end of the underlying incident and i'd like to start by addressing the fatal shot the fatal round fired by my client matthew crashed in self defense  few minutes is truly a prolonged struggle and when you think about boxing three minutes is a round and they're exhausted i mean this was all out fighting for i think about three to five minutes but i think that is prolonging the world of that type of combat  and during this struggle mr fisker tried to kill my client four times that's admitted by plaintiff's expert he tried to kill my client four times he twice used his legs to wrap them around my client's  let me ask you a question if your client mr figure and been standing on the sidewalk and your client walked on the sidewalk and then if uniformed pushed him in the chest and said i don't like you buddy and thicker started to punch him and your client punched him back and figure tried to kill him in your client pulled out his gun and shot him now would he be able to claim qualified immunity because it was nothing would have happened in your hypothetical you are yeah i suppose so in your hypothetical yes because you're having my client just approach him and yes i suppose that's true i mean we can always go back and say you know if this and if this and if this had never happened but that's why we can't do it we have to look at these specific moments we have to look at the split second judgments particularly in in in a first case you know if an excessive force case or multiple use of force but we can clearly differentiate between the isolated i think it was a spy and it instantaneous reaction to him being into my plant being struck by dan ficker in the situation i think it was just that type of quick reaction the qualified immunity does protect with officers that here and i just i feel the pull off lightly if you want to see it any other way then it's immaterial issue of fact and we shouldn't be hearing it on appeal well then we don't have to talk about the grays like i said i want to talk about the shooting first and foremost i think that's the most to he was he was asked his his testimony was not taken in a deposition in this case but it was used from a trial of what david mendell was brought up of criminal always a jury determination is the backbone of the determination so no matter what the case says the jury is the fact mine that they listen to the witnesses and they decide i believe all of your testimony and none of your testimony you know part of it so that's just sort of a evidence and fingerprint crass because weapon when he went for his gun if you're fighting an officer you try to get the officers got away from the only reasonable conclusions you're doing that because your intent is to kill that officer so that after all this happens  charges that my client again when he's completely spent and exhausted my client fires a single round in self defense and i think if you look at the mo next case that i cited to from the supreme court that just came out in november so it's in my reply brief time i merit proofs i couldn't cite something that didn't exist back and ficker tried to walk calmly i'm sorry you say that just from the get go figure is bellicose small area at the turn to walk away from the car to the front door we're talking about five to six feet a turn i mean she may have interpreted turn when i didn't because it's that small of an area it's not even as far as you and i are standing it's this fact  very tight area it's not this idea that it was you what was creating what blew up into this fight and if if we have conflicts of testimony about who was the instigator doesn't that in fact what flows analysis the deadly force must be looked at by itself it must be looked at by itself even if the officers create the situation that requires deadly force the deadly force can still be justified think to me those differences of facts make this a case which case on qualified immunity which should not be on appeal at this point you need a finder of fact to determine what actually happened and it should go before a jury time here to read today to represent officer david mendax and like to start by saying i understand where you're coming from as far as there may be two different issues of fact here two different stories but i would like to say that as far as the story goes to david mitnick there is no disputed fact there by your own characterizations mr you're excuse me officer pascoe took the lead us far is any type of aggression or any type of initial detainment would be even find there was detained and we weren't talking about she says in her testimony that mindef right off the bat he was screaming at her were i'm sorry screaming afic or or both of them it's stealing this for me she says that ok orderly contrary to what the bloomberg was saying ok we don't have jurisdiction to arbitrate this sort of stuff now so i guess i would just you know reiterate what judge your office said i mean why how do we have coming from and there are two different facts as to whether or not he approached mr bach of mr fink or allegedly screaming about the fast or the alleged theft excuse me but that does not go to whether or not he intervened appropriately in the use of force or whether or not he engaged in a false arrest here or whether or not there was an intentional infliction of emotional distress or whether there was assault and battery care i think that the appropriate questions begin after if we take testimony at to as truth as we must today it begins after officer casket takes mr figure to the zone hard wire these things in the first place why do we have to you know sift through this  figure out what actually is you know where you're actually following the standard that there applies here and where you're not i mean at some point we just say you know you knew coming in that intervened and did paul arms back in did hold on to mr vickers legs but the characterization that he did just so just so there could be parity in the fight i think is not something that there is testimony to and there's certainly nothing that in the record that says that that's why he did it there's no intentions well no i just you know it just seems to me that everything that has been said right now in the briefs and what you said here this morning this points to a clear issue of fact that  that is not appropriate for summary judgment in the qualified immunity analysis i think his actions their actions have to be put to the back finder and here reasonable people reasonable jurors could certainly look at all of these facts as they should and determine the propriety of actions in that circumstance in that if your co counsels in that mortal combat here they can sit that kind of stuff around i would like to respond that i see my time is up but just to answer your question from my point about you here is that the plaintiff still need to present something that is different than what we have presented here and other than as you've mentioned the yelling back and forth as to my claim there is nothing different to be said here in fact we agree that he intervened but but it's not a matter of them saying something different and they do say something different but this whole circumstance raises material disputed issues of fact and we judge is the trial judge at the summary judgment stage it's not supposed to weigh the evidence they're supposed to look at the surely qualified immunity of the legal determination but they're is my name is terry gilberto along with gordon freeman we represent the estate of daniel figure i had this great argument prepared but i think the court has pretty much said what i would say and that is that clearly there are a litany and a series of events of disputed facts that render this appeal without jurisdiction i don't think we have to go any further than that let me ask you a question of the question of whether the two police officers in parma outside of the cleveland jurisdiction where in pursuit we have to decide that issue do we have to decide whether ohio law on pursuit covers what these officers were doing or if we should decide to send this case back to the district court should we give the district court guidance on that issue i don't i don't think in these to go back to the district court because i think these are just if we decide that they're material issues of fact and qualified immunity should not be granted they'll go back to the district court for trial or trial you know and in preparation for that trial should we instruct the district court on whether these officers should be as a matter of law considered to be in compliance with ohio law well i think that this is part of the totality of the circumstances the the authority of these officers from cleveland one off duty one on duty their behavior in not giving the facts to the supervisor that he was bringing an off duty person who was personally involved through his wife in the situation and not acting victim a victim and then the whole thing with the jewelry thing is ridiculous i mean there was absolutely no even the internal affairs found that there was no basis for an arrest or detention and to then go on off on a frolic into another jurisdiction ten miles away wait for ficker and herb back to come home that is an issue of the background preliminary mental state of these officers that a jury can weigh in terms of their authority to even be at that house not even call for backup not notifying perma and then they arrive and these people show up pulling their driver think they're going to come home on july fourth and they're confronted and in a very aggressive way by the cousin's husband they're trying to go to the door they don't he doesn't want to talk to them he doesn't to go back to the issue go back for a full trial and in the jury can be instructed on that issue if necessary should not opine on the issue of whether the officers who are operating appropriately under ohio law and being in parma and i think that's an issue for the jury i really do because that in itself is not a fourth amendment violation that's just  circumstances the jury can weigh in reviewing the credibility and the actions of the officers as the events progressed so i don't think that needs to go back and then and then you have as judge oliver pointed out a real serious question as to whether detaining daniel figure was appropriate when you have a right to refuse not to answer questions i mean what did they expect they were going to find out by going there with two officers confronting them doesn't want to talk he had no right to grab him and pull i'm over the police police vehicle shove them on the hood try to pat him down and then when he moves in and incidentally touches them with his elbow he sucker punches the crassness sucker punches him in the nose here yeah so so i'm just going to stop now and ask if you have any other questions because i think you understand the case thank you gilbert said that but there's absolutely nothing in the record to support this idea was incidental that's another question if the officers were in parma and appropriately in violation of regulations are the concept of pursuit that they should not have left cleveland to go to parma if they are not there as authorized police officers are they entitled to qualified immunity in the first place well your honor it was an issue of pursuit it was an issue investigating a crime in cleveland and they are police officers that's a statewide designation so as long as are they performing their official duties if they shouldn't have been there officer krasner was absolutely performing official duties the idea that there's potentially are a part of the regulation that says it should have been there which i disagree with but even if that is the case that has no bearing on the legal question our department can put additional regulations on their employees and if you start mixing those and mingling those with the law it would have a massive chilling afact on a department putting any regulation on their employees other than saying just follow the law they went to parma to investigate a crime in cleveland if a cleveland officer can't leave the city in cleveland to investigate a crime then anyone who commits a crime in cleveland once they cross the border they're scot free we have to ask a suburb that doesn't have the resources to take over the investigation so transferring things from it doesn't make sense that fifth harmony didn't have the resources  supported with anything they are just baseless allegations they're look at the underlying record and i found page eleven of my reply brief is why discuss the issue that a trier of fact may not just they may not just not moving party may not just hope a trial or a fact won't believe a witness they must actually have evidence in the record that contradicts and there's nothing in the record they're just sta