your honor we didn't we responded to the certificate of service your honor because it regulated the briefing requirements that was the very next that and that specific situation what occurred was mitchell's attorneys issue it didn't occur why did you have to have a telephone conference instead of communicating by e mail either at the time that we were e mailing it appeared that the conversation was  then obviously a has set the standard and b officer b is violent or your honor the fact that that question is being pose is an interesting one that requires a jury to determine in fact if you have two officers who come out and make two different we present that no the in this particular case they could not have been the same and nor could they have been reasonable is your question and the reason we say that is because obviously billingsley didn't sergeant billingsley he was a sergeant exit the vehicle and there was an there was an ending factors some fact inserted that terminated the thread this is quite different from a situation where you have two or three officers in for example one officer takes a shot in fear of the lives of another officer which is what happen and why the court actually distinguished in lidl versus texas back so that there is an area in this case you can have two different officers that make two different decisions but that's very contrary to what tennessee versus gardner was trying to accomplish and when i say that i mean we were looking to see what an officer in the very same situation would do in that's how we determine what reasonable nice but if you lined up for example ten different and five of them a one sitting in the other five did this would be a question that would have to go to the jury and that's exactly what the objective standard was trying to accomplish in tennessee versus gardner and with ground versus conner came out when the cops are approaching i mean he has a gun and he's pulling it out when the car's approaching so isn't this an easier case than the ones where there's just the reaching and the officer doesn't quite know what they're grabbing i disagree your honor and here's why for example in ricardo summers alone versus decisions that that was similar to what occurred in that instance one there was only one officer on the scene and if you remember what the u s supreme court said when they reviewed the case on sir it was that we didn't know exactly what happened was only one officer out there i think what distinguishes issues in cases that come before the court and that matter is that there were a number of officers out there and a number of them all experienced the same sort of set of circumstances but something triggered there was something that happened that stop sergeant billingsley from firing his weapon and that's really the key difference and the key judgment calls and split second decisions and by definition a judgment question for the judge for the law whether or not it's reasonable but remember we're not under a lot on the dismissal of his person at the question is whether it's so far that a reasonable fact finder could not determine  the conduct was reasonable and that's what happened a lot of us backs are so yes there is a reasonable question as opposed to be asked by but by the judge but if it becomes a point in that particular scenario where it's simply made a judgment call as to which story you believe and then said there was no discrepancy in the two statements i submit today to this court that's an impossible scenario because take for example mr mitchell sworn statement if there's no discrepancy in his one statement should initially in a independently secure qualified immunity it does not and the reason it would never is because the gun was never the gun was on the pavement afterwards what took place and the records are very clear the record is very clear investigator merritt was behind my client as my client stepped out of the be here investigator after the shooting investigator mary approached the vehicle to secure the occupants he found the silver slide with a laser sight forty caliber late in the last of his deposition testimony and it's in your record that he removed it and set it on the for my client what he said in his first which is all correct all of the officers do not contradict him there seems to be a pitting of one officer against another all officers are very consistent here my client first statement says that he witnessed the gun as he was holding lethal coverage on the plaintiff as a on the ground he didn't say when it got there he didn't say that he saw it fall there he just noted that he saw a gun on the ground while he was there i would calling it the passenger the cartels in this this is these are the cops these are the cops so he continued to pull and at that time sergeant as we're approaching sergeant investigator merrick shouts that he's got a gun which you hear from the video approximately three seconds later my client hollers police and one second after that i believe if you count are that the sequential shots he is taking that gun in from there he decided that this part rather than to put his hands up the plaintiff had been to he in the record to be taken into custody many times and he was familiar with putting his hands up at that time he obviously my client did not see my client's only the only thing in the record from what my client reason to believe what he saw at the scene in the heat  guess because of the automatic lock when you begin to proceed he had to mess with the lock the door a little bit so he didn't break his line of sight he was exit ng it is clearly in your record and i think what you to the exact page was up tried to memorize it he clearly wanted to exit the vehicle to make himself small and not be a stationary target in a gunfight he thought they were going into a gunfight he thought it was going to take place in his training was don't be a stationary target and be a sitting duck in the front seat of a top to get shot and that's what he exits out here the testimony is very clear from sergeant billingsley i exited the vehicle because i didn't want be a stationary target i had a problem with the door that i had to deal with just a second as accident he  almost everything is simultaneously occurring at it very closely is it really is the if you step back even for a mission three seconds is out a matter of fact are you telling me that is  simultaneous at whenever he was turning and sure when the gun that he threw it into the car at that point is that what you're telling us not necessarily your honor the about one one second or so that continues to come by that he noticed  car coming at them in a high rate of speed he saw them coming and so he pulled the gun and up and while he's gone the gun half way out that's when the confidential witnesses told him hey there cops because she looked over saw what he was there at that movement he realized it and try to throw the gun inside the car and that's when you have pain and some point there somebody yelled he's got a gun he's got a gun that's group all right and from that point on till you heard shots how much time had expired initially when he discovered that everyone started getting out of the vehicle and by before anyone even said police and he's got a gun as way before police he's already thrown a gun in the car and turned and so the minute the o while it may seem that that was a short amount of time sergeant billingsley saw the same exact thing and he had enough time to understand that office that mr about there is was terminating the threat and that deadly force was no longer authorize