this case establishes clearly that officer spears conduct in the use of deadly force was objective lee reasonable and not a violation of the fourth amendment secondly your honour's even if the court were to find that there was a question about the reasonable spears product the law as it existed two thousand and one did not clearly establish that officer sphere's conduct in the use of deadly force under the circumstances he confronted would violate the constitution as for the first argument your honor as we know that under tennessee versus gardner we look to the object of reasonable ness we look to whether the suspect mr adams posed a serious threat or a threat of serious physical harm to either the officer or to others we know and it's undisputed in this case that mr adams did in fact pose a serious a threat of physical harm in fact he actually injured officer spears fired from the position between the car door and the car there is witness testimony that officer spears was in fact standing outside of his car door area at the time he fired but it is undisputed that he was injured when the car when mr adam backing up he's surrounded by all these officers no one's in the path of the car that's also on disputed so right or are you disputing that i would dispute that you're out of contention that nobody was in the path of the car baton and is either preparing to pepper spray or was drawing his weapon that officer is too in the zone of danger as the plaintiffs call it as mr adams is continuing to reverse the vehicle actively resisting arrest anything could happen  officer that could put him in danger he could slip and fall and be right over those are objective facts your honor they would who who could slip and fall i don't understand there's nobody behind right when he's backing up at this stage of the two officers on either side injure officer slayer's and it's disputed whether it's assault battery that would be a conclusion but i believe your honor was concerned with the facts and those would certainly be two undisputed facts and very strong facts that support a finding of officer spears reasonableness under if you look at other fourth amendment cases that deal with the type of situation that officer spears confronted in no case was the officer who used deadly force actually injured in the course of these keeping i suspect well  between the car in the car door but you know yourself he does see that your honor however the court smithy freeland said that we can look at the totality of the circumstances even if the officer says i shot to protect myself we can look at what else was going on at the scene and decide you know what that officer in fact could have been shooting a reasonable officer confronted come up here on this with the facts you don't even get a chance to be good we have no jurisdiction if you have the spooling the facts your honor just someone with that point i believe that even if there are disputed facts of the issue of whether there would be a fourth amendment violation officer spears fired what we would look to was whether in fact officer spears was on notice that after being hit by the car and firing within moments he was violating mr adams fourth amendment right to be free from the use of excessive force  fact your honor there is no clearly established law that would tell officer spears that his use of force under those circumstances violated mr adams fourth amendment right the parties to the appellee certainly have not pointed to any they point to von versus facts similar to those faced by officer spears would put him on fair notice and give him fair warning that his use of force and of the circumstances he confronted it would violate mr adams fourth amendment right if you take the plans for it and the fact you have a guy the circumstances you're entitled to defend yourself under those circumstances your honor and secondly it would not be clearly established tennessee versus gardner involved a suspect who was climbing a fence who was an argued running away mr adams even in used a vehicle intentionally as a weapon was officer spears the facts as the facts that this court has to has to accept are those that we contended with the court isn't even supposed to be looking largely abandoned by the state how is this case materially different from rousseau against well for one thing this is an interlock some respects they're similar they are indeed windows out trying appeal so that came up after the grant of summary judgment so the court was looking not at the parties contentions not whether the facts were actually disputed but but looking at it at the evidence itself and whether the evidence what the evidence would show and what the co difference well except i mean at this point everyone in this room has asked to accept your version of the facts right correct that's correct if your complaint they responded with a motion in the trial correct but if to seconds or minutes or hours later calmly and deliberately shoot the suspect dead and that is what happened in this case according to the facts that this court and the state are required to accept that officer spears stepped out from behind his car door planted himself squarely in front of the s u v as it rolled away from him at four five miles per hour and shot under circumstances where no other officer on the scene could see any reason for it and several of them said later on that they were still mystified about why he did it that's what distinguishes this from broussard in broussard we had i mean we have to accept the supreme court's statement that we have a disturbed felon who was in danger and others we under the facts that this court has to accept in this case neither of those is true and i think i'd like to address just for a moment i think the court understands this but i'd like to reiterate that that given the facts as the court has to take in this appeal it should have been clear and officer spears that he was not entitled to use deadly force the court pointed out in my supplemental sites that i submitted today i pointed to a few more cases where this court has explained that you don't have to have the exact same circumstances as your i mentioned earlier that there can be many circumstances where tennessee versus garner provides all the notice necessary that would be that earlier supplemental letter and there were numerous cases on the books when this event took place that should have made it clear to officer spears had he chosen to read them that you can't shoot an unarmed felon who is not wanted for  honor your honor two points first counsel mentioned about looking to the points and authorities i would point to two facts that the plaintiffs submitted as being undisputed first at least that's page one forty two th seams a serious hazard to a page one forty two of the better it's a fact with the plaintiffs said that the scene where the shooting took place was a serious hazard is a serious and serious or from an area where there were officers on the ground trying to get him to stop and in doing that he hit officer spears is current injured and is using deadly force under those circumstances it was reasonable and also not clearly established that it was unreasonable