as the briefs obviously reveal there's a lot of issues we've raised they fall into two basic categories liability and damages with causation sort of floating in the two of them and i'd like to address them in that way st address  liability issue and obviously the life billet in this case since it revolves simply around that single final shot that was fired by sergeant anthony  relates to her testimony that she shots mister smith because he was reaching towards his waistband and before i discuss the factual the facts more specifically it's well to remember that reaching towards a waistband has been found in this circuit to be sufficient justification for an officer to use deadly force we've mentioned several cases in our briefing to clean crews versus  anaheim at the language is very strong it would be unquestionably reasonable for the police to shoot a suspect in cruz's position if he reaches for a gun in his waistband or even if he reaches there for some other reason appear to show something other than reaching for his ways well i think the focus certainly from the supreme court's holding its coffers as ferris is that we do look to the video i mean is no question that that there is an issue in terms of just looking at the testimony but i have to disagree about the video not showing the suspect reaching for his waistband now either the of believe that the you know testified that he was reaching his waistband the art of the issue is that we don't actually need a final resolution of that issue because of the qualified immunity aspect of this issue the question becomes more would a reasonable officer and sergeant anthony's it's a position under all of the circumstances leading up to that moment ever reasonably believed even if she was ultimately that he was reaching for his waistband is your best argument mister running that it is simply incorrect to use two thousand and twenty hindsight and that's what we're seeing here in a situation that involves i think an eight nd lapse of time and i was fraught with tension and anxiety i like the way you put your honor absolutely i mean and within that context i think we also need to put that in the context of what had happened really just moments before when sergeant anthony confronted mister smith the st time and despite the fact that she had a gun pointed at him he nonetheless attacked her and actually even though she was able to get a shot off he's successful only injure her and so when she was confronted with him the nd time and she perceived rightly or wrongly that he was engaging in in the sort of that that this circuit has said does provide justification for using deadly force that she  reacted and i think your honor has put it exactly right that this is two thousand and twenty hindsight trying to put ourselves in the place of an extremely fraught situation let me make sure i understand your argument that let's say that the jury  the officers clearly was you know not to engage in any aggressive behavior toward either of the officers at that point at that moment if the jury concluded that he was not the supreme court and scott indicated is that where there is a video and where there's a dispute over the video that's for the jury to resolve that's the point why not try i think it's for the court to resolve the court could resolve it and say there are disputed fact issues here that make it impossible for me to resolve it without a resolution of those disputes and therefore put it to the jury and let me tack  that question the added observation that at least one way to look at the video both of them is that is that they showed that  disease pans were in fact falling down and his waistband wasn't his waist which might make it more reasonable for the you more likely to support the jury's finding that it was not reasonable for the officer to believe that an additional shot to the chest was needed that's certainly an interpretation the jury might have made and i ultimately believe that this court or purpose to harm unrelated to legitimate law enforcement checked is not the evidence as to the statements he made the night before to the mother exactly and that's it and that in order to find that to  be sufficient you have to take it completely out of context you can ignore what sergeant anthony said was her explanation or justification and so only look at ms daves explanation and she says that statement was made in the context of her asking what's going to have been the my son is he going to be arrested and and her statement is and i'm paraphrasing that's going to be up to a judge but he assaulted an officer results and someone else  he's going to get it the context is clearly what's going to happen to him once he is in custody there's it's solely speculation to assume that sergeant anthony was essentially saying he's going to get it in the sense of somebody is going to inflict harm on him and that speculation is not substantial evidence that is not a basis on which you can reach a conclusion that there was a purpose in her firing the last shot other than legitimate law enforcement objectives she may have been wrong but there's no evidence that she was trying to liberally to harm mister smith for malicious reasons counsels talk about other in their answer in brief other factors but the fact is all go into the incidents of the shooting  the from the proof it's necessary for that liability we were actually running closer to where i want to go i i believe we've discussed a lot of other issues in the case one critical issue is that the argument here all of the damages all of the law most of the damages flow from the search mission that sergeant anthony shot killed  exactly and so it becomes speculation to say that this was the one that as i understand the standard in this search if it's but for proof there has to be some evidence on which you got that but for this shot mister smith would have survived or at the very least would have survived for some appreciable time following this where we could then get into the issue of to what extent was mis relationship interfered with to what extent did mister smith suffer pain and suffering following the shot but there is nothing  the four shots before officer smith fired her shot that the victim was able to stand back up again yes but that doesn't change the undisputed medical evidence that he had at that point suffered side that's the only way i think that could be interpreted if it's not but it's not that your position is that the undisputed of of established that he would have died even if he had not been shot that final time and i guess what i'm suggesting to you that that's not what your corner expert i guess that was the only expert you put on this thinking that question that's not what he said well even even if we take it that way which i think is is perhaps in the reading and certainly there that is no evidence at all as to whether or not this shot as opposed to any of the others cause the death i'm still them running the same problem of proof there's no proof that and that this shot as opposed to any of the other four potentially fatal shots or  you're kidding you're kidding right he was shot four times in the chest stood up and when he is shocked that last time collapses to the ground and does not get up after that you're saying that a jury could infer that well maybe he would have survived those earlier ones but he sure no he didn't survive that last one that is a and undisputed fact if there ever was one i think i would disagree your honor but i understand you know why why would you just agree why would you disagree i watched that video probably five or six times five or six times more than the one from the very young and then in fact in fact the witness testimony as i recall is that he was still breathing when the officers approached him even after he was shot that last time and then the ambulance comes and they're only he is no longer with you can take that as being if he was still breathing then obviously it didn't immediately  in terms of the finding of one billion five hundred million dollars in pain and suffering that's in the context of not knowing how long mister smith survived for either he was conscious what sort of if any pain and suffering he was undergoing what its intensity was in essence the jury just a number and without any basis in facts to to justify that number and that's not the sort of evidence that's force was the substantial cause of the disease fatal injuries they proceeded to make the verdict award in the amount of one million five hundred thousand dollars as well as one million dollars to the plaintiff apparently to reduce reducing that amount by thirty percent the the standard for a renewed judgment as a matter of law requires that the court except the evidence is in the favor of the nonmoving party in then they decided that the credibility of miss davis was more than that of the appellant what's your response to your opponent's argument that fine let's assume that the jury did not believe sergeant sergeant anthony a hoe for not getting in the interim did not believe the officers account of that conversation which i agree it was different from this davis killing but i think your opponent argues that even if you accept mister davis account there still was no expression of a malicious intent to harm because it was in the context of a response to this davis's question about what's going to happen to medicine is he going to get arrested this or that and that all if even though he's going to get a comment could have conveyed was like the law is going to you know sort of come down on him harshly not that i am personally going to go out and hunt him down and try to hurt him well i think st and foremost  trial they made such a huge issue of the injuries that defended the offer suffered by the unishe will assault in the apartment in the jury was open to interpret that mother this is davis and she proceeded to tell her that he is going to get it in no uncertain terms so i believe when you speak and you know it mister and can i ask you to can i ask you to pause for one second did we lose  perhaps we can tax us opposing counsel has fallen off the call judge ok then mister reed i'm going to ask you to just hang on there with us for a minute let's see if we can get a reconnect because he does need to ok looks like at the fact that this wasn't a split nd decision that there needed to be actually eight to ten seconds to place from the time that the last the st volley finished that is even felt to the ground and he rose and stumble legitimate law enforcement purpose for her to make that shot particularly given the fact that she prior to her and told the defendant's mother and visit his mother excuse me that he was going to get it i think subjective standard of coke ability and that is given deference by the fords when when the jury had made a decision i think most importantly as well the jury knew that the partner of the defendant a felon he did not shoot his weapon the final time when she fired on he'd already hired how many shots ten however he did not fire and he reloaded is weapon and did not we could well know i don't know i'd be interested to hear what you have to say i'm not for in your mind i think there are some grounding cases but sorry to interrupt i think there's some grounding places but i'm not sure how comparable those are or no lethal force a jury is entitled to infer from the injuries experienced by this deed that he survived for some period and experience pain and suffering during that time even in the absence of expert testimony and and suffering you can never kill a day with the degree of mathematical certainty however within the human experience the jury is able to to understand what in  mister hayden how do you respond to the concerns that there really isn't any evidence of how long the deceiving survived after the last shot or whether he and there's no evidence of  is not clear but it was only a few seconds it did it's not clear but it was not a substantial significant amount of time knowing the time that he was breathing after the last shot we do know that after he fell to the ground the defendant appellant walked up to him and commented that he was laboring to breathe while he was on the ground and comments we can submit a letter or you just let us know but will this the case did not allow it happen to be our case the plane was not allowed to receive any award for pain and suffering following trial it went up to this court which reversed in light of the choudhry decision and went back down for us to take evidence on that sole issue of pain and suffering and the total award for pain and suffering was twenty five thousand dollars it wasn't the prior ward of six figures had to do with other elements of the case but the specific award of pain and suffering was for twenty five thousand our point in all of this and i think your iranians have seen it is that at some level whatever the discretion may be of the jury it has to have some sort of evidence to be basing it on your honor teachers rosenthal mentioned moaning with breathing how long something to give some sort of basis on which you commit it to determination that the pain and suffering is worth ten million four hundred thousand or a one billion dollars because presumably there's a difference in what is being suffered by the individual it justifies a difference in amounts and here we know nothing i mean that is the bottom line drives all below that it was labored breathing after he had been on a leash sought and was on the ground absolutely there is no question that he was alive and i don't dispute councils assertion that on that basis some award of pain and suffering could be made but that award has to be based on something some knowledge of what the intensity was how long it lasts it what the nature was something