evidence and gave it the proper reading now we know that in a sudden motion for summary judgment that undersell attack or mason the new yorker magazine or some bravo that nonmoving party is given all of the benefits as to truth credibility etc what we have is a moving nonmoving party who disputes almost all of what linger says happened the question that we have in front of us is is there anything else that would justify the court granting summary judgment let's let's look at some of these read mediately starts pushing him threatens to blow is brains out and then he puts his car into gear and attempts to flee if i read the i read it pretty carefully the police says miss what your client said i was driving a vehicle and was stopped by the tacoma police officers the registered owner of the vehicle added i had a warrant outstanding so my car was stopped for that reason i was unaware of the fact i overreacted in an attempt to do escape and officer and i struggled and tensely put the car in gear and tried to drive away now if in five believe what he said when he pleaded how is it that i can suggest that he can turn and plead what he pled which i read to you well your honor we have to take a look at that's versus a lay and similar case well i've looked at all those cases but the bottom line is he pleads in this case to an attempt assault he pleads in this case to have sistrunk the officer because the officer was trying to give a warrant to him and therefore at that point at me started firing at me seems to me that that is exactly what heck would ab are i would i would suggest your honor there is a spatial difference here the assault on the officer ended when the officer was it by the car well because you know that's where i have some trouble because yeah i'm really i'm reading that you're in the guilty plea says toigo it was completely out of the car and no portion of the him ok that's what it says there but leaving aside these discrepancies even from your from your client the key issue to me is he may have  in the car to take that as a given that the war may have hit may or may not have hit him already but the key fact that nobody contests i think is that he's out of the car but it's kind of speaking one the officer says that he lost sight of his microphone and it could have been in the car that's in this deposition right and then he doesn't say anywhere in his deposition i was pulled wasn't where where where you say that that's my guess i probably should've been clear where is that testimony because i didn't find it that's what i'm looking for in one second maybe you want the time to look at that while the other councils up there jurchen but i i'm just saying to you that we have one plead as to the attempted assault and then we have another pleading as a relates to this hundred eighty three claim and frankly if i agree what he played in the attempted assault i'm having a tough time understanding how he can plead what he did in his nine hundred eighty three claim now if you want to make a clay case he could have pled well i did attempt to assault the guy but he had more force but that's not in the complaint the complaint is totally different the complaint says no i didn't do that all of  happened in this case is this officer got him started beating me up and yelling epithets at me and then starts to shoot me well i'm totally d writes what he pled in is is a criminal complaint and so why doesn't herrick which says i'm a federal court and i ought not get involved in in adjudicating state things that have already been done why do i get involved there well because the funding of excess force does not undo any of the elements well that if that was in your complaint that's one thing that's a great argument in a in theory because all it does a state the theory but i gotta look at what you're complaining and what you're going to prove i haven't got to look at what you're now going to argue that's what you're pleading then plead that and then i can let you in but on this complaint you told admit that all right unfortunately you are correct good morning may please the court jean home and on behalf of officer to a juror and the city of tacoma the court has identified the key issues in this case first with respect to the heckler here the claims that are being asserted in this case are barred by the guilty plea that mr reid entered in the pierce county superior court the facts that he pled to were the officer was in my car i put the car in drive tried to drive away with him in it the car struck him he also testified in his deposition that we also say that that the car struck him all before the officer started shooting where robbers shot at officers provoking the officers to return fire this was a single temporal incident the officer was trying to take mr reed into custody his body was inside the car and mr reid concedes that fact in his depositions on page thirty one through thirty three three quarters of the officers body was in the car when he dropped it into the right i think his kind lane to is that he was he was in there but then he was out of the car he got out of the car the assault started the moment mr read through that car into drive with why do this again it when did it end it ended when his microphone cleared the vehicle because as long as his equipment was trapped inside the vehicle and he was in danger of being drugged the assault is on going but i know he hasn't his deposition i think we're leaving out the part where i believe there was a quick my mind stuck in the vehicle as he was leaving correct so we had essentially says is i believe that the officer was out of the car when i was finally able to accelerate but but it was out of the car doesn't say what was happening with the money with a microphone and there is absolutely nothing in the record ok to establish that mr reid would even be in a position to know that the officers microphone was trapped in the car and the officer statement in deposition is not inconsistent with his declaration his declaration simply expands on what he said in  deposition his deposition was i believe the microphone was trapped in the car his declaration says i'm watching the cord stretch out as mr reid is driving away and it's uncontested that the radio itself is literally strapped to his uniform had the mike not come clear of the car he would have been drugged the uniform what are the radio would not have been pulled from the uniform so under those facts the district court grant of summary judgment should be affirmed there is no evidence in the record to contest the officers testimony that his radio was trapped and he did not discharge his weapon until he realized he was in danger of being drugged and that he stopped discharging his weapon when he realized that his radio was free that ask you this did mr reid rely at all on the intrade to parma memo in making his arguments the chief of police memo he braced them at the district court level but as the district court pointed out an alleged violation of departmental policy cannot get us to a constitutional violation the department's determination was that the last shot was one too many and violated the department's policy but that is not instructive as to whether or not the officer's application of deadly force was constitutional clear then it seemed to me that the memo was used in the district court on this point which was departmental policy and it was not used as a recitation of the facts correct as to what may or may not have happened at the scene is a right yes that was that was my course i'm sorry i misunderstood the question the summary judgment can be affirmed on any basis and as outlined in the brief the officers use of deadly force was objective lee reasonable under these circumstances and therefore constitutionally permissible mr burke read should be a stopped from arguing facts other than those stipulated to in front of the pierce county superior court facts which allowed him to obtain a far more favorable outcome in the criminal proceeding than he otherwise would have on my should i remained this case and allow the plaintiff to a man to suggest in this particular matter yes i did and i did assault or i did attempt to assault but none the less the police used on reasonable force no because this isn't a twelve year twelve c motion this is a summary judgment motion mr reed had the benefit of full discovery he had an opportunity to present the theories and evidence that he thought best served him at the district court level and to allow him to go back and amend would just be a second bite at the apple the evidence that was a deuced on summary judgment was that the officers equipment was trapped in the vehicle and he was in danger of being dragged by the of the claims as against the city of tacoma the district court dismissed them because there was no constitutional violation by officer even if you were to determine there was a question of fact on that there's still no evidence of a failure to train by the city of tacoma the officer is entitled to qualified immunity as outlined in the defendant's brief the authority that existed at the time of this incident october of two thousand and twelve would not have put a reasonable officer on notice that the discharge of his weapon under these particular circumstances was not objective lee reasonable there is a multitude of bases upon which to affirm the district court's order in this case and we would ask this court to do so thank you you know i don't see that is inconsistent with that he physically was out of the car and he said is there anywhere he says no there was no wire there was no microphone he first let's answer that question is already where it where that is contested that particular things up there but what is in the record is that the car was moving forward and is a known fact of physics a car going one mile an hour travels one point four feet in the second so if this law officer took more than two seconds to get out of the car which was moving and pick up his gun the would have been at the back and of the car and his cable would have been either loose or he would have been pulled to ground so at that point when he's at the end of the car and starts to shoot mr reed is no longer a threat to them and you did you offer that argument to the district court pardon did you offer that argument to the district court  in not considering it but that doesn't mean in the novo review that this court can't take a look at what is a well known principle and what is common sense and use  it is judgment and we know the car is moving we know how far it moves in a second and even if we give the officer the benefit of the doubt that he was really quick then he got that gun out shots hit the back window to shoot the back window he would have had to be all the way at the back end of the car so we know as a fact because he was never pulled down the court is limited length that's not unlimited that between the time he got out of the car and the time the car got to position where he could shoot into the back window that microphone had to have been released and at that point i would i would compliment you for what i think is a really common sense clever factual argument that unfortunately wasn't made and doesn't have evidence in the record but i think you've done an excellent job with you know what you've been immunity issue doesn't seem to me that there's any case which would suggest now on the evidence which i have in front of me at this police officer was being drugged either in the car or with his microphone and his i have no testimony contrary to the fact that he was only firing when he was being drugged that's his testimony and ther testimony otherwise i guess i'm trying to figure out what case would say he's not entitled to qualified immunity what i think your honor the issue there becomes one of immediate danger and the trial court turned around and said having your microphone cable attached the car created an immediate danger i don't believe that that's necessarily i want the case because as you well know on this problem about is there a seems like it's pretty much dead on so i looked for the case i couldn't find one in these circumstances i could not find one that had a similar relationship that is a microphone and an officer being polled and the court has made it clear that generalizations don't count anymore it hasn't said how tight it has to be but we do know generalizations don't count we're learning cases that time any so i hear from the supreme court i guess i would say that i thank you for your thank you your frank ss on that because i think that i think that if there is a case that might have a little bit of bearing it would be the price be serving case five thirteen f third nine sixty seven and that's the case that says basically a belief that you're in danger is not sufficient it has to be something that factually shows you are in danger and i don't know that pulling on a microphone court is a sufficient factual statement if the officer said i was script i was bawling in the car and then the court might go i would say you have facts that then take you there but again that's a good that's a surprisingly genuine argument but if i were being if i were attacked attached to a car with my microphone attached and me big pulled by the car which is pulling away and me not having any way to get that microphone off i'm having a tough time with that and your honor there are facts in here that i could argue that say if someone is being polled they grabbed the microphone cable with one hand and with the other he says he shot with his mic so i mean there are things that make it make it difficult on the perfect world when you're attached to a car with your microphone yes i agree it's not a a case of read versus to comma is submitted well next have argument