g conduct was intended to be part of the negligence action but it is sort of in a part of the transcript that's just talking about negligence not about the one thousand nine hundred three claim so which is it but it's about the negligence one i we understand that under billington appre negligence is is is not part of our claim for the fourth that's not what billington says is that what you're claiming no we're quite aware of the reason i say with a witness is that under his which of course the district court didn't have before it  it's clear now if it wasn't clear before that preceding negligence is sufficient for a negligence claim and in fact our complaint has allegations appreciating it was in it that were incorporated by reference in paragraph forty four i guess i guess it's hard to parse everything out but what for me what it ultimately comes down to and i want to do everything how can someone because what ultimately happens is you have a nude woman with a shotgun at the door and when someone's pointing a shotgun moving it around why doesn't someone have a right to shoot back whether it's an officer or someone else that's i mean that's that a census workers have been there or that the census worker mentions a gun so that they know that guns are in the residence they decide to do a knock and talk which is the least intrusive of anything that you can possibly do the first person that comes out with a gun they don't shoot that person they take if they remove that so it's not you know i mean you can't claim that they're trigger happy because someone else came out with a gun first and they get him out of the way and then you've got a new person think we can establish at least they are quite genuine this is a material fact about whether they should have done what they did going there at night and dark uniforms and all the rest and that even if they had a right to shoot her under the under the fourth or fourteenth amendment they still could be liable for negligence and the district court used the wrong standard that's clear under his he's the fourth amendment standard the california supreme court has said that is not our standard is that it's completely different standard  judge question your case gets a lot harder if the time sequence the relevant time sequence starts when folks approach the porch because she came out of the house with a gun when it was and it was dark and that's very very difficult but my where you started your argument i want to make sure that we understand this correctly and the transcript i think makes pretty clear that your client's intention was that the sequence your theory of the case is the sequence of events doesn't start there it starts back at the fire station where folks are making a plan and approaching the house in said that is wrong in an ng is that opposing counsel at the time stood up and said that the city had had perceived through discovery at that was indeed one of the theories of your case well right i mean in addition to that the judge was wrong there are priest shooting their good genes allegation as a complaint so did you did you try to amend the complaint with their case was dismissed after that the judge didn't allow the answer's no you didn't have an opportunity to determine well i'm not trying to be hostile i'm trying to get the record clear no if assuming that the purpose of the harm standard is the standard what our theory of the case is is that this was a particularly outrageous kind that by the officers for the following reasons they were investigating the possibility of a misdemeanor there was a report a misdemeanor brandishing is a misdemeanor not a felony under california law they they spent a significant of time thinking about what to do they came to the office all five of the people on the shift they came in dark uniforms they came at ten o'clock at night they went to a house that had no light side where it where one would assume reasonable officer would assume that people are sleeping and in fact there is a testimony on the record that mr patterson told the officers on the scene particularly kraus that ms deliberate indifference to acting the judge says i disagree with you i think it's purpose the harm and so we've dealt with it as a purpose the harm case you also argue that there was an evidentiary ruling that was erroneous about mr patterson right statement but it seemed to me that even if you testimony by the officers i mean he really seemed to look at things from the officers perspective rather than the lights most favorable to the plaintiff says i do we have do we have to disbelieve judge mendez that he assumed that to be true and have to figure out what the right answer is regardless of what they know i don't think it does matter of fact i mean it's there's testimony i think if you're a group that's on paragraph fourteen which i think you should because mr patterson standing on the porch everybody says you standing on the porch the diagrams standing on the porch he obviously could have heard if someone announce themselves as police officers when this vaseline came out and the point i guess i was getting too in the recitation of moving up to this is that you have a sixty seven because officers wolf and santana and williams are behind this big pillar is their statues of the pillar was the porch light on now and the police cars were parked along the side of the house there's no evidence that anyone could the record says that and so what she could have seen i think is reasonable is there is there's one officer who was on the porch right with her flashlight she was in uniform yes no she's not in uniform well no she's not on the porch well she was until she tripped well she was  now she is the officer she is all asteroid cathro us yes the first one and that she trips and then she tries to get out to the side of the house way away from the porch mr patterson declares that there's no officer on the porch when he's out there at all and so when this vast one comes out a few seconds later that santana is santana and williams are on the left pillar the right looking this way very thick pillar there's pillars are here the portions in the back of the lawyers and the officers i'm not clear if they're down off it or are in the back because i'm not sure the porch goes beyond the pillar i don't think it actually but they're there and they say themselves they're concealed are guns pointing at or she can't see over to this side where officers crouch i think that's an interesting point because i think it's did strike me that you're trying to have it both ways to say that the officers uniforms are dark you can't see the officers but she can see guns pointing out or so it sounds to me like patterson and then he she can see guns i mean i think she's she's looking out into the darkness and she doesn't know who's there and and then she has a lot of people yelling at her drop the gun and the evidence is they don't say the police officers they say drop voices drop the gun and then she was blown away to come within seconds why couldn't they have position of cover why don't they make sure that she knows there's a police officer when don't they give er a chance more than a few seconds is it the case that a sixty seven year old woman coming out of sleep has a split second decision to make or she dies that's when i said i take you back to something earlier so i think you have trouble with your fourteenth amendment claim but after hayes my colleagues might not agree but i think you probably have a negligence claim but i'm concerned about this exchange you had earlier with judge chris then about whether you actually preserve the negligence claim can you talk a little bit more about that and how it's in the complaint and your response to her questioning whether there is there are allegations appreciating the giants and paragraph sixteen to twenty one about better tactics about the way they came up the case was litigated their way all the depositions in the record or about all the things that happened leading up and even under the fourteenth amendment's then the television circumstances this requires you to look at all these things and so no one was surprised by that and the and the fourth cause of action incorporates by reference the first twenty five paragraphs of the complaint that they have all those things and so they had it they they they live in gated the case that way and after hayes and the judge didn't know whether it was preceding kind because he said it was up in the air his resolves that and hayes also says that what the judge did in terms of his manner of even considering the negligence of him that he did consider was wrong because he used the fourth amendment and hayes says it's not the fourth amendment it's broader than that and i i'm not sure how else he would i mean i think the judge was just mistaken about the fact that there were those allegations and that we basically live made a claim under the issue that you ended on with opposing counsel which is what was procedurally the case in the district court with respect to the claims that are being appealed on the negligence claim the sole allegation which is page forty six of or excuse me paragraph forty six of the complaint that's an e r one five five defendant police officers breached their reasonable duty of care toward plaintiffs and deceived by unlawfully shooting and killing deceit that's the only allegation but the allegations in the complaint started way back right started with when they started the planning and explained that it was dark and went to the court and they went to the porch all of that is also in the case so don't we need to read the complaint as a whole you do but in terms of notice to the defendant's it's true that everything's incorporated by reference that's true for the venue allegations that y at the district court the defendants admitted during the district court summary judgment hearing that they knew the officers appreciating meeting and taxes were at issue in the case and i don't think that's quite exactly what mr kilday said at the hearing i think what mr killed they said is we knew that they were inquiring into the we weren't aware that they were going to be asserted as a basis for liability counsel i certainly read the that transcript the way judge callahan reads it and even if we are mistaken or reading you know two generously into that transcript why wouldn't it why if the defendants were aware of that through discovery why wouldn't have been appropriate to allow amendment nobody was surprised no one asked  amend well you know the case law and this is it your position that they would have had to ask for leave to mend the plaintiff's certainly isn't why not supposed to give leave to amend if it's possible that a claim could be stated without it being requested i mean i actually read the transcript as they basically did request it in the hearing when they start to say well was this really in the complaint if they were we could amend right now i think their argument was there's been no prejudice they didn't say we need do we want to amend their argument was it doesn't matter there's been no prejudice if it we could amend the complaint well he said to the judge we can amend the complaint yeah i think at that point the judge is saying but the motion is directed against the police things as they were at the time and we didn't have an obligation to defeat unpledged allegations so at that point you'd have to start all over again then you would have prejudice right because now we have to do the whole process all over again and now you're you're you're anticipating a motion that was never argued that's true there was no argument on that motion well let's go to the substance then let's assume that amendment should have occurred or that one could read the complaint in such a way that negligence was fairly at issue hey says that pre show negligence matters only if it's an independent cause of harm there's no such contention here there's no contention that any harm be fell m vaseline prior to being shot or like in the group case if a shooting that appears reasonable viewed just under the immediate circumstances would look unreasonable all given a fuller context and groups the perfect example because of the time he's fleeing he looks like he's going to pose a danger to other people when he shot but then if you go back in time breach of the duty of care do we have prior to mr patterson's appearance at the door with the gun what duty of care are spending arguing that  they were negligent in coming in dark uniforms in the dark not illuminating in the porch and not making a plan to wait till the next day you know if it was such a serious incident why don't they wait till the next thing get a warrant i mean they're all there arguing that this was negligent police conduct and isn't that a jury question whether it is because duty is a question of law there are no such duties there is no legal duty to wear a light colored uniform there is no legal duty not to take a position of concealment or cover when approaching a potentially dangerous suspect there is no duty to call ahead of time rather than knocking on the door and they don't have any authority that establishes a duty for any of the things that negligence he's arguing that they didn't use due care that there was a much safer way to do this but you still have to have a duty but doesn't correct i mean why doesn't greg tell us that there is a duty not to come in put you know an identifiable uniform create a dangerous scary situation i mean you can break it down and say we don't know each particular duty but the general idea that the police shouldn't create a situation that is so scary and dangerous and not understandable that someone might react in a dangerous way i mean that  duty that we see in the case of how do they create as dangerous i want to have the other side of it because i think i'm hearing about her question i'm saying that ok so wouldn't that be telling the police how to do their job from the standpoint that you can't go at night and knock on someone's door and ask why they pulled a gun in a census worker that night exactly i mean what how did they provoke danger they protected themselves in a way that posed no harm to anyone else by being in cover and they knock on the door ok that's not really very helpful for you to post questions to us you know i'm not i'm not expecting you to answer judge her that's what i'm saying is we're  didn't do anything to heighten the danger that already existed or your brief makes that screamingly clear you repeated that but what we helpful to me just just speaking for myself is if you could respond to his arguments his arguments are that the actions taken by the police exacerbated the situation and made a whole lot more likely that she was going to get shot because when she comes out and they had earlier notice that she had a gun and that she was intoxicated so very dangerous situation and that once they approached in the way they did i want to call all the factors judge just mentioned that once they approached that way they made it much more likely they're going to be in the situation where they went after shooter that's his argument so can you respond to that are you talking about after paterson comes to the door or before knock on the door well if she sees the gun she immediately tries to evade stop either forgive me but your time's ticking he would he would say is that it's not that you're starting a timeframe much too close to the to the to the shooting so that what officer lester did for starters is have a meeting and decide to approach it night is going to be ten o'clock at night but this time they got there the scene wasn't lit up they didn't even they didn't use a bullhorn a call or otherwise announce their identification you know all of those steps that's what they're arguing so right all the all all she did that that is not plaintiff's theory of the case and why isn't that a question of fact for the jury whether the police conduct in this case really made the situation much more likely to result in this tragedy because none of that isn't reasonable for them to request back up to take positions of cover this is not a misdemeanor come to the house and let's time what time was it when the census worker came we don't know exactly what time but we know that it was roughly a couple of hours prior to the officers arriving there just from going to the census worker arrived in the dark also know this was in late may it would be light out until eight thirty quarter to nine o'clock so so is that a problem for you because that's clearly and it's sort of unstated but that a lot of time had gone by not that it's not to minimize the danger of this intoxicated person pointing a gun at a census worker but that a lot of time had gone by and and so this wasn't a real exigent circumstances that a problem for the city i believe it was an  circumstance in the sense that you have assault with a deadly weapon being reported what they say is that you have several hours ago right well they have to go meet with the victim first to get her side of the story as soon as they do that then they immediately go to the house they stop and talk first on she wants back up so she gets the back up and then here's what we're going to do and is judge callahan said they pick the least intrusive means they didn't get any kind of warrant or they could have right well they didn't need a warrant just to to ask questions i didn't have an expert if they would have gotten an arrest warrant that essentially means that they think that she did it and they want to hear her side of the story right well they want to hear certify the story first and what we're left with that is not whether she should time maybe do a field line up maybe have the victim come down and say yes this is the woman and maybe try to get a search warrant for the gun but she was just taking it one step at a time so i guess in order for the negligence for there to be a triable issue on negligence what appellant is saying there are different ways the police could have done it there are always different ways in hindsight that the police could do their work so what would in your view what would he have had to have shown to survive summary judgment on negligence here he would have had to show that they provoked the violent response for example like in this court's cases in espinosa and the other one just  right in my head but those were cases where the officers entered the dwelling without a warrant encounter the suspect in the suspects home and then the deadly force is used in this court has said well that was provoked by the prior constitutional violation of the illegal entry to the home so if the officers did something here obviously on the fourteenth amendment would have to be unconstitutional but on the state law side if they did something and reasonable like in group where you walk up to the car in plainclothes and tap on the window with a shotgun then it's reasonable someone might try to flee here it's not reasonable for someone to come out with a gun just because the officer knocks on the door well that's what they're going to say was what they said in the brief is that it was really quite forseeable she's going to come out with a gun she's been armed earlier with a gun and they say it was a scary neighborhood and so that she wouldn't be able to see that that was police officers out there well none of it would be helpful for me you know the city's response none of that is admissible there's no admissible evidence as to what thought or fear and what we have we have mr patterson that evidence was stricken by the district and we have a pretty strong argument that was improperly stricken or not they didn't challenge that part of the evidence you're talking about the spatial proximity the evidence as to what mr patterson heard or thought ms vaseline was afraid of they conceded that that was inadmissible but the idea that it was a dangerous neighborhood that the porch wasn't that it was no evidence it was dark there's no evidence what no one is saying the porch was slit no not that the porch was that there's no evidence it was a dangerous neighborhood there's no evidence in the record of that the porch being on what yes that's correct everyone agrees the porch wasn't what are you sure about that council last yes i thought vaseline said the it was a dangerous neighborhood you know that's the evidence that was stricken the evidence that was stricken was paterson's declaration about what vaseline was afraid of right but patterson so pat i understood council to have conceded that patterson couldn't talk about what was in wasilla as mine the fact that it's a dangerous neighborhood is a fact in itself not just what's in her mind correct patterson aeration says nothing about the neighborhood being dangerous there's two different statements and i think this is what you're getting at earlier hope was one of which was stricken and one of which wasn't patterson had two statements about whether they announce their presence and one had to do with what he heard at the time of the knocking on the door and the other had to do with what he said which wasn't stricken he said they couldn't he didn't hear her say yuba city police right and then and then the other statement to be clear is the statement that was stricken because the judge felt that there wasn't adequate foundation what was said after after paterson was outside correct there is a pleading issue in that regard to judge kristen the pleading issue is that the complaint alleges that patterson immediately recognized that they were police before he went outside that's why he threw his gun down and walked out with his hands up and then all of a sudden in the opposition they changed the theory to oh no i i didn't know who they were until i got out there were never trying to explain well then why did you drop your gun and walk out with your hands up if you didn't know who was out there what so if that's a problem to get sent disputed that the gentleman that came out to drop this gun and they took him they removed him they didn't shoot him all right how does that factor into your argument that they didn't do anything to provoke this it shows that their tactics were successful in disarming the first person who they encountered because he complied with their instructions to disarm any evidence that he'd been drinking yes his blood alcohol levels in the record it approach the house they would have no am i right that they wouldn't have known one way or another whether he had been drinking you are correct thank you for that clarification i'm out of time but anyone have additional questions no thank you thank you thank you or in terms of what the different issues are that's it those are jury questions there are there's a dispute about whether these officers in their tactics their execution well behaved reasonably  comes into play it changes everything about what would have been reasonable i mean in terms of when someone points a gun at you it to me i see that seems to be discrete from if you knock on the door and then things from there after people other words saying they should do it when it's light perhaps they should do it if they're not going to do when it's like that so what's your best case to say that you can tell the police how to do their job and investigate a crime under california law the california law says that juries in california have the ability to decide whether police tactics conduct and ultimate shooting are reasonable in the circuit in the totality of circumstances that's what it says and it says that counsel started to say the ninth circuit case is what has forgotten that circuit cases we don't follow billington we don't follow those cases we don't follow objective reasonable this under the fourth amendment cases in the ninth circuit what we say in groot and they say it's not just a new thing they said goes back all the way that in california the courts have decided under negligence law that the police have to behave reasonably in their tactics their execution and ultimate shooting and in fact that if they behave and reasonably in their tactics they're planning their execution that even if they would be justified in shooting because there's a gun pointed at them that if they put themselves in that position negligently they are anyone standing there he couldn't tell who was holding the gun because of the behind the pillar so it does sort of seem to me that you wanted to have this both ways he couldn't see the police officers but he can see the guns maybe that's all he can see it's it's kind of unclear here from this part of the record but but but because you're out of time here over time i'm going to let me get on to opposing count point about the because i noticed as well but the pleading issue that he just mentioned and that is that the discrepancy between where you started where you ended well say that he recognizes that there are police officers at some point and he does i mean there but it's not right away and it's a little bit farther down the line and he doesn't for example turn around and say or is allowed even to say you know come out victoria there's police officers he's told to keep his inside his head and face away from the front door you know i'll review the record but i understand your theory and i'll just review the record thank you thank you  argument this matter stand submitted