered that gun up to that point they were doing a Terry stop. And for their safety purposes, they were telling him to take his hands up. Right. Now that's my backup position that he wasn't seized until he was finally subdued. But your initial position is not the Terry stop that he was always seized after they found the gun. Your basic position is my initial position. They had a right to stop it in the first place. That's right. My initial position is if you assess reasonable suspicion as of the time of the seizure by that time he has been told repeatedly to remove his hands, he hasn't done it. You add to that middle of the night, high crime area, description, recent shooting. That's reasonable suspicion. It is not for a person to do that. Reasonable suspicion for a Terry stop. For a Terry stop. Which would allow the Frisk, which in which they find that. And then when they find the gun, he's arrested. He's seized. Exactly. Thank you very much. Mr. Epstein. Thank you, honor. My friend here has it wrong and suggesting that he was not seized until he, until the alleged delay in raising his hand. And the seizure is immediate in the cases. No, no, no, they don't claim he was seized when he didn't raise his hands. They're saying that when he didn't raise his hands, that at that point they had a right to frisk him for safety purposes. And they had the right to frisk him because he didn't raise his hands. Your honor, if I understand the government, there's no dispute. There was a show of authority as soon as they got out of the car. There's no, there's really no dispute in the testimony that Mr. Love stays put. The game is testified that he's frozen. Campbell says he's sort of kind of backed up a step into the fence. He stays put. He is seized immediately. The score to the seizure. He didn't raise his hands. He submits your honor by staying put. But they don't want to get to the conflict over whether he raised how quickly he raised his hand because he stays put. And there's a case law that's clear on this. He's submitting if he stays put but he doesn't take his hands out of his pocket. Yes. Yes. And that's clear from the United States or the Johnson. That's all dependent. It seems to me on whether the government, I'm sorry to sound like a broken record, but it seems to be the seminal question in the cases. Did the government have the right to order him to show his hands? Oh, without reasonable suspicion. It's clear that they don't and that's made clear on the fourth. What cases, what, what cases do we have where courts have said that on these facts, high crime neighborhood, middle of the night shots fired, et cetera, et cetera, all the totality of the circumstances that the government can't ask can't require some of the trial. Right. It's not a, it's not. If you don't have a suit, would you please take your hands out? It's requiring a gunpoint. So, the United States versus bourbon, the fourth circuit case, I would submit as on point. Now, Mr

. And then when they find the gun, he's arrested. He's seized. Exactly. Thank you very much. Mr. Epstein. Thank you, honor. My friend here has it wrong and suggesting that he was not seized until he, until the alleged delay in raising his hand. And the seizure is immediate in the cases. No, no, no, they don't claim he was seized when he didn't raise his hands. They're saying that when he didn't raise his hands, that at that point they had a right to frisk him for safety purposes. And they had the right to frisk him because he didn't raise his hands. Your honor, if I understand the government, there's no dispute. There was a show of authority as soon as they got out of the car. There's no, there's really no dispute in the testimony that Mr. Love stays put. The game is testified that he's frozen. Campbell says he's sort of kind of backed up a step into the fence. He stays put. He is seized immediately. The score to the seizure. He didn't raise his hands. He submits your honor by staying put. But they don't want to get to the conflict over whether he raised how quickly he raised his hand because he stays put. And there's a case law that's clear on this. He's submitting if he stays put but he doesn't take his hands out of his pocket. Yes. Yes. And that's clear from the United States or the Johnson. That's all dependent. It seems to me on whether the government, I'm sorry to sound like a broken record, but it seems to be the seminal question in the cases. Did the government have the right to order him to show his hands? Oh, without reasonable suspicion. It's clear that they don't and that's made clear on the fourth. What cases, what, what cases do we have where courts have said that on these facts, high crime neighborhood, middle of the night shots fired, et cetera, et cetera, all the totality of the circumstances that the government can't ask can't require some of the trial. Right. It's not a, it's not. If you don't have a suit, would you please take your hands out? It's requiring a gunpoint. So, the United States versus bourbon, the fourth circuit case, I would submit as on point. Now, Mr. Zalsmer would say, well, that's different because there was not a high crime area. There's not an anonymous tip. I would submit, it's total end point. And here's why there's no reasonable suspicion in burden when they make the demand. And there's no reasonable suspicion here where they make the demand. They might be a little closer to reasonable suspicion here because of the anonymous tip. But they still have no dispute. They haven't passed the threshold of reasonable suspicion. And why that matters is because the Supreme Court and Wardle says when an officer without reasonable suspicion approaches an individual, the individual has a right to ignore the police and go about his business. And any refusal to cooperate without more does not affirm us the minimal level of objective justification. So, if the government is conceded if he's standing there with his hands by his side, there's no reasonable suspicion. But they say that it's different because his hands are hidden. Why is, I mean, isn't it possibly could have had a gun in his pocket and pulled it out and shot them? I mean, that seems sort of obvious. They don't have reasonable suspicion of that though. And because of that, they can't go in. Why wouldn't they when they've been told that someone's fitting his description has a gun? You've got all of these factors. Because you have all of these factors that even the Supreme Court, not just the courts of appeals, have indicated our plus factors very much in favor of the government. There's no dispute from the government. The officer did not have reasonable suspicion when they made their show of authority when they issued their demand that he raised his hand. There's no dispute about that. No, they're saying they got the reasonable suspicion for the Terry stop by asking him to show his hands. They say the reasonable suspicion came only as a result of him not immediately raising his hand. When they made the demand for him to raise his hand, there's no dispute. They didn't have reasonable suspicion at that point. That's not even the case. But with no case law. I mean, but there's why there is. We're not dealing with a binary question of, you know, where reasonable minds can't disagree. We're not dealing with a well-worn path, like some of the other fact patterns that you gentlemen are even more familiar with than we are. We're dealing with a fairly novel, very difficult situation. Why not remand the case? That's certainly an option here. Why would suggest you don't need to is if you take any of the officers versions as a matter of law, there's not a right. Police do not have reasonable suspicion to justify the seizure. If you want cases on it, the United States versus Burton, Fort Circuit case, officers approach without reasonable suspicion, hands are in pockets. Fort Circuit says the police have no right to demand if you remove his hands. And the fact that the defendant, they refuse to remove his hand, didn't provide the reasonable suspicion. Let me just follow up with Mr. Chartamus. You may be right

. Zalsmer would say, well, that's different because there was not a high crime area. There's not an anonymous tip. I would submit, it's total end point. And here's why there's no reasonable suspicion in burden when they make the demand. And there's no reasonable suspicion here where they make the demand. They might be a little closer to reasonable suspicion here because of the anonymous tip. But they still have no dispute. They haven't passed the threshold of reasonable suspicion. And why that matters is because the Supreme Court and Wardle says when an officer without reasonable suspicion approaches an individual, the individual has a right to ignore the police and go about his business. And any refusal to cooperate without more does not affirm us the minimal level of objective justification. So, if the government is conceded if he's standing there with his hands by his side, there's no reasonable suspicion. But they say that it's different because his hands are hidden. Why is, I mean, isn't it possibly could have had a gun in his pocket and pulled it out and shot them? I mean, that seems sort of obvious. They don't have reasonable suspicion of that though. And because of that, they can't go in. Why wouldn't they when they've been told that someone's fitting his description has a gun? You've got all of these factors. Because you have all of these factors that even the Supreme Court, not just the courts of appeals, have indicated our plus factors very much in favor of the government. There's no dispute from the government. The officer did not have reasonable suspicion when they made their show of authority when they issued their demand that he raised his hand. There's no dispute about that. No, they're saying they got the reasonable suspicion for the Terry stop by asking him to show his hands. They say the reasonable suspicion came only as a result of him not immediately raising his hand. When they made the demand for him to raise his hand, there's no dispute. They didn't have reasonable suspicion at that point. That's not even the case. But with no case law. I mean, but there's why there is. We're not dealing with a binary question of, you know, where reasonable minds can't disagree. We're not dealing with a well-worn path, like some of the other fact patterns that you gentlemen are even more familiar with than we are. We're dealing with a fairly novel, very difficult situation. Why not remand the case? That's certainly an option here. Why would suggest you don't need to is if you take any of the officers versions as a matter of law, there's not a right. Police do not have reasonable suspicion to justify the seizure. If you want cases on it, the United States versus Burton, Fort Circuit case, officers approach without reasonable suspicion, hands are in pockets. Fort Circuit says the police have no right to demand if you remove his hands. And the fact that the defendant, they refuse to remove his hand, didn't provide the reasonable suspicion. Let me just follow up with Mr. Chartamus. You may be right. And maybe we take on the Burton case or the Sixth Circuit, from the Sixth Circuit or the Sixth Circuit, in case in Johnson. But before that, we do that, shouldn't we just try to get the facts, which we don't have? Well, we have each of the officers. We have, we have allegations. We have each of the officers' testimony. My thought, my feeling is that under any of their versions, Pazaca, MacGinnis, take Campbell, under none of them, did the officers have reasonable suspicion to seize Mr. Lail? Not the seize of, but do they have reasonable, the backup argument of the government. Do they have reasonable suspicion to do a Terry stop? To do a Terry stop. And when they did the Terry stop, they stopped them, not a Terry stop. And told them to take his hands out of this pocket. Aren't they in a position to then say, we're going to, to the first kid wouldn't be. And at that point, they find the gun, and they arrest him. Why is it the backup position bulletproof, so to speak? Because if you acknowledge that they had a right to be there, to save something to them, and you acknowledge that there's evidence that he was told to take his hands, show his hands. At that point, don't they have the ability, the right to, to, uh, risk him for their safety? No, you're right. They have a right, as in any case, an officer has a right to go up to someone, and try to engage them in a conversation. That the officers had a right to do, but there's no dispute. That's not what occurred here. What occurred was the officers getting out of their patrol cars, and immediately making a show of authority without reasonable suspicion. Well, a show of authority is not, is, is not a Terry stop as such. As soon as Mr. Lower responds to that show of authority, by not running away, it's a Terry stop. And the case, you mean a seizure? It's, it's a seizure. Right. Or a Terry stop, because you're saying that, if he hasn't, if he's in the room, he'll disobey the order, then they don't have enough returns. And the case is made clear that the seizure is in that very moment. As soon as he doesn't run away and responds to the show of authority. The case, we cite the United States versus Roberson and are ready for the, on the reasonable suspicion, issue on anonymous tip. It's also directly relevant on how quick the seizure occurs. In a case like this, in Roberson, Judge Backer, again, running for the court, the officer responding to the anonymous tip of a man on a hotspot, someone drows, gets out of his car, makes a show of authority, and right then Mr. Roberson was seized. And we know it was right then from the opinion, because the very next thing that happens is, the officers, as they approached, they she the gun in Mr. Roberson's waistband. And it doesn't count towards reasonable suspicion, because he was seized. As soon as the officer got out of the car and made the show of authority. Mr. Roberson didn't run away. Yes, Counsel, if this was a Terry stop, he wasn't seized where they engaged in and said, okay, show us your hands if it's a Terry stop. Yes, Your Honor, he was, because they made a show of authority and he didn't try to run away. He's submitted by Stang Putt. Well, you're saying that any Terry stop is a fourth amendment

. And maybe we take on the Burton case or the Sixth Circuit, from the Sixth Circuit or the Sixth Circuit, in case in Johnson. But before that, we do that, shouldn't we just try to get the facts, which we don't have? Well, we have each of the officers. We have, we have allegations. We have each of the officers' testimony. My thought, my feeling is that under any of their versions, Pazaca, MacGinnis, take Campbell, under none of them, did the officers have reasonable suspicion to seize Mr. Lail? Not the seize of, but do they have reasonable, the backup argument of the government. Do they have reasonable suspicion to do a Terry stop? To do a Terry stop. And when they did the Terry stop, they stopped them, not a Terry stop. And told them to take his hands out of this pocket. Aren't they in a position to then say, we're going to, to the first kid wouldn't be. And at that point, they find the gun, and they arrest him. Why is it the backup position bulletproof, so to speak? Because if you acknowledge that they had a right to be there, to save something to them, and you acknowledge that there's evidence that he was told to take his hands, show his hands. At that point, don't they have the ability, the right to, to, uh, risk him for their safety? No, you're right. They have a right, as in any case, an officer has a right to go up to someone, and try to engage them in a conversation. That the officers had a right to do, but there's no dispute. That's not what occurred here. What occurred was the officers getting out of their patrol cars, and immediately making a show of authority without reasonable suspicion. Well, a show of authority is not, is, is not a Terry stop as such. As soon as Mr. Lower responds to that show of authority, by not running away, it's a Terry stop. And the case, you mean a seizure? It's, it's a seizure. Right. Or a Terry stop, because you're saying that, if he hasn't, if he's in the room, he'll disobey the order, then they don't have enough returns. And the case is made clear that the seizure is in that very moment. As soon as he doesn't run away and responds to the show of authority. The case, we cite the United States versus Roberson and are ready for the, on the reasonable suspicion, issue on anonymous tip. It's also directly relevant on how quick the seizure occurs. In a case like this, in Roberson, Judge Backer, again, running for the court, the officer responding to the anonymous tip of a man on a hotspot, someone drows, gets out of his car, makes a show of authority, and right then Mr. Roberson was seized. And we know it was right then from the opinion, because the very next thing that happens is, the officers, as they approached, they she the gun in Mr. Roberson's waistband. And it doesn't count towards reasonable suspicion, because he was seized. As soon as the officer got out of the car and made the show of authority. Mr. Roberson didn't run away. Yes, Counsel, if this was a Terry stop, he wasn't seized where they engaged in and said, okay, show us your hands if it's a Terry stop. Yes, Your Honor, he was, because they made a show of authority and he didn't try to run away. He's submitted by Stang Putt. Well, you're saying that any Terry stop is a fourth amendment. A fourth, a Terry stop is not a complete fourth amendment stop. It's a Terry stop. It's a violation of the fourth amendment if the police don't have reasonable suspicion to support it. Well, given the totality of the circumstances, didn't they have authority for a Terry stop? No, Your Honor, they didn't. Well, that's interesting, because with all these factors, you're saying a police officer could not approach someone who matched the description, high crime area four in the morning, gunshot reports in the area that they don't have authority to stop someone for a Terry stop. No, Your Honor, the anonymous tip, it's clear from Florida versus JL. Forget about the down zip. There's a high crime area, this court covered that in Roberson. If you don't see suspicious activity matching the type of crime in that high crime area, that doesn't add anything. The gunshot from an hour and a half earlier, even Judge Jorners said that's a quantum leap. It was undisputed, and if you look at page 202-203 of the appendix, it also page 58, defense counsel may representations to the court that were not disputed by the government. That earlier gunshot, the plaintiff said it was probably a woman who fired the shot because there was a dispute between a group of women outside her front lawn and the shot came through a minute later. No dispute, there was no suggestions. The problem that I see with the government's fallback argument on Terry stop is that in Terry, there was a police officer observing an individual physically observing him, casing what he thought was casing a department store for the Zyver call. He then had a right because he thought that there could be criminal activity of foot to go up and investigate further. This is a beyond that. That's exactly right. When they pull up in the car, they don't see anything suspicious. They can see a young couple engaged in quiet conversation. All that suspicious is the information in their head before they approach. Unless they can gain more flight plus and all this other stuff, unless they can gain more, you win the case. Exactly. But the judge saw it, obviously the judge saw it the other way. But if you can't be exactly sure what facts are. If you look at any of the officers' testimony at the moment they get out of the car and make that show of authority, they don't have reasonable suspicion. Since he didn't run away under all of their accounts, he doesn't run away. He's submitted. So you don't even get to the conflict in the testimony about how quickly you're going to send it. But wouldn't you concede it's a novel type of case in this regard. The hidden hand, what's called the hidden hands case because it would be a little bit risky for courts to establish a principle of law that officers need to engage in citizen encounters. As their peril, allowing people who they think may be not reasonable suspicion, but something less, might be up the interest. They have to approach them at their peril and run the risk of getting shot. The alternative, besides going up and trying to engage them in a consensual encounter, they could have continued to surveil from their cars. By doing that, they might well have seen something suspicious. Like in all the other cases, the government said where they see some kind of firt of hand movement, that the officers from their experience think he's trying to hide a gun or trying to reach for the gun or something. They could have surveil, they could have continued to surveil, they could have tried to engage in a consensual encounter, and then maybe seen something suspicious happen. That's all possible, but that's also counter-manded by the notion that when you hear about people having guns in this society, it might be better to act quickly rather than to just sit back and watch. But the fourth circunenburden, second circunen Simmons, the sixth circunen Johnson, all dealt with this. I don't think Simmons helps you that much

. Well, Simmons actually does your honor because the second circuent there said, once the defendant stopped for reasonable suspicion purposes for the stop, once he comes to a halt, the officers couldn't consider for reasonable suspicion purposes, the court wouldn't consider for reasonable suspicion purposes, what happens next, that they ask him to raise his hands, and he doesn't comply. He keeps his hands down, or actually in his pockets. And the court said, well, wait, he was already seized, he stopped, you can't consider that for purposes of reasonable suspicion for the stop. Thank you. Thank you, both counsel, very well presented arguments as always. Thank you. Take a matter under advised