may place to court here on behalf of officer nicholas holley officer jonesboro police department who is intitled in this case to have qualified immunity because on the record there is no reasonable juror or who would believe that officer holly was not in a fight for his life at the time he shot and killed mr williams on october th first two thousand and eleven unfortunately the district court denied his motion for summary judgment based on qualified immunity and what troubles  me about the case was the reasons that the court denied summary judgment i feel or were not facts of record  but instead were inferences drawn from arguments by by mr williams counsel for instance the judge found as a matter of fact that mr williams posed no physical threat to officer holly but there was no proof of that in the record in the record it was clear that they were fighting there's nothing in the record to indicate that they were not fighting this presents a problem we have in all these cases which is you have the the one witness is deceased to counter counter dick the officer  now did the plane of air rosanna williams did she observe this or did any are there any independent witnesses none ok now then then a question boils down to for the district judge a reasonable inferences from the facts that are known and what speculation speculation obviously can't support it but so what in this room is verdant to is a question is what what are reasonable inferences and what are speculation well i think what mr burton did which is what i would have done to if i ever had her side of the case is i would take any little any little thing i could find and try to convince the court that this is something that shows that the officer was not telling the truth but it and if those things that she argued about would have been facts in the record i think that's fine i think the difference between speculation and relying on speculation and inferences from facts are you know that what's the basic basis of it for it just for instance one of the issues was whether mr williams brief that officer holly forced his way into the house well there's just no i mean there isn't there is no proof of that from anything anywhere it couldn't not even be gleaned from any anything there's not a single word in the record officer holley said i grabbed his arm to put it behind his back to cuff him he pulled me into the house i don't even know if that's a terribly relevant point he had a twenty three arrest warrant he had a right to be there he even had a right to go into the house i'm just saying that's an example of quoted in the opinion that in that he was sixty years old and that holly was young and fit but the direct in the record it's the mr williams with it was fifty seven which may not be a huge difference he was fifty seven he was six foot seven and according to autopsy report he looked in to be in fine shape the judge however says he was in firm and that officer holly was fit with their testimony that he was in that from what she had seen of her dad he had some health issues so there was some evidence or was on there was something i'm sorry there was no evidence however that mr williams the court sided that mr williams tried to taser that he couldn't if he didn't try to take the taser from the police officer because there were no marks on his uniform implying that if you if someone put a taser to dr stern on a police officer shirt that that would leave  marking but there's no proof in the record that it would or it wouldn't know the words we don't know that it would or wouldn't we just know that you know that that's they are that there was she relied on the court relied on the autopsy report for a couple of things that were facts that she that the court called facts what i had to do with the distance that the shots were fired and the basis of that was what's called stippling  on a bullet where and that the medical examiner said well normally if it's a shot over three feet away there won't be any stapling remarks but there could be but it a shot closer wouldn't leave those marks either if it went through a barrier like clothing so it really is no proof of anything as far as the distance and besides that officer holly testified that all of my shots were about within arm's reach so you know three arms length is probably about the same thing if there's not a lot of facts and they're going to ask you a question about the evidence on where you were just talking about the marks on the shoulder when when he tests when holly testified that the stun dr stun took effect on his honour's probably aware from here in all these cases there's different types of tasers but what he what this was referred to was a drive stand where he'd already shot the proles he'd already shot the taser at mr williams so all that did all the thing would do anymore was was shocking you know put it up in shocking so what you're saying is it would not be what drives dunn means it was just a shock but there weren't the problems that would or it would have been remaining in his arm  correct and finally and most the most upsetting i think for me is the court's finding that all of this could have that had reasonable jury could find that all of this could have been prevented you know but if the offer had if the officer had done things different ways w call for said he did he did say at one point he testified at one point that he did try to call for assistance but his call his mike didn't didn't work it didn't the called and go through but was upsetting is that that that that language from the court cannot stand back from quickly evolving situations in and sit there and decide you know what would be that what would be the how would it look best in front of the eight circuit you know three years from now what should i do they have to have to react quicker than that this was a fight between to me and over again on the gun was hailed by the officers head there's nothing in the record to dispute that the court just simply felt like that it should go to the jury but that defeats the purposes of qualified immunity and there is no case from the eighth circuit or any circuit under the fat under those facts with the police officer and i resistant arrestee with with outstanding warrants when a gun is held to a place officer said there's never been a case in any circuit where a police officer was not entirely qualified immunity if he was he shot somebody under the circumstances that is clearly established constitutional law he he didn't violate any policy he was trying to save his life and he was justified in that and just because there could be other facts that we'll never know because somebody is dead cannot allow for that to be overlooked and i think take the evidence and the facts in a lot more favorable to the apollyon mr burt or mr newell's accusing is asking the court to just simply take the officer's testimony without looking at all the other circumstantial evidence and as the court said in scott the you can't simply look at the officers testimony because it's probably self serving because the person most likely to contradict that testimony was shot and killed you take a look at all the circumstantial evidence and find and see if there is enough there that a re could find that he acted and recently that you heard me say earlier the problem is there you only have one person one side of the story but you still you can draw a reasonable inferences and the question always is is a reasonable inference or is it speculation so why do you go through your other circumstances and and tell me why it's reasonable inference and not speculation ok first officer holly i'm going to go start with the holly grabbed his arm and mr williams pulled his arm back and officer holly says that he got he got pulled inside but he also said that he could have easily let go of his arm because mr williams had no history of violence there is no reason to think he posed a threat to  at this point to officer holly or anyone else in the community the other problem is officer holly violated a lot of the jonesboro police department's own policies and procedures that were put in place to protect both officer holly's rights and mr williams right for one thing i mean he starts off violating that he never checked after leaving that apartment to see if the warrants have been taken care of and they make a lot a big deal about there being twenty three warrants but they were for four misdemeanor charges in contempt of court stemming from that baseball or softball indention into the plaster of the door frame and officer holly testified that he just couldn't get mr williams arm behind his back so officer holly stepped away and i asked him i said at this point what was mr williams doing he said that he put his taser out he deployed taser and i still couldn't have called her back at that at that point and he said yes i could have but he chose not to again and the problem is another part of the jones where a police department m says that the amount of force an officer may use must be based on the surrounding circumstances including the feasibility and availability of alternative actions in officer holly testified several times that excessive force but you've got to have something that tells warns an officer that he's got a call back up and similar type circumstances i don't have any case law that says that but i would say that he was aware that he should do that since his own department's policies and procedures said that if he has that option available he should use that instead of using force there is a case law that  that overturned a qualified immunity summary judgment decision because the officer escalated the situation and i have it cited in my brief and i do not have it off the top of head but it is cited in my brief and that's what officer holly did in this case he was a cowboy he liked he use force and his taser more than anyone else on the police department and on this day in question instead of choosing the veil actions he engaged in conduct that was an reasonable and led to  that mr williams never struck him he never attempted to strike him off charlie doesn't even say that he tried to take the gun away from him if you look at just offer officer holly's testimony he said that he had his hand on the gun well that's because officer holly had the gun stuck into mr williams abdomen and if someone had a gun stuck in the mind i try to get it out to the testimony is that from officer holly is that williams never grabbed for the gun or tried  to get the actual gun until after holly had taken it out from his holster and put it up against him correct so is there any testimony from officer holly that williams was trying to get the gun from the holster on his none whatsoever there's no testimony that the only testimony from officer holly that mr williams did anything was that mr williams took the taser away and tried to use a taser on him but officer he can explain how he got the taser or how he was trying to use it on worked what's the testimony i can because i couldn't i couldn't piece there was a gap for me between the tasing incident and the couch it almost seemed like there was the tasing incident and then suddenly the both on the couch is that a gap that i've overlooked or is it truly a gap in the testimony it's a gap in officers holly's testimony in as judge riley pointed out we don't know what happened because they are the person who could have maybe filled in the gap instead after all he can't explain how williams got the taser or how he just officer holly's testimony he even says that even though mr williams was on top of him he wasn't trying to hit him he wasn't striking him mr newell tried to say that mr williams was physically fit he was fifty seven he had diabetes heart problems and a bad back and that's from miss williams testimony and from the autopsy report so it's not just the da his daughter's testimony that's the medical examiner's testimony as well and i also want to touch on a he found he testified that he found no evidence of shots closer than three feet except for the ones on the hands and the ones on the hands could have been made and did fence of posture and dr di also testified that the ones on the back of his arms could have been made while trying to protect himself if you take that view that in a lot most favorable to the apple e if mr williams was more than three feet away in a defensive posture he posed no threat to officer holly and that's what the judge was looking at in the district court  lot is that he were taking his testimony and he went home and took a shower and it doesn't line up with all the physical evidence and he doesn't have explanation for everything in just the physical court to uphold the decision of the district court in finding that a reasonable jury could find that officer holly acted and reasonably ok thank you and should newly have a little bit of time believe i was trying to count the number of times that counsel used the words could have or might have or you know this might have happened and i think that's what the court might have been looking at but the problem is there's got to be facts to meet the facts that were were portion of the opinion that has to do with the summary judgment standard which your honour's were well aware of the problem is in this particular case the district court cited it in the portion of her opinion talking about whether or not there was a constitutional violation and so the reason that it's terribly important is because it because the court takes this seemingly benign language and now it's inserted in the part of the opinion that says that for him in a qualified immunity case the district court is essentially free to disregard the testimony of a police officer if there's no other witness there and simply go on an exploratory mission to find out