attention in my brief there's a suggestion that there is a neighbor that witnessed this shooting in actually had the same opinion as some of the officers i suggest you if you if you picked up on that that was sloppy drafting of that is not involved in this case i'd like to start off by talking about why this court has appellate jurisdiction to hear this matter in the first place the this case involves a shooting of an individual who pointed two weapons at the officers as they were trying to execute dispense warrant for his arrest and the district court found that there was no question of fact that mr marcus and pointed a s k s rifle at the officers rather the court concluded that based upon the party supplemental briefing he couldn't tell how many shots were fired based upon my review of the evidence i suggested possibly fifteen because that's how many shell casings were found based upon  marcus since evidence somewhere in the range of thirty nine forty three in the court said i don't know there's a question of fact i propose that the court heard this fact in this finding because what it should have done i believe as instructed in scott v harris footnote eight is to take all the facts and the inferences in favor of the plaintiff in this case the plaintiff said we shot thirty nine or forty three times but it isn't it the case that not well of the three officers that are before the court today only one of them testified that he did not see mr marcus and before he shot chris isom pulled into the door and saul mr marson come up with the gun and he immediately shot one shot richard lynch heard that shot and testified he didn't know where that shot came from but he also saw mr marcus in with the gun he fell backwards and started to shoot though in that part of the evidence why how definitively that early in the judge's determination well i think if you put yourselves in the moment of the officers having to face this very dangerous situation where they are there's a high powered rifle pointed at them to put ourselves in the moment it's reasonable for them to not come away from this with the same memory and i don't think that precludes summary judgment or qualified immunity i think what this court should look at is whether or not there's any evidence any suggestion in the record at all that a shot was fired while mr marcus and no longer was a threat and i think that's what the district court suggested was if you're firing forty three times maybe some of those shots were fired after was necessary to fire any shots but it's also isn't it it's not just the total quantity he states this one shot then pause then fo shots then pause than twelve shots and then more shots to where as i read it he's simply saying that there's a genuine issue as to the tim sequence so that if some of those shots were fired after he was no longer a threat then plaintiff would have a case and that is the view of the facts in his favor well the schapelle vs city of cleveland case that i cited to this court addresses that issue and in that case the court six circuit made clear that you're not to take make inferences from it absent of facts that you don't look at an absence of facts in the records and suggest what might be that type of high hypothetical rulings is not appropriate here it's not an absence in the sense that since apparently we don't that there is a dispute as to what the timeline is that plaintiff's version of the facts is that at least as many shots as the the judge said were fired and we don't have an agreement on what the sequences well i think i would think i'm forced to agree to the sequence that is most favorable plaintiffs your read page thirty two of your brief which i think you have to for us to have jurisdiction you say officers are willing to concede plaintiff's aversion as to the number of shops to the extent supported by the record but i'll go ahead and suggest that i read the sentence doesn't say that but but certainly the discussion of you know how many holes there were in mr margison and how many holes there are in the house while they made to be disputed there consistent with a very large number in the range of forty is that fair that is that is fair and so let's suggest that they are correct that there were four rounds of shots such as that the judge suggested and that there was forty shots fired the it i brought to this court's attention when i recently found the plume off vs ricard case which very specifically rejects the idea that the number of shots fired is of any relevance and any relevance that the the plaintiff has the number correlates to the time that is if this were a case where there is no dispute that he comes out with the rifle and there were forty shots fired and that was the end of it all at once or very close we probably wouldn't be here but it's clear that there was some level of sequencing correct there was some level of sequencing and i think that the aviv in your side says he came out with  rifle there were shots he was shot then you say he came out with a pistol and there were more shots right that's that's correct and i'm sorry no social the question is given the district court finding in order for us to have jurisdiction under johnson b jones you've got to concede their version of the facts and under their version of the facts that some of the shots were fired after he was already down and not a threat well how can you not have a genuine issue there i guess i would disagree with the fact that there's any evidence whatsoever that there was a shot fired after he was down in there was not a threat the undisputed evidence before this court is the point of this case rifle he pointed a handgun at the individuals and detective capps testified in detective caps is not before this court but he had rotated outside to the door and he testified that he came in after the shots were fired and pulled the weapons away from mr marcus and who was still locked and there's there's the unreported case  actually it's not the end reported case it's boy versus baffler where there was a gentleman who had pointed a gun and he had been shot once it struck his spinal cord and it paralyzed him from the base down the officers at the time didn't know that and he fell down and in that case they had experts that said you can't do that when you get a spinal cord injury he wouldn't be able to raise the gun again because they shot him out of the things go to actually shoot him it seems to me even your argument you're conceding that reasonable and therefore didn't violate the fourth amendment and therefore they're entitled to summary judgment and that even if their conduct was not reasonable there's no law that says the number of shots by itself the number of shots and i think the problem least for me the problem is your statement i take it is that the truth here is that there were no shots fired after the time that he was no longer a threat and the timeline of the shots being fired is not matched up with the story to the extent that there's no genuine issue of fact for example what what was the timing of this fourth of volley more shots even after the twelve we don't know that you're secure your position is that those must have happened earlier the other side's position is that they happened later and that's a genuine issue we have to take inferences here the jury may believe it or not but it's not you ray scott the harris there you had a video were you could allegedly see exactly what happened here you have some audio but how how can we say that there's no dispute that none of those bullets happened after he was completely disabled what's your best argument on that on that i would rely upon chapelle because the three officers who all testified in this matter and there's no question that they're the only people who saw what happened all testified that they fired while he was pointing either the the s k s rifle or the handgun at them and the district court said well we can't just believe the self serving statements by the officer and i would suggest that you can if there's no circumstantial evidence that suggests that their statements are incorrect and if the circumstantial evidence isn't that there is no evidence that matches up the the evidence that we do have a number of the disputed number of shots with their testimony that is you would be better you would have a better case if they could indicate you know we shot four times when he was standing in the doorway then we shot twelve times while the had the pistol aimed at us and the the all the remaining shots he still had the pistol aimed at us but they don't do that they just give their general statement correct we don't have video of what the timing was that's that's correct and i'm not sure that if this goes to trial that that evidence is ever going to be if that's something for the jury because the the individuals that shot themselves said i don't know richard listen i don't know how many shots i fire fired i kept on firing intil the threat was gone and include in trial the the jury would have would have an opportunity to hear the explanation of that sequence and that judge mentioned earlier because that that in and in the record in there is i think from the dash recording is something there is actually evidence that the sequencing the spacing well i think this you know i have no idea what happened on that day but if you point a gun at the officer there's no case that says you have to fire at any sort of scene quints that you can't start firing stop firing start firing again in fact  says and it makes clear that once you have to once you have the right to use deadly force you have the right to continue to use deadly force until the threat is gone and whether that's in spurts whether that in one shot  good morning to the court my name is michael savage an hour in prison brenda marcus in the widow of the deceased but basically there are issues of fact here's i think the court from the court questions it's already been touched on if you look at what the police officers were saying they said basically that there were two volleys of shots mr marson came to the door they kline had a rifle pointed at them first off mr marcus and falls to the gr marson pulls out a handgun second bug that does not explain what the court the district court heard on the take a shot pause for shot pause twelve shot pause then even more shocking is that statement about pauses and so on and i actually didn't even look as to whether the tape itself is in the record what's your understanding of the total time from the per shot to the last shot i don't know that a total time was established your honor i'm sorry i don't know that the total time has been a stand is that is the tape in our record i believe it is your honor i believe that the plaintiff's count or the defendant's counsel put that in the record because the what you just said is consistent with isom statement that isom fired the single shot following which there is then what i would call the first volley the four shots then the twelve is the second volley whitsun and his deposition said he didn't seem with a gun but it's important to note that in the t b i report that he gave he said he saw him with a gun he changed what he had said from the time he until his deposition officer williams who fired at least two shots that mr marcus and said he never saw him with a gun they now is in terms of how what relevance that is is that you argue that that's also a contested issue of fact because the district court seemed to to put it as a finding that he had a gun he did here on of the district court did put it as a funny but we can test that and i think one thing that makes that obvious if you if you look at officer williams testimony it becomes clear officer williams stated very clearly in his testimony that when he fired the first shot at the door that he can see mr marcus and all he fired at the do on if we start with he had no gun at all which they obviously don't concede then we shouldn't be here at all if that's a genuine issue at this point now i thought johnson  jones is you start with what the district court thought were genuine issues and the district court didn't think there was a genuine issue as to his having a gun the district court ruled that you know ok that if that was  deciding this qualified immunity that doesn't mean if you go to trial you can't contested but for us deciding this i think we have to say he did have a gun well i think otherwise he wouldn't be here at all right that's that's true your honor but i think it also shows that there is an even more question of fact officer williams very clearly said that when he stepped to the garage he could see mr margaret and he very clearly testified mr marcus and was standing up when he fired that shot according to the officers testimony at the same mr when mr marson was standing he had a raffle officer williams said i didn't see the rifle if mr marcus and was standing up and officer williams testified that he could see his show great insight which shoulder and that rob it was pointed out to these officers how could he not possibly have seen it was a long gun there is no way that officer williams witnessing that r we're in this issue and i think your honor of correct our bringing this issue to state this place is everything the other officers say and in doubt about the gun there is a question of fact there is a question of fact about whether he even had a gun there's a question  fact about that he pointed at them there is a question of fact about the number of shots fired and that's why we think the qualified immunity should be denied that's why we think that the playoff i know there's this officer named caps who is involved in this is well is he not a defendant for some other reason or did he not fire any shots or because he thinks he's up in the  in the doorway at the you know it at one of the crucial points i wondered what the story on that is the officer that when the police arrived he charges up to the door miss marcus and opens the door and eventually i believe it was him i don't want t statement here but i believe it was the i'm pulled her out of the house he's armed with a shotgun his testimony was that he fired the shot gun but that it failed too far he attempted to far but it failed to far so he's year in and his testimony is that he's rolling in and out of the door he looks inside his margus and comes back out looks in again sees mr marcus and again i would point out to the court that through all this time that mr marcus and his supposedly threatening these officers with this gun no evidence that he fired either of those guns none whatsoever so here was a man that had you piece pointing the gun at him them and there's a lot of lawyers a lot of law that they're entitled to use deadly force then i would agree with that you are but i think it goes to the evidence as to what it is what they're saying the truth if mr marson had this gun and he's pointing this gun twenty one shot him before before he's did why would you not a fired at least one of the guns if he was  their brief but they take ice in his deposition he says he saw a caps in the door frame and i some comes up and taps is saying put the gun down put the gun down so i have the feeling that cap's is up in the house at the time that we've got the pistol situation argument so i'm just trying to see that whatever caps did there he didn't do any more shooting is that why he's not a defendant i think that's correct you're ok i think that's correct you're ours has hit on another point the officers testified variously as to what was said is that is the one up to the house officer lynch testified very clearly that they announce themselves as police officers and i know this is a side issue but again it goes to the credibility of their whole statement he testified that they announced themselves as police officers officer awesome said i can't say that anyone did there's also issues as to what was say it some people are saying they heard show me your hands well i would submit to the court that if mr marson had a gun already in his hands why would somebody be saying show me your hands why wouldn't they be saying drop the gun which some people hear testifying as to what has happened this course very well the fact that there are self serving statements that you can look at circumstantial evidence other evidence in their testimony to get to the truth of what happened and we think that we've got enough evidence to show that you know what the  as far as the tape that was not relied upon by my clients in their brief i know that the apple lees relied upon the court's view of the tape and so i made the that and there's not a lot of reference that's really the source of the one then for than twelve than more that's that's correct and that the issue or what i have yet to be shown or discover for myself is what is out there what cases out there that had my officers known before this instance occurred that their conduct violated clearly established law what did they do it taking everything that they say happened there are all happened they shot shot him after he was no longer a threat and the dispute obviously comes you know he clearly was shot to where he went down to at some point he was no longer a threat the officers agreed to that and they say we just didn't shoot him after that point and their side is you did i'm not sure if their conclusion that we shot them after he went down should be afforded any sort of weight with this court because i don't know any facts that they're drawing this from other than the number of shots fired and the length and the length of time and the sequence and the length of time and when we when the shots when it's undisputed that the shots were done being fired mr marcus it was on the floor with both weapons within his arms reach and he was conscious he was speaking he was alive why and he was slightly undisputed other than the officer statement that is we don't have what you had in scott b harris for example would be a video or video audio showing the facts that you stated well circumstantially we've got mrs marcus and saying that before immediately before this mr marks and took his handgun out put it underneath his pillow and took his s k s rifle and put it under the couch so he's got those within his ok i'm i'm good i'm good on that and that the that i guess i'm not sure what circumstantial evidence would suggest that there was fires that there was any shots fired after capps entered the doorway and pulled the guns away except for the pure fact of the number of shots and the sequencing of the shots which plume off said and clearly rejected when the but the respondent said even if the decision to shoot at the car as it was driving away was reasonable shooting fifteen times was unreasonable in the court said no thank you counsel thank you very much