a few days ago you are as i sent a letter to the court actually enjoying ten bring to the court's attention the supplemental authority hopefully you will have that in in the trails in front of you that i brought to attention in the case of rosenberg first remark it's a decision of the fourth district court of appeal division two and that's the same division same court same division that issued the adams case upon which we place appellate courts and also pointed out that i'm stating it really to serve as a guide for the court and the question of what the california supreme court would be likely to do if confronted with the question of whether adams extends beyond the context of the suicide scenario and into a situation that is analogous to the case that presently before you that decision  for the shooting activities the court rejected the notion that you can separate the reshooting activities from the shooting itself in order to try to has the discretion and power and the authority to review the issues because presents a fair question of law with respect to facts that are not in dispute and issues but i guess ultimately perhaps it doesn't make much difference clearly you know we are now here on appeal and i guess the question is really whether you have the authority to consider this issue  strictly with state law issues that are appeal raises army california state law issues and this is the duty issue is one that is particularly lends itself to  addressing the issue on the merits because it involves important public policy considerations for the state of california and you know going through to the roller versus christian  construct for analyzing duty every step of the way it involves analyzing it from the standpoint of important public policy considerations and a case like this surely you can appreciate it has a very significant effect on california california government entities it would be a chain reaction a river river looking for a chain reaction of published it's going to create a lot of problems for government entities and the unfortunate part is if you perform that duty analysis it's very clear especially in sell it would it would be extremely unfortunate for this court not to exercise the authority that it has to trust the  cars climbing out the window of this car with a white bag running from the scene of the accident the police didn't know whether there was with or there were injuries or not involved in a hit and run accident course that would be a felony officer pursues not then mr lifton begins making a move asked the officer with the pipe raised officer retreats gets into his car drives way also radio asked for backup the eventual backup arrives they follow mr lifton out into a field again asking him to put the pipe down he still has the pike refused to do so and that point they attempt to use the  on him non lethal method of subduing him after he refused to put they missed unfortunately and he reacts to that by charging after one of the officers who either falls down or it applies in situations where the individual actually causes his own injury which is what happened in this case mr lifton was determined to again this issue was not raised this is worse for the first time on appeal but as we point out in our brief waiver in california immunity argument governmental immunity argument  the state law wrongful death or the cause of action however and it was referred to that there's no possible connection between the you know there's there's nothing there's no evidence except speculation and speculation of course is not evidence of the testimony of the  speculative and that's very similar to the case that we've stated for the court it's just an area where you don't know are you can do this kind of killing and then tries to defend himself and the police shooting death because he raised the pipe over his head now wasn't it a foreseeable consequence of handling it in that manner that he would try to defend himself and thinking at the time well juries do that all the time i just can't imagine that the law in california is as you say it is a read it to me and i maybe you'll change my mind but you say that then i ask you to read it and you can find it well it's resisting arrest and therefore would come under the ambit of this immunity potentially to be resisting arrest in california you have to willfully resist arrest and question never went to the jury added advena issue that would have to go to the jury we certainly would have exclusively by the defense thirty percent was caused by the plaintiff this is an interesting situation it's never been there there's no controlling authority in california about how you interpret eight forty five point eight when it's comparative  it wouldn't be cited will it really should have no persuasive authority at all furthermore there should be no need to try to predict how the california supreme court would rule because the court has already ruled on this issue of other negligence claim established and even more recently in the loop to case the california supreme court again applies general negligence principles to police conduct in the course of this and said along the way the police of the should be treated like any other only if there is no precedent or convincing evidence at the highest court of the state we decide differently would we need to provide state law and that's what this court is bound by there's no need to even consider rosenberg or adams for that matter this history of that provision whether there was an implied intent to create a cause of action or an explicit intent i'll agree that there is nothing explicit in article one section thirteen of the california constitution creating a cause of action issues it's much too it's much more than then even what the court was pointing out that from common sense it does make sense that the police are cornering a person who is irrational massively ill that they may lash out  tactics when dealing with an emotionally disturbed person because law enforcement is well aware that those kinds of people are often lash out and and and cause the police to use force against them when that would be otherwise police you must follow the standard of care and it's for the it's for the protection of the police the public and the emotionally disturbed person the policy itself indicates that it's forseeable that if you don't follow the policy the emotion is sort of a person can be injured that's the whole purpose for it and so from that you can infer  moved in on mr lifton how our standard of care which we're talking about only at that time the likelihood of tragedy moved from a possibility to a probability at that time and how it would be interpreted and to me a language was difficult to parse through any it's taken many many readings and other couric interpretations to get a better understanding of it and that's that's where we were when th violation now after alexander two more courts in the circuit followed it reynolds and duran and furthermore the alexander same theory that we're relying on in terms of what the police did that was negligent in their conduct leading up to the shooting their failure to follow this general standard of care which even their own training recognized amendments under rule fifteen c after the trial the plaintiff requested that the court allow and i meant to add the state constitutional claim that we had voluntarily dismissed right before trial because a federal crime was going to go to trial and we thought it would be redundant the whole issue is whether an ad party would be prejudiced by it no one would be prejudiced here because back claim was the federal alexander claim was not kicked out into the very end of the trial at the close of the evidence that's the exact same theory virtually  that case our decision founded on reason and truth gives to the individual no more than that which the cassa tuition guarantees them to the police officer no less than that which as law enforcement is in titles and to the courts that alexander as limited by duran's to hold there where an officer intentionally or recklessly provokes a violent confrontation if the provocation is an independent fourth amendment violation hugh may be held liable for his otherwise defense of deadly force that's intentional reckless we don't have that we don't have an independent fourth amendment violation like you did in alexander he broke it they busted into somebody's house without a valid one act there was the initial forty minute violation alexander is not controlling at all there is no excessive force