we're here it's an excessive force claim involving the shooting of a mentally ill individual who at the time she was shot was not an immediate threat of harm to any person or any o judgment just a brief recount of the facts on the morning of february nd sixteen david green my client was in his home in a small community mission texas coal wagon city south son david green the nd was living with him at the time he had moved down from michigan he his son had a history of schizophrenia bipolar disorder at the time he was not taking his medication and that morning suffered an episode of schizophrenia episode there was an altercation between mr green and his son david and mr green called the police mission police for assistance in doing so he advised mission police that his son had been acting violently that his son was a schizophrenia patient or had a mental health disorder including schizophrenia and bipolar disorder and also that his son had been off is medication he also advised them that his son had been acting violently and had an axe and also a machete officer for the mission police department was the st opposite on the scene he vehicle his father's truck and attempted to flee the scene at that point observer better position himself and you know in a way where he was in front of the vehicle there's a dispute about whether clearly established for wind are you saying in this series of events and there's gunfire more than once heard when when did a constitutional violation  all come down to what was happening after the truck at the tree and those eventual were a fairly short period of time is that because violation that's correct your honor we you know there was there's a question about whether  shots were appropriate or not we didn't we didn't appeal that decision the court granted a motion to dismiss in the early part of that of the case and we decided to focus on when after the the t units it's clear that he's just trying to drive around and get away from from the police that are shooting at him eventually he comes to a barricade and stops the vehicle this is own video and is at that moment at that moment it's our contention that the facts changed the david was no longer fleeing the david was no longer an immediate threat to anybody because the the facts at the time i'm asking how ask you st and i'm not trying to pin you down by the meter but you could try to get your understanding of this case right so if i'm not saying you agree to this if it would have been added potentially continuing dangerous situation to the officers or others if he were trying to back up the truck using deadly force to stop that are you saying that might have been permitted but the facts are disputed as to vehicle there is the ct to give a lot of credibility to admin to middle name gary reinhardt who was about one hundred and twenty feet or forty yards he does if i had away from the scene and inside a club disturbing thing about this case as i think you can argue that the officer lara proceeded to go to the vehicle after it had been stopped it was a moment although he said he thought it was time to put it in the rear and rear here and move out but there had how to disregard factual genuine issues a fact to get there in other words she made factual determination that there was no immediate harm in because because she got in the traditional way to win your case if you're go as the facts as the court found your honour's so our point is the court read in appropriate factual conclusions and in and by doing that was he would justify this position of hers as you know that there was no clearly is found also held in a recent case that also came out of judge all roses court but it doesn't have to be so specific right that if it's clear based on the precedent that shooting an individual in the circumstances is citing give me one second on my struggle is your belief doesn't talk about clearly established violation at all and if you had then we could have a more interesting conversation my concern is you haven't actually challenged what district court's finding of qualified immunity on behalf of officer harvey at a lotta affirming the district court's finding unqualified immunity is appropriate in this case because the record clearly establishes officer lata was actions and his use of deadly force or objectively reason reasonable under the totality of the circumstances that he was facing at the time of this incident the crux would you agree though that if there if the truck is a complete stop and he's no longer posing any risk of leaving or any of any sort of danger would you concede that there is no basis for shooting him at that point i would agree if the carson the facts of this that case are clearly distinguishable because here we do have evidence on the record that shows that officer a lot of did give numerous verbal commands and warnings before he opened fire and i cited that to i also want to i corrected myself i also want to take a step back and look at everything that officer lott anew at that moment in time and let's go back to the facts of what he encountered when he st got to the so that's where i am distinguishing this kind of an admission and call the theory was he didn't even know the officers were there correct correct or had it out in this case that he knew the officers were there there's no doubt he knew the officers were there in fact he had already i don't think the case law is very clear that it has to be that specific your honor i believe that the warnings that were given to stop and get out are commands verbal commands for the suspect to stop the activity the conduct that the officer believes is threatening and coupled don't i never but i'm there's no evidence on the record that that would confirm that he never knew there was was a weapon in the vehicle but that was an issue that wasn't even touched upon in the briefing and even at the district court level but i would venture to say that the officer did not know for a fact that there was not a weapon inside so that also adds into what's going on in his mind making that split nd decision after everything that he had already encountered wit at that time again he had  speeds in an elderly community this is a winner texan retirement community park even see an officer a lot as dash cam you know elderly gentleman in golf cart strolling along the street there's also an officer com besides it other than testimony that they're relying on or is it just that that's the majority of it your honor they do touch upon other i'd say i call it mis characterizations of testimony but i dissect d each each fact that they contend is in their favor and it's clear that there's this beautiful facts and on the record that disputes what they're saying and completely ignores and doesn't even touch upon and the district court level in the in their response to our motion for summary judgment and i will say this is another tense testimony that they so heavily rely upon they didn't even attach it on the record in their response had it not been for me bringing it up in reply to their response her testimony wouldn't even be in the record so i even gave that to them in the record to show that even with shirley nother tunes depo testimony that they claim is so strong it's still not enough to defeat it's not enough to show the burden that they have that officer lott as actions were objective lee and reasonable at the time so let me ask you reasonable officers would have known that in that situation mr green was no longer a threat to themselves or others are otherwise the use of deadly force would be appropriate  reinhart's testimony and he also corroborates officer law does account of what happened he heard the furball commands he saw the suspect moving end a vehicle looking like he was attempting to officer lot as account that he could see the motions that appeared that he was moving the vehicle the tires spinning as he was trying to attempt it looked like he was trying to reverse the vehicle and you also have gary reinhardt an independent witness that said it was clear that the guy was trying to get out of there we even have surely nother ten in her deposition testimony that she says he was it looked like he was trying to leave the area so we have this person that had already gone around the trailer park and almost hits an individual i think you see it an officer does dash cam and if it's a danger it is a potential danger not only to the officer that's afforded to fifty trucks but also to the other elderly residents around the area in that community so there is the connection that i make in what's going on in the officers mind and at that moment he has very few seconds but there's later portions in her deposition testimony where she says it's clear that it is in reference to what she told the texas ranger who visited her house shortly there after for a video recorded statement that  referenced in her deposition testimony so to a few days i don't know i'm going to say to you but a few days shortly after the incident she does say that it appeared he was trying to leave the area and that is in her deposition testimony but it was in reference i will make well i get the wheel spinning was officer a lot as accounts of that would be in his depo testimony and ranger callaway i believe made reference to there was holes in the ground that it appeared that it looked like the truck was his make emotion the you're saying the other day and said that he was trying to flee i said that in her deposition testimony i asked her questions about a victim a recorded interview a video interview that she did with the texas rangers a few days after the incident in question in that recorded interview she told the texas ranger that it looked like he was trying to get away and what page of that that's what i'm trying to look for that in my addressed the legal requirements to defeat qualified immunity in their brief their challenge was as to the district courts and alice's of the facts on the record of this case  nowhere and no evidence that they provided and nowhere in the record are there anything anything that contradicts the statements or the account of officer law to and if falls in line with all of the other independent witnesses accounts of the event and what the video recordings of the event but the main question is whether it was objected lee reasonable for officer lotta to believe that mr green was a threat to his version of what they think mr green was doing based on the undisputed facts on the record you know his his actions were objective lee reasonable and therefore you know appellant didn't even make a reference or try to argue that no reasonable officer would have known that firing at greene was prohibited by clearly and that's the clear argument that we try to make throughout officer lott as brief is that they simply never get there they simply never get there and there's plenty of evidence on the record to show that the account of what happened the the the allegation that that david greene was sitting there motionless at the truck was an operable is not it is contradicted by the record evidence that we brief to the citations but i would argue even helps officer a lot of his account because she did not witness the entire incident at one moment she's in the front of her house she goes into her house goes out the side door so there's no way she could have seen the entire incident as the palin is claiming even if she came out at the time it was not in the time enough to see what was transpiring i believe the photos that are attached to the brief appellant's brief shows the vantage point that she was at and it is to the rear there is no way that she could have seen what david greene was doing inside the vehicle so it really calls into doubt we strongly feel that the district court in its forty nine dollars page opinion went thoroughly through every single fact that was raised by both parties and thoroughly addressed each contention and came out with the right decision there was no contradictory facts that would assert or get near to the level of showing that officer lott as actions were judged every on reasonable in fact everything points to that his actions were objectively reasonable under the circumstances that he faced at that time your blue brief doesn't talk about what clearly established legal principle that destroyed ignored well it's the the problem with that is that if you're if you're looking at page forty five minutes by itself the reason the court makes that deposition agreed that there was no tire marks there is no evidence that the tires were spinning there was no indentations in the grass at the point where the truck would have been you know against a tree he did say there was some there was some you could get through he was trying to get away what is i mean he was trying to get away i don't  i gree with you later it says a tire spinning any smoke coming out no ok but there's also he was trying to get away yeah i don't know what that means or honest but again all of the officers at the time so he says he says he saw movement he said he saw eleven particular movement and that's it it read that after that one movement he didn't see anything else inside the truck because it could so there's no evidence from anybody that they could see what david was saying also that there's no evidence that anybody could reasonably believe that he had any weapons in the vehicle the only weapon that he had again going away back to the beginning is a machete that he dropped on command as my time thank you all for your for your time this morning