he's worth anderson on behalf of tina smith scantron is missing so it's not know whether or not he'd be past that what does that matter though i mean the kansas city police treated them as an officer and so what does it matter whether or not in that case the counsel on a missouri law somebody shoots at you can shoot back right to it regardless of who you are yes so so getting off of the the qualifications go to the fact of who shot first five times now and at least and you can't really see anything but what you can see there's a couple things there's a first for you can hear him or the obvious repeat lease a gun gun he has a gun i mean i must have come up four five six times over the course of you know forty five second seconds of the video the second thing is you hear two series of shots you hear it initial shot that sounds different from the three successive shots that clearly came from the officer and so while you can't see the gun it seems been seem to be a genuine issue that somebody else fired at least the officers believed believed he had a gun and the words they're not in the heat of the moment are not going to make up he has a gun i don't think and then shoot it maybe maybe that's your argument i don't know  but what do we do with that given that we don't really know from the from the video exactly what happened but to the extent we do it looks like your client had a gun well in that scenario i would say that's counsel what was the record proof as to the actual existence of a gun was there a gun found were there ballistic tests done on the gun and i don't recall the only conclusion that they could there was some on his clothes and they seem to suggest that that's from him shot are now the district court doesn't make any findings on those points or there or not yet actually attempted to shoot the officer when you get to the district court's fact there's nothing right there's nothing about the gun that could be traced to mr smith right or not right it doesn't it doesn't make any turn any determination about whether or not or the weapon well in the magistrate's order though and one paragraph eighteen and maybe this doesn't quite get you know that i mean ask a direct question and i wonder whether on summary judgment remember we're talking about evidence we're not talking about the allegations and so i wonder if it's a problem for your client that there's none of the evidence that maybe that the chief said ted talked about which is was it your burden to come forward at that bench that maybe somebody else's fingerprints were on the gun not not your client's was it your burden to come forward with evidence that there was no gunshot residue on on his hand to show that the gu had never been fired in other words is it enough i'm having trouble concluding that it's enough to simply say well the video is not that clear because you have some affirmative obligation to come forward with proof well enough the absence of evidence could be fatal to your claim i mean it's one thing if your summary judgment motion says they failed to prove an element because there's no evidence from the other side on this particular you know they didn't disprove disprove the but smith the helicopter pilot in his report stated that there was no gunfire from smith and he did not say that it was warning said that in fact  minutes she left that she saw gone seen next to a body in the same location where the office what's your view of the state of the record on any forensics done on that weapon there is nothing in the record on ballistics there's nothing in the record about a shell casing there's nothing in the record about g s r before the court and what counsel was referring to earlier i summary judgment you didn't mention a that stuff well i didn't and i didn't think that there was a need to your honor i thought it was really straightforward on the audio on the video we all know i happen to disagree on the video the crucial thing that and that is the crucial thing here but it's not clear because the video is really grainy and because of the quality of the video that's the issue here but if you look at the video and if you look at the audio that's the only difference here and it is not material to this case whatsoever is when he initially talked to detectives he told them that he says when he pulled up in the car with officer taylor that he saw officers a bit of ecan officer keller chasing mr smith well in his deposition he explained that he actually didn't see that he assumed that that happened based on listening to the audio he heard that it was a helicopter overhead knew there was a foot was getting the forensic evidence that's one of the things i'm struggling with if there was a responsibility was the plaintiff's responsibility because they had to prove their case wasn't the defense's responsibility because the the video was grainy and we couldn't tell you know who had the gun and where and he didn't pass the test or that he didn't take asked the only evidence in the record is a question a leading washed in his deposition that asked paraphrasing from page one forty six as if you have in front of you don't paraphrase because you don't have it if you don't have it don't beach brain just go it is are you aware that you didn't pass the test and the officers response was i don't know what you're talking what i believe that i heard him saying a few minutes ago and if that's the case i just wanted to point out that the witness statements that he's referring to which are hearsay are irrelevant now  irrelevant i notice the district court uses that word irrelevance not quite right correct relevance is pretty broad that is broad ok so so do better your honor you think you're immaterial or some do you think they i don't believe i have anything further of course are ok for what you what is your position the state's position defending the five please the defense position what is your position on who shot first heller's patrol car video you can hear a single gunshot and you cannot see where that note shots coming from but directly before you hear that gun shot you do see mr smith running through that p that you know the first one is not the same as the last three well it sounds differently the timing is differently and your honor you tomo there's no evidence that there was anyone in that parking lot other than mr smith and the two police officers officer a bit of economics or keller and we can see officer bit of that and we know that it wasn't him that shot that first shot we do not see him discharge his firearm when that first but what does that policy provide as to the use of deadly force but the policy mirrors granby connor if the officer believes that he's in for reasonable fear  his life or someone else's life or she is allowed to use deadly force so what's kroger's position or what it was what are the facts that he states that indicate immediate danger to on the on the number of times that he was shot opposing counsel i think mentioned five times that there were you know that that's the number of times the smith was hit i didn't find that in the record i did find the total i believe of eight shots fired but i didn't find the number of times he was at and which ones whether it's up initial three or the later five or whatever is there anything in the record that you can point me to or is it just completely unclear that's not in the record now how many times he actually was shot is not on  but a total of eight but there's nothing in the record how many times in there is there anything indicate which officers bullets actually  not directly your honor but certainly indirectly i mean officer a bit of that shot at him three times and he continued running and that's certainly undisputed and then officer berger suits at him five times and he falls back  certain they have all the case of there's also a chain of custody issues but they really have an open file policy with you she implied there is an open file policy where you can look