thank you writers for morning please the court as this court's aware this case arises out of a very tragic incident in which five peace officers opened fire and killed a mentally handicapped man while he was riding his bicycle in front of his house the district court ultimately dismissed all claims against all parties the officers as well as kaufman county here asking this court to reverse that decision to remand for trial and i think this case present very important issues for this court's civil rights jurisprudence that should be addressed the first is is a lawsuit against a municipality or a government agency sufficient to place the individual employees within that really the proper role for expert testimony in a section one hundred three case where the ultimate issue being decided is was the actions of the officers reasonable or unreasonable and that's the central in the case what can an expert provide us i'd like to ask the court i think we're going to address those in reverse order because obviously if this court concludes that the actions of all the officers on the scene were reasonable it doesn't need to address the other issues but obviously not appropriate for disposition and summary judgment when there are divergent views of what happened in the first place and i think to quote this court's opinion it basically says the courts are simply unable to make a determination of the reasonableness of an officer activities without settling on what happened or a coherent view of what happened in the first place is also the sept first principle the standard of review and summary judgment which is that the facts are taking in the light most favorable to the non movement and that doubts are credibility or resolves in the nonmoving space so what we have here and the reason we have this court reversed the district court's decision is that the district court ultimately based its conclusions on what happened based on the a testimony of the officers the different court repeatedly states throughout its opinion that it believes that gabriel the young man who was killed in this case had a gun in his hand while he was riding his bicycle that he had his hands in the air and was waving the gun around while he was riding  bicycle and that he repeatedly disregarded orders from the officers to put down his weapon and as a result of this fear that was instilled because of these things all of which the district court presumed to be true they concluded that the officers were reasonable in opening fire against them now the fact is that it's undisputed that some of these officers between one hundred five hundred yards away at the time that this is her and the district court further concluded that even though they were far away it was reasonable for them to rely on the representations of their other officers on the scene that these statements were in fact correct or the underlying premise here is that somebody had to be right ok somebody had to be express these things he has a gun in his hands in the air he's refusing to drop his weapon if those things are true then not only was it on the reasonable for one of the officers to make these representations it was also unreasonable for other officers to open fire on him otherwise essentially and they hired a forensic videographer who took extensive look at the dash cam video and came to the conclusion that based on my analysis of this video at the time of the shooting not only was the distance correct several hundred yards away before what we could see simply says i reviewed the video i don't believe that this is sufficient i couldn't make heads or tails of it therefore i'm discounting but that's not the standard of review is undisputed in this course addressed it several times saying that expert testimony looking at it my understanding i believe he sets out his qualifications in his c v or if he is able to analyze video that's not simply turning on the television and pressing play but can you know in advance the pixels you know what they intended us but it shows exactly right and police dash cam for example is not necessarily intended to record something from several hundred yards away just to get something right in front unfortunately it's all the evidence that we have we have the testimony of the shooters gabriel windsor is dead and we have these on the rebuttal but at the end of the day we believe that the court the district court anyway by simply dismissing this and saying that it wasn't sufficient to create a fact issue ignores the standard of review here not relying on the pollers affidavit we have we will also s in these cases and it's necessary in some certain excusing some circumstances certainly believe is a fact issue that can be raised by the father's old assertions that his son had his hands on the handlebars and wasn't using a gun but to simply just suggest that expert testimony that you don't like to be written off of well you know i looked at the video myself and i disagree with it i think that that's it's dangerous precedent and it's not consistent with the standard of review and here question did the lawyer who drafted the affidavit a year after the there's a specific reference to identifying the gun the gun being a plastic toy look like a real gun they describe the color of the gun in great detail every time he was walking in the neighborhood with a bright orange gun then the affidavit sounds oh there was no there was no gun and you so it's completely inconsistent as far as i'm concerned with the initial statement the father gave and then with all these follow up attempts to amend the pleading before they finally come with the affidavit that says miraculously he had no gun in his hand his hands are on so that i can understand why the why the judge didn't believe it and considered fact whether gabriel had a gun in his hand whether while while he was riding his bike down the street did he have a gun in his hand was he waving at the gun in the air it was just so in that connection because because you're taking me way away from what i thought i thought his father had said he didn't have a gun in his hand all right but then you're telling me in response to a question just clear and if you moments ago you said not that he did not that he didn't have a gun there's a dispute a genuine issue of material fact in dispute as to whether he had a gun in his hand at the time and was allegedly ignoring officers request to put it down the next question is who is a proper defendant in this how to how can you not and then in the complaint say he this particular instance and the district court ultimately concluded that they were because it believed the officers testimony that he was waving a gun in the air and refusing to put it down and therefore the officers  and the three individual law enforcement officers that were named as defendants and in this in this lawsuit i know the court is well acquainted with the issues especially i think the events leading up to the shooting of gabriel windsor on april twenty seventh two thousand and thirteen i will go ahead and take the issues as as appellants counsel learned to address them that being the district court's decision granting our motion to dismiss  that these officers reasonably believed that gabriel windsor posed a serious risk of harm that's the test that's the test for excessive force and that's why he found there was no constitutional violation in this case so what happened up to that point i'm sure the court is aware you've seen transcripts of nine one one calls from numerous residents out there in the neighborhood telling the police dispatcher we have a guy we don't even that we don't know who this guy yes we we don't know who he is firing the weapon he's shooting it out shooting at mailbox threatening people he says i'm going to take what's mine everybody's going to get what's theirs and those same transcripts in the record that though that those kinds of calls  they don't dispute that they don't dispute that there was a weapon fire that hines and him host that they both say in their statements we heard a bullet go by us and from there other officers converge on the scene there getting radio traffic from the dispatcher watching the suspect trying to find out where he is he disappears from time to time goes off the roadway one point dispatchers tell the officer that mr hanson he saw some it well he said about one hundred yards away when they first encountered the suspect out of the smoke right area i'm sorry or frightened area and as far as i understood i think what he said in his statement he saw a smoke or some sort of discharge from the weapon  with a with a weapon so when they finally the team is together converging on where they think the last known whereabouts of the suspect is he comes out on a bicycle and the officers in their statements all clearly say he had something we saw something some call it a handgun the shape of a handgun it was reaching for something that is clear the question before this court on this issue is whether those officers reasonably believe at that moment that gabriel windsor had a weapon or not and that's the issue ultimately i think judge god he said you know it doesn't matter in this case in this court cases are very clear whether a suspect in an excessive force case whether a suspect is ultimately all rimmed with a toy gun real gun no gun it doesn't matter because the key is what the officers from their perspective and the circumstances which they were confronted with did they have a reasonable belief that this guy posed a risk of danger or seeing a guy or a bicycle one of the officer says that's the suspect who just shot at us or something to that effect i believe believe that is that is said video evidence is very compelling video of a very compelling especially in the summary judgment context the one officer says he's got that gun and then another officer says put the gun down before all the officers opened fire  and understand and he said he was watching this young man and he did not have the torrid pistol in his hand and he was riding out with his hand on the hammer mars to i think what what what what key there your honor yes and i don't know that mr windsor the father henry windsor was an eyewitness to this i think he says he was in the backyard or in the house at the time this was going on and on the video you can see gabriel windsor called out the roadway on his bicycle and he is riding his bicycle for at least at least several feet before the officers opened fire and so i'm not sure he wins or was an eyewitness to actually what happened he does suggest in his affidavit that that his son was not well i think he called upon norm i think he admits that he had a toy gun in fact you haven't heard and you won't hear mr winter dispute that when they had the altercation in the backyard of his residence he tossed a toy gun when the officers asked where's that gun he tossed the toy gun that is not disputed in this case record that well we do have evidence clear evidence that there was a real gun involved at one time i mean we have nine one one caller's reporting this guy is walking the neighborhood shooting that you didn't come up with it the priest and come up with that the fine one on the scene there is a reference in the record and i'll point it to page three thirty one there was a ballistics report that was done that in our summary judgment appendix there is a reference to at least three handguns that war recovered are tested at underwent ballistic testing we believe those were recovered from the houses there's no dispute that none of the officers shot any handguns they all had rifles or shotguns but t autopsy done you say and as evidence that that was in the present that was fired by someone other than an officer i'm suggesting there's evidence that there was a real handgun fired at one time there were handguns located evidence that there was a real handgun and that real handgun was fired now take that to the moment that gabriel windsor comes riding out on his bicycle and these officers just been shot at two of the officers had just been shot at they had gotten all these reports from residents in the county reporting this guy out in the neighborhood yelling these things and shooting people and that is where judge god i'm sorry shooting at that i think there was there was altercation in the backyard but there is clearly evidence we would submit your honour's that these officers confronting what they did on that day and just having been fired upon two of them could reasonably believe that ga windsor was the same guy who just fired at them in fact one of the officer says that is the same guy and he was later identified by trooper him to host it in the back yard as gabriel windsor was laying on the ground him to host a statement says we have again the question is what we know what were these officers confronted with and and that is that is very clear it's very clear from the record and not we think that we would submit the district court properly considered that properly considered all of the evidence in fact going over backwards to view the evidence in the plaintiff's favoring and concluded that deadly force of the officers use of deadly force was reasonable let me get to the first issue that appellant's council mentioned and that was that was this notion that this is the statute of limitations question believe counsel described it suing the government entity itself i don't believe they cite any case that supports that proposition that naming for example kaufman county would give notice to all of its deputies that they were intended to be sued in this lawsuit in fact we cited a case in in our briefing more of the long which essentially refutes that i think that case involved a lawsuit against the dallas county district clerk the plaintiff later tried to join the deputy clerk after the statute of limitations had run this court said no we're not going to impute notice to a deputy clerk just based on a lawsuit filed against the dallas county  district clerk it's clear well regardless of this identity of the interest theory that the plaintiffs want to rely on this court in the jacobson the oz born case specifically said even if it does apply there still has to be a case of mistaken identity and that's where judge god be focused on in his opinion there was no evidence and this is the plaintiff's burden to prove that they are entitled to relation back there was no evidence that any of these officers for at issue knew or should have known that  original or two permitted to be original defendants but for a mistake concerning that identity i'm sure the court has seen the complaints the one filed by the mother and sister of gabriel windsor it only named the three government entities kaufman county the city of terrell and the city of paul mn and henry winters separate pro se complaint did name two individuals and then the john doe defendants course judge god he said john doe when you name john they didn't know they could sue individuals and again judge gobby said that's that's not a mistake that that's not the kind of situation the classic situation a misnomer where you sue the wrong defendant and then later realize you left out the right defendant or you sue the right defendant but but use an incorrect name those are the classic cases where relation back comes into play this is not this is not one of those cases and i think they argued in the limitations to file this lawsuit and and and by doing so decided to join john doe defendants and then add them after the statute of limitations but but judge gabi was correct in concluding that that is not the situation involving the relation back and we we would ask the court to affirm that ruling as well one final issue if i could address is the the  government and that is been that has been recognized in many cases in the last several years that was the reason the judge got be granted the county motion for summary judgment so unless there are any other questions so much time is almost again in the fourth amended complaint ph five eighty one it's specifically states gabriel did not have a gun in his hands while he was on the bike gabriel had both hands on the handlebar of the bike as he rode towards the street on page five fourteen of the record is correctly the original complaint was filed in april twenty second two thousand and fifteen and up the attempted to add two additional defendants on february twenty second and that's that was the police was ten months afterwards was the additional but regardless you maintain that it's been our position throughout both from the i would this testimony of henry windsor and from our expert testimony that there is a legitimate factual dispute as to whether he had a gun in his hands and whether he was waving his hands at the time the shooting occurred i'd like to if i may use some of my don't recall the record saying anything with respect to henry windsor having a real gun i know that there is some evidence that real guns were recovered from the property but i don't recall any testimony at all suggesting that gabriel windsor ever had a real gun  whatsoever ok well i was hoping to learn something about you know having more information than what mister hopkins said that that's correct or at least it wouldn't be relevant for the purposes of this summary judgment motion how how do we know from reading the record that those guns that were recovered from the probably like were not one of the weapons that was far in this i don't think the court needs to address that issue your honor because this is their motion for s which they said here is our evidence showing that it was reasonable they weren't saying the evidence recovered from the property and a later date may have been used after the incident may have been used in the altercation they were saying gabriel was waving his hands on the b think it's something the court can take into consideration but i think more to the point it's something the jury takes into consideration when they determine reasonable list i mean at the end of the day the fact that they were fired on earlier you know is have some relevance whether or not the officers lied i guess  factors into the larger did the story in general but i mean this court has been clear that the i guess what i'm going to is maybe i want too much if you're telling me guns were recovered from the windsor property they believed gabriel posed a danger to them it's not like the relevant excuses would be relevant to a determination of reasonableness which is what judge god believes you going like but at the end of the day the question is not why she had let's pretend for the sake of argument make gover