Legal Case Summary

We were ready for argument in our ass case, street or versus Wilson. Thank you. Good morning, Your Honours. Good morning, Mr. Inbal. And then please the court. Mr. Peterson will be following me up after eight minutes as noted. We believe this case demonstrates clearly that the officer used objective reasonableness when he had to make that very quick decision to use deadly force that night. And there's no factual dispute here. You accept the facts as planned. We accept for this hearing that the facts must be reviewed in light most favorable to the plaintiff in this case. So that was the yes. There were disputes at trial as to what the facts were. The office is obviously if there are factual disputes in the fall and by the minute in case we wouldn't have jurisdiction. That's correct. We think this is purely a question of law. So for purposes of this argument, we believe that the light's most favorable to the plaintiff, even with those facts that pled by the plaintiff, as a matter of law, the use of force was objectively reasonable

. He was not in a statement. There were disputes at trial. And it's that one. Well, the disputes at trial, since we focused on distance and whether or not the plaintiff was armed with a knife at that time, distance between the officer and the plaintiff. That's correct, Your Honor. And that's correct. What are the other disputes? The other dispute was whether or not the plaintiff was armed with the knife at the exact moment that the officer discharged as far as I'm. But for purposes of this hearing, looking at the facts in light most favorable to the plaintiff, it is our position that the officer's decision to use force was objectively reasonable. There is no dispute that the plaintiff had a knife. Just to understand what you're going with it. Because you said the disputes at trial and those two facts. The plaintiff's evidence on a distance would be. Plaintiff's evidence based upon their expert on the markings that the officer estimate made when he did the walkthrough was about 30 feet, maybe a little bit more. The officer testified that he believed that the plaintiff was 20 feet away. But we've got to take the 31. We do. And so the evidence insofar as whether he had the knife at the time in his hand, the plaintiff's allegation, or the plaintiff's

. Plaintiff's allegation was that he had dropped the knife, cast it aside laterally just before he was shot. And what about the statement that the, at some point, I think there was a statement by the officer that says that the plaintiff said, I don't have it something that is fact wise. The plaintiff testified at trial that he said, I do not have the knives. Didn't you see me throw the knife down? That was the testimony of trial. To the officer. To the officer. And the 30 feet apart. According to the plaintiff and the markings, yes, your name. Do we take it that the officer heard him? The officer did not hear him. According to the officer's testimony. The officer's testimony. I don't we have to say that he did. No, I don't think you do. What about the testimony from the victim's mother that she told him, told the police officer, in advance of the shooting, not to shoot this individual. It's my son. It's not the assailant. I don't think whether or not it's her son or the assailant is crucial to this case

. What is crucial to this case? But the question was, we have to assume for our purposes today that those are true factual allegations. I think the looking at the testimony as an entire, he was, that she probably told officer Helms, the second officer, that in fact that's her son, and that officer Wilson was further on down the road away from the mother. We have to accept the fact that she said it. We accept the fact that she said it. But to whom is an issue that the trial judge did not resolve in favor of one person or another? Whether it was her. One more thing. A factual dispute. Creating a factual dispute. Creating a factual dispute. But in the order that the judge put forth, that was not resolved in favor of the plaintiff or the defendant at that time. I don't think it's a crucial factor. What's crucial is that he's armed, that he refuses to drop the knife, and he continues to, yes. The reason, I guess, so much time has been spent on this, is in order for us to have jurisdiction at this point, we have to accept some statement of facts as given. So we're trying, or at least I'm trying to understand, we're trying to assure for us to have jurisdiction that we're all operating on the basis of the same facts. In those facts are the fact as a plaid, and taken in the light most favorable to the young man, something that mistreated. So those facts are, and tell me if I'm getting any of them on, that the mother did say, don't shoot, that's my son. I don't think there's any indication of whether or not, she was hurt or not, that JG was 31 feet away

. Correct your honor. Not 20, and what is the fact, what are the facts, with respect to JG having the knife at the time the shots were fired? According to the plaintiff, the facts were that the knife was cast aside just prior to the shots being delivered. And so, but that's what we have to take. I agree your honor, I agree, hold it. Given those facts based upon what occurred just prior to the shots being fired, was that there was a figure, there's no dispute that two figures were approaching the officer. One of them was carrying a shiny object. The officer repeatedly yelled to drop the weapon, drop the weapon, drop the knife. And yet, the figure moves forward. It is at that moment, our contention is that the plaintiff is an immediate threat, not only to the officer. Of course, and the facts, and just Duncan just recited the book of the knife is gone. But just prior to the knife being cast aside, like the incident in Sigmund, it would be reasonable for an officer not to see that. And when it comes to reviewing whether or not the forces lawful, we now kick into the Graham analysis. But in Sigmund, if I remember correctly, the assailant and the police officer were closer than you and I were. They were, but the assailant didn't continue walking forward, sending out the message that he would not comply. Failure to comply and not drop a weapon, and not immediately follow those officer's commands over a repeated series of distance is sufficient to make that threat immediate and apparent, whether it's 20 feet or 30 feet, it all facts and it depends on the distance. In some circumstances, 50 feet would be your honor. Immediately

. Immediately. And for example, what makes it a matter of law from your perspective that 30 feet would be? The totality of the circumstances, the failure to respond to the officer's repeated lawful commands to drop the weapon indicates. What would you agree on? Following Judge Lent's question, that what we would have to find is, as a matter of law, in these facts that that was an objective. I wouldn't you, reasonable. The problem that I have from the facts is, and you rely on the existence of exigent circumstances, immediate response, but there were in fact four shots. And even if we were to conclude and agree that Wilson could reasonably have perceived JG as a threat prior to the first two shots, because JG was far away approaching, holding a knife, being belligerent and non-compliant, how does that, how can we find that the latter two shots, including what the officer himself described as a kill shot, when JG was 30 feet away standing still, and you can see it unarmed. There was, there was that, this is not a case in which, there are four shots fired in rapid succession. This is a case in which the off, there was a break in the action and the officer had time to stop and reassess. Before firing the kill shot. Your Honor, I submit to you that he did reassess, and based upon his perspective, he found that the plaintiff was still an eminent threat by standing in the blame for him. Even though he was standing still. He was 30 feet away, he was standing still. He was at that point unarmed. Your Honor, I would, as far as the issue of unarmed, we will have to stand by, say, because he had previously been armed right up to that point. So it was reasonable for him to believe, even if he was mistaken. Standing still and staring at somebody is, in fact, one of the precursors that many people use before they charge forward again. That's why you have to tack on immediate

. And in this particular circumstance, if you look at the totality, the circumstances, it happened incredibly fast for the officer to make the decision. What the officer relied on was the past objective behavior. What a reasonable officer will rely upon is the behavior that leads up, the failure to comply, particularly dropping the weapon, is crucial. Continuing forward is crucial. Therefore, it is reasonable for that officer at that time to believe that he's immediate threat, even if he had dropped the weapon, because the officer may not see it due to the fast-changing circumstances under which this occurred. So I want to go back to this 31.5 feet, I guess it is, as opposed to the 20 feet. And the questions that Judge Duncan Judge H. is alluded to in terms of the fact that we have to determine that as a matter of law of this existed at 31 feet. The basis is, I understand, for maybe 20 feet, is there some evidence, or at least some expert testimony, or something there, it says that 20 feet with a knife, or you end danger within 20 feet. It's called the 21 foot rule, and there was evidence at the trial. And it's based on something, it's based on more than just, I feel like it or a court felt like it, it's really based on experience, or some type of test it, isn't it? It's based on the stopwatch, and what it showed was the amount of time it takes for a adult male to move forward 21 feet to get to a target. It does not take into consideration what the expert also noted in the trials, it's simply because somebody is struck, I hate to talk about these type of things, but struck center mass does not mean that person stops. And the facts in this case, it's absolutely clear. Well, the question then goes, we're talking at 20 feet, you've got this evidence, based upon whatever the basis is, maybe experience a year, but 31 would begin to move into, maybe as you probably recognize, it's got to be somewhere great you begin to move into, at 50, at 200 feet, or 200 feet, with a knife. I understand. And to pull out a gun and to shoot at that time

. And you said on adult male, and this point it was 15 years old, he was, but the 21 foot rule I think is a red herring in this case. It's the totaling the circumstances, distance is certainly part of it, but if somebody was 50 feet away from a playground, walking towards a playground, carrying a machete and cursing, should an officer wait till their 20 feet and wrist back But he's not carrying a machete, he's carrying a kitchen knife, I guess. He's carrying a large boning knife. And the fact that this incident says, he doesn't even have to know. It also says, he's yelled out, I don't, basically, I don't have it. And on his backs, he's only 30 feet away, officer is in a position to hear this. And he shoots a gun at someone who has a knife who's 15 years old. You're honest. Not good. It's not a good situation whenever a firearm is discharged, but the person who put this into play, and this is worse got versus hairs has some relevancy. The culpability of how this got into play was, he picked up a knife, he made the decision to go down. All our discussion here does not end this. I mean, it doesn't mean that the plaintiff is going to win this case, where we are dealing with a legal issue. At one point, does the court take this out from the factual determinations by a jury? And that's kind of where we are right now. I mean, if you're already this case is those, whatever we decide here, oh, it's going to be the end of it. Oh, it's not. Oh, really not, because wasn't there a trial? Actually, it did not end

. So I mean, even based on this, it was closed. Well, it doesn't mean it's the end of the court. This is the end. There are several policy arguments that come into play, which are noted in both briefs and I won't go over. But, Yarner, I think the question of law is, in looking at the totality, the circumstances, which is refusing to drop the knife, moving forward and cursing. As a matter of law, is it objectively reasonable for that officer to find that that's an immediate threat? In this particular case. I think that we've considered the trial judge, in this case, who is in a position. He's very active in this case. He's asking a lot of questions. He's not being light on the plaintiff either in terms of what's going on here. And he's hearing all this evidence back and forth and he decides, I can't make this determination as a matter of law. And now it comes to us and we don't hear all that. How do we resolve that? How do we convert something that we just don't have that 20 feet basis and I understand you see as a red herring, but that red herring has something going with it, more than just I feel. How do we deal with that? First of all, we all have utmost respect for the judge in this case. In due respect, he focused primarily on the distance. Our position is you must focus just before the shots were fired, what activity the plaintiff was participating in, which was carrying a knife, refusing to drop it, repeating each step forward, each command, heightens the immediate threat. If somebody were to walk into this room right now with a knife in their hand, there would not be one of us that would not have ultimate concern for the safety of people here

. Mr. Nubal, you are way out of time. Thank you for responding to the questions. I believe we now go to Mr. Peterson. May it please the Court, Daniel Peterson also for Matthew Wilson. I appear before the Court today to discuss the clearly established prong of qualified immunity as it applies to this case. And the central question of this prong always presents in any qualified immunity case that the officer was on notice that his actions were unlawful. And this isn't a completely independent analysis from the objective reasonable standard that Mr. Nubal was discussing. The cases that plaintiff chose to cite in their brief are Henry V. Pernell and Rockington V. Boykins. I was clearly established as a matter of qualified immunity ball that an armed individual who is not and in the threat the deadly force cannot be used in that circumstance. And that circumstance, Your Honor, that would be true. I don't believe that's the facts that we have in this case. I believe that as Mr

. Nubal touched on that the recently armed piece of this is relevant, I believe that he, there is a... Well, under the facts that we've gone through at some length with your colleague, the victim in this case had stopped their advance. They were over 30 feet away and they were unarmed. And you're agreeing that those are the facts that we have before us now. Yes, Your Honor. I would tell us what's not clearly established about the law in that circumstance. Well, I'm hiking back to Mr. Nubal's position and we make that just like in Sigmund V, town of Chapel Hill, where the case was resolved in favor of the officer and though I understand the distance was different there. Well, it's not just the distance that was different. The sequence of events was different in Sigmund. There was much more compact chain of events. You have to factor in here the fact that two shots were fired and then the officer stopped. And when the officer stopped, circumstances had also changed with JG. He had stopped and he had thrown away the knife. So the officer here had an opportunity to reassess changed circumstances which the office, which didn't exist in Sigmund. Well, Your Honor, I would contend that the drawn-out fashion of the facts is kind of exaggerated by, by mere viewed virtue of the fact that in court we sit and testify or I don't sit and testify but witnesses testify as to their thought process and I think there is somewhat of a misconstruel or on the fact of the witnesses testimony being as it's drawn out. I think it was very rapid. I'm sorry, I didn't mean to suggest this drawn out. Oh no, Your Honor, I didn't mean you were. I thought that the officer himself testified that he paused after the first two shots, reassessed and decided to take what he called was a kill shot. That's true, Your Honor. And I didn't mean to suggest that you were misconstruing. I think the officer himself in the events as you're retelling them can have that it has a pensivity to draw out that time frame in their own head is what I was referring to, Your Honor, I didn't mean to imply that you were drawing that out, I apologize. No, I just, thank you. But to the point of qualified community to clearly establish Prank, I don't believe that just hanging on the Graham V. Conner, the Graham analysis is sufficient as to clearly establishing the particular lies right in this area of law. I believe that rather we have to go with Braceau, the Hagen or Hagen, where there was a violent crime scene, which I think that it's important to remember as well that this was a scene of a stabbing. You have a gentleman with a knife coming at the officer in open air, so to speak, he can go left, he can go right. And though, again, we have to assume the 31 feet, the officer did testify that he perceived him to be closer, and that's not a dispute effect because we've seen in other cases including the Good and V. Howard County case that a reasonable misperception isn't completely dispositive against the officer as to the objective reason on this of their actions. We see that in slatter way, V. Rizzo, and Anderson V

. Well, Your Honor, I would contend that the drawn-out fashion of the facts is kind of exaggerated by, by mere viewed virtue of the fact that in court we sit and testify or I don't sit and testify but witnesses testify as to their thought process and I think there is somewhat of a misconstruel or on the fact of the witnesses testimony being as it's drawn out. I think it was very rapid. I'm sorry, I didn't mean to suggest this drawn out. Oh no, Your Honor, I didn't mean you were. I thought that the officer himself testified that he paused after the first two shots, reassessed and decided to take what he called was a kill shot. That's true, Your Honor. And I didn't mean to suggest that you were misconstruing. I think the officer himself in the events as you're retelling them can have that it has a pensivity to draw out that time frame in their own head is what I was referring to, Your Honor, I didn't mean to imply that you were drawing that out, I apologize. No, I just, thank you. But to the point of qualified community to clearly establish Prank, I don't believe that just hanging on the Graham V. Conner, the Graham analysis is sufficient as to clearly establishing the particular lies right in this area of law. I believe that rather we have to go with Braceau, the Hagen or Hagen, where there was a violent crime scene, which I think that it's important to remember as well that this was a scene of a stabbing. You have a gentleman with a knife coming at the officer in open air, so to speak, he can go left, he can go right. And though, again, we have to assume the 31 feet, the officer did testify that he perceived him to be closer, and that's not a dispute effect because we've seen in other cases including the Good and V. Howard County case that a reasonable misperception isn't completely dispositive against the officer as to the objective reason on this of their actions. We see that in slatter way, V. Rizzo, and Anderson V. Creighton, I believe, well, but returning, searing back to the clearly established prong, for a right to be clearly established, it must be particularized at the time in Broseau rejected that in the notion that in all but the most obvious cases that Graham could be relied on as establishing the right, indeed, in any section 1983 click case, it can be reduced to the Fourth Amendment as it clearly established, you know, the protections of the Fourth Amendment are clearly established. On a different tag, this case comes to us in a very odd procedural posture because there's no trial. Yes, Your Honor. And usually the point of asserting qualified immunity is to avoid a trial. Yes, Your Honor. Would you care for me to elaborate on? Well, there is some suggestion that perhaps that the officer abandoned the qualified immunity claim by failing to timely raise it. Well, Your Honor, to address that, though it wasn't brought up at sorry judgment when it was first addressed at the close of plaintiffs' evidence, renewed at the close of all of the evidence, and then renewed again, pursuant to Rule 50B, the first time this... Right, it was a missed trial. That's right, and the district court addressed, the first time the district court and plaintiffs and defense counsel addressed the qualified immunity issue, neither plaintiffs nor the court directed the motion on the basis of the waiver issue. It was a matter of the substance, and at that point, if I would argue that there was a waiver of the waiver, so to speak, on behalf of plaintiffs. And that in any... I was like if they didn't raise it at that time. I'm sorry, Your Honor

. Creighton, I believe, well, but returning, searing back to the clearly established prong, for a right to be clearly established, it must be particularized at the time in Broseau rejected that in the notion that in all but the most obvious cases that Graham could be relied on as establishing the right, indeed, in any section 1983 click case, it can be reduced to the Fourth Amendment as it clearly established, you know, the protections of the Fourth Amendment are clearly established. On a different tag, this case comes to us in a very odd procedural posture because there's no trial. Yes, Your Honor. And usually the point of asserting qualified immunity is to avoid a trial. Yes, Your Honor. Would you care for me to elaborate on? Well, there is some suggestion that perhaps that the officer abandoned the qualified immunity claim by failing to timely raise it. Well, Your Honor, to address that, though it wasn't brought up at sorry judgment when it was first addressed at the close of plaintiffs' evidence, renewed at the close of all of the evidence, and then renewed again, pursuant to Rule 50B, the first time this... Right, it was a missed trial. That's right, and the district court addressed, the first time the district court and plaintiffs and defense counsel addressed the qualified immunity issue, neither plaintiffs nor the court directed the motion on the basis of the waiver issue. It was a matter of the substance, and at that point, if I would argue that there was a waiver of the waiver, so to speak, on behalf of plaintiffs. And that in any... I was like if they didn't raise it at that time. I'm sorry, Your Honor. I just didn't raise it. No, Your Honor. And in any event, the failure to bring up qualified immunity until the close of plaintiffs' evidence would substantially be harmless in this case, because we have a mistrial, and we are substantially, I'm at a pretrial stage again. Or a second trial. Yes, Your Honor, that's correct. But just briefly again, just to encapsulate that it is... The Supreme Court in Broseau talks about how it is important to emphasize that this inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. And in that case, too, there was a fleeing felon and a violent crime scene in a car albeit, and the officer was in a gray area, the gray area, that Judge Wynn described as the 30 feet of distance, in this case, that qualified immunity is designed to protect officers as a matter of law, in these gray areas. Again, and I think that's where the clearly established prompt really allows the court to find for the officer, in this case, regardless of what the court thinks as the objective reason for this part, because I do think, as has been acknowledged by the court members this morning, that there is somewhat of a gray area, an uncomfortable feel to the distance in this case. And so at very least, it is not clearly established, one way or the other. And also, that's if we do not accept the judges' statement that under these circumstances, at least in light, most people go to the plaintiff, this, there was no threat, imminent threat of bodily injury at the time that this occurred. Yes, Your Honor. I think you would accept this clearly established, that you're not entitled to use deadly force under those circumstances. That's correct, and that's what the Supreme Court notes in Brussels, I believe as well. And this Court in Henry V

. I just didn't raise it. No, Your Honor. And in any event, the failure to bring up qualified immunity until the close of plaintiffs' evidence would substantially be harmless in this case, because we have a mistrial, and we are substantially, I'm at a pretrial stage again. Or a second trial. Yes, Your Honor, that's correct. But just briefly again, just to encapsulate that it is... The Supreme Court in Broseau talks about how it is important to emphasize that this inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. And in that case, too, there was a fleeing felon and a violent crime scene in a car albeit, and the officer was in a gray area, the gray area, that Judge Wynn described as the 30 feet of distance, in this case, that qualified immunity is designed to protect officers as a matter of law, in these gray areas. Again, and I think that's where the clearly established prompt really allows the court to find for the officer, in this case, regardless of what the court thinks as the objective reason for this part, because I do think, as has been acknowledged by the court members this morning, that there is somewhat of a gray area, an uncomfortable feel to the distance in this case. And so at very least, it is not clearly established, one way or the other. And also, that's if we do not accept the judges' statement that under these circumstances, at least in light, most people go to the plaintiff, this, there was no threat, imminent threat of bodily injury at the time that this occurred. Yes, Your Honor. I think you would accept this clearly established, that you're not entitled to use deadly force under those circumstances. That's correct, and that's what the Supreme Court notes in Brussels, I believe as well. And this Court in Henry V. Pernell discusses briefly, well, in that case, the officer conceded that a gentleman intending to reach for his gun and shooting at a fling misdemeanant was clearly established. And that's the clearly established piece of that, the fling firing at a fling misdemeanant, not that the, not not the fact that the taking one step back from that and the gram analysis as the imminent threat of physical harm. So I would argue that even in the context of that case, when we look at these cases, it seems almost just ingenious to consider a gun, the threat of a gun could be equivalent to a knife, kitchen knife, of a 15-year-old holding it, almost 32 feet away. Well, your honor, I'm not, I'm not. I mean, he's not. So I guess the thought is, you may have the skill to throw it or something or, no, your honor. I believe what the evidence showed in that. I mean, come on. I'm sorry. Just show me a little bit about that, because I'm, the 20 feet, I guess, I'm thinking someone's real skillful enough, you could, you could harm, you could reach him pretty good with that, or maybe get that crick-a-man to do the damage. When you get the 32 feet, what is the thought? He's good, is he that fast enough? He's gonna run and you won't have time to shoot him before he gets there, or, well, he threw it up. How is it, the thought process is on a charge on getting past the officer, because we have a stabbing victim behind and even accepting the plaintiff mother's comments on the, and I see I've reached my time. Please finish the, I'm sorry, you're on, I just did it. You were response to the question. Yes, Your Honor. And I see that despite the plaintiff mother's comments to that, to the effect that this was her son, that doesn't change the circumstances between he and the plaintiff. I'm not going to beat it, but I'm just trying to understand

. Pernell discusses briefly, well, in that case, the officer conceded that a gentleman intending to reach for his gun and shooting at a fling misdemeanant was clearly established. And that's the clearly established piece of that, the fling firing at a fling misdemeanant, not that the, not not the fact that the taking one step back from that and the gram analysis as the imminent threat of physical harm. So I would argue that even in the context of that case, when we look at these cases, it seems almost just ingenious to consider a gun, the threat of a gun could be equivalent to a knife, kitchen knife, of a 15-year-old holding it, almost 32 feet away. Well, your honor, I'm not, I'm not. I mean, he's not. So I guess the thought is, you may have the skill to throw it or something or, no, your honor. I believe what the evidence showed in that. I mean, come on. I'm sorry. Just show me a little bit about that, because I'm, the 20 feet, I guess, I'm thinking someone's real skillful enough, you could, you could harm, you could reach him pretty good with that, or maybe get that crick-a-man to do the damage. When you get the 32 feet, what is the thought? He's good, is he that fast enough? He's gonna run and you won't have time to shoot him before he gets there, or, well, he threw it up. How is it, the thought process is on a charge on getting past the officer, because we have a stabbing victim behind and even accepting the plaintiff mother's comments on the, and I see I've reached my time. Please finish the, I'm sorry, you're on, I just did it. You were response to the question. Yes, Your Honor. And I see that despite the plaintiff mother's comments to that, to the effect that this was her son, that doesn't change the circumstances between he and the plaintiff. I'm not going to beat it, but I'm just trying to understand. Gun is easy. You take that gun, 30 feet away, you can shoot. I mean, that bullet goes pretty quickly. But a kitchen knife in a 50-o hand, 32 feet away, what is, as a matter of law, what is the imminent threat that we must find as a matter of law? Well, Your Honor, the fifth and the ninth. The fifth and the ninth. The fifth and the ninth. I'm not sure, I mean, again, officer, I'm not going to put that in the phone. That's right. Just that little specific thing. What is he going to do with this knife? Is he going to run, is the imminent threat that he's going to run over that whiff it and stab it? Or he's going to throw it up? How is it going to happen? It could run either at the officer or run around the officer. It's dark. There are houses around. In fact, when he fled, after the shots are fired, he fled behind the houses and he had been hit. So he did cover a fair amount of distance. He covered over 50 feet. In fact, when he was actually after being shot. So there is some indication that he could have moved forward or laterally and sufficiently enough to reach out of the officer, the stabbing victim behind him, or other officers and emergency personnel

. Gun is easy. You take that gun, 30 feet away, you can shoot. I mean, that bullet goes pretty quickly. But a kitchen knife in a 50-o hand, 32 feet away, what is, as a matter of law, what is the imminent threat that we must find as a matter of law? Well, Your Honor, the fifth and the ninth. The fifth and the ninth. The fifth and the ninth. I'm not sure, I mean, again, officer, I'm not going to put that in the phone. That's right. Just that little specific thing. What is he going to do with this knife? Is he going to run, is the imminent threat that he's going to run over that whiff it and stab it? Or he's going to throw it up? How is it going to happen? It could run either at the officer or run around the officer. It's dark. There are houses around. In fact, when he fled, after the shots are fired, he fled behind the houses and he had been hit. So he did cover a fair amount of distance. He covered over 50 feet. In fact, when he was actually after being shot. So there is some indication that he could have moved forward or laterally and sufficiently enough to reach out of the officer, the stabbing victim behind him, or other officers and emergency personnel. Does that address your question? Thank you. Thank you. Thank you very much. We will now be here from Mr. DeVore. Thank you, Rocky. Thank you. May it please the court will, DeVore, on behalf of JG. Your honors have been based on the case law that I've reviewed prior to this hearing. You've been on the panel and heard qualified in the media before. I think you have the board of third, not four. I'm the fourth. The fourth. Third is sitting behind. Good. I want to know which the board talked about. Conveniently sitting behind

. Does that address your question? Thank you. Thank you. Thank you very much. We will now be here from Mr. DeVore. Thank you, Rocky. Thank you. May it please the court will, DeVore, on behalf of JG. Your honors have been based on the case law that I've reviewed prior to this hearing. You've been on the panel and heard qualified in the media before. I think you have the board of third, not four. I'm the fourth. The fourth. Third is sitting behind. Good. I want to know which the board talked about. Conveniently sitting behind. Your honors hit on pretty much all of the important points that I brought up in my brief. And the first threshold issue I think we have to answer is whether this is proper before you today. And the two, you both, all three of you hit on the two parts that concern me. The first one is from the Supreme Court case of Mitchell Vversailles, which your honor Duncan gave you opinion and I covers Shrieve that talked about Mitchell Vversailles. What Mitchell Vversailles said was that qualified immunity is an immunity from suit rather than a mere defense to liability. And like absolute immunity is effectively lost if a case is a runniously permitted to go to trial. And this is- Are you going to argue waiver? I am your honor. And I do believe that they have waived the immunity aspect of it because the whole purpose of, from the cases I've read- How did you raise that issue? We didn't raise it at the trial. But I- Well, in fairness, the officer didn't raise, qualified immunity at this correctness I've done this trial. And your honor, what's also- That is correct. That is correct. They raised it, I believe initially. I thought- I raised it in this way. Excuse me. I thought, you know, opposing counsel said that he raised the issue at the conclusion of the plaintiff's evidence. That's true. Yes, yes

. Your honors hit on pretty much all of the important points that I brought up in my brief. And the first threshold issue I think we have to answer is whether this is proper before you today. And the two, you both, all three of you hit on the two parts that concern me. The first one is from the Supreme Court case of Mitchell Vversailles, which your honor Duncan gave you opinion and I covers Shrieve that talked about Mitchell Vversailles. What Mitchell Vversailles said was that qualified immunity is an immunity from suit rather than a mere defense to liability. And like absolute immunity is effectively lost if a case is a runniously permitted to go to trial. And this is- Are you going to argue waiver? I am your honor. And I do believe that they have waived the immunity aspect of it because the whole purpose of, from the cases I've read- How did you raise that issue? We didn't raise it at the trial. But I- Well, in fairness, the officer didn't raise, qualified immunity at this correctness I've done this trial. And your honor, what's also- That is correct. That is correct. They raised it, I believe initially. I thought- I raised it in this way. Excuse me. I thought, you know, opposing counsel said that he raised the issue at the conclusion of the plaintiff's evidence. That's true. Yes, yes. And then renewed it afterwards. What's concerning also about that is that in the City of mass discussed in laws clarify their prohibition, and that if this is a plea,udible impetry nothingche ab was fuzzy. Ingenious Baker will judge this is a bleeding legal district court when they raised it. He didn't raise the objection that it was waived when they did raise it but 5850. Why do you get to raise the issue now? Why would you wait? You're right. I just didn't find any case law that supported the theory that I had waived it since the burden was on the city to establish the Qualified Immunity early in the summary judgment stage or in the motion dismissed stage to prevent officers from having to go through unnecessary trial litigation two years of expert testimony. Well now we have a second trial. So the officers now trying to avoid being put to defend the second trial. Yes, Your Honor. Well, and that's why wouldn't that settle the issue? I believe the reason why is because of the points that you've made to the appellant earlier on which is that after the trial there are now tons of factual disputes. There are now there as opposed to a summary judgment or motion dismissed where you present, you know, the evidence you've got and the trial too would be a trial to know that correct. I'm assuming there are no stipulations or agreements among the parties that certain evidence from the first trial will be taken. So if it's a trial to know what what force does your argument have on a waiver? Other than Your Honor, the purpose behind Qualified Immunity. And we don't have disputed facts for purposes of the motion for Qualified Immunity. And that brings me to my second point which is why it's not proper before the court. And that's on Johnson vs. Jones which discusses how the collateral order doctrine basically says if there's genuine issues of fact the court of appeals cannot hear it

. And then renewed it afterwards. What's concerning also about that is that in the City of mass discussed in laws clarify their prohibition, and that if this is a plea,udible impetry nothingche ab was fuzzy. Ingenious Baker will judge this is a bleeding legal district court when they raised it. He didn't raise the objection that it was waived when they did raise it but 5850. Why do you get to raise the issue now? Why would you wait? You're right. I just didn't find any case law that supported the theory that I had waived it since the burden was on the city to establish the Qualified Immunity early in the summary judgment stage or in the motion dismissed stage to prevent officers from having to go through unnecessary trial litigation two years of expert testimony. Well now we have a second trial. So the officers now trying to avoid being put to defend the second trial. Yes, Your Honor. Well, and that's why wouldn't that settle the issue? I believe the reason why is because of the points that you've made to the appellant earlier on which is that after the trial there are now tons of factual disputes. There are now there as opposed to a summary judgment or motion dismissed where you present, you know, the evidence you've got and the trial too would be a trial to know that correct. I'm assuming there are no stipulations or agreements among the parties that certain evidence from the first trial will be taken. So if it's a trial to know what what force does your argument have on a waiver? Other than Your Honor, the purpose behind Qualified Immunity. And we don't have disputed facts for purposes of the motion for Qualified Immunity. And that brings me to my second point which is why it's not proper before the court. And that's on Johnson vs. Jones which discusses how the collateral order doctrine basically says if there's genuine issues of fact the court of appeals cannot hear it. If it's a neat abstract issue of law then the court of appeals its proper to hear it. And the only thing I'll add to that is that in Judge Cogburn's order I think he specifically because he was so involved in this case wrote a detailed 17 page order. And in that order he said as demonstrated the first trial this matter there are genuine disputed issues of material facts surrounding Officer Wilson shooting within 15 year old minor plaintiff. But that would be a trial issue though. I mean your opposing counsel have answered a number of questions for us where they say we agree we have to take facts that you pled. That's what we have to go with. And that's that's a and the question before us is taking those facts in your favor as played by as played by you was the officers behavior objectively reasonable as a matter of law. That is correct your honor and that leaves me to you know the substance part of their argument which is there was no clearly established right that that's what they've come here telling telling you you judges that is that no clearly established right existed because there's no specific facts in area in this situation where an officer could be put on notice that his actions were on law. Well that's one of their arguments. Yes yes your honor and my argument to this court and my argument made in front of Judge Cogburn is that and I apologize I before you all came in I stepped it off in 32 feet right about approximately where the guy in the red and blue tie the law student sitting back there. I just stand up. Ordinarily we down allow the monster to be able to just for illustrative trying to get the law students involved but that is 32. That is 32 feet and so our facts as supported by the evidence are that that is the distance JG was from the officer at the time the shots were fired and one thing I didn't hear the city of Charlotte talking about he talked about the prior acts of JG but the standard for clearly established right for qualified immunity is at the time at the time the shots were fired what was happening and our facts in the light most favorable plan if was 32 feet away and that was joint opinions at 293 unarmed. We had thrown the knife down and told the officer to throw the knife down. Importantly when we were talking about your honor is brought up when the streeter his mother yelling at the officer don't shoot that's my son the evidence in the case was Ms. streeter was a few feet away from the officer as close to where the witness stand was to the jury box and in fact she was so close I remember her testimony vividly that she could see the fire come out of the gun so you've got an officer a reasonable officer hearing and also prior to the shooting officer Helms well we don't know that the record establishes that he heard it we don't but in light most favorable plan if the evidence before the court was that she was yelling it from from a few feet away also before the evidence at trial was that at least 30 seconds to a minute prior to the shooting officer Helms had radioed which we established that same division he would have gotten the incoming transmission on his shoulder radio that the suspect had already fled and had already fled the scene and it brought on to the court and the weight of the suspect was 240 pounds this this kid was about 115 pounds at the time also you know again jg was stopped that's joint appendix at 147 and I think that's the crucial component to this case I really do I and that's what we argued a lot in trial and and what I'm arguing before you today when you look at in my opinion the two main cases for the city of Charlotte is Sigmund versus Town Chapel Hill and also Anderson versus Russell and both of those cases they found for qualified immunity for the officer what I found is kind of a theme in all these qualified immunity cases and that theme is where there is an overt or aggressive act by the suspect given the proximity of the suspect to the officers that a reasonably trained officer would believe there to be an imminent threat of serious polyharmor death to himself or others it would happen if in your case the facts changed so that it presented the trial evidence they've made the qualified immunity motion and the expert that had testified as a distance at 30 some feet was then recalled to the stand by the defense and testified after your expert had testified on the 21 foot rule that I made a mistake in my calculations I just discovered it and indeed the officer's testimony was correct it was 20 feet inside the 21 foot rule how would that affect your case today you know honestly your honor I don't believe it would and I believe the evidence before the court would book with the defense expert and the plaintiffs expert both agreed the 21 foot rule that rule has been misconstrued and officers aren't even trained both both experts agreed officers aren't even trained on the 21 foot rule anymore because of the mis application because every circumstance is different and if for example somebody has a knife is standing still and the knife is by his side and he's 21 feet away and he's not moving then the officer in that circumstance based on the expert testimony if I remember call correctly that circumstance would not justify shooting the other important point that the experts made is that this 21 foot rule is with the gun holstered it is the amount of time reaction time that a charging two two important points about the 21 foot rule it's for when suspects are coming at the officer and it's for when the the gun is holstered so it's a reaction time for how long it takes to unholster your weapon give the a frame position and fire and that was where it kind of originated based on the trial the 21 foot rule was talked about on repeat at trial the in this case the officer testified he was in the a frame position gun pointed flashlight on jg from at least 50 feet away in his estimation and that it wasn't a matter of pulling his his weapon out he was ready ready to fire and I think judge Duncan brought up a great point that has also been brought up was brought up in Brockington first Boykin which is the point that they're even if you gave them the benefit of the doubt on most of their argument the officer shoots twice pauses and then he the officer admits uh joint appendix page 77 he admitted that after the first two shots that jg was stopped and had it by his side on his taking his version of the facts at that point he fired two more shots uh shooting to kill jg so for that reason you know the the clearly established um whether this was a clearly established right I believe we all would agree that under gram and under prior case law like Tennessee vs gardener spring court case that a police officer may not seize an unarmed non-dangerous suspect by shooting him dead that's actually a quote from Tennessee vs gardener and I noticed that 184 cases have cited that quote so it is um it's hard to fathom an officer who's put in that exact situation where you've got where the law student was back there you got 32 feet unarmed and the officer objectively reasonable officer believes there's an imminent threat to fire on that that child not not just twice but four times um one one very important point that also came out in regards to objective reasonableness and um and the situation that night captain companion you you all read this in my brief your honors read this in my brief uh captain caban was the captain of cmpd uh who trained officer wilson he's trained a lot of officers within the charlatan mechemur police department his testimony in our opinion was very very um convincing we asked uh captain companion in the courtroom we measured out 32 feet and we asked captain companion at this distance and we assumed I if I recall the exact scenario we assume that there was a knife in jg's hand at 32 feet captain companion based on your training how you train your officers was there any circumstance that you can think of that would justify the use of deadly force captain companion said I can't think of any and and when you're talking about qualified immunity and you're talking about objective reasonableness if the training officer of all of the charlatan mechemur police department cannot think of a circumstance with a suspect with a knife in his hand from 32 feet which the facts don't support um then how can uh qualified immunity happen in this instance along those lines the court of appeals has recently decided a case uh Cooper the Cooper case where a a man which court of appeals are we talking about court of i believe that was the you said the court of appeals that that you're talking about us yeah I just want to make sure I was right before I say the fourth circuit and then I'm wrong and and um don't believe judge when you were on that case uh so you know all the see that's that's ill preparation I should have been prepared for that um judge Cooper uh I mean uh the Cooper Vershie in case judge win is very well aware of but again that was a situation where in that case the plaintiff had a shotgun in his hand and went out on his back porch I believe to uh he heard some commotion there had been a lot of the reason the police were called was there was a loud disturbance at the residence but he went off the back porch and none of the officers had identified themselves and he shows up and he's got a shotgun according to the facts I believe pointed down and at that time when he came out with the shotgun the officer shot to kill um Mr. Cooper and in that case they didn't find for qualified immunity and again I think it came to the point of there was no overt act or active aggression that would cause an officer a reasonable officer to believe if there's an imminent threat of danger or death um in Anderson and the two case decided uh by the defendant there was a in Sigmund he was advancing towards the officer that that was the distinguishing factor was he was advancing and also he was 10 to 15 feet away um in Anderson the guy raised his hands obeying the officer's orders and then for and the officers were 10 feet away and they believed he had a gun in his waistband and for no reason he started lowering and when he did the officer shot and the officers and he he was found to have qualified immunity in that case because the officers were 10 feet away they've observed him for 20 minutes saw there was a bulge in his pants confirmed it was basically a gun thought it was a gun even though it was an eyeglass case later but when he made this movement this overt act this active aggression officers reasonable officers are trained to fire in that scenario this scenario unarmed 32 feet away three different sources telling them that either that's my son or there's known that the knife's been dropped based on the light most favorite of the plaintiff I don't believe there's any circumstance that would justify shooting in this case thank you thank you you're gonna make please the court I'll be brief in my reply remarks um this isn't a case where an individual was just walking down the street with a knife um with nothing else going on this was a case where there had been a stabbing there the officer was heading down to miss streeters house to begin with because there was a fear that the assailant had harmed her parents he had so muddy else with him this plaintiff that was probably some other individual there that's correct your honor nothing came from that individual as to any of these circumstances it did your honor it's he did testify as part of the defense's case I believe it's in the joint appendix I can refer to that if you'd like your honor no no in fact he did he testified that the that mr that that excuse me the plaintiff the minor plaintiff was a pro while approaching vocally disagreed with the vocally resisted the officers orders to drop the weapon drop the weapon drop the knife drop the knife by replying not and then cursing at the officer that there is an aggression as an aggressive move that indicates a not an willingness to not comply um again that though we have to accept that he was unarmed at that point he again I do believe that this is a it's it's similar to Sigmund in in kind that that he had just recently dropped the knife he had read laterally dropped the knife and the shots began um again on the clearly established prong as a matter of law nearly any section 1983 claim brought under the fourth amendment can be boiled down to its foundational principles however that is not the inquiry officer Wilson was confronted with an approaching or recently approaching individual one who is verbalizing aggression one who is actively non-compliant and officer Wilson had a stabbing victim and others bystanders behind him plan if it's not pointed to any case law from the United States Supreme Court this court or the North Carolina Supreme Court um that existed on October 16th 2010 um both for Rockington and Pernell were decided in 2011 that would have put officer Wilson on notice that his decision to use force based on the totality of circumstances confronting him um were unconstitutional I see I run out of time thank you so much your honor thank you very much we will adjourn court for today come down and greet council and then we'll come back up and get questions from the state they have any this honorable court stands adjourned by the United States and this honorable court

We were ready for argument in our ass case, street or versus Wilson. Thank you. Good morning, Your Honours. Good morning, Mr. Inbal. And then please the court. Mr. Peterson will be following me up after eight minutes as noted. We believe this case demonstrates clearly that the officer used objective reasonableness when he had to make that very quick decision to use deadly force that night. And there's no factual dispute here. You accept the facts as planned. We accept for this hearing that the facts must be reviewed in light most favorable to the plaintiff in this case. So that was the yes. There were disputes at trial as to what the facts were. The office is obviously if there are factual disputes in the fall and by the minute in case we wouldn't have jurisdiction. That's correct. We think this is purely a question of law. So for purposes of this argument, we believe that the light's most favorable to the plaintiff, even with those facts that pled by the plaintiff, as a matter of law, the use of force was objectively reasonable. He was not in a statement. There were disputes at trial. And it's that one. Well, the disputes at trial, since we focused on distance and whether or not the plaintiff was armed with a knife at that time, distance between the officer and the plaintiff. That's correct, Your Honor. And that's correct. What are the other disputes? The other dispute was whether or not the plaintiff was armed with the knife at the exact moment that the officer discharged as far as I'm. But for purposes of this hearing, looking at the facts in light most favorable to the plaintiff, it is our position that the officer's decision to use force was objectively reasonable. There is no dispute that the plaintiff had a knife. Just to understand what you're going with it. Because you said the disputes at trial and those two facts. The plaintiff's evidence on a distance would be. Plaintiff's evidence based upon their expert on the markings that the officer estimate made when he did the walkthrough was about 30 feet, maybe a little bit more. The officer testified that he believed that the plaintiff was 20 feet away. But we've got to take the 31. We do. And so the evidence insofar as whether he had the knife at the time in his hand, the plaintiff's allegation, or the plaintiff's. Plaintiff's allegation was that he had dropped the knife, cast it aside laterally just before he was shot. And what about the statement that the, at some point, I think there was a statement by the officer that says that the plaintiff said, I don't have it something that is fact wise. The plaintiff testified at trial that he said, I do not have the knives. Didn't you see me throw the knife down? That was the testimony of trial. To the officer. To the officer. And the 30 feet apart. According to the plaintiff and the markings, yes, your name. Do we take it that the officer heard him? The officer did not hear him. According to the officer's testimony. The officer's testimony. I don't we have to say that he did. No, I don't think you do. What about the testimony from the victim's mother that she told him, told the police officer, in advance of the shooting, not to shoot this individual. It's my son. It's not the assailant. I don't think whether or not it's her son or the assailant is crucial to this case. What is crucial to this case? But the question was, we have to assume for our purposes today that those are true factual allegations. I think the looking at the testimony as an entire, he was, that she probably told officer Helms, the second officer, that in fact that's her son, and that officer Wilson was further on down the road away from the mother. We have to accept the fact that she said it. We accept the fact that she said it. But to whom is an issue that the trial judge did not resolve in favor of one person or another? Whether it was her. One more thing. A factual dispute. Creating a factual dispute. Creating a factual dispute. But in the order that the judge put forth, that was not resolved in favor of the plaintiff or the defendant at that time. I don't think it's a crucial factor. What's crucial is that he's armed, that he refuses to drop the knife, and he continues to, yes. The reason, I guess, so much time has been spent on this, is in order for us to have jurisdiction at this point, we have to accept some statement of facts as given. So we're trying, or at least I'm trying to understand, we're trying to assure for us to have jurisdiction that we're all operating on the basis of the same facts. In those facts are the fact as a plaid, and taken in the light most favorable to the young man, something that mistreated. So those facts are, and tell me if I'm getting any of them on, that the mother did say, don't shoot, that's my son. I don't think there's any indication of whether or not, she was hurt or not, that JG was 31 feet away. Correct your honor. Not 20, and what is the fact, what are the facts, with respect to JG having the knife at the time the shots were fired? According to the plaintiff, the facts were that the knife was cast aside just prior to the shots being delivered. And so, but that's what we have to take. I agree your honor, I agree, hold it. Given those facts based upon what occurred just prior to the shots being fired, was that there was a figure, there's no dispute that two figures were approaching the officer. One of them was carrying a shiny object. The officer repeatedly yelled to drop the weapon, drop the weapon, drop the knife. And yet, the figure moves forward. It is at that moment, our contention is that the plaintiff is an immediate threat, not only to the officer. Of course, and the facts, and just Duncan just recited the book of the knife is gone. But just prior to the knife being cast aside, like the incident in Sigmund, it would be reasonable for an officer not to see that. And when it comes to reviewing whether or not the forces lawful, we now kick into the Graham analysis. But in Sigmund, if I remember correctly, the assailant and the police officer were closer than you and I were. They were, but the assailant didn't continue walking forward, sending out the message that he would not comply. Failure to comply and not drop a weapon, and not immediately follow those officer's commands over a repeated series of distance is sufficient to make that threat immediate and apparent, whether it's 20 feet or 30 feet, it all facts and it depends on the distance. In some circumstances, 50 feet would be your honor. Immediately. Immediately. And for example, what makes it a matter of law from your perspective that 30 feet would be? The totality of the circumstances, the failure to respond to the officer's repeated lawful commands to drop the weapon indicates. What would you agree on? Following Judge Lent's question, that what we would have to find is, as a matter of law, in these facts that that was an objective. I wouldn't you, reasonable. The problem that I have from the facts is, and you rely on the existence of exigent circumstances, immediate response, but there were in fact four shots. And even if we were to conclude and agree that Wilson could reasonably have perceived JG as a threat prior to the first two shots, because JG was far away approaching, holding a knife, being belligerent and non-compliant, how does that, how can we find that the latter two shots, including what the officer himself described as a kill shot, when JG was 30 feet away standing still, and you can see it unarmed. There was, there was that, this is not a case in which, there are four shots fired in rapid succession. This is a case in which the off, there was a break in the action and the officer had time to stop and reassess. Before firing the kill shot. Your Honor, I submit to you that he did reassess, and based upon his perspective, he found that the plaintiff was still an eminent threat by standing in the blame for him. Even though he was standing still. He was 30 feet away, he was standing still. He was at that point unarmed. Your Honor, I would, as far as the issue of unarmed, we will have to stand by, say, because he had previously been armed right up to that point. So it was reasonable for him to believe, even if he was mistaken. Standing still and staring at somebody is, in fact, one of the precursors that many people use before they charge forward again. That's why you have to tack on immediate. And in this particular circumstance, if you look at the totality, the circumstances, it happened incredibly fast for the officer to make the decision. What the officer relied on was the past objective behavior. What a reasonable officer will rely upon is the behavior that leads up, the failure to comply, particularly dropping the weapon, is crucial. Continuing forward is crucial. Therefore, it is reasonable for that officer at that time to believe that he's immediate threat, even if he had dropped the weapon, because the officer may not see it due to the fast-changing circumstances under which this occurred. So I want to go back to this 31.5 feet, I guess it is, as opposed to the 20 feet. And the questions that Judge Duncan Judge H. is alluded to in terms of the fact that we have to determine that as a matter of law of this existed at 31 feet. The basis is, I understand, for maybe 20 feet, is there some evidence, or at least some expert testimony, or something there, it says that 20 feet with a knife, or you end danger within 20 feet. It's called the 21 foot rule, and there was evidence at the trial. And it's based on something, it's based on more than just, I feel like it or a court felt like it, it's really based on experience, or some type of test it, isn't it? It's based on the stopwatch, and what it showed was the amount of time it takes for a adult male to move forward 21 feet to get to a target. It does not take into consideration what the expert also noted in the trials, it's simply because somebody is struck, I hate to talk about these type of things, but struck center mass does not mean that person stops. And the facts in this case, it's absolutely clear. Well, the question then goes, we're talking at 20 feet, you've got this evidence, based upon whatever the basis is, maybe experience a year, but 31 would begin to move into, maybe as you probably recognize, it's got to be somewhere great you begin to move into, at 50, at 200 feet, or 200 feet, with a knife. I understand. And to pull out a gun and to shoot at that time. And you said on adult male, and this point it was 15 years old, he was, but the 21 foot rule I think is a red herring in this case. It's the totaling the circumstances, distance is certainly part of it, but if somebody was 50 feet away from a playground, walking towards a playground, carrying a machete and cursing, should an officer wait till their 20 feet and wrist back But he's not carrying a machete, he's carrying a kitchen knife, I guess. He's carrying a large boning knife. And the fact that this incident says, he doesn't even have to know. It also says, he's yelled out, I don't, basically, I don't have it. And on his backs, he's only 30 feet away, officer is in a position to hear this. And he shoots a gun at someone who has a knife who's 15 years old. You're honest. Not good. It's not a good situation whenever a firearm is discharged, but the person who put this into play, and this is worse got versus hairs has some relevancy. The culpability of how this got into play was, he picked up a knife, he made the decision to go down. All our discussion here does not end this. I mean, it doesn't mean that the plaintiff is going to win this case, where we are dealing with a legal issue. At one point, does the court take this out from the factual determinations by a jury? And that's kind of where we are right now. I mean, if you're already this case is those, whatever we decide here, oh, it's going to be the end of it. Oh, it's not. Oh, really not, because wasn't there a trial? Actually, it did not end. So I mean, even based on this, it was closed. Well, it doesn't mean it's the end of the court. This is the end. There are several policy arguments that come into play, which are noted in both briefs and I won't go over. But, Yarner, I think the question of law is, in looking at the totality, the circumstances, which is refusing to drop the knife, moving forward and cursing. As a matter of law, is it objectively reasonable for that officer to find that that's an immediate threat? In this particular case. I think that we've considered the trial judge, in this case, who is in a position. He's very active in this case. He's asking a lot of questions. He's not being light on the plaintiff either in terms of what's going on here. And he's hearing all this evidence back and forth and he decides, I can't make this determination as a matter of law. And now it comes to us and we don't hear all that. How do we resolve that? How do we convert something that we just don't have that 20 feet basis and I understand you see as a red herring, but that red herring has something going with it, more than just I feel. How do we deal with that? First of all, we all have utmost respect for the judge in this case. In due respect, he focused primarily on the distance. Our position is you must focus just before the shots were fired, what activity the plaintiff was participating in, which was carrying a knife, refusing to drop it, repeating each step forward, each command, heightens the immediate threat. If somebody were to walk into this room right now with a knife in their hand, there would not be one of us that would not have ultimate concern for the safety of people here. Mr. Nubal, you are way out of time. Thank you for responding to the questions. I believe we now go to Mr. Peterson. May it please the Court, Daniel Peterson also for Matthew Wilson. I appear before the Court today to discuss the clearly established prong of qualified immunity as it applies to this case. And the central question of this prong always presents in any qualified immunity case that the officer was on notice that his actions were unlawful. And this isn't a completely independent analysis from the objective reasonable standard that Mr. Nubal was discussing. The cases that plaintiff chose to cite in their brief are Henry V. Pernell and Rockington V. Boykins. I was clearly established as a matter of qualified immunity ball that an armed individual who is not and in the threat the deadly force cannot be used in that circumstance. And that circumstance, Your Honor, that would be true. I don't believe that's the facts that we have in this case. I believe that as Mr. Nubal touched on that the recently armed piece of this is relevant, I believe that he, there is a... Well, under the facts that we've gone through at some length with your colleague, the victim in this case had stopped their advance. They were over 30 feet away and they were unarmed. And you're agreeing that those are the facts that we have before us now. Yes, Your Honor. I would tell us what's not clearly established about the law in that circumstance. Well, I'm hiking back to Mr. Nubal's position and we make that just like in Sigmund V, town of Chapel Hill, where the case was resolved in favor of the officer and though I understand the distance was different there. Well, it's not just the distance that was different. The sequence of events was different in Sigmund. There was much more compact chain of events. You have to factor in here the fact that two shots were fired and then the officer stopped. And when the officer stopped, circumstances had also changed with JG. He had stopped and he had thrown away the knife. So the officer here had an opportunity to reassess changed circumstances which the office, which didn't exist in Sigmund. Well, Your Honor, I would contend that the drawn-out fashion of the facts is kind of exaggerated by, by mere viewed virtue of the fact that in court we sit and testify or I don't sit and testify but witnesses testify as to their thought process and I think there is somewhat of a misconstruel or on the fact of the witnesses testimony being as it's drawn out. I think it was very rapid. I'm sorry, I didn't mean to suggest this drawn out. Oh no, Your Honor, I didn't mean you were. I thought that the officer himself testified that he paused after the first two shots, reassessed and decided to take what he called was a kill shot. That's true, Your Honor. And I didn't mean to suggest that you were misconstruing. I think the officer himself in the events as you're retelling them can have that it has a pensivity to draw out that time frame in their own head is what I was referring to, Your Honor, I didn't mean to imply that you were drawing that out, I apologize. No, I just, thank you. But to the point of qualified community to clearly establish Prank, I don't believe that just hanging on the Graham V. Conner, the Graham analysis is sufficient as to clearly establishing the particular lies right in this area of law. I believe that rather we have to go with Braceau, the Hagen or Hagen, where there was a violent crime scene, which I think that it's important to remember as well that this was a scene of a stabbing. You have a gentleman with a knife coming at the officer in open air, so to speak, he can go left, he can go right. And though, again, we have to assume the 31 feet, the officer did testify that he perceived him to be closer, and that's not a dispute effect because we've seen in other cases including the Good and V. Howard County case that a reasonable misperception isn't completely dispositive against the officer as to the objective reason on this of their actions. We see that in slatter way, V. Rizzo, and Anderson V. Creighton, I believe, well, but returning, searing back to the clearly established prong, for a right to be clearly established, it must be particularized at the time in Broseau rejected that in the notion that in all but the most obvious cases that Graham could be relied on as establishing the right, indeed, in any section 1983 click case, it can be reduced to the Fourth Amendment as it clearly established, you know, the protections of the Fourth Amendment are clearly established. On a different tag, this case comes to us in a very odd procedural posture because there's no trial. Yes, Your Honor. And usually the point of asserting qualified immunity is to avoid a trial. Yes, Your Honor. Would you care for me to elaborate on? Well, there is some suggestion that perhaps that the officer abandoned the qualified immunity claim by failing to timely raise it. Well, Your Honor, to address that, though it wasn't brought up at sorry judgment when it was first addressed at the close of plaintiffs' evidence, renewed at the close of all of the evidence, and then renewed again, pursuant to Rule 50B, the first time this... Right, it was a missed trial. That's right, and the district court addressed, the first time the district court and plaintiffs and defense counsel addressed the qualified immunity issue, neither plaintiffs nor the court directed the motion on the basis of the waiver issue. It was a matter of the substance, and at that point, if I would argue that there was a waiver of the waiver, so to speak, on behalf of plaintiffs. And that in any... I was like if they didn't raise it at that time. I'm sorry, Your Honor. I just didn't raise it. No, Your Honor. And in any event, the failure to bring up qualified immunity until the close of plaintiffs' evidence would substantially be harmless in this case, because we have a mistrial, and we are substantially, I'm at a pretrial stage again. Or a second trial. Yes, Your Honor, that's correct. But just briefly again, just to encapsulate that it is... The Supreme Court in Broseau talks about how it is important to emphasize that this inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. And in that case, too, there was a fleeing felon and a violent crime scene in a car albeit, and the officer was in a gray area, the gray area, that Judge Wynn described as the 30 feet of distance, in this case, that qualified immunity is designed to protect officers as a matter of law, in these gray areas. Again, and I think that's where the clearly established prompt really allows the court to find for the officer, in this case, regardless of what the court thinks as the objective reason for this part, because I do think, as has been acknowledged by the court members this morning, that there is somewhat of a gray area, an uncomfortable feel to the distance in this case. And so at very least, it is not clearly established, one way or the other. And also, that's if we do not accept the judges' statement that under these circumstances, at least in light, most people go to the plaintiff, this, there was no threat, imminent threat of bodily injury at the time that this occurred. Yes, Your Honor. I think you would accept this clearly established, that you're not entitled to use deadly force under those circumstances. That's correct, and that's what the Supreme Court notes in Brussels, I believe as well. And this Court in Henry V. Pernell discusses briefly, well, in that case, the officer conceded that a gentleman intending to reach for his gun and shooting at a fling misdemeanant was clearly established. And that's the clearly established piece of that, the fling firing at a fling misdemeanant, not that the, not not the fact that the taking one step back from that and the gram analysis as the imminent threat of physical harm. So I would argue that even in the context of that case, when we look at these cases, it seems almost just ingenious to consider a gun, the threat of a gun could be equivalent to a knife, kitchen knife, of a 15-year-old holding it, almost 32 feet away. Well, your honor, I'm not, I'm not. I mean, he's not. So I guess the thought is, you may have the skill to throw it or something or, no, your honor. I believe what the evidence showed in that. I mean, come on. I'm sorry. Just show me a little bit about that, because I'm, the 20 feet, I guess, I'm thinking someone's real skillful enough, you could, you could harm, you could reach him pretty good with that, or maybe get that crick-a-man to do the damage. When you get the 32 feet, what is the thought? He's good, is he that fast enough? He's gonna run and you won't have time to shoot him before he gets there, or, well, he threw it up. How is it, the thought process is on a charge on getting past the officer, because we have a stabbing victim behind and even accepting the plaintiff mother's comments on the, and I see I've reached my time. Please finish the, I'm sorry, you're on, I just did it. You were response to the question. Yes, Your Honor. And I see that despite the plaintiff mother's comments to that, to the effect that this was her son, that doesn't change the circumstances between he and the plaintiff. I'm not going to beat it, but I'm just trying to understand. Gun is easy. You take that gun, 30 feet away, you can shoot. I mean, that bullet goes pretty quickly. But a kitchen knife in a 50-o hand, 32 feet away, what is, as a matter of law, what is the imminent threat that we must find as a matter of law? Well, Your Honor, the fifth and the ninth. The fifth and the ninth. The fifth and the ninth. I'm not sure, I mean, again, officer, I'm not going to put that in the phone. That's right. Just that little specific thing. What is he going to do with this knife? Is he going to run, is the imminent threat that he's going to run over that whiff it and stab it? Or he's going to throw it up? How is it going to happen? It could run either at the officer or run around the officer. It's dark. There are houses around. In fact, when he fled, after the shots are fired, he fled behind the houses and he had been hit. So he did cover a fair amount of distance. He covered over 50 feet. In fact, when he was actually after being shot. So there is some indication that he could have moved forward or laterally and sufficiently enough to reach out of the officer, the stabbing victim behind him, or other officers and emergency personnel. Does that address your question? Thank you. Thank you. Thank you very much. We will now be here from Mr. DeVore. Thank you, Rocky. Thank you. May it please the court will, DeVore, on behalf of JG. Your honors have been based on the case law that I've reviewed prior to this hearing. You've been on the panel and heard qualified in the media before. I think you have the board of third, not four. I'm the fourth. The fourth. Third is sitting behind. Good. I want to know which the board talked about. Conveniently sitting behind. Your honors hit on pretty much all of the important points that I brought up in my brief. And the first threshold issue I think we have to answer is whether this is proper before you today. And the two, you both, all three of you hit on the two parts that concern me. The first one is from the Supreme Court case of Mitchell Vversailles, which your honor Duncan gave you opinion and I covers Shrieve that talked about Mitchell Vversailles. What Mitchell Vversailles said was that qualified immunity is an immunity from suit rather than a mere defense to liability. And like absolute immunity is effectively lost if a case is a runniously permitted to go to trial. And this is- Are you going to argue waiver? I am your honor. And I do believe that they have waived the immunity aspect of it because the whole purpose of, from the cases I've read- How did you raise that issue? We didn't raise it at the trial. But I- Well, in fairness, the officer didn't raise, qualified immunity at this correctness I've done this trial. And your honor, what's also- That is correct. That is correct. They raised it, I believe initially. I thought- I raised it in this way. Excuse me. I thought, you know, opposing counsel said that he raised the issue at the conclusion of the plaintiff's evidence. That's true. Yes, yes. And then renewed it afterwards. What's concerning also about that is that in the City of mass discussed in laws clarify their prohibition, and that if this is a plea,udible impetry nothingche ab was fuzzy. Ingenious Baker will judge this is a bleeding legal district court when they raised it. He didn't raise the objection that it was waived when they did raise it but 5850. Why do you get to raise the issue now? Why would you wait? You're right. I just didn't find any case law that supported the theory that I had waived it since the burden was on the city to establish the Qualified Immunity early in the summary judgment stage or in the motion dismissed stage to prevent officers from having to go through unnecessary trial litigation two years of expert testimony. Well now we have a second trial. So the officers now trying to avoid being put to defend the second trial. Yes, Your Honor. Well, and that's why wouldn't that settle the issue? I believe the reason why is because of the points that you've made to the appellant earlier on which is that after the trial there are now tons of factual disputes. There are now there as opposed to a summary judgment or motion dismissed where you present, you know, the evidence you've got and the trial too would be a trial to know that correct. I'm assuming there are no stipulations or agreements among the parties that certain evidence from the first trial will be taken. So if it's a trial to know what what force does your argument have on a waiver? Other than Your Honor, the purpose behind Qualified Immunity. And we don't have disputed facts for purposes of the motion for Qualified Immunity. And that brings me to my second point which is why it's not proper before the court. And that's on Johnson vs. Jones which discusses how the collateral order doctrine basically says if there's genuine issues of fact the court of appeals cannot hear it. If it's a neat abstract issue of law then the court of appeals its proper to hear it. And the only thing I'll add to that is that in Judge Cogburn's order I think he specifically because he was so involved in this case wrote a detailed 17 page order. And in that order he said as demonstrated the first trial this matter there are genuine disputed issues of material facts surrounding Officer Wilson shooting within 15 year old minor plaintiff. But that would be a trial issue though. I mean your opposing counsel have answered a number of questions for us where they say we agree we have to take facts that you pled. That's what we have to go with. And that's that's a and the question before us is taking those facts in your favor as played by as played by you was the officers behavior objectively reasonable as a matter of law. That is correct your honor and that leaves me to you know the substance part of their argument which is there was no clearly established right that that's what they've come here telling telling you you judges that is that no clearly established right existed because there's no specific facts in area in this situation where an officer could be put on notice that his actions were on law. Well that's one of their arguments. Yes yes your honor and my argument to this court and my argument made in front of Judge Cogburn is that and I apologize I before you all came in I stepped it off in 32 feet right about approximately where the guy in the red and blue tie the law student sitting back there. I just stand up. Ordinarily we down allow the monster to be able to just for illustrative trying to get the law students involved but that is 32. That is 32 feet and so our facts as supported by the evidence are that that is the distance JG was from the officer at the time the shots were fired and one thing I didn't hear the city of Charlotte talking about he talked about the prior acts of JG but the standard for clearly established right for qualified immunity is at the time at the time the shots were fired what was happening and our facts in the light most favorable plan if was 32 feet away and that was joint opinions at 293 unarmed. We had thrown the knife down and told the officer to throw the knife down. Importantly when we were talking about your honor is brought up when the streeter his mother yelling at the officer don't shoot that's my son the evidence in the case was Ms. streeter was a few feet away from the officer as close to where the witness stand was to the jury box and in fact she was so close I remember her testimony vividly that she could see the fire come out of the gun so you've got an officer a reasonable officer hearing and also prior to the shooting officer Helms well we don't know that the record establishes that he heard it we don't but in light most favorable plan if the evidence before the court was that she was yelling it from from a few feet away also before the evidence at trial was that at least 30 seconds to a minute prior to the shooting officer Helms had radioed which we established that same division he would have gotten the incoming transmission on his shoulder radio that the suspect had already fled and had already fled the scene and it brought on to the court and the weight of the suspect was 240 pounds this this kid was about 115 pounds at the time also you know again jg was stopped that's joint appendix at 147 and I think that's the crucial component to this case I really do I and that's what we argued a lot in trial and and what I'm arguing before you today when you look at in my opinion the two main cases for the city of Charlotte is Sigmund versus Town Chapel Hill and also Anderson versus Russell and both of those cases they found for qualified immunity for the officer what I found is kind of a theme in all these qualified immunity cases and that theme is where there is an overt or aggressive act by the suspect given the proximity of the suspect to the officers that a reasonably trained officer would believe there to be an imminent threat of serious polyharmor death to himself or others it would happen if in your case the facts changed so that it presented the trial evidence they've made the qualified immunity motion and the expert that had testified as a distance at 30 some feet was then recalled to the stand by the defense and testified after your expert had testified on the 21 foot rule that I made a mistake in my calculations I just discovered it and indeed the officer's testimony was correct it was 20 feet inside the 21 foot rule how would that affect your case today you know honestly your honor I don't believe it would and I believe the evidence before the court would book with the defense expert and the plaintiffs expert both agreed the 21 foot rule that rule has been misconstrued and officers aren't even trained both both experts agreed officers aren't even trained on the 21 foot rule anymore because of the mis application because every circumstance is different and if for example somebody has a knife is standing still and the knife is by his side and he's 21 feet away and he's not moving then the officer in that circumstance based on the expert testimony if I remember call correctly that circumstance would not justify shooting the other important point that the experts made is that this 21 foot rule is with the gun holstered it is the amount of time reaction time that a charging two two important points about the 21 foot rule it's for when suspects are coming at the officer and it's for when the the gun is holstered so it's a reaction time for how long it takes to unholster your weapon give the a frame position and fire and that was where it kind of originated based on the trial the 21 foot rule was talked about on repeat at trial the in this case the officer testified he was in the a frame position gun pointed flashlight on jg from at least 50 feet away in his estimation and that it wasn't a matter of pulling his his weapon out he was ready ready to fire and I think judge Duncan brought up a great point that has also been brought up was brought up in Brockington first Boykin which is the point that they're even if you gave them the benefit of the doubt on most of their argument the officer shoots twice pauses and then he the officer admits uh joint appendix page 77 he admitted that after the first two shots that jg was stopped and had it by his side on his taking his version of the facts at that point he fired two more shots uh shooting to kill jg so for that reason you know the the clearly established um whether this was a clearly established right I believe we all would agree that under gram and under prior case law like Tennessee vs gardener spring court case that a police officer may not seize an unarmed non-dangerous suspect by shooting him dead that's actually a quote from Tennessee vs gardener and I noticed that 184 cases have cited that quote so it is um it's hard to fathom an officer who's put in that exact situation where you've got where the law student was back there you got 32 feet unarmed and the officer objectively reasonable officer believes there's an imminent threat to fire on that that child not not just twice but four times um one one very important point that also came out in regards to objective reasonableness and um and the situation that night captain companion you you all read this in my brief your honors read this in my brief uh captain caban was the captain of cmpd uh who trained officer wilson he's trained a lot of officers within the charlatan mechemur police department his testimony in our opinion was very very um convincing we asked uh captain companion in the courtroom we measured out 32 feet and we asked captain companion at this distance and we assumed I if I recall the exact scenario we assume that there was a knife in jg's hand at 32 feet captain companion based on your training how you train your officers was there any circumstance that you can think of that would justify the use of deadly force captain companion said I can't think of any and and when you're talking about qualified immunity and you're talking about objective reasonableness if the training officer of all of the charlatan mechemur police department cannot think of a circumstance with a suspect with a knife in his hand from 32 feet which the facts don't support um then how can uh qualified immunity happen in this instance along those lines the court of appeals has recently decided a case uh Cooper the Cooper case where a a man which court of appeals are we talking about court of i believe that was the you said the court of appeals that that you're talking about us yeah I just want to make sure I was right before I say the fourth circuit and then I'm wrong and and um don't believe judge when you were on that case uh so you know all the see that's that's ill preparation I should have been prepared for that um judge Cooper uh I mean uh the Cooper Vershie in case judge win is very well aware of but again that was a situation where in that case the plaintiff had a shotgun in his hand and went out on his back porch I believe to uh he heard some commotion there had been a lot of the reason the police were called was there was a loud disturbance at the residence but he went off the back porch and none of the officers had identified themselves and he shows up and he's got a shotgun according to the facts I believe pointed down and at that time when he came out with the shotgun the officer shot to kill um Mr. Cooper and in that case they didn't find for qualified immunity and again I think it came to the point of there was no overt act or active aggression that would cause an officer a reasonable officer to believe if there's an imminent threat of danger or death um in Anderson and the two case decided uh by the defendant there was a in Sigmund he was advancing towards the officer that that was the distinguishing factor was he was advancing and also he was 10 to 15 feet away um in Anderson the guy raised his hands obeying the officer's orders and then for and the officers were 10 feet away and they believed he had a gun in his waistband and for no reason he started lowering and when he did the officer shot and the officers and he he was found to have qualified immunity in that case because the officers were 10 feet away they've observed him for 20 minutes saw there was a bulge in his pants confirmed it was basically a gun thought it was a gun even though it was an eyeglass case later but when he made this movement this overt act this active aggression officers reasonable officers are trained to fire in that scenario this scenario unarmed 32 feet away three different sources telling them that either that's my son or there's known that the knife's been dropped based on the light most favorite of the plaintiff I don't believe there's any circumstance that would justify shooting in this case thank you thank you you're gonna make please the court I'll be brief in my reply remarks um this isn't a case where an individual was just walking down the street with a knife um with nothing else going on this was a case where there had been a stabbing there the officer was heading down to miss streeters house to begin with because there was a fear that the assailant had harmed her parents he had so muddy else with him this plaintiff that was probably some other individual there that's correct your honor nothing came from that individual as to any of these circumstances it did your honor it's he did testify as part of the defense's case I believe it's in the joint appendix I can refer to that if you'd like your honor no no in fact he did he testified that the that mr that that excuse me the plaintiff the minor plaintiff was a pro while approaching vocally disagreed with the vocally resisted the officers orders to drop the weapon drop the weapon drop the knife drop the knife by replying not and then cursing at the officer that there is an aggression as an aggressive move that indicates a not an willingness to not comply um again that though we have to accept that he was unarmed at that point he again I do believe that this is a it's it's similar to Sigmund in in kind that that he had just recently dropped the knife he had read laterally dropped the knife and the shots began um again on the clearly established prong as a matter of law nearly any section 1983 claim brought under the fourth amendment can be boiled down to its foundational principles however that is not the inquiry officer Wilson was confronted with an approaching or recently approaching individual one who is verbalizing aggression one who is actively non-compliant and officer Wilson had a stabbing victim and others bystanders behind him plan if it's not pointed to any case law from the United States Supreme Court this court or the North Carolina Supreme Court um that existed on October 16th 2010 um both for Rockington and Pernell were decided in 2011 that would have put officer Wilson on notice that his decision to use force based on the totality of circumstances confronting him um were unconstitutional I see I run out of time thank you so much your honor thank you very much we will adjourn court for today come down and greet council and then we'll come back up and get questions from the state they have any this honorable court stands adjourned by the United States and this honorable cour