l argument pleaded the motion to dismiss in this matter it is hutchinson's claim that the material facts as found by the district court for close to a factual dispute primarily because they established the objective reasonable miss of the use of force and those facts that the district court noted are number one that prior to o at that moment when rich jr was a threat so the record as found in a light most favorable to the apple league forecloses the material fact that the court noted the jury needed to decide would have been a threat to him what's the what's the evidence because he had turned away from the house at that point right at that point he was pursuing the real underwood into the house so he emerged from the rear of the driver side jr makes it to the top of the steps and the witness charles james testified that he starts to turn to his left at about ten o'clock but he also testified that he could have spun around he you know that this witness mr john ames across the street looking at his deposition and he said that he said that roy he talks about underwood going into the house slams the door and then he says roy backed down the steps a couple of steps and then turned west towards his car till he was maybe about ten o'clock and he also said that his r pointed skyward how do you how can how do you recover from that testimony if we accept that as being the evidence here that's most favorable to the to the plight of iran i think that create a problem with an officer firing shots at a person who is retreating and hears the rifle is pointed scar we're we are i think you have to look at the totality of the circumstances and everything that he knew at the moment he affected the seizure you have to look at this from his perspective what he saw what he was individuals intoxicated causing  fighting and he went and saw him retrieval a rifle and then pursue individual he was fighting with i think you can rule out his knowledge skills and experience and make the rightful assumption that this person is a threat at this regardless of how the rifle is in his head he just finished fighting the individual and when he got a weapon isn't it crucial that the the evidence shows in the court accepted it that he turned around away from the underwear and seemed to be going back to his own car at the moment he was shot while this is a rapidly moving tense uncertain situation and he's perceived a threat from the moment he emerged from the rear of the vehicle as a roast to the warning i think when he sees emerge from the rear of that vehicle and he has probable cause to believe that he's a threat i think that a warning is for him in his position was not practical because a warning the time it takes to give him one richard's warning could be the time that he shoots through and would in from his perception he had to make a stab judgement he had to make a call and he didn't see it as practical is there any evidence of the that they thought for at least ten seconds after michael starts told him that the police were there because we haven't gotten to the other issues i would like to reserve the remainder  well i think your honors are honing in rather stupidly on the salient points of this matter the th amendment issue created in this case is as follows was it reasonably it was an object to be reasonable for dennis use deadly force on roy richards without any kind of an announcement without any kind of a morning in order to protect mr underwood from imminent death or great bodily harm were m not in the vicinity of mr richards was not about to be shot by mr richards and was in fact inside his home at the time that mr hutchens use deadly force from the the scene from the perspective of an objective lee reasonable officer not a subject of officer because if we looked to the subject of officer well that officer might be unscrupulous and that an officer might say all kinds of things that he or she perceived that they didn't in order to cover their in order to cover themselves and to protect themselves from liability as judge moody implemented down below in the district court were at the summary judgment stage here and the courts must view the facts in the light most favorable to the nonmoving party it must take those facts take is true those facts asserted by the nonmoving party that are properly supported by the record we retain two experts in this case also to drive the point home a police practices expert and a biomechanical engineer we went into mr james's home we videotaped what he saw the panoramic view that unfolded before him if you take the facts in the light most favorable to the nonmoving plaintive our expert says that you have a per se constitutional violation and it's because of the judge what you said earlier once then is  talking with his roommate when he heard gunshots outside in fact he testified that he thought that roy had shot the gun which turned out to be a b b gun but that's of no moment looked like a real gun but he thought that it was his nephew that was shooting not the police so mr underwood was nowhere near the scene when he was a stone simply being protected by the self serving testimony given by dennis so the facts here in the light most favorable to the point of are as follows these two officers get a call that there is an intoxicated man with a long gun and again they're to presume that that gun is capable of taking life of course and a reasonable officer would do that but from woman one you get the impression that they wanted to sneak up on this scene and and use you get the impression that there was hutchens of a marksman a former marine really wanted to use his assault rifle so he deployed it he didn't tell anybody he was going to deploy it he parked around the corner from the instant from the incident even though he knows the police presence is a deterrent police presence is is a level of force police presence defuses a lot of these incidents any purchase car around the corner and decides to approach very silently very clandestine lee in the dark october evening or early morning he testified that it only takes about a nd observation said to give a warning he could have given twenty two warnings in that time he could have said hey we're the cops he could've said anything he stopped and he raised his gun without saying a word watching the scene unfold before him and i don't mean that point the only gun at anyone but that was the time when a reasonable officer says we've got basically a barroom fight here at the bar time skirmish nobody has a gun on them hutchins testified that when he came punk scene stopped their arms were on each other there was nothing in their arms nothing in their hands and rather than do the reasonable thing rather than do the prudent thing rather than do the lawful and constitutional thing he posted up with his gun any lined up a head shot and he shut down and he shot roy richards right in the center of his head from eighty feet away using a scope you can't do that with somebody who's running around you can't you can't place that shot like that so what we have here is a fight between  lowering the rifle at the house at the time militia we still prevail in summary judgment we still prevail and get to a jury because it's not just the fact that the rifle was pointed skyward which it was and that is under source at the very least warning if you know what if mr richards doesn't respond to that warning or if he turns his gun in some ominous direction well then i think probably on those facts even though the distance in the kind of the clandestine thing is still a little debatable but then deadly force becomes a more reasonable operate more reasonable option but again what you have here is is this was almost like a hunt they sneak up there in the neighbor's yard there in the bushes underneath the canopy of trees they don't ever say who they are what they're doing they don't say stop they just let them fall and so it's funny when mr benton says that it's undisputed that derek underwood made it inside his house well it only became undisputed after we pin that down through depositions and through our experts if you look at they answer the complaint dennis hutchens vigorously and vociferously denies that mr underwood was inside of his house that's what he told investigators he said no he was outside i got a gun at his back he was conjuring images of bugs bunny being chased by a foot with the the butt of the barrel the rifle mere inches from the man's back that's that's that's the impression that was given by by mr hutchens through two lines of questioning  officer hutchens was not the only officer that was armed with a rifle correct so what was their testimony as to why they approached the incident in this way instead of  delve into police psychology i would say you have to consider that dennis hutchens is a decorated marine veteran he's a marksman he's on the swat team he's a real dumb hole kind of a tough leatherneck type of a guy and he's to be commended for all the good stuff that he's done in this career and in the service his partner is a gentleman by the name of just entire who is a new officer and quite it's humid one and  and you got the impression very quickly in speaking with him during that position i did that he was extremely deferential to his partner mr hutchens so while they built the play their assault rifles and they both if it's if we're looking at an objectively reasonable officers perspective the question is is is begged why didn't the bull shoot or why didn't the both not shoot three in the same place shoulder to shoulder watching the same his gun malfunction and he couldn't get it to work he would have shot if he could but it was malfunctioning this is a common defense given if you look at the cases when one officer shoots and the other doesn't they'll often say well there was an obstruction someone moved in front of me last minute or i couldn't get my my gun to work at the last minute they have to get some reason for they're not shooting when their partner has it they're going to be well the partner so so what  tyler says is that he wasn't looking at anything when hutchens shot because he was experiencing a malfunctioning weapon and trying to get to the bottom of that so he basically takes himself out of the scene so that he doesn't have to testify against his friend case is out there that are sufficiently similar actually i mean i would hope that this this right was clearly established i would direct the court to st and foremost garner we're looking so so garner is squarely on point i would say the case of craig had the lead just having a gun on your person doesn't mean that officers can take potshots at you or doesn't mean that you're open target especially in an open reach of the smaller man the smaller man was the aggressor the taller man happen to be the victim the officer shot the taller man he said well the guy had a gun the court said no it's not that easy this court said no it's not that easy the gun was in the air s everything that dennis hutchens did not do he made his presence known she also was not fearful of his life but for a rd party speaking of warning there's a record reflect the amount of time from when richard retrieved the weapon till he was shot the best i can get you on that judge is this we have testimony that darryl underwood was inside his house for five seconds before gunshots were fired so if you combine that with the fact that darryl says that he saw really getting the gun as he was about to go up the stairs and enter is apartment a distance of i'd say about twelve  feet we can i think pretty confidently say that there was at least eight seconds to just say hey what are you doing buddy put it down you're dead man if you don't put it down anything like that and i suspect that roy knowing his family the way i do knowing his uncle the way that i do i suspect really what i said holy mackerel and what a job drop that gun in a heart beat and then he would still have himself a heart beat so this is a very tragic case one where the facts are in our favor and even if they're not there are so many conflicting facts and there's a couple of conflicting facts and some of these points it certainly is fitting for a jury trial i can imagine a case better suited i think you'll create time this morning and there's no more questions there were thank you mr thank you very much he was armed with a long gun and they approached in the manner that they did for officer safety reasons he wanted to ascertain where that gun was before he engaged them and he testified his words not mine i didn't want to tick off a shoot out a block away  you know there's witnesses outside this people outside so that was his reason for approaching that way  what they also want to point out in favor of the objective reason is when mr lowe is right this is from the perspective of reason a police officer and obviously tired testified that he raised looked through his  witnesses on the street charles ray testified i thought he was about to get shot lisa james was on the nine hundred and eleven call saying he's got a gun he's got a gun michael start some emerge from the back of that car and turn around in this house dear life so if this subjectively reasonable or if it is just reasonable for all of these people to perceive we're riches as a threat as not office