together we represent the opponents kyle lindsey is a man and at the outset i just want to state for the reasons you said at the beginning of the session today it is an honor to be here before this panel particularly falls oklahoma a town of about six hundred people in eastern oklahoma within the hour because of the paralyzed a quadriplegic for life never to walk work or play with his then two year old son again this all happened after a brief interaction with officer brandon higher level spalls police department his life is a living hell and the jury should determine why this candidate when the evidence is viewed in the light most favorable to the nonmoving this despite testimony from a former webbers falls police officer himself who testified that this department's policy when dealing with the motoring public was to chase them until the wheels fall off and worry about probable cause later we have probable cause here we did first year on and there's there's no there's no question of that it was proper for the officer tried to pull over you know a person of whether that pursuit becomes unreasonable i agree with that partially the only probable cause that we continuing the evidence in the light most favorable to the to the nominating parties with the initial traffic violations did they stop the dust cloud itself and this is the probable cause point that i was going to make your honor response of the question that does cloud itself if we are to believe the officer's testimony caused him to terminate the initial pursuit to begin with if he couldn't see then how could these boise and how could they be  there's no good reason for that there's no accident circumstances here there was i asked the officer did you suspect him of committing a felony did they commit a felony no no no all he did was have an a t v i'm a country road that happens all the time about to say lightly i thought about this a police department is supposed to protect and serve they're not supposed to act as a as a vigilante strikeforce making money and i say that i understand the impact of that this is the of seven hundred people about ten years ago the department was shut down by the state over issue this is a small record it is what how is it relevant to whether there was a constitutional violation for this accident huyler's actions are the execution of the unconstitutional policy and procedure of the department he's carrying it out we need it we need to get we need to have a constitutional violation first we did that and what was the constitutional parties in that respect apparently there's some sort of they had their five or the court apply that standard with our expert witness of absolute certainty if you read the testimony and the report of mr  our reply there can be no other there can be no other conclusion no reason to the reason no other vehicle on the road it was dusty this vehicle was found covered up except for a were my going to see the vehicle who officer's car made contact with the u t v that specific ultimate issue statement by an expert i would direct the said that he couldn't say one way or another he wasn't there right maybe but that's his job the right to me you hired him so he could connect it for you because you're your client and i think is the jury's job i think it's the experts job to show what's more probably true than not and he goes to every right with a jury doesn't put on evidence you've got to put on the evidence you've got to have somebody who can give the jury actually to rely on and what all you have was  chase and a flipped over four wheeler and you needed somebody to say that the officer made contact and caused the accident well we also have actual damage to the the vehicle slipping in the over in the hundred seventy five feet and there's really no damage at all to the u t v except to the bottom right hand corner and the left wheel didn't quite jason so that wheel fell off but it is damage there's there's been no talk about a dust mirror though did me correct and that's visible in the exhibits to the motion for summary judgment it's clear he went and looked at  is he and he said that that is consistent with contact them and she went through every single point where there was a question right here and you can't say with any technical scientific expertise what caused that dust mirror through and then he didn't ever go and put them back together right well i think if you read the entire deposition transcript which i don't want to be incorrect on this i believe that the moving party attached the entire transcript to the summary judgment record there can be there can be no other conclusion here we've got other testimony as well situation where you're experts not willing to say one way or another but have if that's what happened i think his testimony is he he's not he can't tell if that's what happened and he has some reasons to believe it's possible but i mean every time there's a possibility that the officer did something i mean we have to than always find a fact question well i don't know that that would necessarily be the case but that's not what we've got we don't just have an expert off the street saying this we've got other evidence i mean there was discussion at the scene you can look at you can look at this is the other officers testimony that the district court this contact  wouldn't what do we do but he also says i have an opinion if you'd like to ask for it and then he goes on and talks about the area being contest at that is the area that is that area was contacted during this incident and then he goes through the list of that one sixty four to one sixty six the goes through the list of everything about all the objective physical evidence there at the scene i've got a couple more  a search at fifty miles an hour according to robbie baker who was the first officer on the scene i mean this is a fast search you shouldn't if the court does the analysis from alan versus most  nobody was on the road that we did have a passenger the severity of the underlying crime was was minimal and he was evading under our backs an area give the municipal liability i think that this motivation traffic fines increased by two hundred thirty one percent had that written down twenty the jump in traffic fines when this cheese got there was astronomical and this incident is the epitome of this policy and action of a five we say that with respect to qualified immunity which i was urged to concede but i don't give up my skaro versus billings i think they get us there as well because the ultimate holding there is essentially what we've got here the only difference is they didn't enter into the summary judgment standards that have been long established by this circuit and by the u s supreme court starting with very basic principle that to resist summary judgment the plights of has to come forward we have had miscible evidence that would be sufficient to justify any reasonable jury reached no conclusion based on that admissible evidence and this standard was reaffirmed very recently earlier this year i circumstantial evidence can be considered if it is presented in an appropriate and admissible fashion for example the comments that have been alluded you just a minute ago about mr gilbert opinion that he expressed in his deposition that robbie baker expressed in his deposition the supposed hearsay statement that mr gilbert claims to have heard somebody asked the question was there contact on the scene specific question was i handed mr blevins a photograph of the front of mr huyler's vehicle and i handed him a pan and after all of his talk about possibilities and things that might have been and i very specifically asked him to put an x on the dodge charger where you're going to tell the jury that that vehicle made contact with the plaintiff's vehicle and that's when he gave the answer in other words when pressed is it your professional opinion after all of your review of this case that there was contact between these two vehicles he could not do that he would  that and as the district court observed and footnote fifteen of its opinion it would be improper to ask the jury to speculate that there was physical contact between the vehicles when the plaintiff's professional accident reconstructionist was unwilling and unable to do that it is pure speculation so there is no admissible evidence from which a jury could reasonably conclude there was any physical unintentional accidental negligent contact so even if you believe there was physical contact unintentional negligent contact does not give rise to forcing him by aleisha at most it might be negligence claim which is not before this court town basically having a policy that when we get one of these folks we're going to run them down you know we're going to chase them down first of all that first money came from a former employee police officer not from officer harland there's no evidence that officer hyla who was relatively new he was a week out of the academy had ever been told and given that kind of instruction by the chief or anyone else there's no evidence in the record other pursuit he has testified i know the defendant law enforcement expert offered his opinion that it would be virtually impossible for an officer jury would have to do here there simply is no evidence that officer heiler knew of son chase him to the wheels fall off policy or that he intended to exercise intentional  pittman who there's just no evidence of that so it would be rope speculation in the district court recogniz officer heiler contends that as soon as he witnessed the traffic violation he activated his overhead lights initially and then when the u t b continue to accelerate away from him that is when he activated his siren and the siren his automobile on the nine one one call so there's no dispute there's no question that there was inaudible siren and there's no dispute no question of their overhead lights activated what the plan tries to do his favorite catch so kind of blurry photograph from a surveillance camera the angle of which is not clear and as the district court observed in its opinion all you see your points of light there's no confirmation of what they say is officer huyler's vehicle without emergency height is even his vehicle again this is a speculative unfounded but there's no question there's no dispute to his testimony that while they were still on paved road before going on to the overpass over i forty and all shot heiler had activated his emergency lights had activated  current and that the plaintiffs were continuing to accelerate and the plaintiff's themselves although they said they never heard the siren and never saw the overhead lights emergency lights there was also no evidence that they looked back or saw the car without emergency lights activated and they both testified that in this open a t v he had music playing on speakers right behind the seat that their explanation for not hearing any which gave officer high of a probable cause or reasonable suspicion that the u t v drivers were alluding his attempt to make a stop put all that together with the record haven't and he actually radio contemporaneously nine one one to inform them i'm attempting a traffic stop and they're not stopping so the jury would have to disregard all of that and then just pull out of thin air there were no lights there was no siren so there an issue floating around in this case about the sixty mile an hour statements they had someone who was going to testify they heard the officer say he was going sixty miles an hour in the district court excluded that that was here saying robbie baker who arrived after the accident in rather disjointed testimony said that one of the things he said claims brandon h said at the scene was sixty miles an hour and there's no context for that your honor and when you read the testimony it certainly is not an indication that he was going sixty miles an hour on the gravel road court appropriately recognizes that that statement whether it's hearsay or not is not a sufficient piece of evidence to avoid summary judgment on either the fourth or the fourteenth  standard and you can't look dead and say well the department is generally a mess which is what they're trying to do to reach the shock the conscience and are you first have to show that officer huyler's conduct shock the conscience which