in this case my client's son is dead today because an officer was to ring to wear his eyeglasses twice by a doctor on that he needed to be wearing a peculiarly at or they didn't know what the horrified they were speculating as to whether or not well let's look let's take a little bit of a look at his frame of mind i mean i'm reading the the calls and he called nine one one to report this is going on is that right yes he did and he said that the and i will leave out the expletives back off he one of the officers to back off to the right yes and then he told them he  had a gun and a positive disrupt in a probable destructive advice device he did but that was never committed i understand that but that was his frame of mind back off i have a gun so now i've seen we've all seen the videos he's out of the car and he's turning around in a stance and pointing something at him now doesn't that show his frame of mind he's trying to get them to back off he has a gun no i believe he will that's what he said he wanted to have happen but i believe if you look at his action he's holding it up a gun isn't four and a half inches why i believe he was trying to get that th camera to work took to what you believe that the what he said was i've got a gun back off you believe he was trying to get the camera to work but what he was saying is tell him i've got a gun he's going like this back off well i believe a jury could find that he was trying to to film what was going on and and i think you need to back up to stop what should the officers done according well first of all let's even get to the point  no one said i'm not going to bury officer learned tonight that's right but before he was even stark the command told the officers back off back off following him and they refuse they said no we're not going to and it's interesting because there is a case there's an incident here in l a the l a area has this in the record now but i was going to just make an argument over the police taste the guy for about two hours finally they said well we know who he is let's just back off and we'll go and arrest him later you have the same situation here when he was speaking does dispatch he gave them his license number he gave him his name he they were talking was not mother they knew he was  didn't ram the car they bump that i mean i watched it wasn't a ram well he couldn't or because there was no not in there and he said look i've committed a felony you know i'm on the run that the officers have no idea what he's doing at that point he started to make a u turn on the want to one and he may or may not be successful maybe he's run out of gas maybe hasn't run out of gas they have no idea what he's done and if he's got a full tank he can he can back the car from the median and head back in the opposite direction i a very very strange move well they had him boxed in so i don't think he were i think a jury could find that they hadn't bought stand he could move but here's what but then he got out and started to run and he turned around but here's what officer  and this is also testified to by mr park the expert but officer luna himself says you know the appropriate thing would have been to wait behind the doors of the vehicles to see what was going to happen to see what the situation was to give him warnings they didn't do that if they didn't if they did that instead of charging at him immediately with their guns pointed they couldn't wait to see what happened they could have given him more rooms which they threw the officers or said no no warnings were given they could have they could have done that and it was only reasonable not to even buy officer luna fired simultaneously loses out little not the old one and not the only one is close to him but he could he could have he was the one most directly he was ten feet facing him he could have told the other officers hey he didn't go i think he didn't fire at the guy because the guy was running away this is not to shoot him in the back while he was running case he sed he didn't fire until what when did he fire they didn't start firing till he was turned around running away and he was shot in the back so will times but it shouldn't have done to that point because the burden of proof shifts capas or luna to prove that even if he had been wearing glasses he still would not have learned that the only one involved here you know the one probably would be well worth pursuing but he's not the only one he's not the only one of shoots it's not in him any evidence it was the first one to shoot that's a for a lot of shots fired here and they were it appears that they were fired simultaneously well i don't know simultaneously but again if they had done what they they reasonably should have done what a jury could reasonably found that they should have done which is to back off go arrest them later they're not going to do that to stay behind the protection of their vehicles see what develops give him give him warnings instead of just the moment that they stop him scar charging at him with guns which by officer luna's own testimony was not the appropriate thing to do a jury could find this would have never happened ignore an officer not sports testimony that says you can do that if it otherwise complies with the requirements of qualified immunity it talks about  uses words like simply and by itself so if there are other factors jury can find that you but you've got to be able to demonstrate that a jury would conclude not only that this was a fourth amendment violation but that it was so obvious that no reasonable officer would have behaved in this way much less the seven who did well this is a mistake of fact case and i believe the standards are set forth that no reasonable officer cording officer lou the various factors that i've already mentioned regarding the fourth amendment violation and the on reasonable officers conduct all of these are factors that a jury can also find show that these case look at the case law puts them on notice that you can't show an unarmed person in terms of reasonable mistake on right in order to get around the qualified immunity and credo you're basically going to have to give us that you're going have to have the case that the officer should have or had and had they read the case they would have known that they could not fire in the circumstances i think the johnson baking i believe the tour and these are all cit the tourism versus city of madeira case the wilkens versus city of oakland case the jensen versus city of oxnard case the espinosa versus city and county of san francisco case they also i believe the specially  mistake of fact cases i believe all set forth standards that show that show that a jury could find that a reasonable officer should not have done what they did and that the law had been established that they could is there any evidence that disputes this it's officer alone no the first time when i came around his vehicle he was up on me in a two handed shooting stance i drew my pistol pointed at him and that's when he ran eastbound i had been fired at that point he ran he spun maybe fifteen to twenty yards turned on me again with a two handed shooting stance holding a shiny object and that's when i fired is there any evidence that the disputes that all three of the videos do that because i don't believe running backwards holding a i want shooting stance i don't believe running backwards as a shooting stance he was not he says he turned on me again and that's when i fired  and when he turned again he was again running backwards i don't believe that but he was facing the officer like this right he was facing the officer but victor to back up to the other piece of information your honor said i think it also shows that's not correct after him with his gun but he didn't he didn't do it he didn't shoot immediately didn't just start shooting him right on the spot no he didn't but he's he should have been behind the doors of the vehicles to give warnings to see what was safe  to see what was going to develop he was all and he and and by his own admission he says this isn't what you do he was already chasing after him with a gun as out as my client's getting out of his vehicle he should not have been chasing them in that way good morning your honor is live bach on behalf of the city and the pelly this is undeniably a very sad case but when it comes down to it to just a court order was very clear and i think with this case it really is remarkably like the scott case in that we have a videotape which is undisputed and which undeniably shows exactly what happened and exactly what those officers were facing the opponent point of view in this case seems to be in essence of the officer should have backup and i backed off and i think that the statements made or see what develops i think that those videotapes show that a lot had developed by the time the officers were shooting mr arion had led them on this high speed chase had taken a huge turn on the one hundred one freeway had jumped out of the vehicle and had pointed a black shiny object at them it did turn out to be a cellphone but the officers in the heat of the moment are not going to know that there's anybody ever look at the cell phone to see if it's found anyone to see if a film that anything i'm not sure about that that would be interesting wouldn't it to see if he was trying to perhaps he was trying to film that that might have been what i was trying to do so let's assume that he was and what consequences flows from that well the the consequence is not flow to changing this order because the issue here when it comes to qualified immunity in particular you don't look at it through what actually happened or what mr arion was intending you look at it through the prism of a reasonable police officer that was on that scene in that chaotic night in question and if you look at the videotape it's remarkable for a few reasons one that all of these events unfolded literally in a matter of seconds it's amazing how quickly it all happened secondly i think it's quite interesting if you look in particular at the channel four videotape and that's exhibit five in the record the newscaster quite innocently is narrating his view of the scene and a he's essentially saying what a reasonable perspective is on these events as they aren't full so when arion first turns and he's running backwards with his hands in front of him holding the black object the cell phone the newscaster says oh wow wow i think they're going to shoot oh no they didn't shoot him the newscasters almost shocked that they didn't shoot him at that point and then when he mr arion runs towards the civilians car the newscaster says exactly what the police officers are saying which is they were very afraid that he was going to carjack or shoot those civilians that were sitting in the police in the car just innocent civilians who had pulled over by the side of the freeway and the police saw that and that's exactly what the videotape to the top of that car that they provided the affidavit for a testimony in this case you know only they told the police that they were afraid that he was going to shoot him  cannot the record right but is but what is on the record is if you look at that video that he came right next to that car it is quite quite scary and again the newscaster was shot you can hear the in his voice one of the bullets hit him all over i must say is me you they did hit him all over all over head at that point and this is again what your honour's were noting it was not by any stretch just officer l shot i believe it's luna who did not fire actually i think the first round which is meet luna did not fire the first and i believe the first time she saw him he raised his gun to fight when i was just quoting right all right was so that where he initially said he didn't fire right but then the second time he did when he was near the civilians car is not corroborated by the video in your view it is well it's difficult to say in the video as far as when the shooting is occurring because you can't see the bullet you know it's at night and it's it's hazy it's difficult to see if there's bullets or shooting so that that part is difficult to see in the video  actually take the opportunity to correct something in my brief when i was preparing for argument i did notice typos if i could which is that the testimony of the officers that there was something in the trunk it's the nine one one side to that testimony is page three are page three thirty six page three thirty nine page three forty two three forty five three forty eight three fifty one and three fifty fo then this is testimony that the officers did hear the what the dispatcher said they heard what the conversation between the airing of the dispatcher not that they heard the whole conversation but they heard the transmission that there was a he had something in his tru say i'm sorry it was mr and shot in the back i'm actually not yeah i believe he was actually in part some of the because he was surrounded at that point when he had his final moment in front of the civilian car i would also like to know in response to counsel's comments about she han she had as you recall is the case that cited in the reply brief when it was reversing a qualified immunity finding by the ninth circuit by this court and then the supreme court later reversed and found qualified immunity so in the she hand case it is not we certainly did not argue that you would simply ignore an expert declaration it's just that the ets reject and that case and we submitted misgivings is completely irrelevant t generation this is a essentially went through the officers tactics and talked about oh they could have done it this way or they should have done it that way and that's just simply not the analysis it's appropriate for the fourth amendment or qualified immunity you don't look at how this could have been handled look at how it was handled and was that reasonable for an officer faced with this kind of a chaotic situation to handle it that way and there truly is nothing on the record to indicate that these officers did anything that was outside the line and if anything they were trying to work with the nine one one operator to try to calm this guy down and get him to pull over get him to stop it is mr arion himself who created situation it's tragic and it's sad we don't know what was going on in this young man's mind or why he did you can tell a lot by listening to what he told the nine one one operator correct we don't know what led him to the point where he would be there we don't know but for purposes of qualified immunity and fourth amendment we just have to look at what an officer would do reasonably when faced with this kind of a situation there's absolutely nothing in the record to indicate that there was anything wrong  first of all the standard is whether or not the officers had a fair or whether there was a fair probability that my client presented a danger of death or serious bodily injury either to the officers or to other people i believe a jury could find that the officers conduct did not raise to that level not a fair probability possibility is not enough i don't think she was offering his testimony because this case didn't turn on that i think she was suggesting that it might indicate what the officers thought based on what the newscaster thought don't you think that's what you've done well but ye mean she wasn't offering that i don't know that she's offering it as evidence but you know the newscaster is not there and it's not true and doesn't know the standards in terms of absolute let me ask you just quick question i don't want to take all your time doesn't matter when we review the record that that we see that the deceased person had an opportunity to terminate the whole event it's some event at that at some point in time during the preventable in which this all was unfolding i don't shouldn't matter i don't believe it should your honor because in almost all police shooting cases person shot his gun something as in this case they should have been doing it it's not whether they are or are not culpable or not or whether or not they have or have not done something stupid it's whether the officers in gauge as a jury might find engaged in improper in an reasonable act was the phone recovered i guess it was with a neighbor a look to see whether he was trying to film what was going on i don't know that that is in the record my in terms of the lease the summary judgment documents my understanding is i believe that the placing of the phone and when it was given back to the or was no video but i don't know if that was subjected for the forensic analysis city of hemet angular as versus city of los angeles cited in my briefs also what they say but not as the end all and be all of it but please practices such as court to say this jury should render a verdict in favor of my clients i'm saying allow a jury to make these decisions and i'd given the course court many instances where the jury could say this was not reasonable and it was not it was not reasonable not only based upon the retired officer clark's opinions but for example on officer luna's opinions and self and the fact that the officers were told to back off and they didn't  got himself in or was it that doesn't negate the fact that the officers are trained professionals and certainly it's a situation that unfolded very quickly but only they didn't even follow what officer luna said they should follow ups and also let's not forget there are state law cause of action here also you know it strikes me that the men at the officers observed him he was engaged in very dangerous conduct he was speeding and blowing red lights just right and left that endangers anybody who's come in the other way paying attention to a green light he was putting everybody in danger by doing what he did from the moment they saw him i don't dispute that your honor he was doing that but it didn't raise to the level of felony and it didn't work or didn't raise it only by the grace of god i mean if he hits a car broadside while he's doing that you know i was in law enforcement for a long time and i had a lot of cases where people are fleeing and the next thing you know you've seen him too it's a common knowledge blowing through red lights kills people and in just the grace of god he didn't ram into somebody i understand that and there are many many many cases where the courts  where the suspect was engaging in much more dangerous you know a three thousand pound car hurdling at speeds like that is tremendous a guide it's going to kill anybody it hits broadside it's a very very dangerous situation you know that i do understand if i have to people they got to stop this guy before and he just keeps blowing one red line after another it's not like they came on i'm going to is doing forty miles an hour in a thirty five zone turn on the lights and he takes off they're not there pan attention to their own business and all of a sudden he blows a red light he's doing it even before there's a chase that's true and that's a tremendous lee dangerous yes it is and dispatch told them to back off they knew how to get to him but i think back off he's already blowing red lights that's the thing that caught me it's not that he's blowing red lights because they're chasing him he's done it already he's just going through red lights on his own but regardless of that i still think you have to look at it from the standpoint and maybe a jury confessedly factor that in a jury can take that into consideration but i think you've got to look at can a jury find that their conduct was on reasonable at the point that he stuck usually back office because the guy is now fleeing because you're chasing him but this is a this is ok back off and then what the guy continues to blow through red lights where if they just ok let him go let him blow through red lights they could have backed off in a jury could find  in other words not even stop him when he went through a red light don't even stop him well they could have followed up with a helicopter i think the jury could find this and see what would happen if they back off with the endangering an awful lot of people in the process i understand that and many cases of this court have found that a right to a trial or even a right to a plaintive verdict event where the where the conduct was much more dangerous where a person to be in a position to be trained to use all of their senses and all of their training and i don't think we can ignore that and i think we've got to look at it even even with everything you say your honor you still have to look at  what happens from the time he starts his vehicle and could a reasonable jury find that the lack of warning the lack of luna's not having glasses moana himself saying you know this is a situation where you stay behind the circumstances with helicopters the freeway and everything like that that any warning could have been heard i think a jury can find out i think it's up to the jury i you know i think the jury should be allowed to make that decision i think i can say we've taken a well over time i think we understand your position clearly so thank you very much thank you thank both office arguments erin versus the los angeles submitted