my name's gerry steering i'm a lawyer in orange county the cup i get my name is jerry steering i'm a lawyer in orange county i've been doing these police misconduct is about thirty three years and this is the first case that i can say that i've actually seen what appeared to be a police execution the i think the ultimate issue in the case is whether or not the police have a right to execute someone for any reason the the plaintiff doesn't  disputing that we have a twenty one year old young man who had a seizure and went crazy and had a dream the night before that the that he was going to get shot to death by police the night before the morning of the shooting his roommate was so concerned about his the mental state of the young man because he was repeatedly having seizures that he called the decisions mom the plaintiff in seattle at about ten am in the morning and she was a black jacket he did run up to officer lopez he did stamp officer lopez and i think it caught him off guard but also lopez is getting out of his car have we don't have summary executions by police in this country well you're saying summary executions but this was a very short period of time was it not very sure how do you not connect the t wo they've been called to volleys and i know you treat them that way but given that there's only a second jury even fractions of a second between these two valise and it was all in response to the same situation i mean is it unreasonable to treat them as a single event i don't believe in the reason i say it is this that this is one of the few cases where we actually have a pretty good video recording of what really did happen with the recording from debbie lopez's car showing the young man running out with a knife saying you know you this in the dirty words and on and then we have the video from the other and as he's running deputy higgins you hear the shots you don't see the holes in the black jacket in the nighttime but you hear the shots and there's nine shots and at the end of us by that time connors i had reached the sidewalk from the have these they have a i mean you can't tell where the sure there is so it's because it's off camera and i'm sure there's evidence on this one but you know while you are running and so on so you can't be sure that you've hit nine body just stayed there and where there's photographs of the knife in the in the little garden area a few feet away from the body and well again this is sort of we now have all these perspectives of the after doesn't have what he knows is a guy with a knife he takes nine shots of him he goes down again and from the video i couldn't tell where they still had the knife or not or whether he jacket where the g i s finally get into the warehouse and find this via the music girl that they just shut up why on the floor and she's saying to the man shoot me shoot man standing over somebody who shot at nine times he was pretty close he's a pretty good shot mister what is your view of what should he have done in the circumstance wh he wasn't in a hurry to get back to his fellow officer oh wait why do you say that a fellow officer was wounded seriously that was it appeared that he was in a hurry to get back well here's the problem after all the shots were fired the fully team there was a ten second delay and all that deputy higgins do is walk around in circles for ten seconds because i could just see him do like wow what just happened when i do he's walking around for ten and then he calls and calls in the shooting on his radio and then he goes back to connors and stomp some of the head three times but it wasn't stomp stomp stomp it was stop walk around some more stop walk around some more and stop there was seventeen seconds between the first stop in the last no you know it's one maybe maybe he couldn't tell but he could see whether or not there's a knife in and that's why he shot the second volley that was his claim that's why i shot the second volley and people can look at things differently and people can feel that something is reasonable and some other person is going to feel it's not reasonable morning your honors me please the court line mcintyre on behalf of the defendant apple east county orange and officer michael higgins we're going to work backwards from the stomping how do you justify that i mean first nine shots ok you know he's moving he does go down all right so we know that he at least one of those bullets connected but then you can see him standing over the body and just you know it's very hard to miss in that case how do you justify that point going on stomping on his have three times the head strikes are justified by looking at the totality of the circumstances that were going on at the time of this that and we have the graham factors which a we know he's been head of these ones to make him go down and then the officer stands over him at a distance that from the looks of it i'm not very good at distances but i would say no more than three feet from the mother from the muzzle by well i think it's not possible for a number of reasons first of all they want to tie one one to me one good one evidence that the video shows continued movement by mr zion on on the ground the evidence shows the officer now has an empty gun he's the officer now has an empty gun he's emptied his all eighteen rounds from his gun there are other people around that need protection one of the officers jobs is not only to protect his own safety but that of others there's a woman walking the dog there in front of a residence he doesn't know how many people are going to come out it's evening there is officer lopez  least once goes down and then has been the subject of this volley at close range is going to get up and i tax somebody else so he has there is that risk there is an ongoing risk at that point in time and again this happened so quickly under movement with threatening and that you have the right to extinguish the threat under the law and counsel do you agree with what opposing counsel said that the knife was no longer in his possession and that it had been found in the flower bed do you agree with that well i believe there is evidence that was found in the flower bed but the officer didn't know that time why did he even try to check and i mean isn't that the issue here in terms of the reasonableness of what you call the head strikes here i  mean there when you view the video it did appear that there was time to for the officer to make the decision to strike or stomp on this person's head wouldn't have been more reasonable to make sure he was disarmed or handcuffed why was it necessary to render him unconscious with force to the head well because under these circumstances we have a person who's obviously crazy and you immediately well rush is obviously shows as well and i was really on the ground the officer doesn't know how many times he was shot at that point in time i know we can look at it in hindsight and figure things out but at that point time doesn't know how many times this person's been hit he knows that he's crazy i'm sure this officer is experience other persons on drugs are experiencing other disturbances that so extraordinary resilience and are able to get up after what you would think would surely be a fatal strike to that person and he also knows he's been trained that he is supposed to render the threat of the media harm to extinguish it and he has the right to do that and to use force to do that so and i think that it is unfair to say that we can p out each of these sections of this very rapidly evolving sequence of events and from the officers point of view make and this terminations that any of that was unreasonable as and you again blanford in the other cases that talk about you have to look at the totality of the circumstances from the beginning even if you are slicing and parsing out different sections and this is not a case where there is a lengthy period of time that expired between the initial attack in the initial shooting and  his desire and it was there's no dispute that the officer stated it was content to render him unconscious there's also an autopsy report that says that that the strikes to the head did not cause significant harm so it's unfair to start with the premise that he was police expert says that he noted that as part of his conclusion that any reasonable officer would have used the force that he had had used in this case that it was a reasonable use of force and this is again it's always on a spectrum and we have to look at it in a way that is not from hindsight but from the point of view of an officer has to make an exit gente snap judgment under very in this case obviously extreme circumstances but let's move back to the second  moving backwards the guys down right and before he can cause anybody any harm he has to get up and he can't harm me by lying there on the ground  wires off of justified in shooting without seeing him get up i mean he still has i guess it was there were eighteen bullets in the magazine he shot nine we know he didn't shoot them all because he would have known that so here's a significant number of bullets still in his in his weapon he's of close range why isn't the appropriate thing to do in the circus is step back and see if you guys get getting up and if he if he if he gets up there and shoot him but you can also use verbal not allowed to do and i think we have to look at it at the time at the moment and my interpretation of the video with the i am i'm i'm actually i'm asking at the moment the guys on the ground he's just been the sub with the scenario that you've presented as part of your question and that is my interpretation of the video is that there were nine shots and he continued to run after those one shots had been fired and the officers testimony is that he   he being that mr zion moved rapidly away from officer lopez after the one shots were fired towards the sidewalk towards the entrance of the residences and mr higgins testified he did not know how many of th if he makes movements to get up he can be shot again the question is why is it ok to shoot him while he's still on the ground i mean how does the guy surrender i mean let's say in fact he hadn't been shot he just wants to very long to pull a target you see the guy getting up on his hands and knees you should i'm a few more times but was it ok to shoot him again pull the trigger again more he's flatly brown it's ok because law says that you have a right to extinguish a threat and if a person is still moving well even if on the ground that begs the question why isn't the threat extinguish once the guys on the ground i mean it frequently police say lie down on the ground that's the command police give to to to to show surrender to to get people ready suspects ready to be arrested you know lie on the ground and then they come and they put handcuffs under these rapidly evolving circumstances where you have an actual stabbing of a person in your front of your very eyes and you have a very short period of time between when that that the whole incident started and when that that person is on the ground it is completely reasonable and within the law for this officer to believe that he has a right to extinguish the threat and there is yes  in two seconds to look and see whether the knife was doing them well not necessarily depending on where where the knife may have been hidden and where it was placed but more importantly what what we have is a reasonable range of conduct that is allowed by the law and we're we're we're we're here in a situation where what you're requiring is an officer if this were the law that you have to stop at every shot what did you have to stop at the ten stop the eleven shot if you have to stop and pause at every shot testimony not very helpful to you if anything it creates a factual issue because the video might suggest to people who saw it that that statement is not true that he was getting up on his hands and well i'd agree that the video may differ from his testimony but his testimony is helpful in the sense that it does provide his state of mind at the time well past true if it if that was his state of mind or if that testimony falsely i meant suggesting it is i'm saying that is a factual question for a jury to decide did he really imagine that he was hearing that this man was giving up on his hands and knees because he was frightened or is he making it up that early jury question no not in this case because really the only disputed factual issue created in the summary judgment motion was or even so under all of the circumstances in this case and considering the totality the circumstances which we must consider as part of the officers a reasonable officers understanding of the circumstances not in hindsight the move usually when i hear the word totality of the circumstances it's another way of saying let's not bring facts of this or it it may be political when there are so many variables that go into some kind of formulation that germination that you can't pick one out but i think this is a pretty distinct incident and i think that judge seldom used the wrong standard and made judgments about the evidence that just isn't justified by the evidence the with regard to the second volley judge still misses the record this proves that the threat was completely over or that the suspect had clearly been clearly incapacitated when higgins resumed shooting as far as the the stop on the  head just judge solis as within the totality of the circumstances higgens use of deadly force including reed initiating force upon observation that the dangerous suspect was not in fact motion