look at the supreme court's decision and so vs how can and address how that case might apply here i don't think it has any application in the situation that the officer confronted was whether to shoot or disturbed fel yet on avoiding capture through vehicular flight when persons in the immediate area or risk from flight here the we did not have disturbed probably associated with the group that in fact were the aggressors those two those two witnesses both testified that the police never identified themselves as police that in fact one of them never said anything the officers here were dressed so as to who void being identified as police officers one of the officers had a shaved head he was wearing shorts and a white short sleeved shirt probably  shirt shaved had shorts and t shirt the other officer had a goatee and a beard who was at shoulder length or longer hair so there was a what are three of your clients say about mr pickett's possession of the gun none of them know anything about mr not all of the three clients who are the states or the heirs have no idea what happened because their children are dead the only one that survived was mr pickett the key evidence is that there were just i think tests performed on everybody that is on all of the people in the police fired three or four rounds off and then pointed the gun at the police never had a gun never fired a gun because there was no g s r in his hands and that was corroborated by the one survivor mr upright in the back seat of the car that mr pickett pulled himself forward bending down so as to give mr brewer an opportunity to point the gun at the officers mr pickett fad that never happened he jumped into the car he laid down the seat bullets were flying as he did so that lloyd brewer jumped into the car behind him immediately jumped out the other side and fell dead on the pavement so the story about what the police observed w what do you do with this rodent dabs and bro are your clients in their complaints say quote during the argument picket pulling from his waist a gun and fired one shot at the other group after danny and fired the shot before individuals headed to their vehicles you got three clients to say the picket picket fired on the other group they were wrong they had no hope that allegations was completely it was the complaint the defendants have denied that in  mistaken allegation in the complaint and told that which they did in their reply to our opposition to the summary govern motion we made a motion to withdraw to strike that allegation because it was obviously incorrect the clients who were making that allegation have no personal knowledge had no way of knowing whether that was true did pick a number have the gun in his pocket he had the gun in his pocket he got it who gave it to him he he got it from gaffs when before they went back to the incident rounds when the gun according to the police there were five expended cartridges in the gun of the any other guns in the car when the police got there there were no other guns isn't it a fair inference that this was the gun that was involved in all shooting it's not it is not pickett's declaration contradicted by his statements not at all i mean he says he saw her and ever sat up beside me never turned towards the driver side never raised his hands or hands did not have anything in his hands or hands including a gun makes mr pickett's testimony so convincing is that it is the only one in the world the only person in the world because their body else is dead who could possibly say that he had the gu said when he jumped into the car he took it out of this pocket and threw underneath the seat of the car and there's no evidence that contradicts that i mean it seems perhaps one of the likely why did you do that if you hadn't been involved le the car and he has gunshot residue on his hands brewer had no time to wipe anything off he's not wearing gloves he's dead immediately i mean there it is the gunshot residue go  that was obvious from the dust up between two groups harassed and picked at being a member of one of the groups or with the groups then goes back to the car correct and one of the one of his friends gets him a gun dad says take and the two officers dressed more like gang members or narcotics dealers and police because that's what they're in they're trying to portray follow both groups up the stairs and they he a confrontation between the two groups and then somebody starts shooting somebody starts shooting the police say that it was that it was just that it was lloyd brewer who started shooting i think they concluded that these were young black men who were probably involved in the gang that therefore they were fair game was the other group of different ethnic backgrounds they're all they were all black but they that the other group steve because they said it is the officers testified that they saw mr brewer shoot the gun and i think the evidence shows that's impossible so why are they saying that if it didn't happen maybe there was very they could be mistaken or they could be coming up but they recognized after the fact to be a wrongful shooting really one of the interesting  shooting then figured it's a gang shooting everybody is responsible the other group ran down the stairs the actual aggressors the shooters the people who threw in witnesses saw  three independent witnesses saw the gun and one witness said i wonder why one of these witnesses reported to the police that she heard one of the actual shooter question is why did they shoot at the group that got shot rather than on the show the actual shooter and my suggestion is that one reason is that they jump to the conclusion that everybody who was involved in this gang shooting was was fair game and that the only people that they could go after were the people that were away from the staircase my guys jumped in the car to try to avoid being shot they were they were available to the police went after them the other people ran down into the mall carney they drove the car but they didn't stop with their hands up they didn't the evidence is clear that it was stephen vaughn who was a member of the bloods gang which was the opposing game that got shot in the arm and councils offered no explanation other than what version of the dance offered by the police officers was i e that that group was shot at by the group composed of mr pickett and the three other individuals also the decoration upon which that group or the other three individuals who are now deceased fired that gun into the group opposite that well you say that's the case but the other side disputes that and then doesn't pick and say nobody from our group shot at the other group picked pickett says that in his declaration but his declaration is also very much at odds with the allegations in his own complaint one thing the plaintiffs are relying on is the sequence of events the declaration that mr pick summary judgment essentially says that his group came down from the mall they were walking back to their car two of this friends were already in the car and a third one was almost there and then shots rang out and he jumped into the car into another group of young men with whom they got into an argument after a second argument the boys came to an understanding that they would take the matter outside as denny and his friends exited the mall to enter the parking structure and he got into another argument with the first group of young men they argued with earlier in the mall as the argument escalated gun shots were fired at which time then he in his friends headed for the vehicle that the only difference in those allegations and the did not fire the shots but it isn't consistent with his declaration and the sequence of events he denies in this declaration that there was a standoff and shots were fired and they ran together to the car this declaration says that two of the three others with him were already in the car before socks were fired the third was almost in there and he was on his way to the car what the complaint shows is a scenario as as seen by the officers which is a of correctly believed to be blood gang members a group of correctly believed to be quick members standing up and one in the group of crips shooting into the other group and then running to their car that's what this is this scenario this exactly with that except for he says gun shots were fired well but why don't you have a genuine issue of material fact you have disputed facts here pick it says x and put the police say why and it seems to be at the center of what triggered this whole thing so it doesn't ordinarily disputed facts like this necessarily have to go through a trial or a fact rather than be resolved on summary judgment it doesn't just take the facts in the light most favorable to the person about to lose meaning that's correct but at the scenario offered is implausible as a district court said it doesn't have to go to the jury has to be a genuine issue and there was so much evidence you're supporting the version of events and by the way  s record didn't rely upon one person shooting from that group he went through a series of facts observed by the opposite and the question is do they have probable cause to believe that crime involving the infliction or threaten infliction of death or serious physical injury had occurred and if so they can use deadly force to stop those people and clearly they have probable cause that you are far suspicious  the movie would you believe it i mean i wouldn't if this is this happened in a matter of seconds and it's not a car speeding away not the record doesn't say the cards are spinning wheels and am flying through the through the parking lot at that point in the car and started to and then the person in the rear passenger side is the one the point of the gun and we know the gun is in the back seat because mr dad reaches back and picks it up and shoots himself with it so i don't think it's nearly as a he's referring to i don't recall a declaration in the evidence affirmatively saying that the police did not identify themselves but they certainly have every reason to do so and they say and they have testified that they did so i don't think i don't think there's a material dispute on that issue and besides i warning under fourteen and under tennessee versus garner a warning should be given if feasible we police rubbing his hands through his hair like he didn't mean to do it like man i messed up he is sure he did not hear the police say the police say i think least the officer only heard the words and heard it only one time i thought you said the other group ran in the other direction as well with most of them did most of them ran down the staircase apparently womack was someplace in the parking lot because  me go back to something else as to who started the shooting let me just give you the district court's version of this and tell me where you think this is wrong is talking about morgan rather than alexander and he describes what they say in their complaint is judicial admissions supporting the officers version of plaintiff's claim that brewer wrote in a picket never fired a gun to anyone's support they rely on pickets declaration however in their respective complaints in their complaints morgan run and alexander all state that quote during the argument denny pickett polled pulling from his waist a gun and fired one shot at the other group after denny fired the shot the four individuals headed to their vehicles quote from the court this statement constitutes a binding judicial admission and then citing some cases under federal law stipulations and emissions in the pleadings are generally binding on the parties of the court judicial admissions or formal admissions in the pleading which have the effect of withdrawing a fax issue so that through honest on these statements wanted him and it's as likely as not that he was that he was shot by the police in my view there's no evidence as to who shot that person let me take it to the next step down the qualified immunity analysis let's assume we've got that far and as we were discussing earlier under tennessee vs garner which i'm very familiar with course why wouldn't this fall into the category of a a mistake made by police in the heat of battle and the law allows police prevents police from being sued for a mistake made in the heat of battle and we know there was a gang fight going on here between two guns shots fired so it's not easy vs garner seems to suggest that under th circumstances you can shoot three in felons who are fleeing from a gang fight involving gunshots in a public place why wouldn't that qualify for qualified immunity i think the big problem is that the justification of the  was in a position to know whether that was true or not and he said it's not true i had the gun he didn't have the gun i thought he said it is the position it was on the floor and didn't see anything he said that he jumped in the car he laid down he thr and that's true i mean like gerd was found dead outside the car in the inside of the car so mr pickett was not perfect position to know that it could not have happened the way that the officer said it happened if it didn't happen that way if the officers for whatever reason just started blasting away at this car full of four young men without having identified themselves as police officers they were being shot at they ran they ran and ran to their car to avoid being shot at by the other group and then all of a sudden they're being shot at by these other thoughtlessly commit suicide when they're being shot at by other gas well at that point in time i think perhaps by former chief cook and the investigation if it's any close to be found it's buried in the investigation that we never got we never got our hands on