city of anaheim and whether that the court applied the after standards in cruise the court found that when there is a sole survivors of the place officers account of the way the shooting occurred correct the purposes of this argument you do yes well there goes qualified immunity well your honor i don't think so because if he's  dispute is whether or not he as mccarthy says he was one to two feet away when he is reaching or two to four feet away that that's really immaterial he's still a threat the question is whether  in fact our expert mr lewin lenski who's a behaviors expert testified earlier smit a report that a individual average individual and traverse three he was then in a position to be shot in the back of the neck so that that trajectory could go as you know it did from that from the back of the next towards the chest towards the front of the castle correct but so so it's plot possible certainly to get that lined up so that it gets lined up i think roughly with the officers testimony but the officers except that the officers testimonies that he shot when they were both back up and  defendant was started to reach up towards him was coming towards him and then he shot he says the word level level with him so that seems to be a more getting back to cruz that seemed to be a more compelling inconsistency that that's difficult but let's move on to the next one if we could because i want to make sure you have an opportunity to answer the other ones that concern me is that your witness an eyewitness testimony bear witness saying that the victim was not shouting that are you kidding me but he sounded compliant and the eyewitness testimony her turned away after watching most of the altercation because she thought that the victim had been subdued she thought the action was over what about that  the witness would be basically testifying as to the state of mind of mr r take but what about the sound of the voice sounding compliant whatever that means i don't know that's what we've got in the record that's correct it's not th saying she said she turned away because it was over she thought the victim had been subdued well i think what she said was to be forced to turn away because she was going to go out the front door and look and see get a better view she didn't turn which she said was and i right before she turned and then i see the f have a slight advantage i'm parent through blind and i take my fingers away and then the blinds close and then she sees hears that are sees that but what she said was he had a slight advantage and it looks like the officer was going to detain him and handcuff him he did not believe that it was it was she thought he had the upper upper hand but they were still fighting when she left the well why why some qualified immunity didn't know i don't the basis of mccarthy's various statements alone he couldn't get a story straight he told one person saw things this time next t howley something else while we hear about the reference to cars was the whether or not the weapon was picked up and pointed toward cars readily admits in his and mccarthy and i said he ever said harshly readily admits that he assumed the weapon weapon which picked up this is what juries are for what we have this isn't simply a series of our controverted statements as between the plaintiffs and the defendants these are the police officers who can't get their story straight well  struggle in from here the years of experience in dealing with these kinds of situations normally when there's a struggle over the gun there's a seizure rob and what mccarthy said garstin let me tell you exactly what he  said deal with what he says karsh told the homicide team quote at some point during the fight author mccarthy's spare weapon that's on its ankle the ankle holster was just large it fell to the ground the suspect saw this picked up the gun and raise of what mccarthy doesn't have it's not qualified it doesn't say in my opinion or i believe or now i know that the best of my recollection the this is a definitive statement of what happened and it's not to you know it's not in the deposition it's not to an opposing counsel it's to another police officer but again that's karsh and what we're going to end up is is actually not just harsh he's an officer in the police department he's one of mccarthy supervisors it's not some guy off the street understand it your honor so he you think your best day is that karsh misunderstood or made an assumption and said something that was just wrong right but that he didn't have any personal the district court thought not possible person could have that the sequence could have played out the way mr mccarthy described it what about that well it's he took one paragraph from the entire interview what happened when mccarthy was interviewed he was described in a general sense what happened and during that paragraph he never said well i put my taser back later on in fact the next paragraph if you follow the next paragraph he goes through i think again in more details basically says i had him on the ground i took out my taser i got his left arm behind my back behind his back i put my taser away started to get the right hand behind his back and then some point handcuffed him i think we have the left hand ok left and he did you know a lot going on well but that's possible zones of tasers back in his pocket and that's what he described in the very next paragraph but but he's he was able to with his mccarthy with his right hand was able to get his right hand back mccarthy pulls away with his right hand and he looks over mccarthy looks over and sees the revolver on the ground and slaps or takes an away so i mean certainly enhance enough to do that the way he slapped his hand away but see that's another inconsistency at one point he said he didn't think that that it even been seen th been well during the process during the fight an initial fight he didn't think or take a saw the weapon but as soon as or taken got his right hand away he slapped the weapon away in other words we have to go in sequence the revolver falls up they go to the ground at that point he didn't he said he's hoping ortega didn't see the weapon once he has his left hand behind his back r k go read his right hand away that's what mccarthy reaches out and put on february eleventh he testified to take a reached up and grabbed his revolver in his deposition right for he reached out and grabbed it there we're talking to your son weapons his primary weapon and his secondary weapon secondary weapon is on the ground and that's a revolver that's the rebound primary weapon is a semi automatic right right he reached out and touched the revolver he reached up as they were fine once they got up and he was fighting he reached up to grab the pistol but he never got a hold of it the only inference that he got a hol in all of the moving papers of the appellant's papers officer mccarthy construes the facts in the light most favorable to him not the plaintive district court was correct in denying  because plaintiffs have raised material issues of fact so there's no reason for us to even be here assuming that we should be here turning to the materiality of the facts as to the constitutional issues and i think instead of recapping the law because i understand it your honour's are very familiar with the law i would say the third such case we've had in the last two days and we've got one more right after so you may assume that's a good assumption that we're well familiar with the law of nine hundred eighty three  let me just then address some of counsel's points that he raised with specific references to the record first there's no evidence of any stippling or tattooing on the body of vict that would even suggest that he was ever reaching for anything the trajectory of bullets which judge kristen used you've already addressed that has mr r tegan and a fleck forward submissive position position and i don't know if you want to he's down right or right but his head was not bowed down so he was he was shot in the stomach because ops or mccarthy was about four feet high at least four feet and and that's another thing our expert puts him at at least three to four feet the council it would be consistent if officer mccarthy were above the victim and the first shot goes into the abdomen and then as the victim collapses forward the second shot is the back the next right that's correct except it only works if it's not a level shot mr mccourt see was above the victim i think that's the only way i can make that make sense that's correct ok so if that's the case then the then the  inconsistency between the testimony and the physical evidence is the the level of the shooting who was up and who is down it's the level of the shooting and we also have to know the grazing wound on the abdomen because the first shot into his abdomen again he's in a either kneeling submissive position most likely with his head up or else it would have hit him in the face i mean to be neutral i don't know that it's submissive i am not sure that was the first shot it's just the only thing i can make sense of is this is that the abdomen shot must have been the first shot and that the victim may have been collapsed as opposed to being submissive he may have been collapsing forward right right and it goes in a downward position which shows that officer mccarthy was on top of or at least in a position superior however you wanted to swell to the base is not level he's he's higher i think that's the only way i can make sense of it and to be as neutral as possible on the factual evidence it seems to me that that's the inconsistency that the victim had to be lower than the officer that's ok we also have evidence of handcuffs on both of the wrists of of mr arteta we also have what ev there that i am the report the autopsy report shows evidence of cops on both where he was wasn't he cuffed afterwards by other officers according to officer mccarthy he's the only one that and that leads me where he was contacted he was after he was shot isn't that standard procedure car correct but there is a might but that explains why there are custom arcs on both both wrists it doesn't tell us whether or not mccarthy only got one cuff on the left and that's right so i guess what's the materiality of that argument the materiality is that it's only officer mccarthy that has the story and we really have to judge parker pointed out we have to look at the changing stories from mccarthy and so as part of the whole circle i just i want to make sure i understand what you're are you are you arguing that from these facts the jury could conclude that mccarthy got handcuffs on both right and left wrist is that is that what you're eyewitness to the actual shooting it was there no testimony from any of the other responding officers that they cuffed or did mccarthy say i cuffed him after he was shot he said he caught them after he was shot and then he had to move the body out of the court or what he said i went over to ortega and fully cuffed him after the shooting right and then the autopsy are the i'm sorry the the scene photos will show that he only has one cuff on because he was then really cuffed and then uncuffed because when you part of the struggle nobody saw a gun nobody saw him reaching for a gun so that begs the question was there even ever this is all take place in a very narrow hallway or corridor or if so were the witnesses able to see both men from head to toe based on where they were visa v the position of the witness in terms of the depositions of mr le roux and ms marshall  they testified as to what they saw and they specifically testified that they did not see anything the lying on the ground they had the vantage point was that's not my question my my my question is we know where they were and we know where ortega and mccarthy work correctly so my question is were they physically able to see from head to toe if a person was standing everything that would have occurred in there and all i can tell it all i can say is i don't know because they were das out on deposition they were asked that i specifically asked both of them what their vantage point was and they could see in front of the officers the officer mccarthy at one point was on top of of  of their heads at that point were facing the window across from where those individuals could see so i mean without speculating i would think that they had a clear shot a photograph of the scene or do can we look and see whether or not there are railings or solid walls along this corridor or they testified that they had a clear shot out the window and the door and there are no there are photographs in the record but there are no no obstacles to being able to see so my point is that they did not see a gun ever we don't have any proof offered by anyone that there even ever was other than officer mccarthy's testimony that there even was a secondary weapon on the ground we've got the two footsteps before the shooting with no sounds of wrestling's also as part of the evidence and we have no his he was the lead homicide detective for this investigation he confirmed in his in his deposition that the d n a was not mr ortega that's not my question the question was word their d n a specimens that were taken off of the revolver from two different donors even though they couldn't say conclusively whether or not it was  the second sample was inconsistent they could not they could not determine whose it was but they ruled out the first sample as not being mr ok i don't know i mean i'm not sure why you're having such a difficult time answering my question my reading of that testimony in the report was that there were two samples detected and that they both did not come from the same donor is that correct and that's correct but they couldn't conclusively say the second sample was o optima carthy gave his version of events first we have the briefing by sergeant card we also have then the statement made after the shooting occurred and obscene mccarthy had an opportunity to meet with his attorney then we have his deposition and then finally we have a declaration in support of the motion for summary judgment there are numerous inconsistent statements regarding the use of the  whether or not victor grabbed the secondary weapons and all they have for it to grab grab it grab for it grab for it and pointed it at option mccarthy there's three different versions there there's  mccarthy states or testifies that he blocked mr ortega's hand on another occasion he said he swatted away on another occasion he says he grabbed his right arm and threw him over to his side and in another one he says that he pushed it away those are four different movements with respect to the briefing i did want to raise one point about that and in terms of the allegation that off and again sergeant how he was the lead detective investigating this homicide to this day in response to sergeant how his request that sergeant karsh supplement his report to statement about grabbing the gun and pointing the secondary weapon at my right but whether officer karsh made martin i think sergeant karsh made a made an assumption made a misstatement whatever and e r ninety eight officer mccarthy is testifying and i asked him what did karsh ask you and he says i was telling him that quote we were fighting and we were fighting over the gun as officer mccarthy right right so what needs to be clarified what i was asking when when did you know he was not trying to get away answer when he grabbed your revolver yes when did he do that when he reached to grab the revolver this is officer mccarthy  the test the clarification that i'm discussing is sergeant how the investigating detective had a problem with the briefing and what was said in the briefing and asked that sergeant parsed go back and supplement his report and in response to that questions at sergeant how is that position as to whether or not he got or received a satisfactory answer to how that discrepancy is clarified sergeant how he testifies  that is still an unresolved issue that well we in cars weren't there so we see cases all the time where well meaning people get things wrong make assumptions all the time but this is so which is why i'm really trying to focus on officer mccarthy statement statements plural and whether they're internal inconsistency that isn't what officer mccarthy said i think that was really going to get to judge parker's point which is i don't know that we need to go farther than that here i see i'm almost out of time is that officer mccarthy in in his initial statement said that he told mr or hey go to stop or i'll tease you not one witness ever heard anything you do very quick as to the handcuffs i think the court understood correctly ok as to the whether or not there was a weapon on the ground u lorre didn't see the weapon but he did see in the same sequence that mccarthy was talking about the fight and just before the shooting he did see a star take it reach out and reach towards mccarthy ankle which is where the weapon was so there's certain simd cooperation in addition after the secondary weapon was examined there were scrape marks on indicating he had come across the sidewalk so have responses to the reason consistencies and you have theories about who are they how they occurred and so forth but i don't see how that adds up to a version him and then after they shoot him they have to cut him out of the could not of happened right ok these are those kinds of issues these are cases are much more nuanced and are the kind of consisten these right which is why i think that's right chris is a very extreme case but this is a proof case it's place but but but and that's where i go to the inconsistency that goes to the physical evidence about the shooting and the level and and the trajectory