now the district court got the case file the district court essentially resolved material fact disputes that would have precluded the district court granting summary judgment on the defend because they were apple facts in the record that were in dispute that contradicted or undermined the defendant's story and there were ample faction a record that was set forth by the plaintiff appellant that shows that the car was not an immediate threat at the time deadly force was applied as well as there is ample facts in the record that show that there was pre shooting negligent conduct that the definitive engaged in as well as its definitive fail to issue a warning when it was reasonable to do so under the circumstances we also believe that and the court has provided the recent case of horn but it was also stated in a previous  case law that it is unreasonable for an officer to use deadly force at a slow moving vehicle of slow moving vehicle that the officer could easily step back from and that a slow moving vehicle where and prior to the shooting are to the use of deadly force taken place had not advanced or made any movements to threaten the officers and so in this case at bar where we had the driver of the honda the driver of the honda had not vocal any threats towards the officer the driver of the honda had in fact been had been driving the honda such a way that was of such a pretty slow speed pursuit and the officer had not even used his lights sirens or any of that to announce his presence so when you have behind him leaving the parking lot behind is going straight and this is important fact because a district court tried to resolve this dispute the district court said that the time to was driving at the violation the district court basically entered judgment on the merits for the defendant that is she said nobody could find a constitutional violation on these facts yes judgement so your pure remarks now i gather are going to the st prong which is she erred because there are trial there are genuine triable material issues of fact on the constitutional claim yeah sure that your position that is that is our position as well as to say that the case law made it such that the officer was on notice that right so well i'd say you got to this logically so if you say there's tribal issues a fact ok so we also then still have to then move on to the district court's determination that the officer was entitled to qualified immunity and that for that determination you have to take the facts in the light most favorable your client yes you were the non you were you were the nonmoving party right ok so now the recent that we alerted you to sort of deals with that part of the analysis yes it does right yes so what was the case law that made it clear to a reasonable officer under these kinds of facts taken these facts and the light most favorable to your client that he would have known that byron nine shots of this vehicle exit in the parking lot would violate the an officer who fires into a slow moving car a car that is not threatening the officer at that time or threatening the public a car that has not been taken on a high speed pursuit where it's threatening the general public that it's unreasonable for an officer to use deadly force in that situation and that's adam's case across the case in the mall an excuse ok now let me ask you this if you take the facts your client's version of the bags what do they establish with respect to whether or not the car was slow moving as it exited for him first we look at the officers claims as well as the as well as the ride along the officer claims that and a span of what he says was two seconds  know was about twelve seconds the car proceeded out the drive out in the direction of the driveway and on to the street the officer was at the patrol cars passenger side door he claims that he managed to not only push the right along  close the door back up fire nine shots while still being able to maintain his position in front of the car so the officers ability to move that amount of up to do those things in a short amount of distance places him in a relative makes t to have been moving at a much slower rate than even the officer for the officer to nail to maintain his ability in front of the car let me ask you this was he ever in a position in front of the car in front of the hunter if there was a point in time where he was in front of the honda because given the high that was driving out of the driveway and the patrol car was placed on half of the driveway the handle was coming in the direction of pleasure like i thought it was  i didn't think it was your contention that he fired all the shots as the when he was standing in front of them and it's not your honor and if i misspoke i apologize but i was saying or what i was funny too was there was a point time where the officer just given the relative position of the honda in the patrol car that he was in front of the honda but he was not firing until after according to the right along that had been some contact with the door that ride along was on the passenger seat of the patrol car and then he said he heard shots so that places when you take that testimony along with the officer saying that he was next to the right along and he started firing at or about the time he heard our he pushed the right along into the car attempted to then that place in the car directly parallel to the officer and then when you add that to the photographic evidence the physical evidence that shows that there's bullets in the car in the back passenger door as well as one particular bullet that's fired into the door in a looks like it's going from back to front in the car that shows that the officer continued firing not only when he was parallel to the car but after the car went beyond him and then you add on top of that that there was alameda county coroner's inspector who came to the scene it took the city's position as relates to what took place and in that report it says that the officer continued to fire after the car had proceeded to drive down  slightly in addition when you look at the video which is not the best video but it is a critical piece of evidence because if you look at the video you can see the muzzle shots as well as that as well as the hot headlights of the car that you know when when did this incident take place exact date right now but i do understand that oren took place in two thousand and eleven which would have been before this incident that took place which also would have but all but but but the or an opinion just came out that what wasn't available to the officers at the time  unconstitutional ok let me ask you let me go back now to the st prong which is the constitutional claim yes and you start off by saying there are tribal issues of fact yes or could you give me an example of one or two material tribal issues the fact that the jury must resolve the determine whether or not there was excessive force under the th amendment sure it's plain as position that the hunter was merely driving towards the driveway and would have proceeded out the parking lot without striking the car or placing the right along or the defendant officer in immediate danger conversely the defendant's claim that and defendant say the officer claims that the car was going straight and he only fired or use deadly force because the car veered into the patrol car in the right along in the defendant's then state that when that took place the ride along was hit by the door the defense in offer evidence saying that there was a bunch of damage to the door and that this car was coming at a fast rate of speed but if you take a look at in which the physical evidence undermines that the door had very little damage to it if any at all there was no ability to to to  fact no debris is were found on the scene and if you want to again look at the video it shows that the lights of the car are fixed in one direction there is no fear and in the right along himself says that when the car the car was coming straight it was only officer trophy who claims that this viewer took place and this is after if you look at the context of his testimony he said he only opened up fire because it veered so this veered whether or not the car veered is something that is for a jury to determine given because there was admissible evidence not blatantly contradicted by the record which supported that the shooting officer and the people in the vicinity were never under a legitimate fear for their lives from the present case and multiple grounds most significantly or involved admissible evidence which supported the version of events where an object of lee reasonable officer had probable cause or did not have probable cause to believe that someone else in the or the or the officer themselves was under immediate threat of death or great bodily injury or and admissible evidence included or his own testimony that officer clark the shooting officer was never in front of the car and that he ran to the passenger side of the car and shot into the passenger side from a position of safety and there was also it's also undisputed in that case that the vehicle at the time was only moving five miles per hour that's based on both officer testimony and orange own testimony there was also a fellow officers testimony that stated that clark the shooting officer did not carry some self against the car for impact and that the shots took place after the car accelerated so there was a dispute of whether the car was accelerating at the time of the shots or after and that was supported by the testimony additionally there was no physical evidence in that case that blatantly contradict the plaintiff's evidence in the present case there's no admissible evidence and the record that supports a version of events were officer trochee did not have probable cause to believe that he was right along passenger russell well you have to take memory you have to take it when you're down into the qualifying nd prong and you're asking whether or not there is clearly established law and the officers are there for entitled to qualified immunity you have to take the version of the events basically in faith in plaintiff's according to the point i going to last there is you know evidence in the record that is so contradictory that you can't accept it but the basic rule is you take he's  version of the you know what about the bullet holes and the passenger in the side door just got a fact so the bullet holes at best those show where shots may have come to rest what's important about those photographs is without expert testimony you cannot to tell you would not be able to tell where the shot came from which sho caused this out of the nine cause the actual seizure where the officer was in relation why didn't he just one why do you need to establish which particular shot caused the seizure because that would be the physical force that was a circle but just firing the gun nine times that's not that's not a seizure if it did not if it didn't hit him if it didn't have a didn't hit him it's not a seizure if it didn't hit him and if it didn't cause the vehicle stopped then there the suspect car also followed him taking a right hand turn putting that side of the vehicle in front of us or trucks as he fired this happened very quickly within two seconds and you would need expert testimony to establish that under those conditions a reasonable officer wouldn't be in fear of his life and would perceive that that's a different that's a different kind of expert he said that you need your next project determine the position of you know ballistics you know that you get three and i've seen them in trial before where they come in they testify they have all their diagrams and their measurements and everything right yeah i think trying to position where the shot came from and what not but if you're asking here if you look at the bullet the position of the one bullet in the side and i have a picture of it someplace let me see i think it was it's pretty clear if you just look at the photograph that the bullet is you know going forward well that bullet which which to a reasonable layperson would look like shit when the when the bullet was fired that particular bullet he was in the back of the car kind of location of a bullet if he was shooting it from the front well that bullet clearly did not cause a seizure or any harm in this case now as officer churchy backpedal behind his car and  that suspect car followed him and pulled to the right that would have put the passenger side let me ask you this one other question so i understand from reading the coroner's report that the bullet struck the bullet entered the right shoulder of these passenger and traveled up through his neck i'm certain through the shoulder the here through his arm and upper shoulder would again suggest that the bullet was coming from the side not from the front i disagree with that because there's nothing in the record that indicates where the passenger was positioned in the car whether he was reaching for the steering wheel whether he was ducking there's just no way to tell and there's nothing in the record that would reflect that position and with the changing positions of both the shooter and the accelerating car it's without an expert it would be unclear as when the him what was going on and to be inside the vehicle time of the shooting a pellet never to post pac man there is no testimony from pac man there in the city the officer never deposed pac man any statements that he might been twisting or he might have been reaching for the steering wheel it's a possibility it's not in the record there is no indication of where he was in relation with the shooter or whether the shooter would still be under reasonable threat at that time just address for you know the other thing the district court did besides nine qualified immunity was to say on the constitutional violation there were no tribal issues if it's interesting there are no tribal issues the fact how could that possibly be because there is no admissible evidence that isn't actually genuinely in dispute the coroner's report for instance there's no foundation for that statement there it's complete hearsay there's multiple layers of hearsay with that statement  detective hoyer was not at the scene of the shooting we're not sure if the corner wrote that statement down correctly there's also other statements in there like pacman got out of his car with a cigarette and got back in which are undisputed that that didn't happen so where they got that information and how many layers of hearsay without any foundation we can't say but that's in a miscible and it would be in the denial of a summary judgment can't be made an negligence and under california law is broader than and the th amendment really means under oath or broader as in it considers pre shooting tactical decisions however in this case where the only harm is the death caused by the shooting there's no and there's no special duty there's no evidence in the record of any causation that would establish any negligent act in the shooting that  would be a basis for a broader interpretation of negligence so the finding that the officer acted reasonably in the shooting here under penal code section one hundred and ninety six dollars would be justifiable homicide and there can be no one other issue in a corner for port that was never cited below and the district court didn't have a duty under united states forces could span physicians services to comb through the record to look for any reason to deny this motion for summary judgment would there was why do you say that because the coroner's report finding that the gunshot wound entered the right shoulder and traveled to left side of the neck is not evidence as to shooting from the side rather in front because there were several shots to the front of a vehicle believe opponent states there's one but there's actually three there's two is when shield and you see that he might have been turning towards the there's no evidence that he was stationary turned we just don't know it would cause speculation on the part of the jury to determine which direction that shot came from and normally if the passenger is sitting in the passenger you see with this would be speculating as if this certain individual was stationary sitting while this whole incident white went on i can't say if he was sitting straight up i would assume he wouldn't be if mr pac man could have testified could at a trial he could testify at trial i don't know if he would testify against his conviction and the state courts already found that there is probable cause for both hold him wouldn't be it depends on what his testimony would be he gets up there and relates what happened it may be it may not be i mean i guess it would have to depend on you know what objections were voiced the time of i see my time is coming to a close ok all right thank you counsel thank you using their common experience and understanding that bullets go straight and they don't curve or reverse and so the the piece of the physical evidence that's in the record is the picture that shows that and the gun was fired in the bullet struck the car from behind going back to front and lodged in that car on top of that we have the coroner's report as out of court as pointed out the way in which the gun wound trapped the the bullet traveled through the body from left to right i mean from right to left testify at trial as well so that was in front of the court we also have other evidence as well as i mentioned the video because you can see the muzzle shots go off in the video and you can see the headlights of the car they are fixed in a single direction and you can tell from the muzzle shots kind of within the sequence of this took place as well as there's also pac man the driver of the honda actually was interviewed by the police at shortly after this incident and that ride along himself gave an interview as well as had his deposition taken and said when he was inside the car after the supposed contacts the place of which officer tro shea says he didn't see it and  he says that's when the gun shots started and went off so in the sequence of events we have the supposed contact with the card to place which both the right along and the defendant officer  dispute are in conflict about and then shots to the place given where the officer said he was that he was along the side of the car at the tail of the car that means that the car was essentially almost perpendicular to him and given the physical evidence looking at those photos you can see two bullet holes in the rear passenger side door as well as another bullet hole in the front passenger side door along the window area of that door which is akin to where fortunately the scene was struck at and receive this fatal position and that this was a slow moving car given the off switch oshea i was able to move from his claim stand front of the car for a period of time all the way out into the park and just the straight and once again