less than a minute and then shot and killed zach the only surviving witnesses are phoenix police officers and zack can't testify there are no independent witnesses this case is controlled by this court ignore the numerous genuine issues of material fact as well as the evidence when viewed in the light most favorable to plaintiffs that zack had nothing in his hand much less a sixteen inch wooden spindle at the time officer broken shot and killed zach this district court chose to accept the inconsistent self serving account of the shooting officer who is the only officer out of four officers to see report and professions a position testimony i couldn't see where there was a material inconsistency so can you point me to what you think the inconsistency was all three of those sources say there was the inconsistency that we're pointing out is at the time officer brooklyn's is interviewed hours after this occurs he basically says that zack with a sixteen inch spindle in his hand reared back and he shot the he shot zach the inconsistency we're pointing out is that later three years at his deposition three years later is the position this is the inconsistency we're looking at and i'll give you further cooperation is that zach took that sixteen it's been all up once down twice so this part it down so what you're referring to is when he says he kind of goes forward a little bit and i slip off and he starts to go up it's in their response brief footnote no that's not any our number i'm asking do you have an excerpt of record number mean i mean we can find it but we can find it on the spot if you give us a number if you don't have a number that's fine but you telling us to look this is the second time you told us look at footnote nine it's kind of hard for us to do right now unless there's a more specific reference i'm just asking if there's a more specific reference and if you don't have it that's fine go on it just clipped it when you say response i think the problem is your you mean their opposition and so what they may indicate is as he put them on the second if it is he picked up a stick and act towards him with the stick in his hand and then in the deposition testimony he gives more supplement and they admit it supplement meaning it's it he fills it in more three years later than he did at the time that these events occurred then i still think that it's a genuine issue material fact were a jury gets statements to his the investigators at the time this occurred and the defense calls it a supplement a jury then gets to allow is allowed to assess the credibility whether that's a supplement or a change so what else a judge clifton basically you have all other officers present in the room with officer brooklyn's did not feel deadly force against sac was justified well i'm not sure that's quite true they didn't say that deadly force the user to force was not justified they said that what they observed didn't cause them to reach that conclusion for themselves they were always very careful to say that doesn't mean that it wasn't justified but what we didn't see and so i think the first taking you gave me there was too broad try to refine that and tell me what the inconsistency is it can cause a jury to decide that officer broken testimony shouldn't be believed well at the summary judgment stage where we are if there are four officers in the room three of them said i don't believe deadly force was justified and i was looking over here i was looking over here i was looking over here and i didn't see anything i don't see anything i don't know anything i think a jury is allowed number one we get to draw our reasonable inference from that in the light most favorable to us that they necessarily could have seen given the photographs given the positioning of everybody in the room that they could have seen that don't you need it to be the case that we would expect at least one of them to have seen it but like the inconsistency only exists if if the situation was such that we would expect at least one of the other officers to see the spindle correct it but the reasonable inference you can draw is that there are four officers in the immediate presence of hands on zach a reasonable inference that we could draw in the light most favorable to us is they could have seen it if it was there and so a reasonable jury could find that because they didn't see it or didn't perceive the the deadly force threat that it didn't exist which we have in front of you in cases like this were or were the only fall witnesses dead you have the physical evidence of the disparity in the injuries the severity of the injuries as well as the timing of how long this  was the location in the room and so based upon that a reasonable jury could find a reasonable jury could find that zack was severely beaten in less than a minute by four officers who forced him into a corner of the room where he did not have the ability i'm sorry i'm confused to how this is answering his question so it seemed to me that in the red brief that your opponents brief to our court in footnote fourteen on page nineteen of their brief they are argued and pointed out that the district court had excluded all of your experts and i didn't see anything in your reply brief that contested that or said anything about it and i didn't see anything in your opening brief that had a different take on what had happened with the experts i'm also struggling with whether we can consider anything about your experts sort of as a procedural matter it sounds like you're talking about substantive facts or something and maybe what they said but not procedurally what the posture is at this point of the experts judge freeland there was there was no order here or any ruling by waive the credibility of the experts at that time was it you could have said that in your opening brief that the district court seems to have been you know c it seems have thought it could exclude our experts or something about this but i just didn't see you dealing with this problem that it appears the district co excluded your experts and judge really even if you take that as true you still have all the physical evidence you still have the fact that the other officers in the room don't see this as zack that maybe you may not need your expert maybe your answer you need your experts but i but procedurally it seems like i haven't yet figured out how we could be using your experts for anything to help you and i'll submit to you that we don't even need the experts with the physical evidence if that's how you view it  posing counsel presents this case as it starts at officers enter through a door at mr putin's apartment and that's not why they were there and then doesn't explain why they were there and the reason why they're there is i think very important in addition to things that were just discussed in terms of threatened a mother who was pushing her child later at night but regardless of what reports had been made to nine one one you don't you're not arguing that if he hadn't picked up a spindle in the interaction with the police that they could shoot him anyway are you know that the picking up  justification for that and i think you argued in your brief i think you kind of conceded in your brief really the only question here is whether he picked up a spindle so i'm not really sure why you're backing up the relevance is if officer brooklyn's testimony is being questioned and perhaps i shouldn't go there just yet but if the court thinks in any way that there is some sort of dispute about officer broken system only then it can examine the entire record to find to look at what evidence supports his account of the of the circumstances giving rise to his use of force and certainly mr putin's aggressive behavior earlier in the evening which led to their call and what they were told just before they entered the room which was that so and so mr pitt had threatened apartment residence and they were going into a room where they thought the door was kicked and they thought it was in  essence a home invasion it is all relevant to corroborate officer broken so account of the situation and i'll go straight to that particular account i completely disagree and i think the court has recognized there is no contradiction in oxford reckons testimony his his elaborate reference to officer book and providing additional information about it raising whether he raised it once or twice or if it was in the bit in motion there is one in addition let me put to you the part that i've worked over several times and that is in the question for us is could a reasonable jury based on the evidence that's been submitted so far conclude that the shooting was not justified and that translates into conclude that sac pythian did not pick up the spindle and threaten the other officers since that's the justification for the shooting and it is hard because of the four officers who are present and still surviving and able to testify the only officer who testifies about picking up the spindle is the one who did the shooting so the question becomes for me could the jury have concluded that one of the other officers must of been a position to spot it and the fact that they didn't spot pythian picking up the spindle is a inconsistency that causes them to disbelieve officer broken statement why couldn't a reasonable jury decide we don't believe officer broken and that's true yes we've got four people in a small room could as yuri decide that's just not possible you're on our plaintiff's counsel points a lot to the summary judgment standard it was his burden to present some modicum of evidence that a jury could latch onto to to contradict what officer broken says testified to and what what he's pointing to two things one you briefly discuss the alleged inconsistency in story but the second which for me is more important is is it really possible that none of the other officers could have spotted that if it happened or couldn't have spotted the spindle falling out of his hand when he was shot or anything else and i know the officer said well i didn't see it i was looking the other way but the jury is entitled to believe what it decides happened and would if a jury jumped out with blood but and what part of the story would explain blood on a spindle i don't understand that perhaps that was an over characterization that your honor it was their spindles right next to him and the blood frankly doesn't matter but there's no part of this story that involves blood i mean under those circumstances or did they rely solely on a race absolute love letters that's been my impression of the record the entire way through it's just because there were three guys in the room someone had to see it and they started out their argument by saying the timeframe from when they entered the room to when the shots were fired they gave it a minute i believe the test of the record is closer to thirty seconds but a minute or thirty seconds under the rapidly evolving highly fluid circumstance of mr pierson putting his hands up and trying to fight the officers and i'm struggling in the small room there's no reason why officer bergen's account would anyway be contradicted wouldn't be fully accepted by a jury in light of those facts how is this different from a state of lopez where one officer didn't hear the siren chirp and the other who shot claimed that there was a siren chirp and that created a genuine issue of material thought well you have two officers seeing the exact same thing and i think that's the big difference is that you have one officer who is completely on contradicted you have two officers testifying that's contradicting each other if well i'm not sure i understand so in locos one officer says there was a siren chirp in the other one says i didn't hear it how is that not very similar to what we have here where you don't you don't have you in this case it's i think the perspectives of the officers are critical and in the lopez case both of them have the perspective to hear or not hear a chair in this case you only have one officer who has the perspective to see the spindle being used and that's officer broken so that's my that's what i believe is the nature distinction on that particular fact and when you have two officers contradicting each other and that clearly creates a big distinction between the two  what hasn't been addressed in addition to that is the one of the other graham elements we've been focusing very much on the  threat of safety another ground element considers the crimes that have been violated as well and kind of just rush hour back to the problem that you've already acknowledged that if you didn't pick up the spindle they can't shoot him correct your honor so i just i'm not sure how the other factors really play in well they do because he had already violated several arizona crimes when the at the time police were called there by threatening other neighbors which is an assault so i mean that even before you even get to the interior of the apartment was it really except th he committed other crimes he doesn't pick up the spend all there's not a justification for the shooting so the other crimes i can understand the argument that says the look the fact that he threatened others with spindles might have suggested it's more likely fact ly here that's not a graham factor consideration that's the factual plausibility or implausibility of the story i think we all come down to the same core question was there a basis upon which the jury had to conclude that the victim did in fact threaten the other officer with the spending if that fact isn't concluded by the jury this case got pretty easy but that's that's this particular circumstance where you have one officer saying what happened but at the end of the day it's still their burden to show that that in some ways one contradicted or is contradicted and it's not  again when other officers have clearly testified on the record that no one was in a position to actually see what officer broken saw and it's one contradicted i don't think was there anything to cast doubt on their credibility in their testimony none that i'm aware of your honor and if you look at their police reports at least from officer williams that i remembered offhand he very consistently testified exactly how he testified it is that position again supports officer perkins account of the situation very quickly i must of course any additional questions i want admitted the officers had a thirty minute thirty seconds to a minute to decide whether or not to use force in this revolving struggle under that particular circumstance the excessive force argument there were there was a clue legitimate reason why officer perkins used force here and it was in defense of his fellow officer and one point i'd like to elaborate that's coming to mind right now is if the court is looking at the totality of circumstances here oxford reckons used force in a very close khan context with his other fellow officers the only real reason i think a jerk should be why he would use force in that circumstance was when it when it was close to other officers is because truly an emergency and i think that lends credence to oxer person's account of the entire situation it lends credence to the fact that he used force to protect his fellow officer which again completely entitle him to summary judgment just association play disappointed in the record to some of his facebook posts i'll just that very quickly and i think trial court probably disregarded them they were made three years before this incident none of them involved grasping at straws trying to find clarification and i guess one of plaintiff's experts offered a conclusion restatement i couldn't alter muttley draw an inference from the path taken by the bullet to support or discredit officer perkins testimony i finally shrugged and said that doesn't doesn't move me either way is there anything further that that would help me figure out if in fact the medical examiner report does provide some corroboration i would point she did s e r five one three which is defendant's expert's report was walking through the medical examiner's report and in that he pointed to the fact that the medical examiner outred that you were king on was where is the evidence that the officers would have seen this we painstakingly put the deposition demonstrations in the briefs specifically to show you that you're telling me that these other officers in the room cannot see within jackson media's presence a twenty seven spindle being waved at the officers and then they miss a sixteen and spent all either everybody got together at the end which we diagrams that too e r one seventy three two we are one seventy five and work in zigzag diagram it's you are one seventy seven from the basic positioning of these diagrams you can see there's an inconsistency between the two officers this is no different than long gorier where you have multiple officers looking at the same person and the one officer who shot claims a shooter stance and the other officers don't know that is a reasonable that's a good genuine issue of material fact and for those reasons we did ask you to overturn the the district court's ruling remand this and reinstate the claims from we think both parties for their