and according proceed to the nd case of the day you borrow her says the city of chicago course of performing their duties we all understand that it's also undisputed that the ultimate sanction of deadly force may be justified by such officers when reasonably necessary to protect themselves or others from death or great bodily harm thus for example a police officer who pursues a suspect into a dark alley or who engages in a high speed pursuit has unquestionably placed his or her own life at risk to some extent and if the suspect being chased or pursued threatens or menaces that officer with a weapon that could cause death or great bodily harm then deadly force may be justified either under the th amendment or the only wrongful death law but in this case the correct similar to say if an individual fired a gun on the lobby of this building and then made it to an elevator with the marshals in pursuit thirty five or forty seconds later gets off the elevator confronted by the marshals and at that point in time exhibits no weapon exhibits no ability to exercise or cause death or great bodily harm to anyone and no i think that the officers  murder and as far as the officers know that person is still in there unarmed that's correct rather ok but once they get to the parking lot the defendants knew that there had been no exhibition of an ability to exercise deadly force inside that park and that's why they had to create the story that they would use to justify their actions in shooting at that fear and action which directly arguably directly contravene that basis and she instead ruled that because the officers believe that the vehicle exiting created a danger to others deadly force was justified but these of council suppose the officers had been in uniform in a marked car with lights with a changed things here i think so i think it would draw i think if the if or if the officers had as they should have done in pursuing this vehicle even though they claimed they didn't do that turned on their emergency lights and sirens if these officers reasonably believed that the taco was a danger to others they had an obligation to use the emergency equipment at hand not equipment it had emergency lights it had a siren and they didn't turn that on that's why they denied they were pursuing the top or we were only following if there was a reasonable belief of danger to the public these officers had the obligation to do that your honour's and that's why they both tried to claim that while they were in the parking lot an issue he tried to claim we didn't start to shoot until he was driving at officer race but when they sat down and thought about that they had to change that story because there's a video and your honour's can see the video it's in the record the time it was a trying to run over officer asked the taco pull into the lot realized they'd made a mistake and there was no exit back on to ashland made a three point turn and tried to get out of the lot so they change their justification again and valid s s i opened fire after i saw the driver side window being lowered and i feared that the driver was going to shoot at me well even judge kendall agreed that you couldn't accept that version of events as a matter of law because the video shows the screengrab that's in our brief shows the window was already down it is valid as say i saw a hand reaching out from the lowered window no he doesn't see anything like that and even officer ray is the other officer in that parking lot when she got into her deposition says she's i don't remember if the window was up or down i could see the profile of the driver's face but i don't recall if the window was being lowered in fact your honour's officer radius offers no rational reason or justification for her decision to open fire on the top what do you make of the fact that the  violent vehicle to start with right correct right and the conduct of the driving subsequent to the shooting for the parking lots sounds pretty violent to not i mean bumping into other cars and crashing there certainly the driver of the vehicle i mean it's not speeding away from a speeding ticket or something that's true your honor and if there has been some indication well he knew there were weapons in that car and there was a weapon in the reasonable conduct of the officer raise testified she admitted that the vehicle was not coming out or that that was not the reason she opened fire the only justification re ask gives for opening fire was i heard shots you can hear from the audio of officer raya screaming stop the car stop the car her state of mind she hears shots she claims she doesn't know if it was the police or the people in the van but immediately after firing she says shots fired by police somebody's shooting so i guess i'll shoot too if somebody from the van had been shooting at these officers they obviously had the right to use deadly force runners but they didn't they didn't have that from the faction the record before you is reasonably drawn there from when read favorably to the plaintiff they simply can't support a reasonable officers or non willful in one officers belief that the use of deadly force was proper are six you wrote in this case as in horton when the undisputed evidence is viewed in the light most favorable to plaintiff and factual disputes are resolved in her favor defendant's conduct falls within the he border of force but the law has neither declared excessive nor deemed unconstitutional that sounds like a good description of a case for qualified immunity in my mis reading that there are even judge kendall found that there were genuine issues of material fact with respect to the conduct of the police officers other than her assertion that they were entitled to shoot the vehicle as a fleeing fel so that's so if there are questions of genuine genuine issues of material fact and i lose on the qualified immunity issue based on horton it's my position wanton claim stands this wasn't a case where these officers were threatened or managed by a deadly weapon they saw a weapon being used but they'd it wasn't any use or pointed at them they didn't see that in the parking lot there at the risk of being glib about this their duty is to serve and protect right that is correct rather than they're looking at a car that in which somebody attempted to commit murder they could reasonably conclude moments i'm up early are right correct and they're supposed to let him go no no they're not supposed to let him go what they're supposed to do is to turn on their lights and sirens and maintain and crashes down the street how long it takes for the troops to get there we're not talking about a shooting or an incident that happens in mendota when there are two police officers on duty on the midnight shift this is the th district in the city of chicago not only are all the beat cars out but the commander and his intelligence officer are out performing an intelligence check this isn't a case where the occupants of the vehicle ignored commands from police officers a reasonable jury could conclude that they didn't know who these people were these two people with guns in the parking lot screaming stop the car stop the car under those facts it's our position that can be deemed by a reasonable please the court it's as plain as counsel just acknowledged the officers couldn't let this car had it let the cargo it was reasonable to expect that that car could have hit another vehicle or hit a pedestrian it was reasonable to expect that because this car was full of people who were driving in rival gained carriage torrie and firing at rival gang members that they might encounter another rival gang member and opened fire again it simply wasn't reasonable to let the car and you're trying to project and understand the position of the folks in a taco what is the signal to them that they're running from the police and not from another i think that we should focus on the they are wearing equipment and it is and we submit that from the perspective of a reasonable officer that a reasonable officer would expect that they would not be mistaken for rival gang members are you familiar with the did not stop immediately there was a factual dispute about whether they ever identified themselves as police officers but plainclothes i don't claim to be an expert but plainclothes officers who don't identify themselves look like gang members rival gang members are going to accept the safety of their vehicle and they're not going to look like a man and a woman in police st they're not going to be wearing duty belts at about a half a nd to process that information right if i'm in if i'm a driver  yes and if you're the officer as well yeah so we did i do want to be sure to point out that the case law instructs the court to take into consideration the fact that the officers are making a split nd decision under enormous pressure and it was ninety seconds from the shooting was sixteen seconds in the parking lot and again of course doris does hold that a police officer it doesn't need to be apparent to the reasonable police officer that they are being that the person would leave the place we're trying to to stop them but here i think we do have that we do we don't have a situation where these officers are undercover dressed as in a way that would be presented as gay members they are wearing their police equipment and they are accident in a manner in which they are commanding this car to stop and in fact we also have testimony from commander valid is that he twice identified himsel as police there is plenty of attempts to dispute that fact by saying that the people in the car did not hear it but under this court's precedent that in itself doesn't create a dispute of fact as to whether the police announced their office not only was the officers use of force objectively reasonable but the officers are also entitled to qualified immunity plaintiff notably has the burden to point to precedent that shows the right to be free from deadly force under the fact plaintiff does not address that basis for the district court's holding we submit she's waiter challenge to the district court's judgment on her state are claiming count two for that reason alternatively defendants are immune from liability under the to immunity act the officers here were engaged in the execution and enforcement of the law under section two thousand two hundred and two of the act they are liable only for a willful and wanton conduct here the officers were acting to protect the safety of the public their conduct was not willful and wanton or is not a jury question here it's not a jury question because the facts the undisputed material facts here do establish that  cruises conduct a cruise and its passengers pose a threat to public safety for still as you know the encounter begins when the officer see a passenger in the vehicle fire directly into another car officers know that the people in the car have a gun and actually use the gun and so the threat to the public safety when we combine not only that but also the fact that chris hits three different cars in the course encounter all of that clearly presents a threat to public safety there's no disputed fact on that point and therefore summary judgment is appropriate on the state law claim i think plaintiffs position is that you can just never shooting and so i suggest that the pursuit or following whatever you want to call it was contrary to general orders plaintiff doesn't actually support that with any citation to a general order explanation but even more that the case that's not a constitutional standard that might be a violation of police regulations but that's different from an evaluation of whether the conduct was constitutional we're not here discussing police policy but rather a constitutional public safety crew and plaintiff focuses rather on whether the officers own safety was in jeopardy and we do we do present that as an alternative basis for affirmative but the basis for the district court's judgment  was a threat to public safety and plaintiff has not developed any argument for reversal on that basis of course under developed arguments being waived the court should have from the judgment on the th amendment claim with respect to the qualified immunity claim we do in our brief go through each case upon which plaintiff relies and all our land my brief for the discussion of all those cases and why they don't clearly establish that the officers conduct was outside the  supreme court held that officers acted reasonably in firing on a driver who was driving recklessly threatening others on the road and appeared intent on resuming his flight from the police here we have reckless driving beyond just reck driving we have several accidents and including what appears to be an attempted battery by the upon the officers in the car and then we have the firearm in the vehicle that the suspects had just use firing at a driver of a stolen car he was putting people in the vicinity in danger and so under that precedent the right to use deadly force here would appear to any reasonable officer to be constitutional so on count one just a court's judgment should be a from either because the use of force was constitutional and because plaintiff has waived any argument to the contrary or because the officers were entitled qualified immunity to try to a variation on  car the car decides we're being followed and starts to accelerate goes into drives quickly and then we see the car careening around the corner and then drive into the church parking lot sacked in terms of without having the full facts it is a little bit difficult to speculate how the th amendment applies but certainly here we have more than that more than in the hypothetical  have the witnessing of what to a reasonable officer would have appeared like an attempted murder and that takes us well beyond a mere traffic spot stopped at least to a fleeing vehicle or even something like shooting you might very well have a scene and you do have the courage careening around the corner fleeing hearing those cars you might well have somebody who's an impaired driver perhaps a medication perhaps depend on how the whole situation developed and how it would appear to a recent officer who of course would not know why the driver was impaired here we know that the driver was impaired with cocaine marijuana and alcohol the officers wouldn't have known that but they did have the opportunity to watch that car in motion and understand the threat it posed to the public very briefly with respect to the state ample death claim the district court explain two separate basis for summary judgment on that claim stop the pursuit and the motorcyclists then went off the road was impaired and went off the road and killed the passenger that's not what we have here and if there had been pedestrians or other motorists in the area who were endangered by the actions of the driver of the taco they were more in danger from being struck by a car which is driven by a mortally wounded driver which is what happened here after rafael cruz was shot he pulled out of the parking lot and crashed into multiple cars down the street if there had been a pedestrian out there they were endangered not by rafael cruz but by his having been shot at or by bullets missing the car there's no evidence that every bullet that was fired by valid as and risk struck the car those bullets can go anywhere council tells us that a reasonable police officer could believe that the occupants knew that they were the police because valid as identifying himself you can hear reyes on the radio she's talking if valid as is announcing his office in the command voice that we all know he has because he's gone up from the ranks from patrol officer to commander you'd have heard him on there saying stop police or something to that effect and he didn't have your honour's general order violations have been found in a multitude of illinois cases to have been potentially or up to the jury  whether or not that was willful and wanton and finally with respect to scott in scott the vehicle driven by the deceiving was driving at the officer and he fired when he feared that his life was in danger the defendant