once said that truth and justice are ultimate values so understood by our people and that the law in the legal profession will not be worthy of public respect and loyalty if we allow our attention to be diverted from these goals all i'll ask you a question is there any evidence suggesting that kurtz or cleveland's knew that when they were called to the scene that stephen boars was the man carrying the ax we knew that his name was steven bor yes there's no evidence did they know who he was or did always get a call there's no evidence in the record they just got a call and there was a man walking down the middle of the street with an axe but it is what they think their declaration did they knew who it was what i mean who it was i don't know i did they know who it was when they told it stephen boris there's no evidence no record of that so as far as we know it was an unknown person correct when they were called to the sea you know when i go back and look at a case like this i always take a look at the complaint and i with the complaint i thought this was a case of conspiracy to commit murder prior to march twenty kurtz and cleveland's discussed among themselves and others the subject of boers and had agreed among themselves that force up to and including lethal force should we would be using and stephen bores in any future all to cation and then on and on with that kind of language so i thought it was a conspiracy to commit murder case when i looked at this part of the case this where did this information come from that's in the complaint and the request for a jury trial that they were lying in wait to kill stephen bourse there's no evidence and there's no statement they were lying in wait there was another incident that occurred i'm aware that that shows that they had gotten together and were waiting for burris in order to do something to him i don't know why you're asking the question you have no answer me did you make this up i made allegations in the complaint if you have any evidence that is not a prior incident that is not part of this appeal there was a prior incident with mr boars where he was a s i'm aware that bit where is the evidence that there was a discussion in order to do something to stephen b there could be in the mind of the two defendants but i'm not in their mind was there any evidence of this before you put it in the complaint this was a allegation that i made it's notice pleading and it was based upon as i said a prior incident that occurred with mr borders where there were numerous downey police department officers who had a protracted alter cation with him i'm aware that i read all about and that's what it is based on well it struck me that if there was no evidence that to file a complaint like this was not earlier responsible and you may proceed with your argument the complaint is completely valid in every respect i'm the one who wrote it practice pointer don't make false charges and complaints we haven't read the whole record nothing is false in the complaint all right at all noted the verdict in this case must be overturned there is no verdict this was a summary judgment right but the district judge was acting as a jury because he was not following the procedures that are required in summary judgment and where does it where is the record show that off throughout his order he is not taking the facts in the light most favorable to the plaintiff at all he's making numerous should dish will fact finding decisions from the solitude of his chambers for example he claims that mr boars was under the influence of drugs there is no evidence of that that there is evidence that he had amphetamines there is no evidence that that rose to the level of being under the influence what did the officer say about the expression on his face when he was in front of the car well after the fact when they were preparing for summary judgment they said indicative of drug use but of course the court knows that it is also indicative of a mental or emotional  trauma which is an issue that was required to be considered by a court which was never considered for counsel what what facts do you think that the district court found that were in dispute that would materially changes his judg one of the facts that the that the district court found was completely unwarranted where he says that photographs show where the body was and then he makes several completely unsupported assumptions that because that is where the photographs show the body that  where mr boars was when he was shot there's no there's no evidence to that or any evidence that the body had been moved when someone is shot tan time was there any evidence that the body was moved that right i don't know any blood elsewhere than where he was found but i don't know if there's any evidence of that that doesn't matter just because the body was ok but where it was but ok but if you if you if you want to hypothesize that he may have stumbled after he was shot that doesn't mean that the body was moved from where it was found or shows in the photograph right but it doesn't mean that that's where he was when he was shot that's my point right judge is making a determination that is not warranted right but but how far but he's his body is not i'm i'm trying to figure out what what the implication of that of that is that the district court is trying to to have this fact tell me come up with theory you would you would have liked to a presented a trial about where he was when he was shot and how we thought he got to where it was well if i had an expert in  some field there might be testimony that when a person is shot ten times that their body is going to fall in a certain manner it's going to maybe  it's not going and you would have argued that he was farther away from the police that he was headed over towards the curb not going around the door at the time and that he stumbled back in their direction i would have i would have attempted to present that kind of evidence and the district court and in making its decision simply was that was there anything from any of the witnesses that suggested that he had stumbled back towards the officers after he was shot now but there is the videotape and the videotape shows that it was a period of one point four seconds from when mr boars went off camera to when he was blasted with ten shots one point four seconds it was also one point  certain period of time so it's one point four seconds from when he walks from the center of the car off the camera which is about half the width of the police car there's another one point four second period which is when he is shot and that's what the video shows so the video indicates that he didn't get very far until he was shot we've watched that he comes to the center of the car staring blankly not responsive to any any orders from the from the police not responsive to anything the police are saying drop the x drop the extra off the x he then he then moves to the passenger side of the car he moves out of the out of view of the video you tell us it's one point four seconds he didn't get very far and then he's and then he shot right he can only get so far right if you get very far then it suggests he was pretty close to the car which is right where the officers were but what there was no warning of generally what a force well respectfully that does not does that is not determinative there doesn't have to be a warning unless a warning would be appropriate or under or necessary under these circumstances and in one point four seconds with them yelling police police and all the rest of that stuff there's no iron bright line rule that there has to be a warning yes there is and what case does that come from burglar but it is clear that a warning could have been given in this case but with a warning have been other than the ones that were given the warning would have ben stop or will shoot that would be the warning any warning no warning was given in this case and mr boars was not a suspect he was not a felon stuff back he was not a misdemeanor suspect he wasn't suspected of anything except for maybe mentally terrorize somebody because accord my name is david lawrence i represent yeah police in this case this is the type of case that rule fifty six was designed to resolve as a district court said the material facts of this action are simple and concise the video of this unfortunate and tragic event tells it all the video shows even bohr's walking against traffic busy street carrying x the officers arrive d no fewer than i believe it's nineteen statements for him to drop the axe why they had the guns pointed at him certainly that was sufficient warning to mr boers if you didn't drop the axe deadly force be since their evidence in the case that he was walking away from the police car you know he was walking directly at the police car i mean after he stopped at the front of the car and he disappears from view isn't there not is there evidence that says he was walking towards the curb well it's evident that he walked to his left so he stopped directly in front of the car there's evidence that he walked to his left and what about the witnesses one of the witnesses say he did it turns out which witness you talk well that's exactly right i mean there are some testified mr rodriguez by the way was driving by in a car mr rodriguez also prophetess was on the other side of the median yes mr rodriguez was on the northbound side of the road mr rodriguez testified  what does that mean he may have twisted when when the shooting was was taking place may have but there's of there's on the autopsy says he was shot in the back i don't have that before me on a military r seven twenty nine but there were multiple gunshot wounds i'm sure they're not all back to front well i mean it would tell us something if we saw where the bullets went and wouldn't that mean he was going towards the officer when they shot you'd expect that he was shot in the in the front part of his body right i believe the record reflects that he was shot well that's why look at gunshot wound number one to the genesis back to front what does not tell us what that tells us that there was probably movement at the time he's being shot it's clear that you if you look at the record and see where his body land and that's that's on on the excerpts of the record page one eighty two his body is at the driver's side door of the police have you looked at the autopsy report i did not before this argument no i should it says on the front page autopsy report gunshot wound or one of the chin trajectory left to right back to front and downward and then there's a whole bunch of other ones front t back front the back but then if you turn over to page seven thirty one it says gunshot wound number one to the chin fatal it says trajectory front to back is there a mistake in the autopsy report front to back would be but it says on the first page back to front and that page front to back i did not catch that script here but that was really never an issue there was no no one that testified that he was shot in the back that he was not facing the officers when he was shot was the autopsy report part of the record the autopsy report is part of the record it says here back to front front the back is hard to believe to be to figure out where he was shot i would submit to the courtyard that there is correct and if you look at at at the photograph of the body he's on his back you know it doesn't raise a problem the number of the number shots fired i don't believe so i mean off the train to shoot to stop he was a very close distance he had a sharp edged weapon a very dangerous weapon you can't say that will fire one shot and going to stop where he is and mediately those officers were doing the best they could they were firing to stop is there any evidence in the year that the body was moved blood other than where the body was found there is no such evidence so the evidence is only that he fell pretty much where he was shot maybe stumbled and fell there's no evidence of stumbling even mr rodriguez says he fell or he was shot and mr rodriguez like i said and if you look at the diagram which is at the excerpts of record one seventy nine i had him during the deposition draw a line from where he was to where he saw the body where he drew that direct line and it went in the line goes to almost exactly where the photograph of the bodies at exhibit one eighty or excerpts of record one eighty two shows the body of land where the  even the testimony of mr rodriguez which which appellant rely primarily on shows that he was shot at the area of the passenger door of the police is there any evidence that this was part of a conspiracy or lying in wait to shoot this two officers at the not a shred of evidence that these officers knew anything about was a complaint in the request for a jury trial is full of that and there's nothing in the record that supports that it's absolutely full of it and that's why it was  exact retribution for the perceived slight upon the d p t penetrated by boorish cetera et cetera during which the officers inflicted injury on board with a deadly taser prior to march twenty clear it's unclear was had discussed among themselves and others the subject of boers and had agreed among themselves that force up to and including lethal force should who used against even bohr's in any future old occasion by march twenty kurtz unclear was anticipated in plan possible scenarios that could be engendered which they would use deadly force to neutralized even bohr's to reclaim perceive lost honor on and on and on purposely place the vehicle in accosted burruss in order to provoke him so they would appear justified in applying deadly force and possibly killing bourse is there anything at all so i think the district court's finding that refel force was used in this case is certainly supported the finding finding is for facts judges do not find facts and summary judgment they take the facts in the light most favorable to the nonmoving party and they determine based on those factual there's any genuine issue that has to go to a jury they don't find facts that's a common mistake that people make the minute they start finding facts the other side is right then it should go to a jury if there's a requirement to find facts there were no disputed issues of material fact and i think the difficult one to dispute issues but you say they just weren't material they're not material and they're not really in dispute i mean the main one relied upon by appellant is mr rodriguez but if you look at th  and even if that were not the case when you look at videotape and you see mr boars advancing with purpose as described by the district court and stopping at the front of the cli's car and holding that ax i submit to the court that he would even have to have come around to the to the other side of the car to make that shooting justified he was a threat at the front of the car and certainly when he got to the to the right side of the front of the car but the evidence supports that he in fact advanced directly upon officer kurtz and the shooting was entirely justified i submit and if the shooting was reasonable every other claim in a case falls along with th car with its emergency lights activated certainly that would convey to any reasonable person that if you don't drop this deadly weapon the consequences are going to be dire the seminal supreme court case tennessee vs governor says a warning should be given quote where feasible unquote correct use is not feasible here given the state of the time frame and everything that was going on i'm not saying that what i'm saying is a warning was given to any reasonable person to drop the ax drop the ax with guns pointed on the person that can be seen by the person advancing with the ax that that is a warning i don't think the exact words stop or we will shoot and kill you have to be said i think certainly from the officers perspective repeatedly shown him drop the axe with guns drawn and fixed conveyed stop or we'll shoot that's what the court said the district court said i'm sorry that's what the district court said that the  said no certainly from the officers perspective perspective repeatedly shouting drop the axe with guns drawn and fixed conveyed stop or will shoot i agree i agree and i think if you look at the  videotape what you see it's even bohr's when he stops at the front of that police car takes a deep breath and he knows what's going to happen he's determined he's made up his mind what's going to happen mr lawrence just conceded that under the tennessee to garner scenario that it was feasible to give a warning in response to the court's question and i would like to know  on the video one can see mr boars approaching the car they had about twenty one seconds which the district court makes a big deal of to warn mr boars they had guns reasonable person wouldn't have understood that he was in danger of being shot is walking the wrong way against traffic he's not it is not a felon he's not a misdemeanor and he's not a suspect now but he's but he's he's walking down the wrong way against traffic on a busy street which carrying an axe he walks right up to the front of a police car which i think the glen case indicates mental illness or emotional you know that doesn't mean he's not dangerous well that's another factor those are the kinds of people we've learned in society recently are the most dangerous the mass shootings have all been committed by people who had severe mental problems but it is still a consideration that the district court ignored and it needs to be considered albeit from the solitude of one's chambers in this case they don't have the opportunity to give a warning and he was not an immediate don't you don't you need to to to get that ten times drop the x with the distal drone is not a warning don't you need to tell us that it isn't i thought that was your position on with theory not a warning of debt that used the the drop it drop it some of it is just drop it drop it drop it that's all it is right that i'm looking at i'm looking at tennessee versus garner the place where the where the courts was previously quoted by judge trot if where feasible some warning has been given the court didn't spell out what a warning what a warning is a warning could be you know police officers drop the acme that's a that's a warning that there's that there's something about to happen and that officers are present but later he didn't die he had headphones on i mean he was you know there was lampard is really quite different from from this case that's what i believe i didn't i'm not the one who relied on it but this recorded what do you make of what do you make of the autopsy report i don't know whether it was a mistake or what i mean page one it says front to back and then you go into you look at the more detailed description it's back to front did you notice what i mean what does it mean what i make of it is that the body was not just you know like a like a straight column when it was being shot and the body was shot ten times that the hands were shot the chest was shot and that there was movement in the body so that perhaps the shot that went back to front from the jaw is talking about a shot mandible injury they had that could have been turned how much does your case depend on mr rodrigues c key witness for you it's not accurate that he is our star witness he is just a witness you happen to be there in the final i mean one of the witnesses who are the witnesses that you would rely on to argue to the  jury that he was shot while he was walking away for example not rodriguez and this lawyer she testified that he was walking towards the curb i heard the court's questions to counsel earlier yes there is evidence in the record that he was walking towards the curb  and give me again who those people are so i can review their testimony rodrigues rodriguez lawyer and gloria lawyer and her her doctor ration is  passenger side of the police vehicle wouldn't it well the angle would have been kurtz would have been at six o'clock the angle that he would have been walking towards would have been three o'clock approximately or maybe four o'clock but it is not as the district co found which is nothing to do that he was at vance ing towards the officer about twenty five years ago we had a circuit conference and in alaska right after the trilogy came down anderson versus liberty lobby match a seat in the other case and we asked sandra day o'connor what does that mean you know all of a sudden the supreme court comes down with these cases of talks about summary judgment and what she told us and what subsequent cases say is look trial courts are supposed to look at the facts in the light most favorable to the nonmoving party and assume that there was a verdict in that case that that depended on these facts and if the facts would not support that verdict and if a verdict came in based on those facts you would get rid of the case after the jury decided to get rid of it now and so this is what judges tend to do there look at the facts and they determine is this enough to support a verdict in the pla favor and if the judge says no if that's all there is and a verdict comes back i'm going to just get rid of the verdict that's what that's what she told us and it seems to me reading this that's what the judge was doing was looking at the facts asking if they would support a verdict in your favor and saying no not trying the case when the judge knows liberty lobby and majesty do we all do the judge said i'm just looking at the facts in the light most favorable so this seemed to me to be with the judge was doing these facts are not enough to support a verdict in the plan favor i think that's what the judge is doing but i think he's slipped in a few important words and i think this court to overturn his ruling and send this case dr jerry in to keep the key slip is in one area where he was walking when he was shot where he was walking he also says that he was under the influence of drugs which is not in the record he also doesn't address the gland the washington county case all he doesn't have doesn't address which is which must be addressed in a circumstance like this he also finds that mr orders was an immediate threat where what is in the record prior to the time that mr gore's arrived at the front of the police car that he's he's walking down the middle of the street strangely with an ax and people have reported that he's walking in the street carrying an axe but  evidence of an eye when one calls it shows that people were asked to threaten anyone and they said no we have this equipment but the issue is not yet i mean holmes when he was dressed up as batman before he walked into there are movie theater didn't threaten anybody yet but when he got in a movie theater then he killed everybody to get his sights on the ideas you're supposed to stop things before they turn into a threat or a danger to people i think the officer had the opportunity to