between judge cards and judge vincent brown says two white guys jumped out and raise guns it started and what did he do he turned to the left the bet if he used to who would was telling the truth about having seen the foul arm in the on the console in the seat next to the passenger you would he we don't have to discuss that your case is that there's a credibility contest between easter wood on one hand saying the gun was there and now on the seat and his partner having said the same thing on one side of the testimony and on the other side of the testimony broil him said no that wasn't where the gun is he couldn't have seen it in the seat and  the passenger asked the yeah did not reach fart i mean that's that's your case and that i mean your argument is this is summary judgment and there's a genuine issue material fact and regardless of the number of convictions brown's got client the estate has a right to take that to a jury that it's simple and then doesn't matter where the car turned or didn't turn if if the deceased was reaching for a pistol or if there was one in close proximity this is an entirely different case but if he wasn't your best evidence is that easterbrook says a said well we're going to get rid of the good because that's the dispute as to whether it was their god but not only am i going to get rid of the gun i'm going to get rid of all of the woods testimony as to why he shot  gun on the front seat or in the console she said i didn't see the gun when i went and bought the drugs which was for the events we're talking for the course of the car was it was a car the car was still moving well the st two shots were fired while the nd two shots were fired and while the rd two shots were fired right her never sky was basically almost instantaneous bang bang bang bang bang bang if you look and that's the problem is and i do want to talk for a minute about sergeant rankin and the play case we have against him because he of course did not do the shooting but everything about this was wrong it didn't notify anybody it was a making an arrest for a half hour and stop and those are all the normal procedures but they say you've got to have a sort of a regulation in order to get to this to get a cause of action right he i thought the review board to determine there was no violation of the what do you call it to rules or the regulations it's their rules and their regulations like interpret them all they want to go ahead they had probable cause to stop the vehicle he got the gun the night before he owned a gun he went out and his friend who was not robinson when they went at that not before had the gun stuck in the car round says i forgot the car the gun was even there he said robinson did not grab the gun the gun was not on the console robertson quote is not that type of guy he says i told the officer write to me again at the car i told him about the gun and it was only at that time that rankin when it back to the car and get the gun and if you think about if you're a police officer and you make a stop in there they've gone on the console you're not going to pull any passenger  the it doesn't matter since if the gun was on the console why in the world right can move it why would he take it off the current so off the consul walk around and put outside the door of and miss hart it would be helpful to me if you would start with that point why does not the conflict in testimony between brio and man easter would justify the now if summary judgment and putting it to th up to speed of fact that should be held over to a jury so you're not focused on the material what do you concede it's material you're you know i don't concede that it's material either your honor or even if an officer doesn't say the passengers got a gun doesn't say gun and now you're telling me he saw up robinson reach if it's not a material fact then it doesn't matter that he didn't see robinson reach no your honor i guess i agree that i think it's irrelevant  wins but if he didn't see robinson reach for a gun and didn't see a gun on the console or anywhere else and deliberately shot robinson dead then you lose know so an officer can shoot dead a passenger who is unarmed as far as the officer knows in a car that's going in the opposite direction the passenger is not driving or assisting with the that it was moving quickly in his direction but how does how does firing a gun at the passenger prevent the consummate moving at him the car with an extremely close proximity to him he was i mean the passenger's not driving it so i mean even if the a reasonable officer would do under the circumstances the officer subjective thoughts are really not material to that are they well that you're looking at a reasonable alter would do under similar circumstances correct for a whether the defendant deliberately shot him to death are not it's whether a reasonable police officer in those circumstances would have thought he could use deadly  yes i agree with that your honor but the can crop them is not do it and i'm listening to your arguments but i'm view it as the question being whether i raise my police officer could think that he could deliver at least shoot to death an unarmed passenger or a passenger that he didn't know whether it was armed or not in a car that was speeding away and your honor my or initial response to that would be to go back to i think where i thought i was headed at the discussed the nd component which is if there is a dispute of that i but now please take some time and talk about why there isn't a dispute sat and shared so brown testify and in a deposition in this case very late in the game after briefing had concluded and he also gave a statement to the alabama bureau of investigation where his testimony was that there wasn't no gun pulled out that he any test brown's testimony that he never saw never would have ever ever saw during this conflict while brown was speeding away whether or not robinson was reaching for a handgun in that moment so we don't construe most favorable to the nonmoving well when there's inconsistent story and when it's not as though we got a case on it he tells an inconsistent story any witness tells an inconsistent story you let the jury decide which parts of the story which story is true you don't say we're going to pick the one that is most favorable to the to the movement because he's bound to be lying if you tell him two different stories and rely on your favor as opposed to against you know you did your honor not only did he say that he never saw him grab the gun and that's consistent with your words testimony where he said he never saw him grab and pick up the gun he saw him quote reaching across toward a gun grabbing at the gun he just about i never saw him pick it up off the consul no sir and it's undisputed that there was a gun in that location brown brown said that was a gun located between the passenger in the console well that's different though right i mean if the gun had been located between the passenger seat and the console then it would have been on the console and it wouldn't have been able to be viewed from the perspective of the officer when you upgrade your honor i wouldn't agree with that it wouldn't necessarily be a few ten rincon saw when they initially got the car saw the handgun i mean it was also so here's the problem with that right we have the we have the expert testimony that they're supposed to young gun if they see it but we also have just one of the strange way in which the gun is your tree ved which a jury a reasonable jury might be able to find indicated that they weren't aware of the gun until brown made them aware of were it was i mean isn't that a problem for the client doesn't that create it except that i think tied together because if the officer can't see the gun right then the whole reason for shooting down a shooting calvin is gone right for shooting robinson is gone the whole reason that he shoots him is because he says he sees the gun if you can't see the guy and if he's lying about that right if an hour and i'm not saying he has i'm just saying it for a reasonable jury could conclude that he was and it's so concluded then there would be a problem i mean there would be liability there wouldn't you agree if he were lying if he did not actually see the don would you agree that there is liability for running for office or mr wood and those circumstances  perspective i think the movement of the car alone and the fact that this all happened within seconds or milliseconds even but here's the part that i don't understand that would be helpful if you could address for me i understand if he had fired shots three and four were at the driver i would completely understand your position the problem here is that we are assuming for purposes of this question that he did not see a gun in the passenger and he did not see a gun and he shot the passenger that's the problem why was he allowed to shoot the passenger to shoot directly at the passenger and only at the passenger if he was afraid that the car was coming at him we her testimony he does testify that he did shoot at the passenger after you saw the handgun and i don't i know it but it is that i do you want to point out that he also testified that the car was still moving at that point it was still threatening situation and forget getting the gun is it your position that also has a right to shoot a passenger if there is no gun and order to stop a car that's presenting a danger to him i think the officer i think if you that the question is may you have said that it doesn't matter whether or not there was a gun ok and so the question is why doesn't it matter whether there was a gun in other words assuming there was no gun why is it your position that the officer could choose to shoot at a passenger in the car unarmed well your honor for the purposes of your question that you can contemplate an officer believing that there was a gun because i think it's really i mean officer easter would testified ok but if you believe in him gun and we can't i understand that argument that you're making that's a different argument mate your argument is the officer thought there was a gun but you also argued that it didn't matter whether the officer thought there was a gun because the car was coming at him and what i'm trying to figure out is why does it matter if the car was coming at him why would he be allowed to shoot an unarmed passenger which is a different question from whether he was armed do you understand what i'm saying yes i say what you're saying but i think that goes back to the fact that this happened all very quickly in that intense intense situations where there is a rapidly evolving set of circumstances that the officers have to make quick decisions and we're not entitled to that benefit but how would a reasonable officer write could a reasonable officer think that shooting an unarmed passenger would controlling the car but we're in a confrontation at this point where shots were even fired and the car has not slowed down it has not stopped what if i'm to say but if the passenger is a hostage he just shoot  because that's i mean why would there be different this witness the two of them engage in a drug transaction and there are mealie moving to arrest him it's a felony drug stop they can reasonably believe that they're armed in this moment and that the moment at which vehicle around vehicle to engage in threatening behavior against the officers let me ask you this way if the unarmed passenger well hostage and the same thing were happening as far as the vehicle coming and let me tell you why because if the officer could not shoot the hostage in that situation then why could he shoot the unarmed passenger who is presenting precisely the same threat to him as the the whole justification for his being able to shoot the passenger is that the passenger represents a threat to his safety yes your honor what is the threat to his safety that the passenger represents it's his presence in the vehicle  i mean it could depend on a variety of factors but i suppose one could argue that it wouldn't be appropriate for an officer to shoot out an unarmed hostage but that is so far from what we have here that it's difficult for me to even make the comparison because again it just so it's these two individuals engaged in a drug transaction it was reasonable to believe they're armed from the beginning and in fact they were armed we're not we don't sit here and try to make let me ask you a question it seems to me like your biggest argument to the jury about whether hoff's or you are believe there was a gun is that he fired the shot at the passenger in other words everybody knows except apparently you and making your legal argument that you don't shoot an unarmed passenger to stop a car therefore the fact that he shot indicates that's what he believed that's a jury argument but here's  question did the was the all star asked did you think you could shoot at the head of another non passenger in a vehicle are did you would you have shot had you known that he didn't have the guy did anybody ask that i'm sorry your honor i have a hard time understanding that well it's simple his testimony was taken was it not oh ye it was he asked if you had known the passenger was an armed would you have shot at him that's a simple question counsel what's the answer important i ask you whether you thought that was important whether he thought believed at the time east quis the trigger he could shoot an unarmed passenger out the legal ramifications of it just try to figure out whether it matters or not if you tell me it doesn't matter what the officer believed i understand that's about the position but i'm just trying to figure out why nobody asked him too far into the trial i suppose but if i were her and i were they trial lawyer i would argue to the jury there was a gun there he says he saw it this guy with a long criminal history says he didn't and let me tell you how else we know he saw it because he shot the man he thought was reaching for the gun and had the gun and everybody knows and we don't contest you don't shoot a no no i'm passenger to stop a gun you shoot an unarmed passenger to stop somebody from getting a gun that's what the argument would have been it just i know it's easy to look at hindsight but i can't it's difficult for me to believe that somebody didn't ask the officer what he understood to be his authority to use deadly force in a situation in which he didn't see  drug trade going on chances are you got a weapon now why does that hurt your case at this stage and that a reasonable answer could have believed that these two drug dealers and  thought that they had guns because they were dealing drugs i mean if they testified to that maybe they could keep that a did anybody testified that they thought that they had guns because they were dealing drugs  a question is whether any reasonable officer could have believed that they have found because they were drug dealers and you can't get testimony on that and expert testimony won't get you anywhere it's a it's a question of all about what believe there were far on to it then reach that doesn't justify the shooting what justifies the shooting is the car and what's happened to the car and the fact that he needs to stop the people in the car throughout part of his deposition we were looking at pictures of the glass in the street where the glass was all this story to show where it was when it occurred and he throws the most like the mantra well i was protect well the general public that's when he threw it out and we're able to attack that but all of his written statements about seeing the gun that's why i don't understand what the district judge ignored all the testimony would take about eight minutes if we could come back in fifteen after that would be good