morning honors may please the court at this time the appellant will not be requesting any time for a bottle of your honors so forth my argument fairly succinctly in my papers but i'd like to focus on the fact that the district court erred when it granted the appellee his motion for summary judgment based on qualified immunity and i'd like the court to focus on the circumstances the totality of the circumstances surrounding this particular incident and i think the district court assessed you know the amount of force that was used here and i think that there's clearly a question for the jury to determine whether or not this was in fact excessive and if you look at the facts with respect to the events leading up to the shooting here i think that you'll find also that it is a question of fact for the jury to determine whether or not this was excessive force and what i'd like the court to focus on is the fact that my client th was stopped in front of a drug house that's on question at that point in time there was a request by defendant merril to search the vehicle which didn't produce anything to find and merrill van informed the decision that he was going to seize the car as part of the forfeiture action based on some sort of ordinance violation and at that point in time  as you can see from the record my client panicked he was in fear that his wife would be leaving him and i think if you look at both of those circumstances it wasn't necessary at that point in time to escalate the situation and defended merrill clearly escalated the situation by informing my client he was going to seize the vehicle that he was going to impound the vehicle and at that point in time and the record is fairly clear i didn't didn't develop it you claim he had no authority to go that judge group and i don't question that at all i believe that he did at that so when you say escalated the situation i mean if he simply enforce the law and have done something else but what he did was legal i mean i hear faulting him for doing something legally part of his job i mean i don't quite understand the argument no your honor the argument is this that in this situation when an officer is questioning the deceived in this case you look at you say could he have issued a ticket and i understand your point that he was acting within his rights legal argument well i asked he could have done something last but i was at legal or how does that a pertain to an issue the case well i think if you look at his deposition testimony he clearly stated that once you know the ticket was issued and my client started to pull away that he could have reissued writ instituted a second stop rather than shooting my client that's exactly my argument that you have again you look at the circumstances you have a nuisance violation and you have a compliant person for the most part indicating that he is panicked that he's concerned about his vehicle being impounded and the judge griffin's point i'm not suggesting that the officer at that point in time was not acting within his authority but i think if you look at the circumstances and again you could issue a ticket you could you know actuate an arrest that point if you feel it necessary but i think the testimony is clear from the deposition that he was going to issue a ticket impound the vehicle and you're exactly right judge clay wood as far as the escalation of the incident my guy panics there is some dispute whether or not he was actually being dragged by the vehicle the fundamental testified in this deposition that yes in fact after he was allegedly being dragged that he could have called and then the she added a second stop and i think that's what's reasonably a party opposing the grant of summary judgment motion will argue well there are genuine issues of material fact that we need to go to the jury and the jury has to resolve the following factual disputes what are the genuine issues of material fact use you claim a jury needs to determine whether or not someone who is stopped for a nuisance violation and pulls away from the particular situation where a defendant and meds that he could have reinitiated a second stop whether or not it's excessive or whether or not he's entitled downs like an issue of the law what's the factual dispute that ladies and gentlemen the jury i want you to make a ruling of fact as to this factual dispute of what's whether or not actual dispute it has to be resolved i understand judge group and i think that the factual dispute is whether or not it's unreasonable to show one point blank twice in the chest ok so you say that the and if you don't have any other questions or need anything clarified well are there any factual disputes as to the events that transpired after the officer grabbed hold of the video or is that something you're not presenting on appeal i guess i'm unclear judge clay with respect to that question well i mean the shooting didn't take place have to shoot and all of them in the shooting didn't take place at the initial stop i mean there were some and there was some further factual development after the vehicle began to move away from the scene circumstances leading up to and including the actual shooting itself or is there something i'm out arguing no your honor i think i am arguing that i think i set that forth in in my brief but if you look at it there is a factual dispute about the speed whether or not again defended merrill testified in his deposition that he could of based on the circumstances as they played out could have reinitiated a second stop and i think that's key for the court because again it shows that there wasn't this very troublesome situation at that point in time that he utilized the use of force that he did and made that choice when you see you initiated the session what do you mean by that  you don't have anything else to say about the circumstances of the actual shooting itself is that it is just what i've argued your honor  based on qualified immunity i would first start with saying that this this case is a tragic case and i think judgment started out by stating that and i think it's important to state that  it's a tragedy for the alexanders but it's a tragedy for the officer there's not one case out there that talks about the impact that these cases have on police officers it's a terrible thing to have to take a life it's a terrible thing to have to deal with that make no mistake this is something that weighs very heavily on sergeant merrill you don't just do that and and walk away unscathed emotionally and psychologically it's difficult i think it's a misnomer to state that mr alexander was executed or shot down for a traffic violation for failing to signal i think it's inaccurate to state that mr alexander was shot based on a minor nuisance violation lightman addressed all of those considerations and arguments in his opinion he and i say he i mean mr alexander made a conscious decision to flee from the scene where his car was being impounded sergeant marrow was allowing him to go to the vehicle to get his personal tease out of the vehicle and he was watching him as he was getting those personal these out and you know as he was standing by the car mr alexander started the car and mr i alexander began to indicate you know you can't take my car you can't take my car there were several warnings yelled by sergeant merrill stop please don't do this don't do this and he tried to grab the steering wheel pushing the wheels towards the curb because there was a car about five to seven feet had his hope was to run that vehicle into that car now if graham the o'connor means anything grant economies anything and they talk about not judging these cases in hindsight because the officers have to make split second decisions as events are rapidly unfolding it's very easy to four and he's asked the question you know could he have done something differently why did he use deadly force his response is this well i think if you go back and i mean i've thought about it for three years now different things of of of we could and should be of what we could have done differently and i'm sure you could give me you know a ton of different things of what i could have done such as this right here the bottom line is that my initial reaction was i was trying to get him to rear in the car in front of me it didn't happen that way he overpowered me the vehicle moved out there i lost my footing and it was too late to go back and try to start over again the vehicle was dragging me in the only alternative means i had was to shoot mr alexander to stop that car so i wouldn't get run over there is no fact in the record disputing that evidence there  passage pretty much sums it up judge clay it wasn't his intention to shoot him he didn't start that day out thinking i might go out and shoot a motorist his intention was to run that vehicle into the car in front of him it's a reaction sometimes you react right and in somebody throws you something if you react quickly quickly enough you catch it has some time something's coming at you maybe a car is coming at you and if you react quickly enough you can step back and you avoid that collision the whole point of graham as police officers react and they have split second reactions and they don't have the time like we have here to talk about why did you do this why did you do that they don't have the benefit of deliberating he made  split second reaction and his first reaction was not to grab his gun his first reaction was to try to stop him and try to open the door mr alexander kept pulling the door shut kept pulling the door shut his testimony is very clear he was being dragged down the street there is a civilian witness payne who was driving in the opposite direction and she testified i'm sorry she provided a declaration she wrote a statement at the scene and she was very clear she said i saw that officer being dragged down the street i thought he was going to get run over i heard two shots i thought the officer was that is not the answer judge clay's question why did he really some self from his grasp of the steering wheel and fall down he didn't do that co illustrate what he was doing and the first rendering shows him allowing mr alexander back in the car and that's on page eighty one seventy three the second shows him watching mr alexander is he's going through his glove box pretending or at least acting like he's going to get his personal these whether these run these are drawings that officer would display them making subsequent one yes the third one is showing that he grabbed the wheel with his left hand if you're asking me is or it could have made a deposit different decision not to grab that wheel he's asking you when this the car started moving why didn't he release his grasp of the steering wheel at that point i think is a answer in the deposition was he lost his footing when the vehicle started moving as it is and i think his testimony quite honestly was that he thought he could get that car right after the car started moving he lost right correct i mean at some point he's not running along side of the car hanging on and running at the same time he is his feet are have been swept away from him and he's being dragged right absolutely so he doesn't have a splitting after the car starts moving right when mr exactly when mr alexander turns at wheel he hits the gas the first thing that happens is that car bumps into sergeant merrill knocking him off balance an office putting an office footing so now he's stumbling and eventually being dragged it's it is it happened ok i have the griffins understanding of what is sure he could have done a lot of things he could have just let him drive off judge clamming dignity there were a number of options that that he could have employed but that goes against what the supreme court says in his opinion on page fifteen judge lightman wrote moreover even if merrill made errors in judgment during the portion of the traffic stop that preceded the shooting if for example his decision to grab the steering wheel was ill advised an officer who uses deadly force to protect himself or others against an immediate threat of serious physical harm may not be held liable on the ground that he acted recklessly in creating the circumstances which required jump site is for six and that's a two thousand and seven six circuit case