one fact alone tells us this the question at page volume four page ten thirty six page four question of mr trunk call ups are trunk call and did you have any difficulty seeing the fired your ground answer yes what did you see of the driver when you farge around eight i did not see the driver so throughout this case the city of san diego focuses on every dio tape the videotape is essentially infrared where you can see the actual images of what was transpiring on on january twelfth two thousand and thirteen well actually i've looked at that you can see a lot you can see where the officers are you can see the one seemingly falling down that was going to get run over or something hasn't happened and then you know then they're firing they all say to the driver they weren't trying to hit ms flint that is all right i understand you're saying with regard to that your honor but when you look at look at the volume to tab sixteen page fifty two this photograph says it all when you look at this photograph what you have is you know essentially over here you have the car the front of the car you have the officer's car right over here and then you have the officer go in front of the vehicle we know very well if you look at the videotape closely that the the area he stops he reverses and the reason he stops in reverse is because he sees a bush there an obstruction that obstruction is the obstruction in which this car stops and can't move any for any you can't go any foreign ways because ms flood this was correct and so visualize that and so the videotape doesn't tell the full story because the videotape you cannot see the bush how big is the bush the bush is in fact amator around three feet in the diameter it's a big bush how tall is it the that the height of it is when you look at the photograph it's taller than the front end of the police car and the police car has its headlights on and so when the police car comes it it seize goes fort lewis back why is it back is the bush a trunk or is the bush bush it's a bush that underneath the bush is a trunk a tree trunk you see the trunk i think you can see the tree trunk when you look it is really dark in your being in your chasing somebody and somebody is about to run over you the officer could have looked at the bush and seen that there was a truck underneath and then made the judgment in that split second that the car could not have gotten over the the truck well the officer i like that question for the reason being as the avs are headed to lights on you could see up to a hundred feet in front of you the officer was totally aware that something was there that obstructed him from going forward because he had gone for he would have hit the bush he would have the trees you know the my recollection is that the car was quite a bit back from the to the  backed up his police car because he ran into the bush or he saw the bush he said he stopped he never saw i said he stopped but i you can see that he stopped and he backed up but he stopped because he ran into the bush he never testified as to i don't think so because it looks like there's some distance there and then he walked forward and fell down and that looked like the driver of the vehicle in which miss left is was riding was coming to get him and then ran into the bush well it but i think that's a that's a question of fact for a jury to saunders whether or not the person is coming towards him because remember well the car was coming toward him it stopped that's maybe a question as to you i mean you can see it yes but you don't know the intent of the one he should have never got out of the vehicle the reason he should have got out of the vehicle is because it is a bit of that's a great argument but the bottom line is at the time that they exit their vehicles they had to him to some extent corner and they were preventing him from running that's their testimony well that's kind of illogical because the way they're trained is you never sergeant don't they were preventing him from running off he'd already had a high speed chase but he had an x in the vehicle so that but just a minute he turned left he stopped in front of the retaining wall in the dirt and then when they drove up to corner him they x of their vehicles he backs up hits a tree and comes forward going in the direction of the officer yeah but remember the officers place themselves in that position the officers place them selves in the position of getting out of the cars going in order to perform what they call out stop relying upon for the idea that after a high speed chase involving great danger to most miss flats and the officers and this man who was driving the if you will get away car he was dangerous to everybody you saying that the officers had to stay in their cars and react to that slowly staying in their cars when he relying upon for that all relied upon the fact that you cannot perform a hot stop and that's what they did the officer so that the procedures of the city of san diego forbade performing a hot stuff is that what you're saying correct when where is that in the record that's in the record if you look at the testimony  find it for you officer even officer testified that he could not perform a hard stop when the vehicle was moving right but at some point the vehicle was stopped the correct was cornered but once the vehicle was tree and comes toward the officer hits the bush and his wheels were still spinning as if he wanted to go forward after that yeah but the vehicle stopped isn't that true that's correct but the behavior stopped did the officers ever warn the driver to stop according to mislike there's no she never heard anything as not in courting to miss flip as according to the evidence we have what misstep miss what is present her declaration one of the people in the is there and she's the only one who says they did never say to stop correct and that's a question of fact for a jury to decide let me ask you another question what is the evidence that your client was even and intended object of the seizure the intended object of the seizure one all the officer guy gets testified that he notified everyone on the radio there on the free call that there's an occupant in the vehicle stopped right here there's no question the car was intentionally stopped the driver was intentionally stopped your client was never intentionally  she was stopped when they fired the rounds at her she could not get out exit the view i don't think they were firing the rounds at her because if you look at the photographs and you look at the evidence and you look at the diagram the picked it by their expert mr lo's in ski and that's a tab three irvine three tab twenty page twenty five it shows it shows that if you're trying to stop let's say you're trying to stop a car correct do you shoot the driver or the passenger you shoot the is so why do you think that these officers were trying to shoot the passenger in order to stop the driver from running over the officer one the reason they did is because they thought they were going to shoot through her because they shot through the passenger window because in shooting through somebody's slow down the bullet make it less effective when it's and you can comparison but remember it's been my experience but remember this is what we call contagious fire officer guy who was the first one to fire the round these two other officers medina turn called fired afterwards trying call the medina admitted that they couldn't see through the side window so how would they aiming at the driver if they cannot see you know what and you are the drivers in the seat in front of the steering wheel so you don't have to see you're not answering that question because the bottom line is they were shooting at the drivers bought the driver was there that's all of testimony is there any testimony that there was a whole gang they were shooting at no is there any testimony they were shooting at all three who were in the car they knew she was in the just a minute is there any testimony they were shooting at all three that were in the car no yes there is no testimony they were shooting at all three there is only testimony they were shooting and that was the driver and your client happened to be in the car cheap they knew she was in the car your honor they did name of her they were after the driver but you need that you need to see an object to aim at you can't shoot haphazard that's like saying i could tell you haven't shot ducks see the driver and they were aiming at him that's their testimony you know it's not when you look at the physical evidence the physical evidence shows that they were there shots were directed towards the passenger seat they were directed towards the passenger seat look at  firearm they're really hard to aim accurately but they're trying to protect themselves and they try to fire where the driver is they're going to miss sometimes and that's what happened here brantley but again where's the evidence that they and tensional e tried to hit your is that the bullet went there i'm say what's the mens rea or that that is racially fired at your client when you shoot a weapon your aim to shoot at the target you're aiming at if they were aiming at him they would hit him or his direction you're saying that as a they knew when they fired a deadly weapon that the target they aim at is what they're aiming at they cannot sit there and say well oh by the way there's not one single officer who ever testified under penalty of perjury and that's why the issue of credibility is so important not one single person is ever going to sit there in a net i aimed at her they have to say that i didn't name her because they know very well that they have violated or even committed a criminal act if they say i started her but the physical evidence in the inference is drawn from the violent response and the provocation is an independent constitutional violation in this live by asking you what is what was the evidence that the officers intentionally or recklessly provoked the viol response the next question is why is that an independent constitutional violation that's what you got to prove and i couldn't find it in the evidence well simply put your honor the officer got out of  in harm's way in the vehicle for whatever reason was violent intentional or reckless action point one point two is the vehicle was stopped when the first round was fired it had been stopped there is no reason to fire any rounds whatsoever because of the it under stop wasn't stopped just a few minutes ago no it was stopped it was stopped i'm talking about at the time to that the weapons were discharged the vehicle was stopped w court john reilly on behalf of the city defendant your honor first off i was glad to hear the provocation doctrine because i think it's important for us to remember that you have to have an independent constitutional tort preach shooting negligence or tactical decisions by the officer are not at issue in this case what we're looking at is a constitutional violation related to the officers belief that they face seriously serious bodily injury or death to them or to people around them looking at the scott case the u s supreme court case with a similar video kind of evidence it makes it clear that we cannot ignore what we see i don't want to get sucked into quibbling but i have to address to say that the officer backed up i don't think the video record supports that certainly the car rolled as he shifted it into gear but he's nowhere near as i heard the ct ct point out the actual bush where the stump was and even so there's no indication just because you're at night in a dark alley and you have your headlights on that you see a stump buried in there that was pure fortuitous good fortune because we all know by looking at that video had that not been there that officer would have been run over with that  the video again speaks so clearly we see a twelve second event that is what we call immediacy anyway we look at this thing we know that there was an immediate concern by everybody there that brings me to my next point as the papers describe this is really a fourteenth amendment claim which creates a higher bar frankly the fourteenth amendment discusses when someone like a passenger in the car is seeking remedy for a constitutional violation they will have to show under such a tight time frame of this one and there's no cases that go anywhere near hauling twelve seconds enough time to deliberate and with that that fourteenth amendment is going to describe for the plaintive they have a burden to show that there was no legitimate police purpose for using the force that they did in this situation so then we go on to beyond the video evidence that so clearly speaks for itself i heard the court inquire about warnings we do have other people that had testified i heard the police say before i heard gunshots something to the effect stop show your hands that kind of thing and i'd like to remind us that the warning aspects of gardner or graham speak to if feasible and i would put you under ten or twelve seconds that were at issue in this case a warning wasn't necessarily feasible but here we have it this case lines up with everything that the constitution seeks to balance and that is our civil rights and the rights of the officers here i have a distinct memory of judge houston asking us in court what would you have these officers do one another officer falls in front of that car this there was no options there again i'll circle back to whether it was a hot stop or not whether an officer put themselves into a position that allowed the driver to back up those are not issues for this constitutional analysis and at some point we just have to say what was the driver doing he was at the end of the wrote the race was over he was stopped it was his  put this thing into action it was his delusion that backed up it was his volition that came at the officers so at some point you just have to say what were the officers supposed to do under those circumstance i think as i said even looking at it as a fourth amendment claim there's nothing here that would fight that we would find unreasonable based on the officer's response to this immediate threat of serious bodily injury or death i don't want to leave us short on describing what went on that evening i think the papers speak well to all of the issues that we today a lot of what was discussed by the appellant went to a factual issue that frankly i don't think exists there are no genuine issues of material fact beyond those that we've already discussed here as a sunni see no evidence let me just sum up and i feel because i have not minutes left i don't want to shortchange my clients but i think we're very clear that there's no genuine issue of fact as to these officers facing serious bodily injury or death there's no genuine issue of fact that there was a media sea involved here there's no genuine issue of fact that they did not have time to deliberate they were simply responding and reacting to somebody who had the upper hand as we all know first action wins they the officers were forced to respond to what was handed to them and here they had a car driving at one of their fellow officers speaking of the lewinski diagram that is part of the record it clearly shows the trajectories of the bullet straight lines towards the driver's seat that's how you stop a car you don't shoot at the engine and even shooting at the engine we're back to tactics which is not the analysis for a constitutional violation we've got the bullets going right at the driver we can tell and i heard a gross generalization that they said they were shooting at the you know what we have when you examine the record it is the officer who fell officer guy a ghost he clearly his lines of fire were at the driver and the driver only we can see from the video that the one officer actually once the glass tint goes out and that is officer the drina does say at that point after i shoot in are right about that first shot i do see some hair in the front seat she was bent down he does move to accommodate that because he is always in only shooting at the driver and then the other officer says  his testimony i never knew there was somebody in the car until after i finish shooting so again we have this very end when we talk about the shooting window it's even less than the ten or twelve seconds of the whole event it's about four or five seconds maybe even three so i don't see where we can fault the officers for what they did here i do not see any evidence of a constitutional violation alone the fourteenth and then a lesser analysis the fourth and if we even got to that the cases are abundantly clear that if we get the qualified immunity and i'm not suggesting we have to say the law was not sufficiently clear for an officer to know that they should have been able to shoot under these circumstances i'm not saying that at all i think on the first prong of a pearson analysis or a softy it now assess there was just simply no constitutional violation but if we did get to the qualified immunity i don't think you can say it's beyond  much as the recent white pauli case describes for the middle of next case describes it is not beyond debate that what they did was on reasonable or reasonable  with your honor unless the court has any questions that i can address i think not we thank you both for your argument we appreciate it very much the case just argued just minutes thank you very much