brief the in part and denied in part part of it was denied the district court allowed the defendants after some litigation to file a second motion for s secondly i would like to address a statement in a pelleas brief that the plaintiff has misstated the record that appears at page thirteen of the of hellenes free and it pertains to a stated quote he attempted to disable in the context of the shooting so that is not a misstatement of the record i understand your position is to nothing in the statement but i have to confess i'm not sure what perhaps not intended but he knew he was firing a shot so what's the significance of this distinction significance of the distinctions that the district court made a finding and the act was intentional and therefore could not under the fire a shot not be negligent but that is not the the firing of the shot is not an issue issue was the result of the shot one could fire a i guess i wind up in the same place stuff that you acted intentionally is not a defense to a negligence action and you're acting unreasonably whether you act deliberately or not i think that's my point main aspect of this case is that nowhere was the appellant permitted the opportunity to address this no due process given to the plaintiff to address that issue the negligence issue if there was a finding made in a qualified immunity contacts about reasonableness but the plaintiff was never given any name is so presumably whatever evidence you hand that in the conduct was unreasonable you had an opportunity to give to the court so where's the due process violation the court the court ruled in favor of negligence issue the state law claim was was not a part of her rulings so it was still in that case well then what's the due process problem nothing changes you have exactly the same material in the records either way and we consider summary judgment and all those you're telling me we have the same set of affidavits that we have many of th in the first motion for summary judgment where the court considered the negligence claim the court denied summary judgment on the negligence claim and that record is before us now so it's exactly the same issue that would certainly be an option to the court it is my opinion as that in my brief to find levied which certainly could be considered a new was a criminal no further discipline and they shouldn't do anything the state bar determined nothing should be done other than the fact that the court published the decision in published do not show any valid faith conduct which is required for inherent powers sanctions as repeatedly stated by this court and i believe that on the facts of the case and when i was cross examined with no notice in district court before the district judge and by the district judge that my statements i made were i submit that judge clifton had it right when he said the court is in the right place on this and specifically the court is in the same place and the same place is the confluence of the finding that officer fox acted reasonably and as such was entitle the qualified immunity and therefore he could not have acted negligently in the circumstances of this case as a court is where i did not brief  the portion of today's hearing the appeal separately taken number sixty four sixty four dealing with sanctions i will not address that however i will be happy to respond any questions the court may have along those lines as for the merits goes the judgment may be affirmed on numerous grounds but the only one that this court really need consider is that it may be affirmed on any ground that is a basic rule of appellate procedure there are numerous grounds arguments by never and never arguing negligence in either motion for summary judgment especially the first one were was specifically addressed by the defendants there was no expressed assurance in the court's order allowing the defendants to bring a second motion for summary judgment based upon the newly disclosed evidence in the form of the aguilar declaration that plaintiff did not have to address it but again we're talking the same thing a finding of reasonableness for qualified immunity purposes necessarily embraces a finding that no negligent conduct occurred the plaintiff had every chance to come up with evidence in both rounds supporting any of her theories but didn't the court twice under various devices reopen discovery in favor of the plaintiff on the merits there was ample evidence to support the court's finding and no factual or error occurred below fox faced a situation where the district court found that sanchez the plaintiff deceit was armed and violently attacking another inmate fox as acted reasonably as a district court found to save another inmate's life the court also stated earlier that the intentional firing of a shot does not necessarily make for negligence in the misfiring or the fact that the ball of landed elsewhere there's no dispute that a tragedy occurred here a life was taken but thankfully only one life was taken where others might have been taken as well we're dealing with a violent attack in progress moving targets i of the court properly described as one of the worst rights in california prison history videotape which was actively considered by the district court on several occasions in fact they re asked for because the records show that the record mangled the first version that have been given to them through no fault of their own it was a computer glitch or a machine glitch of some sort i'd use or sometimes technically challenged well when we're talking about malicious computers i didn't want there to be any implication that the just record somehow was malicious in its v c r which i think it was what at any rate this was not a clear shot situation it was specifically the sort of situation that qualified immunity was intended to allow for and as the district court probably granted here finally because the district court found that fox acted reasonably for qualified immunity purposes as a reasonable officer he could not have acted negligently if the just record somehow