appeal of the denial of a rule fifty motion as a drugs for judgment as a matter of law the plaintiff presented their case the magistrate judge who was presiding pursuant to six thirty six  asked fred schroeder who is trial counsel for the share of defendants to essentially as the witnesses were coming on to present his case during the plaintiff's case so the  when the plaintiff rested fred made the motion for judgment as a matter of law the magistrate's judge said well i don't see how the judge the motion could be denied essentially but he sent it to the julie and the jury came back with a verdict against against the sheriff defendants basically finding them variously liable for a total of fifty percent of the fault and entered a  damages award of five hundred thousand dollars meaning the sheriff defendants would share variously the two hundred fifty thousand for the reduction we believe that judged our rule fifty motion after the jury verdict was rendered in the order was entered so we believe that it's properly before the court on this appeal we also made after the jury verdict rule fifty nine motion for a new trial we rely primarily on the rule fifty motion because that one here the the court looks at this court would look at that on  novo review using the same standard that the district court would use and while there is some deference that is afforded to a jury findings or or evaluations of credibility demeanor et we submit to the court that in this case on this record there really was no demeanor or findings there there really was no conflict in the testimony we submitted for the ignored what we have is there was a traffic stop ms let's say where the deceit it was driving without her headlights on it was early in the morning the wee hours of the morning one of the sheriff saw her fall over for a little while when they approached a well lighted area he turned his lights on told her over and through the loudspeaker on his car because of the time in the neighborhood he asked her to step out of the car  she refused he said your lights your lights are off another officer came for backup as they approached the vehicle miss let's say there reached under her thigh and pulled out a gun and said i'm going to shoot you you're trying to kill me i'm not getting out of the car etc etc then they proceeded to essentially a low speed chase other deputies followed and they tried to cut her off she drove around the vehicle they tried to use spike strips to stop the vehicle she drove around those eventually she pulled into a driveway there where there were several houses along this driveway off of river road and she stopped the police came in behind her got out of the vehicles and started to engage her asking her you know surrender step out of the vehicle we're not trying to hurt you one of the officers  engaged her primarily and he tried to reason with her he didn't have his weapon polled the other officers who were staged sort of to the sides of the car and more to the rear had their weapons drawn because they knew that missile say or had a gun in her car so as this was going on she was fidgety sometimes she would speak really rationally sometimes she would just again blurt out jala trying to kill me don't come near me i've got you know i'll shoot you at one point she handed out her license so they had her license they asked if there was somebody that the officers could call to maybe help mediate this thing she gave them a phone number for her son a cell phone number attempts are made to dial that phone number to make contact with the son to tried to have her keep her hands on the steering wheel so they could see her hands again knowing that she had a gun in the car and was irrational so she would occasionally take her hands down or move around in the car  the put her hands on the on the steering wheel we need to see your hands at after she handed out the license she had one hand her left hand on the steering wheel she had her right hand on the head rest of the passenger seat now this is where it gets a little bit hazy what deputy daly the one the officer who shot her when he says and the other deputies confirm that she reached down to her right and then came up turned to her left and pointed with her right hand towards deputy daley and he testified as his testimony has been consistent that when she turned to her left and came up he saw what he thought was a gun in her hand it's always his his testimony the day of the incident his statement given to the state police investigator the testimony he gave years later at trial it was all consistent she reached down she turned and came up he thought there was a gun so he shot her you know where the window broke that's most of the testimony says that the window was broken before she reached them at that point after that license was handed out and they couldn't make the phone call or they couldn't complete a phone call they get someone else out there and  appearing that she was the situation was deteriorating to the officers on the scene the decision was made one of the deputies suggest they made a motion i'm going to break the window of the rear window on the driver's window and i believe there may have been one other officer in that grouping and at that point they were there was a ballistic shield that sergeant rail had brought over but deputy daley had taken over holding because it's heavy so they were behind the shield when the decision was made to break that window but the decision was made only to break right well it was made by the breaker with the lieutenant said that he ordered the sergeant to break the window the sergeant said i signaled to the lieutenant that i'm going to break the window and i guess there was tacit approval signal it's in the testimony it's not only is it in the testimony but it's also in the state police report on the incident included statements that were given by all of the officers involved and i think two or independent witnesses and in and that was submitted as a as a joint exhibit so that was in the evidence submitted into evidence so in those statements and i believe in the testimony that came forward so the jury heard that and so deputy daly doesn't attribute her motions to the breaking of the glass i think one or two one deputy may have said it was almost simultaneous as she reached down the glass was broken there was no testimony given that her reaction appeared to be a reaction to the glass breaking deputy pearson who was on the passenger side of the car said before she put her hand down she looked we're word toward deputy pearson's position and then suddenly reached down and turned all of the deputies testimony was consistent with that that she reached down and came up turning deputy pierson is the deputy who yelled gun she's got a gun and she did that when miss le sacre reached down and came up and that's that's clear in the test well there's there's no testimony and there's no evidence to contradict that that missile sarah came down in terms of what the the magistrate seized upon and we think it's an incorrect reference or an incorrect conclusion from the autopsy report which was also included with the state police report the wounds that missile to say are suffered all on the left side which is consistent with her having turned to face deputy daly there was one in the left side of the buttocks there was one that hit her elbow  left elbow there was one that entered on the left side traversed the chest and exited below the right price so all of that is it the magistrate judge said that's inconsistent with deputy daley's test or that's inconsistent with the other deputies testimony that missile a say or had turned and we submit it's it's physics that is not that does not contradict the deput heard what in the testimony with that was given by the state trooper who conducted the investigation was that her wounds from the autopsy report on the left side and were consistent with what deputy daily  happened and basically what all the other deputies had said that she reached down and turned very suddenly ver another thing that the magistrate judge seized on was all of the deputies except for deputy daly said they heard what they thought was a gunshot a single gunshot than a slight pause and then a series of gunshots deputy daley's testimony did not have that deputy daily statements the night of the shooting did not include that information but all of the other deputies were consistent that they heard something that they referred to i believe is a must muffled pop and there was a pause and then a series of shots and the presumption is that that first pop was missile  fired then there was they took gunshot residue kit from her hands they took her fingernail clippings during the autopsy but those were never tested by the state police there was one it is she had a revolver and there was one fired round or a shell in the revolver so there were five unspent rounds and there was one bullet that had been fired from her gun well in the firing position of there was there was no testimony as to which which cylinder it was it was very common to keep peace in the in the  barrel well it was that does the shell was in it was in the cylinder one lines up with the barrel right i'm going to leave either that  and the there were ballistic tests performed but the fragments that were found in the vehicle were so apparently so mangled that they couldn't make a a an analysis or a comparison or a very little conflicting testimony you were at the trial yes or it was an amazing trial in one sense in that i have never seen more blatant evidence of a fabricated cover up of a bad shoot in this instance was it was just an amazing display when sandy crane got on the stand to talk about his investigative report of this incident because it included things like miss the center shot of the officers well not a single officer that day and this is at night two in the morning this is happening one forty no one contemporaneously mentions that there was a shot a muzzle blast anyone smelled gunsmoke  it is unusual in that all of the officers testified right afterwards they gave record statements those recorded statements were all in the trial and that led to a certain extent to destroy an interesting conversation and in the  hearing where the magistrate's not exactly sure of the strength of our case and there's questions that are made of mr schroeder and i'm trying to say well in the report we have a d n a report where this wedding sobbing woman has no d n a from the g joint exhibit book and the things that are contained in that book are things like no g s r test no guns residue testing at all of the car they'd swab her fingers and they got her fingernails and they never tested it supposedly she shot out the window and there's a hole in the window that one of the officers managed to magically see that it's a slightly different diameter than the as we use what i had to bust the window even though there's another busted window already busted to get her out which seems completely ridiculous but then you find out in the report they quote two other officers a scene that whole and you ask them in there and then their statement they don't mention it and they don't mention a trial in fact  officer michelle michelle phillips says that in fact that there's there's no tint of on the car completely says something upis it and this whole thing about the how the she was shot consistent with the testimony she was shot in the back they say she took a gun and turned toward the officer in fact there's sort of this any oakley thing where you shoot over your shoulder where you point your back to the officer  with him where he's going to shoot him she's in the take her gun and turn and shoot him logically that would that would occur but officer of daly who shot her also invest a story of he saw the gun on top of the seat while his own fellow officer says that they found the the gun who was there was never seen on her presence at any time water at the house at any point that she pulled it out or anyone knew where it was it will end up being stuck between the door and seat facing the truck and the officer said in the materials which is actually the statements the door and the door that the door in the seat the passenger seat you're on yet passenger facing the truck and that officer specifically said i never heard any thought i think it was always there it wasn't it wasn't on top of a blanket or anything because they asked them that so really the only person who's saying these things about she's turning the she has a gun in her hand is the officer who shot her in the back and to set the scene your honour's this is a man behind a ballistic shield a bulletproof shield with a flashlight looking at him the deputy that's to the right  michelle says that that right before it happened she said total i can see your hands i can see your hands they have flashlight she has a flashlight nobody thinks she has a gun they've never seen a gun the entire eighteen minutes that she's been there but the one thing they have going for him is that they're safe behind a shield with a weapon but what they do when you yell gun when there is no gun when you smash the glass next to the head of the woman who tells them i think that there was no there was there there is absolutely rather that there is a threat and there's no there's no we're not saying there's no threat absolutely but when you have a situation like this where you have a woman who who for whatever reason is acting irrationally that's when you don't need to bash the window next to her head when she thinks you want to kill or then suddenly smash the window it's like if there was a bomb that would go off if she moved and so then your response to that is well we'll bash the window and make sure she moves it's literally a death sentence to have a person with a gun standing there a foot from her and yelled gun as if she has one when she doesn't when you know she's going to move if you bash in the window next to her head that is  unreasonable nature that in the negligence case as opposed to in one thousand eighty three case and that's the whole the different fabric of funny you know it was reasonable because in that moment of shoot doctrine that we have in one thousand nine hundred three under qualified immunity you don't  did the officer think he was threatened but the moment of shoot doctrine has no place in louisiana twenty three fifteen we can step back and look at how did you get to this point where the officer thought that he was threatened and how that occurs is when you have  would you have a swat unit well i think we have an emotion we have a of emergency crises you that are they were this what i don't know what you call them i don't know i mean they did not know and so after about fifteen minutes of this lady clearly not responding they just got mad and the eyewitnesses the neutral witnesses who were in the house next door saw the officers get madder and madder in this search screaming at her and the saddest part was what they're saying that they're screaming has in your head hands on the wheel has in your head as you could comply with the conflicting of commands and start sobbing and rocking back and forth in her seat and this is when they got the great idea to bust out the window but it's important for the court to know that the officer who busted it out said hours after the  i busted out the window to let the k nine dog in and then the lieutenant said oh i said that's bust out the window so we get extractor so i don't know which one of them from the car from the back window apparently so the woman this of this person who's is having struggling with something that thinks you want to kill her that either putting in a dog in the car because even though they say no that wasn't our intention that's what he said after the event the person who broke the window said i knew i wanted to do something so i looked it looked at roman day and said on the bus the window to put my dog that that's what he said hours after the event maybe that wasn't true but that's what he said so we have the lieutenant given a version and we have the surgeon giving a version but what is clear is that they bashed the window next to her head and she moved now the appellant says she reached for the gun we say she ducked away from a crashing window behind her head that no one knew was coming because you're right your honor no one told anybody that this was about to happen other than i guess this nod and wink to each other the two officers of lieutenant roman day and daily and if this bill i'm sorry relf at this point you have behind the bullet it was made after the window was broken yes your honor in that nobody says she moved until the window was broken what the hell it says is that she turned and fired after the window was broken well that's really just removing an excuse for why the shot everyone agrees that there was no movement until until the out of it that broke the glass and so at that point it's reasonable to assume that this confusion lady's going to move and so the question then you look at the factors is is is there an exit reason why at that moment we had to do that it's been fifteen eighteen minutes why the heck it we wait around a bit we're trying to find relatives who are trying to calm her down instead of screaming at her because you're getting frustrated because she's not following your commands take a gentle tone take as much time as you would she's obviously crowing but she'll need to what this great reason was to bash in the window next door ed what is the the necessity to do that when they just could have waited this thing out and that's the lack of reasonableness and also the fact that when you notice it when you know someone will move if they startled by a window bashing in and you know we have some officer on the other side of the car who is not going to know this is coming that something might happen in this case even though the deputy never saw a gun in he at any point what she stopped her car even though she said she could see her hands prior to the quick move that she she says to today i can see your hand this ok steve what we have then is suddenly she moves in the center saying she's then the officer with a bulletproof shield starts firing and he shot her through the back of it with her heart she dug in our contention is that it certainly was negligent on the part of this lady not to comply although she certainly will never know why she was acting the weird way she was acting because we looked for medical records everywhere trying to show some sort of mental illness the feds didn't we couldn't find any organic reason we her medical reports are in she wasn't on drugs she wasn't dr she just had this unexplainable belief that the officer is one of the killer and we think that she's the perfect person who needs even more than a normal person the restraint of an officer reasonableness and not accelerating the situation and so you get to the point where where the bad things will happen because bad things will happen when your officers are surrounding you with guns pointing at you and someone screams gun or someone moves quickly and it's forseeable that bad things will happen if there's no need for them to do that move it and there was no need at the time for them to make that decision to bash in the window and the record is absent of any good reason why they did that other than on the stand on that it really they said well i think we've given up i  don't think we're going to get anywhere further with her well that's not a reason to do something that can kill or because you're essentially annoyed that she's not responding quick enough fifteen to eighteen minutes in a woods is not a hostage situation if she's by herself but fifteen eighteen minutes in a lady sitting in her own car in front of a house where she's living with her niece it doesn't rise to the level of this is our last gaffe let's go over something that could induce deadly force there's nothing in the record to say that that's why they had to do it at that point and we think that's why your honour's the jury believe that there was fifty percent negligence in that certainly you can't say that missler sara was it negligent in not responding to the officers commands but there was no need to do the thing that they did exactly when they did it this chase they talked about i don't know if your honor saw but it was a ten mile per hour chase if you want to use the word chase she drove slowly from the place she was stopped to her house there was no evidence that she was a threat she was going to run over somebody she was acting that sort of crazy or that sort of threat in the chase department and so when she got there they were surrounded by first they had the dogs out and they put the dog back in but there were certainly at least two officers to the right over there were three officers including the lieutenant and the sergeant to the left over there officers and back over she was pro effects surrounded because she couldn't go through the windshield and so at that point everyone is safe she's not pointing a gun there's no gun at her and if the gun is what we think it is it's actually over the passenger side between the floorboard i mean between the seat and  facing the of the way she'd have to scramble to find it but there's no reason to do anything but try to wait this out try to talk to or more because the important thing would change when they were talking to her like a person when they were trying to be nice she was responding here's my son's telephone number and they call the son and he'll never live you know he'll never be so guilty begin to answer the phone and never got the call and it talked to him but they could have waited to keep calling the people who watched outside the window miss dennis and just said that that she was responding and she gave him a license these are all things that are too awful threatening but then they just got  up that she wasn't responding and the tone changed and then they started screaming and then we had the alternate command she couldn't follow and that was the point where suddenly she started rocking back and forth and crying and then they busted the window and so we think a reasonable juror could conclude that there was an alternate way they could have handled the situation that could've resulted with her not being dead from a gunshot because some of it bashing the window when there was no need to do it or at least they could have told people was going to happen it was so then they would have some notice and lastly i don't want to minimize the threat to officers because they think they do a wonderful job and obviously a person with a gun is always a threat having said that the man who shot who was the only person that she was going to turn up under their theory was behind the police to chill we think that you should at least someone should verify that she had a gun in her hand before they yelled gun and they shouldn't have shot or and killed her when there was a way just to wait or out and we think it's certainly fifty fifty comparative fault is not an will run up to the event and quite honestly we have nothing to say that didn't happen exactly as they say the initial stop happened and we're not arguing that they did anything wrong in the initial stop of course check some of the lights out we're not arguing that you should follow and find out what some ladies do and if she pulls a gun that's all appropriate nothing's wrong but when you fall over to the place where she lived as you pulled out of her license and they told her well you don't live here well here actually she was moving there  nice and never bothered to check next door to see who is living there i guess they just assumed she was lucky although maybe if she was in a in a mercedes and more eloquent they would have said well i guess we can check and ask what in her case they just told her you know live there this just doesn't match as if people's licenses always match so then they decided we will then we want you to leave the car and she wouldn't leave the car because she said she kept saying you're going to kill me now i may be irrational but police officers in the normal course of their day have to come across some people who are acting irrationally and part of their duty is to make sure that these people acting irrationally are treated with the best possible way to make sure they're safe part of the record is exhibit seven and exhibit six  of the joint records one of them is the case nothing policy is like eleven pages you look at number six your others it's the excessive force balls it's like a paragraph we think there should be at least as much how to deal with someone in a crisis situation as there is on how to take care of a dog they should tell you we need to get the emergency crisis group in they should tell you how to deal with someone who's not responding they should tell you what to do so much barricade in the car they honestly didn't know and we think that the absence of training with the admit to and the lack of knowing what to do all falls under the other rubrics on the seven factors of alternate means of arrest if you don't know what to do as an alternate means of arrest then it's going to turn out like this horrible tragedy so we think the court should also consider the fact that they admitted that at least deputy daly says i really don't know anything about the barricades or emotional people or much about excessive force i can't tell you but but but i shot her because she turned although he didn't say there was a gun fire hours after the of it you never mentioned a single thing about it not one officer mentioned a sn revolver in the dark with a muzzle blast nobody saw it nobody smelled smoke they didn't they didn't bother to g s r test the car or the window or put the window back together or or take any swabs of any area advance it's not going to find anything so it's better for the report not to mention it and then say well she shot at him and that will make things go away but the family then was unhappy and decided to bring suit and so now we know more about what thank you one of the things that was mentioned to you know that the officers should treat this situation in the best possible way that's not the standard that's not the standard clearly on the louisiana law in such cases if there's a zone of reasonableness if the actions taken by the officers a reasonable whether it's at the lower end of the scale the upper end of the scale whether or not there are other alternatives if it's in that zone reasonableness and their ok they cannot be liable and we submit that under the facts of this case their actions fell within that zone of reasonable ness the relatives next  door there was testimony that she was going to be staying with a niece who lived next door although the testimony at trial from luke the lieutenant was that she said i live right here and he said is anybody in the house and she said no ok so there's nobody in the house even sam living where we live with money she maybe there's a maybe she's out of town or whatever she said no there's nobody there  that they removed her from the vehicle and she never threw the gun out of the window she never gives the gun so they knew there was a gun in that car the position of the gun after the shooting the testimony was consistent that after she was shot she fell to the right that she her arm was on the seat one of the officer said he saw the gun on the on the seat one of them's the person that retrieved it said it was between the seat and the door clearly that as she fell she could have dropped that weapon it could have ended up in any cut number of different positions when she fell so the fact that it was between the seat and the door does not mean she didn't have a gun in her hand it could very possibly be that she had the gun in which she felt that's where it ended up daily the deputy daily did say he did not hear a gunshot but again reiterate look at the joint exhibit and you look at the testimony all of the other deputies and even i think there were two independent witnesses said they heard a pop than a pop pop pop  so it's a could be reasonable for the state police officer to say extrapolate from that well there was there was a gunshot and then deputy daly shot the deputy daily didn't hear the shot in the state police trooper said sometimes that happens in the middle of this kind of situation where you are so intense in observing the subject that you may not hear the gunshot and deputy daley said i shot because i saw what i thought was a gun in her right hand as she turned toward me and yes he was behind a ballistic shield but sergeant rel was not his testimony was i broke the window i did my service weapon was in my holster so as she reached down i backed up to to find some safety so he was exposed lieutenant the lieutenant was in and out from behind the shield at the time so there were all the other officers who were placed at risk the cases we've cited demonstrate that an officer does not have to wait for a subject to shoot their weapon if he believes he's in grave danger and he's believes he sees a weapon in our hand he can shoot and that's what deputy daley said he didn't say i saw a shot he didn't say  now within that you also have the kyle factors which of those seven factors that no one is determined to of it's basically a totality of the circumstances test to determine whether or not the officer acted reasonably  if you look at the individual officers what the sergeant who yelled gun she knew there was a gun in the car she knew it was on the right side she saw her reach down and turned so she said gun deputy daily didn't shoot because she said gun he shot because he saw what he thought was a gun or hand the deputy that broke the window if the woman is not cooperatively say eighteen minutes but you've got to start at the initial stop at any point in this process she could've stopped surrendered and stopped this whole process she didn't do that so it's not just eighteen minutes you've got to expand and it appeared that she was becoming more agitated more we cows are trying so were they were trying to do was get her out of the car to diffuse the situation they had to get entry into the car they had to get her away from that gun now that's what they did thank you mark thank you both that concludes this panel sit