get more complicated that it needed to be but this is a very interesting procedural matter i'm sorry that all the trial practice students are here for this is a twelve b six motion after the  dollars motion was filed then the district judge was provided with body cam videos or whatever they are videos then the district judge ordered the videos to be given to plaintiffs and plaintiffs receive them then the district judge ruled referring to the videos so it's become a summary judgment not a twenty six dollars motion and yet the videos aren't that you be allowed to supplement with authenticated copies of the videos reviewed by all parties before submission to the court so this is matters outside the record and i just don't know where we go with this normally if you don't provide something on the record we can consider it but you have the district judge relied on it and his summer judgment ruling so what's the solution here the solution on a you pinpoint the very february th that video was delivered to the court only and it was not a part of the record in the sense it was made a part of the record the judge was departing the court of those videos and you said to the court we can't even see these videos and so he ordered them to be provided with a copy to you could be yes young and so where we are two days we challenged the authenticity of the copy d from counsel move back and forth as we sit here today we do not have what we perceive to be an authentic copy of the p d f to produce to the th circuit or to produce  wind in fact prior to us becoming involved in this case there was another version of the same videos that are in dispute so we as we sit here today we don't have an accurate copy sure and the reason why we don't know that is because only a copy was tendered to the district judge on that particular day and a later date when we complained about the video we actually  see we received another version of a video and your brief on page twenty eight you said you had three copies prior counsel gave you one the defense gave you on that didn't work and then on february rd you received the one the court used in it of the three video is that in correct desk partially correct but we're not sure because we have not been able to compare in your complaint you're actually citing to the video with a specific date stamps corresponding to mr hayes as body cam and visit mr salinas yes you also so you have a video that you used to off of the complaint yes your honor and so the court has dealt with this issue extensively in the context of described what you thought the difference in content was between the version you used to write your complaint and the person the district court use so so there's an allegation of you know authenticity that didn't seem to have been pursued but what is the content difference between the one you use and the one the district or allies on that you also receive the content difference is force i q to is that there is on the driver side of the vehicle it is not clear all of the communications that transpired between officer selena on the passenger side of the of the video all of the evidence it's skips so much that we're not certain what communications were transpired and so we don't have all of the communications that occurred the lead up to the fashion but i guess if you do if you do if we just look at your complaint around four thousand and forty one to forty seven of the paragraph it seems like you're accepting the district court's description of the video that mr hayes didn't know what your client was reaching for in his pocket that that's an undisputed fact you state that in the complaint i think but correct me if i'm wrong you miss that officer haines didn't know as he's saying get your hand out of the pocket he doesn't know what mr allen is actually still reaching for is that is that an undisputed fact  it but if that is then what law would we have that wouldn't allow him to use deadly force when a passenger is reaching for an object in their pocket and the officer doesn't know what it is but he's saying don't do that th e best case the best case we have is a case i mentioned earlier the one hundred b cold case where there's this notion of fabrication of evidence and where we have well i mean we're we were well familiar with to put it in terms of the way judge hughes put it had no way of knowing what was in alan's pocket if that's an undisputed fact that he had no way of knowing what was in the pocket what's the best case that would prevent the officer from using deadly force the best case would be i believe tennessee versus gardner ok where it's a court is well aware you know isn't toff i would think it would be perhaps more like the manis decision which is the one that i think the defendant cites as their best authority opposed to a consistent movement you know we have an alley and then does one thing one consistent thing al and this is his it's here in this pocket reaching for reaching for he has his hand in his pocket reaching for what is  not see what right but that's why i asked you at the beginning i thought your own completed knowledge with the just were found was that officer hayes just didn't know what was in the pocket he couldn't see either and then things are very fast moving  he saying don't stop get the hand out but that sounds right but what he could see was not what he described for that's true and in what he described it's very very very important with initial disclosures was to video in an affidavit from the officer saying that the individual had a white handle gun and there was no white handle gun because each officer  in your brief at six you say a gun was found in the vehicle weeks later while in police custody and then in the reply at nine you say it was a planted gun now what point is that based on this based on what we saw from the video you never filed apparently never filed a motion for that video to be part made part of the record we don't have the video now and i don't know where we go from here young or that is a variation we can play because we didn't know that's a ya know we have do you mean medical delaying the now the medical or the let me just due process issue what i hear you saying there is that this i mean is not right for a decision because the record hasn't been worked out  is that or is that what you're saying that's not quite what we're saying what we're saying here on or is that we should be remanded for the trial court to allow the discovery to take place no deposition of the officer was permitted we should be allowed to do certain things that subpoenas we should be allowed to conduct a reasonable discovery it least limit it even if it's limited to the issue qualified immunity  what would be the material factor speed that we would see in your view that would lead us to say no there is a material fact dispute summary judgment was not appropriate the material facts would be no gun present drop the material fact speak no threat reasonable threat no threat to the officer or your stating legal conclusions what what's the material fact is the material fact dispute is whether or not a reasonable officer in the position of mr counsel you need to clarify this video a situation however i've never seen anything like this in my thirty years on the bench that the video was provided to the judge instead of being placed in the record you and where do we go from here your honor let me let me start with the st one i'll have to write down so i don't go blank and that is may please the court and do my best to answer your question i really don't know where we go from here i do know and i i do know that it is the appellant's obligation of course to bring forth the new record that is required to reverse and without this video here i don't believe that the video can be a basis for the revers i also don't see how there can be the absence of the video could be a basis for the reversal and it seems to be that the complaint is about metadata around the edges of the video that gives the council mean i'm just surmising here what's the difference and in the activity it shows and even if there were not a video even if there were not a video and if both sides acknowledge that mr allen reaching in his pocket after being told not to do that what is his hand i mean the what is the video shows his hands in his pocket and at that point officer hayes says don't weaken your pocket what would a driver then do with the hand already in the pocket you at that point what should you do what a driver should do at that point is say yes your honor i want to extract my hand or some such words and i'm going to slowly put my hands on the wheel and what we have is officer hasan's statement that he continued to do this this is similar to manage the loss of course there are some little differences here and there back in the procedural issue would you as i assume you you provided the video because you believe it shows your officer acted objective lee reasonably we did and therefore would you object to a and therefore we would have it before us i have no problem with that your honor i think that the best way the court can ever resolve any any case before is to have the same information t certainly to have to have everything then the difficulty that the lurch out difficulty from this case is i take it officer hayes's the affidavit is absolutely clear he sees the gun and i assume you'll tell me that the video that you've review shows of course there was no gun so why couldn't district court judge hughes write the very short opinion he did and mention the video threatening situation but never mention the inconsistent testimony because that inconsistency is not a material one here is one and a very a very good reference case for this the cells are limone the city of houston and officer thompson from this court from a few years ago about sixteen or seventeen and just to give a very brief description of that at nighttime a traffic stop on a freeway officer attempts to to arrest mr salazar who was driving drunk and cells are  some physical contact with him and then starts to walk around the other side of his truck toward the passenger side of the cab where there were other people in the cab the object him had an opportunity to to search cells  or the other people in the truck cells are told him stop stop the man kept walking in and research arm down here and and in that case here's what i'm getting at that's just the set up there was some dispute about whether your you're going to lose time i why isn't this just we look man this is for the circuit law yes but man is the gentleman is reaching under his seat indeed and that's not where people put their wallets with their driver's license the difference here is on the passenger side tragic that the driver's side window wouldn't go down but also he sees are the fellow reaching in his pocket yes it's not under the seat rise drivers do think you've got to give your driver's license to the officer and that might very well have been a reasonable thing for mr allen to have done however this could be a mistake of fact in perceiving the situation remember this is in the dark at a quarter to one at night and when the officer instruct someone is an illegal directive the best thing to do is for the person to follow that course it is but that's not what we're place with now i want to get back to the to the procedure in this case and so yes that seems to be what happened i don't know how it is that it couldn't be in the record i don't i don't understand why it isn't well it's interesting in their brief they requested the authenticated video and you don't respond to it in your in your brief about why shouldn't be here or what you can do or anything else i mean there's just silence and it's deafening well ok they have a video obviously and they relied on the video with numerous pages in there in their complaint and in their response to the motion to dismiss and so they were relying on a video and so asking for a different video without identifying what they think the problem is here is is just not relevant i mean we don't we don't have a problem if the court sends it back and when you've got the video so let me just ask you are the following to prop statements of fact by judge hughes consistent with the video if we get something that number one alan stated he was getting his wallet and press the accelerator so the video will reflect that the gentleman steps on the accelerator yes ok the nd one is allan told allan hayes told allan several times to stop reaching into take his hand on the wall allen did not see the video will confirm the officer several times said stop reaching but instead he keeps reaching  this is it well to be out there i'll just say i'm not sure why aren't you sure well because what's material here because i focused on what is material in the material thing is he's got his hand in here whether even if officer thought he saw a gun and said i saw a gun and it turns out not to be a gun that mistake is not material that's why well you know you know i mean in the in the recent a recent decision called you carson are you familiar with the case of baker versus putnam yes ok now in that case you have an officer approaching a man who's sitting in a car the officer had a reason to believe there had been a shooting and says well there was a shooting at suspected this guy might be the one guy reached shot you know i thought it was established circuit one in the circuit that created a fact issue and qualified immunity for the officer there not because it was unclear whether the guy had a gun or not is that established community what matters and i've cited some cases in the region say that what matters including massive losses and what matters is the appearance of having a gun that it objectively appears to the officer at that time that he has a gun even if he doesn't so even if officer hayes was mistaken and saying i saw a gun it was a guy say i saw a white hand one a white handle there was no white i'm a gun there it's a mistake which goes back to why i was talking about bar alone turning left or turning right and this court said in a footnote it doesn't matter if you turn left or right mark turning it all so that just that factor skewed was immaterial because what mattered was him moving his hand down here he didn't have a sales or limo didn't have a weapon either and he was shot in the back as he was walking away but officer thompson that case was entitle qualified immunity now there are other surrounding facts but put to the point is you offered the video that the district relied on you characterize the video as one that shows him resisting the order region in reaching but we don't have that video i think we do have the record yes we do have it the affidavit where the driver continued pulling the gun out of his pocket and then i observed him bringing his arm up with the gun still in his right hand well of course that would be a circle man a situation he could shoot a measure of course so that but you acknowledge that that's not true we have video of it is that disproves yes and we don't have to rely on that be true but how can the district work credit something we don't have to aren't qualified and indeed but what we do have you're telling us is factually incorrect which is what the officer said was why he destroys just  because the district court did have it i don't know why it's not here how is the affidavit in the record when you file the twelve the six motions i don't know how they are dates in the record i know that's disturbing your honor i came into this way way long after these things are done doesn't that's that's that's really not a very good excuse and you're responsible for your case so i just don't know what we're going to do but i don't have a problem the city doesn't have a problem if the court orders the video to be supplemented that seems like it would be the appropriate thing to do and then view that and and decide but as i understood it the video include not just the video the camera of the incident but also some other items including the affidavit i'm not understanding that the video includes the affidavit understood there were several items included with the video and i while i don't know i don't know either your honor again my focus on this is on what's material here which counsel for plaintiffs has agreed that he was reaching in his pocket and that there was no way for officer hayes to know what he was pulling out his plausible though given the broach the fact that the driver's side window wouldn't go down that as the officers are going to the other side he's thinking i've got to get my i d so his hands are already in his pocket it is a bit of a police officer yells that you stop reaching in the pocket and i don't know what anyone can do at that point to comply because your hands already there if you exactly what you said is very plausible yes and this is where there can be a mistake of fact in the situation and qualified immunity covers that maybe another way of thinking of it is you're familiar with the scott case were just th says look we've got allegations yes you can we have a video right now and it was reckless driving and essentially the opinion the courts have look at the video so clearly contradicts what the allegations are one of the blind ourselves to what we see in the  the parties by agreement can get something up to your court if you don't know them from my standpoint if you don't know the facts that are in the record like the affidavit i'm not sure there's much more you need to tell us at this point but maybe there are other questions that know ok well i think again yes you're this is a twelve a six motion right suddenly it's charron change to a summary judgment motion and yet the defendant who filed the twenty six motion didn't provide materials to make a summary judgment motion family then the materials were somehow or other taken by the court and used to convert it so what's the solution to that other than you keep telling of the fact one peter that he told don't stick your hand  don't we have an obligation as an appellate court to try to know what actually took place yes yes and and if it turns out that i'm wrong about this of of officer shootings on appeal and i always always take it very seriously someone has lost his wife or been seriously injured and we should the court should have everything and know the truth this is why i have always consented to motions to reinstate the appeals have been dismissed sure let's let's find out what it is and do it now my understanding and my belief about this would you go about working with a plaintiff to provide us the some documentation of what should be in the record so we'll have a complete record if the plentiful just you know confer with made about a motion to do that then i'll say certainly let's let's get it to the th circuit i don't want isn't here anyway so i think that that is the plaintiff's burden to do that and the appellant's burden to get that this case should be decided upon and that there was an actual mannus at that occurred however and the man is case it actually details other cases along with him in this case why in those particular cases the co found that the officer after reasonable although there were no weapons in those cases now and in this case how it differs is why when there was no gun found in this case however the officer and like the assumed see the video that my creative fact is absolutely immaterial material fact issue as to whether the quality of the act of the veracity of the officer absolutely and so i believe that judge barks i was talking i think he described as a video and i understood what you were saying as far as the other materials on the video was actually a disk that had that included the videos along with other materials they were initially disclosures that were designed to be presented to the plaintiffs at the initial conference so it had over hundreds of documents on that  along with the videos so i'm sorry what did the destroyer designate either sign is the custody in of that there's no no it just collected he intercepted the dist that was designed to be provided to the plane of that date initial interrogation room and in that room she we believe under pressure stated yes there was a gun and i saw it except her as soon as she was released from custody she recanted instead there was no gun and this did not occur so we don't know why there's inconsistency with her statement but i think that we can almost agree with judge hughes on that that she discounted herself by having contradictory statements as to having a gun and not having a video that you saw when you wrote the complaint does it contradict this statement by the district court when he's arrived at the open passenger side window he saw allen reach unprompted into his pocket and told him to take his hand out of his pocket and stop reaching that's correct alan said he was getting his wallet and pressed accelerate along with the brake that's correct he said take your phone off and he said no way of knowing what was we don't know what hayes could have known in the court has no way of knowing with haste could have known and hayes did not ever say that he is or you lead a student he's couldn't have seen what was in the box i don't agree with the well i agree that he can see the shape and form of the pocket and that the pants were tight and look actually fit in the pocket and then the low throughout he was the statements he told down several times to stop reaching to get sand out of his pocket alan did know that it's true that you know what's your case that the tragic as it may be if if someone insists on reaching into their pocket for something that no one knows what it is and the officer says stop and you say it's true he kept reaching what's the case that says clearly establish what does not allow a police and i want to just be clear on one thing that we would ask the court does decide to collect these records and they it actually should have been a part of the record to begin with because we asked for the entire record to be submitted to this court and it would be  these this evidence would be used in deciding the most if not i've got a final question for you we keep talking about this conference where the the cd was quote intercepted by the court was judge  with the video evidence that was before the district that's what i hear i've also heard the discussions about the lack of authenticity of the video i'm not telling the parties what to do but if there if there's one agreement on what the video ones before they just report i mean we've got a serious problem we have to know what the district court and if i can add one thing my co counsel was alluding to we have never seen the disk that was presented to the