officer involved shooting it's a case involving a decision from the shooting and again we have a cruise versus city of anaheim situation our position here is that the the court again did not properly apply across the court found four different instances of what the court seemed to indicate were inconsistency one that lopez not had done his pocket so why would he keep his hands in his pocket his right side was facing officer wald at the time he's fired a weapon which may raise doubts as to whether walt could see his left hand due to his body position the three officers refused to answer with respect to the no gun and cruz not only did he have no gun there was no reason to reach for that gun and crude i suggest does not stand for the proposition if there's no gun automatically there's  and consistency cruz said was there was no gun and it made no sense for him to reach for a gun in this case we have i'll start with the number of reasons but three of them that i would present to the in other words when i'm sure the courts where when the shooting come from anyway we don't know right and wall didn't do that inspection the officers that did then inspection we talked and they i don't know that's in the record but any event they could get out of my question ok let me ask you a factual question were all these three officers were essentially special weapons and tactics officer correct and they had all i was trying to find out what information the officers knew at the time as to the background of mr lopez whether or not he might be our yes but the information that had been provided by the parole officer  there sergeant came and form he was at the briefing he came in informing them of the information they had and while they were at the scene they were in a van they were at the scene they were continuing to get any information the would have a pistol and even have it in just pocket he didn't say left pocket but he did say pocket he knew that he was at that particular address he knew that he belonged to kevlar on their own yes kevlar on their way across all carrying machine guns yes i never saw a gun no they did that i still want to get the finisher wunderlist member he was a they were the gang he belonged to was a violent gang that they use weapons and were willing to use weapons that  he as i recall that may be basic information that they're staying at of the same apartment fifty eight which also had a sawed off shotgun and a k forty seven and it they knew that going down the hall yes not after the fact they knew that going in well actually as a fact there was only the well i think the fact was that i had been reporting to them is that right ok they had that his his father was also living there and was a a gang member as well oftentimes of course where these people who have these drugs get rid of them that they can so pick it in scott testify at the low hearse was standing when he was shot correct and that's clearly well i'm going to try to answer your question this way your honor when a shot he was standing when he got shot he wasn't standing so there were two volleys and we don't know which i'm going to if your machine you're on a  knee the suspect slightly bent his knees there were three are scares me to burst the first first hit the east wall do we know that that that was the first one well that's what the expert says and it makes sense well i agree it makes sense so go ahead but what you're saying but i'm not sure i really know that so going out again for the best of the evidence the first burst me a miss and the one reason they say that is because the first person the shots were along the wall at his high flavell yes i know but the other three shots were down luck so it doesn't make any sense that he would have missed with the second round being hi go ahead the of the bullet still approximately zero point seven five per bullet that would not counting the first shot counting just the second two shots that b point one five seconds the expert second in that time and again the expert talks about when you hear the shots go off and so forth you're going to automatically voluntary or involuntary you're going to duck or move or do something and in doing that second which gives him according to the expert anough time to move his body to get in a position where he was shot not even plaintiff that that's why you could win that's why a jury could decide you're right that's correct yes but a jury would have to but there's no there's no evidence there's the jury could also decide right and this is was what's important i think to me if you could help me out the first person in this line of three officers the one who pulled the trigger are going to argue that it was going down to his right and we can't how if he was ducking now we can't or if he was starting to comply with the order that the defending him and giving him which was to get that right  we don't know that we don't and that's the point that the question isn't whether he was compliant or not so so counsels if i can get my question so is it is your argand that's right is your argument that even if the officer who was first in line was wrong he wasn't unreasonable in pulling the trigger when he pulled it yes and let me explain if and i'm sure the question isn't whether or not he was complying we don't know the question is whether at the time of the the officer shot whether it was reasonable from his perspective he's not in the position of knowing what's in the mind of the the the suspect was a reason for that officer to believe that his life was in imminent danger under tennessee versus right and this is why it matters so much to me that one of the officers behind him said that he could see the left hand and he could see it for between five to eight before the shooting well not well but what he did was say he came out of the apartment then thrust his hand back into the just because he was never in the apartment he came out of the alcove is what human right turns of because the doors lock so he turns away with his hand back into his pocket and that is not what the officer behind said but if you did could you give me the record cite i can't give you the records that you know what exactly were these three officers who were wearing military grade body armor are afraid or they're afraid that he was a little perspective wall testified that he had a very similar situation some time back when the individual his hands in his pocket  was was digging tajik he chased that individual tackle them and lo and behold he had a weapon in his pocket coming back to this see what they were afraid of this fellow was known to have w supposed to be carrying of a pistol they were convinced he had a pistol they were convention that he was a gang member and would fight he would then comply from from the very beginning of this incident down in the up stairs he didn't comply when they got into the by meaning he didn't stop and then stop and the direct right front so when he stopped and they said all right said he stops keep his hands in his pockets there's a weapon in there at least these owners are believe that it is he raises in hand his right hand but he does this this fellow's been in the system for years he knows what it means to get your hands up and get that you get your hands up and you get down his hand his pocket kept the right hand in close they thought he was trying to hide something and instead of getting down he they thought he was making believe he was going to the ground because he didn't go directly to the ground stop and turn very slowly and they thought he was trying to check out and see where they were now does it make sense for that hint of the do that that's what the oscars see and we know that it's his explanation for his actions under cruise you want to take into account the circumstantial evidence of direct ok so counsel if you could get back to i think it matters that the officer at least one of the officers behind thought that he could see the left hand out of the pocket for five to eight seconds and i don't want to belabor the point but i've got that here on e r three six seven and you're telling me is this the place in the record that if i keep reading and reading which i've been trying to do here that at some point he's going to say he saw the hand go back before the shooting well i'm sure it was officer scott or the third officer who was raising his rifle to fire and said i would have fired but for the fact that officer while boy is in the line of fire both  scott that they were convinced that this individual was going to turn around and shoot all three of them were and these these individuals by the way are highly trained and i won't go into that i'm sure you know it's  group meeting they had the next day where they told their stories to each other then what was it what was the this technologist because they felt that there was a privilege but what purpose psychologist they were talking to a psychologist is kind of a a like you just any other person sought to a psychologist or treatment and that's partially what it was as an individual scale to this so this psychologist was representing all three of these  it's not an inconsistency with respect to the event i was just trying to understand what the point of these you thank you thank you very much are now part of it i had an opportunity actually via videotape to watch the two arguments yesterday and of course i've seen the one before and let me respectfully submit that it is not necessary at least in this case for the court to pour through of a human is factual record with one hundred fifty pages of ballistics deposition testimony and one hundred pages of contradictory ballistics reports diagrams and analyses of the case of johnson versus jones as the supreme court case it says that quite properly under qualified immunity officials who are being called to answer for behavior that is not clearly proscribed under established law have a right to an inter appeal on the issue of law the issue of law and whether it's clearly established with all due respect from beginning to end in this appeal we have been debating not the relevant issue of law that is the only thing on which the two parties in this case have agreed we have been debating facts but under johnson versus jones this court does not have jurisdiction to a factual before and you're not suggesting are you that that summary judgment can never be granted on qualified immunity grounds in these types of cases no not at all not at all what i am saying is this judge injunction versus jones the issue was whether three policeman did what they were alleged to have done and there was a dispute the policeman took the appeal and they said well we have a qualified immunity appeal we didn't do it we didn't do it and the supreme court said more than two decades ago when your defense is not the law was not clearly established and therefore there was no norm no rule which could have guided our decision but we didn't do it then you don't have a right to invoke the appellate process and go before the court of appeals because the  of appeals exists not as a three person trial jury not even for the review of the issue of whether suffrage i think was properly granted as a factual matter they exist to determine whether or not the law was clearly established now judge curial in this case said exactly the point that was made which is you know what that we had testified that the officers version could not have happened that he could not have been turning to his right big head because the agle of the bullets was such that i knew they were going left right instead of right to left which would have been the case had the officers been correct second he could not have been standing and i'd like to explain this if i could the officer wall is standing he's has his knees bent so is five feet eight has a machine gun an impi five machine gun and he's aiming it like this he says almost parallel to the ground at the bullets in the body of the deceit and i hope you will forgive me but the bullets in the bottom of the deceived were back to front but they were within the body they were from below up to the top so if somebody standing up and he's shooting like this it's not going to go from below to the top as a matter of fact the two chest wounds of the two wounds one started twenty two inches below the top of the h and comes out the front sixteen inches so it's got it a goal like this an upward angle unless that officer were on the floor looking up shooting directly under you can get that angle the only way you can get that angle is if the torso is below the level of the machine gun and our experts said that it was consistent with his being down on his knees with this force of all him around that would explain because the bullet in the head goes in the back of the head and blows out the front part of the  bullet that's lower rises seven inches and then there is a third bullet that goes in as i recall seventeen sixteen and a half inches lying i would say they did something very close to him executed now they have their explanation and apropos of that their explanation relies on the claim which cannot be scientifically supported that the first three shots missed and there after the next three shots it scientifically there's no way an expert can say what happened was the testimony here that the officer had placed the selector switch on a three round burst or did he pull the trigger six times you know that the plane is that there were two bursts and that it was on with a weapon are you not pay for their ok has a selector switch you can fire either semi automatic one round at a time of three round burst or full automatic and did the officer testify what setting he had placed the weapon on my recollection and i don't want to swear but my recollection anybody ask yes no no we did but the contention was and we didn't dispute this the contention was that it was on foley auto but that there were two tapping and the presumption or the operating assumption was three bullets but each tap so that the testimony was it takes fourteen one hundreds of a second to go like that  quarter of a second to do it again and so within about half a second all those bullets were gone if you bet your eyelashes four times that's how long it took ok and so the other thing i need to correct is this our expert did say that you from a forensic point of view you need to look at the evidence of where the bullet strikes were on the wall the mrs council has misstated in the record and his brief throughout the level of those shots because wald says i aimed and i was aiming at the center mass well if he was aiming at center mass center mass for the first misspoke it was three feet five inches from the ground and for the second miss bullet which is labeled be on the wall it was two feet two inches also consistent with firing a gun at a man who is kneeling on his knees with his torso in a downward motion toward floor now and whether i'm right or hit him he's right is not for this court to determine the district court judge made a finding a factual finding that there were sufficient disputed facts that a reasonable jury could agree with our position if we're right and they shot him in the back while he's down on the ground we went if they're right and for whatever crazy reason drugs lunacy self destruction or maybe as in the cruise case his parents started to fall down at the most inopportune time but if he put his hand in his pocket and was truly turning in a manner that made them think they were going to be shot they're going to win this case but they have no right to the latest case for two years to delay the resolution of the case for the widow or the children this was  case where the rule of law the qualified immunity issue was never ever in dispute between the parties tennessee versus gardner and all the cases after and this is exactly like cruise and it comes down to that i'm not sure that's totally right though if because the jury on this evidence if you're correct that these material facts are all in dispute in a jury's going to have to resolve them a jury could find that based on what the officers knew about mr lopez's background and crediting the officer story that they thought he was going for a gun in his pocket then deadly force would have been authorized as a matter of law and the jury i assume will be so instructed if if they were told if they find is a fact when he was told stop get down that he then fell to his knees and was in a forward motion toward the floor and he never put his hand in his pocket they could not make such a signing if on the other the jury except that your ballistic testimony they never could have made such a fine that that's right if the jury except now they have their inherently credibility determinations that the your argument is only the jury can make that is correct but but i guess the question i'm really asking you because it does seem to me from this record that the jury could go either way that they could render a verdict in favor of the office depending on what the facts are but what i'm saying is and if i could just as the court to please look at johnson versus jones because it's really not been put into practice and it should we have a motion i don't mean to be churlish to counsel i've known him for one hundred years but we have a motion for sanctions and even if the sanctions are only a dollar a ten dollars i ask you to impose them because this case from the very beginning was an abuse of the court's jurisdiction this court said now learnt to read enormous records and figure out whether this bullet monk was over there or up there that's what johnson versus jones says it says that the essential competence of the court of appeals is based on its institutional knowledge of the law what is clearly established and what you want to declare the city of appeals for i do i understand your your request and the reason i do is because the briefing itself shows if you just look at the briefing the briefing itself shows never ever ever did they say oh the question of what rule applies is in  know the rule was the only thing the rule of law thing established law was the only thing we ever agreed on in this case it's the facts and only the facts were were in dispute and johnson versus jones  these this court has no appellate jurisdiction to determine disputed issue of fact it's the district or the sufficiency of evidence for the district court's determination that disputed issues of fact precluded summary judgment now there are two situations in which the review of facts are tedham out two issues of law one is if the district court relies on a fact that is material that is itself an issue of law and second if the district court in applying a legal standard to the facts applies and erroneous legal standard then the court can review a centrally the factual undergird but on the essence of it on the guts of this case who's telling the truth what really happened johnson versus jones says this if the issue that you want to bring to the court of appeals is what happened as opposed to what is the law what is the rule what is the norm that applies here court of appeals has no jurisdiction and your appeal is previous and i i just happens again and again and again just by file even notice of appeal the officers have the right to delay a case two years i do not a written mr earth there's a reason for that the supreme court has told us that qualified immunity is not simply an affirmative defense it is a doctrine which is to be invoked to protect government employees from having to even stand trial or go through discovery yes and judge toman i thoroughly understand and indeed the johnson versus jones court fully understood the important public policy that's involved in qualified immunity i do not quarrel at all with the policy of qualified immunity you do not want public officials to be constantly in dread of lawsuits and to have that  the forthright performance of the duties but then you have to go with the supreme court the supreme court in johnson versus jones in construing the application of qualified immunity says the officer has every right to go to the court and say this law this norm this rule you apply upon me is not clearly established i have no basis to know how do you explain the supreme court's decision that's got versus harris where the supreme court watchers the video of the high speed chase in order to determine whether there's are entitled to me unity i guess i would say that the supreme court would respond a foolish consistency is the hobgoblin they could do it because th t states in his his report the body piece this is consistent with being fully upright and erect and those positions fully prone on the floor came in eliminate as possibilities both experts had the suspect going in the telling and between nobody can tell were he was when he got shot that's that's number one nobody can tell why he was in between whether he was collapsing ducking are complying right correct my problem that's trip but again i said that's as i said before the officer was lost sight of the hand he would have turned about thirty to forty five angles there's no basis for that and that's important echoes to scott  get in the door is locked and when he turned back to defeat didn't he turn back to continue down the hallway the same way he was going to correct yes all right and then officer wald describes a movement he thinks to the right well turns like over they thought he was looking to see where they were doing the tactical physical right and the reason that's important and the record doesn't support their experts saying turn for ty five degrees during the deposition taken of the officer mr ardalan i'd like to read this would be very quickly now also earlier in the day said that mr lopez when you shot him was not exactly with his back to you you said he had his right side to you did i understand it correctly yes was turning towards me well what part of his body was presenting to you at the moment that you chef was it at his side or his back can i show you yes of course at this point now we're in the video deposition and at this point the officer sounds like  as wald lost sight of his hand at approx when he lost of his hand he would have been turning forty five degrees walt said he never saw his hand come out of the pocket so it wasn't because of his body position it was because of his