i get eight minutes which is actually twelve times the duration of when my client with three other offers officers entered this private parking lot on a wellness to work within the city of hartford to when the events ended the actual encounter with the plants the seed in is less than half of that forty seconds so this court is being asked to interpret the human behavior of all these officers mind particularly in dealing with the circumstances that arose within those forty second is the jury that's being asked to do that  i'm asking this court on the basis of qualified immunity with regard to the conduct of officer cody in discharging his weapon and the question is really whether there is of you of the facts here under which it was clearly on lawful for officer code to discharge his weapon as he did or for the court to determine whether there is no question but that he should not have fired the gun because the question is would reasonable persons confronted with what officer cody encountered in that very brief time frame never have acted and i submit that there is no case law with regard to the type of specificity that would have put him on notice that that type of conduct is never appropriate isn't it depend though on the starting facts in other words there are bullets that hit among other things the victim from behind and there's at least a view of the facts under which the car was isn't shooting somebody from behind when the car is assumed not to be headed towards an innocent something that would be clearly i'm awful i think that i would encourage the court to examine the video and that's why you get the time frame of the forty seconds because there's a timer on it and as judge edgington notes the video is from the far side of the parking lot so we don't have great detail in terms of everything that's going on but we do have a sense of what's going on in the fact is as opposed to the the current case the judge as you can talks about which is on a highway type of area this is a very compact private parking lot where the plane is deceiving is in the last parking lot all the way in on the right in its total by happenstance that the cruiser comes in not focused at all on the planes to see in or the other occupants of the vehicle in but rather on this purported drug dealer that apparently left the bike for no apparent reason behind this vehicle the fact of the shots has to be considered in light of the conduct of the plaintiffs the scene because it very much take your point but the does the officer even testify that he saw where officer the dino was for example i think it's medina right is the other a correct word that he understood exactly where he was with that he was in danger is there any statement at all in the deposition that i would i feared for the life of officer medina i think not specifically but it has to be taken in the context of his overall testimony which is that they are confronted with a driver who is clearly not responsive  to uniformed officers there's a cruiser that moves physically to block him there are orders being made there is contact with his window stop shows your hands in officer cod testified that he's aware in general he's operating with the idea his personal is there it's a very tight space but he's focused or anywhere around he without any testimony or indication at this stage of the record that he is specifically concerned about other officers he can just given the fact that there is an officer on foot somewhere in the vicinity he can shoot people to not let them get away no  the other officer is somewhere to his left he testifies he's not certain exactly where but he knows it's there and he likewise knows that the officer i have is offered he's not certain why isn't this a case of it is my two colleagues have already started asking who were there are facts that need to be determined by a jury and analyzing this whole scenario before applying the law because we start off with what a reasonable officer would do there in that situation and just in terms of reasonable officer in my experience and i've had a lot of experience not as an officer but certainly reviewing officers actions is not to end up shooting somebody in the back but that has to be taken into context because as john and that's what juries are for take it into context with expert evidence on what is and is not reasonable for an officer to do this shiny have any of that in front of us at this point the shots are fired we have any of that evidence i submit that there is because it's murder evidence on what's reasonable under circumstances such as you want to paint them judge you can chose not to accept the opinion of our experts in the record i mean that was part of our motion for summary judgment we have an expert that said the conduct was reasonable but judging tin one off on the expert in the cowan case and used him to explain what to do next part and the players have their own point of view but right but i guess why we have juries but i'm saying if this court looks at it in the shots are fired in less than two seconds the first three go through the front of the windshield which means that officer cody is in a position where he is in front of that vehicle the others himself was in the path of the oncoming car i thought that was a disputed fact he well did it the point is he's standing in a if assuming he fires straight he's in front of the officer could we don't know but but the significance of the actual bullets is that the car is moving and an exceptionally fast rate of speed from a very short distance which explains because there's no evidence that officer cody is moving the vehicle is moving and those shots go off within an extremely limited time period so just in terms of the qualified immunity point of view here the the case the judge it can rely upon fifteen years old incense and there's been all these other cases that talk about the need for specificity with so the question is is me appreciating the dilemma that an officer faces and having to act fast isn't that a rock bottom requirement of the use of deadly force that somebody be an actual danger so are and if the officer has a reasonable belief that other people are in danger or he is in danger the other officers are present with him and the testimony by officer medina that he was right there and at the end of the day he thinks he may have been struck by the car puts him there which makes the wait he was right there meaning on foot in the vicinity he may have been struck by the side view mirror in a situation where he's not even absolutely sure that he was and there is no evidence that officer cody was aware that officer medina was that close to the car again i'm not saying the officer did anything wrong here at the end of the day the question is is this a case where we can say based on undisputed facts the there's qualified immunity or is this a case where as  i mean what he held was there are issues of fact that need to be resolved and i thought our case law said we don't even have jurisdiction over that determination we only have jurisdiction if on the undisputed facts there is qualified immunity judg not talk about the totality of the circumstances of officer cody being in a very tight situation with an uncooperative apparently some type of person violating appropriate legal instructions in other officers are right there in that zone he did not address that when some person does something that i would not advise that i think is dangerous i think is bad behavior by trying to get away in th situation and there are officers around the undisputed legal ruling is you shoot him no i think the question is whether there's a basis for other reasonable officers to  submit to themselves yes this is a dangerous situation and i should fire them the points of shooting that dina when you're firing into and potentially through the car and you don't know where the other officer is he has a general sense as to where he is the bullets are on target as to the operator and it's the intent to stop it i mean just the whole concept that this vehicle is being used in the manner that it is where it's contact with  cruiser the in the video you see actual contact and hitting the back and then just the movement this is somebody totally out of control and so you have an officer within the realm of reasonableness fearful ok maybe he is totally protected by the car maybe he's not he's not certain judging ten found that he was behind it but at the same time he's with the other officers he's not entirely certain where they are but he knows that they're there it's a very tight space in the the diagrams in the video show the the the time factor that create the question as to whether or not it's totally clear and that's the issue for the court that is it totally clear that he should not have fired if this is a question that other officers were not being asked to decide i think we are shouldn't properly be asked to decide that qualified immunity does not exist here the question is do we have appellate jurisdiction because this is a case where the facts are either totally undisputed or you're accepting all of their facts this is a question of whether they are factual disputes in which case we work jurisdiction to address the qualified immunity question there are cases out there dealing under what circumstances an officer may fire at a vehicle that's moving and those cases are not entirely consistent as the common as to the o'brien as to this one that just came down earlier this year there's a variation the question really is is the law so clear that that in this situation officer cody was on notice that he should not i suggest that this is exactly the sort of case in which a special verdict with factual into rugged tories would help sharpen exactly the question that some day in the event you lose a trial it will be asked to resolve as a matter of qualified immunity i have no problem with the idea of trying this case however the law as i see it is that this issue of qualified immunity should be pushed because again you have that human factor situation up there where you have officers that have to act within this time frame of less than forty seconds total really it's about fifteen suspected of any crime nor were any of the other occupants of the vehicle each of the officers have testified that they were aware that the morale is vehicle was attempting to flee not attempting to strike anyone three bullets entered the front windshield as counsel mentioned they entered the windshield that angle between thirty two and a half degrees off center and forty five degrees off center all indicating that they were actually out of the fire and from outside the path of the moving vehicle so judge edgington made crystal clear that at least with respect to mr cody he was officer cody he was completely outside of the course of the traveling honda or a jury could at least find that based on the trajectory of reports the spent shell casings and officer cody's own underoath testimony that he had established for himself a safe zone behind the nose of the cruiser it's our position that officer cody in that safe zone knowing that alice was attempting to flee was not at that point subsists suspected of any crime is not constitutionally permitted to shoot him dead he fired three rounds through the front windshield as the morale is vehicle traversed his position another two shots entered in through the passenger excuse me the driver's side window striking him in his face entering through the left side of his  mouth and exiting the right and then a final shot arguably one of the more fatal shots of the six that hit him went through the rear driver's side window through the seat through the rear of mr morality his left shoulder blade ultimately getting lodged in his muscle each and every one of the officers testified that they were well aware that mr morale is was attempting to flee the only thing that counsel points to as indicative of suspicion or danger is that my client was attempting to flee callan tells us that flight is not enough and that's really the only factor that counsel has alluded to in his papers or code he has referred to in his papers as indicative or leaning towards the officers constitutional right to to to fire at at the vehicle cowan is the final word as far as the circuit is concerned opposing counsel has attempted to lou to slip opinion in the o'brien case but i would submit that even if the court were to delve into the territory of the o'brien case that was affirmed by this court in a summary order that the facts are read at least distinguishable from those now before the court in o'brien the driver first off subsequently pled guilty to grossly negligent operation of his motor vehicle essentially making a judicial admission at the time that his the operation of his vehicle constituted an imminent harm he also pled guilty to a third offense of driving while intoxicated he after the undisputed record in that case also demonstrates that the driver had hit officer different case where we have the facts went the other way and this case is somewhere in the middle so the reasonable officer guided by those two good posts wouldn't really have clear instructions as to what to do in this intermediate circumstance no your honor i think this case falls even farther on the egregious side of the spectrum than cowan does and first we have at bottom none of the officers here testified that they had reasonable articulable suspicion as to any crime in o'brien there had been a call complaining of erratic driving beforehand observations by the officer o driving and behavior that the actual driver backed into an reversed into the officer who subsequently engaged deadly force here none of those factors are present and that's defendant's best case to point to and in this case we have three occupants in a vehicle sitting in a hard for neighborhood at one o'clock in the morning if a police car rolls up and the officers exit the vehicle notice the occupants of the vehicle instruct them to stop the vehicle moves in reverse for a moment after being struck on a first attempt to leave slowly as the video demonstrates the vehicles slowly is shifted into reversed all of the officers on scene notice that the wheels of the honda are turned to the right in an effort to proceed around the cruiser not attempting to strike it again and as the vehicle exits officer cody while behind the nose of the police cruiser and while officer medina is far off in the grass off to the side of the parking lot unleashes seven rounds at the hunt as it proceeds ultimately even if officer cody had been in the line of the path of the hunt as it proceeded forward callen tells us that firing at a moving operated vehicle and it conscious driver unconscious is not necessarily reasonable as a matter of fact the fact that a car is bearing down on an officer doesn't give that officer carte blanche to use any manner of force perceiv in order to perceivably effectuated stop it doesn't give the officer carte blanche to do or utilize any means of force that officer has to employ force that is reasonably calculated to address the suspect needs to be shot dead nor should day it's not ultimately when we balance the interests of the state in apprehending a fleeing suspect it's not enough that he's fleeing and you won't be able to catch him in order to shoot him dead so it's our position that given the factual disputes and given the clear violation of the precedent that's set by cowan that the court should  but i would i would concede that in the event there is a legal question on plaintiff's version of the facts that the court would have to move on to the qualified immunity case anyway in the court would have jurisdiction point close to the crew cruiser in front of the hondas the cruiser then moved he doesn't think he moved at all he thinks he when the cruiser came forward at an angle he was somewhat in a safe zone he also testified that he's focused on the driver who's operating standard it's very very noisy because he's trying to find the gears the tires are revving up there's a lot of stuff going on when the shooting occurs and cowan i understand that and if that's going to remain the law this district ok that then we're off to a trial but the united states supreme court and i submit this the other day in the file when that that shooting occurred the totality of the circumstances everything has to go in and if there's any question qualified immunity should apply thank you excuse me thank you