please the court my name is chris copeland i'm an assistant city attorney with the city of austin and here representing officer eric copeland a city of boston police officers highly trained and skilled and experience despite the tragic consequences in this case officer copeland is entitled to qualified immunity from the claims of excessive force that the plaintiffs are making here the district court in this case erred by denying officer copeland's motion for summary judgment assertin qualified immunity and officer copeland respectfully asked this court to reverse that decision the district court eroni asli denied the officer copeland's motion despite explicitly finding that the plaintiffs  this case introduced no evidence into the record to contradict the fact that the deceit and in this case i made bradley was reaching for officer copeland's firearm just seconds before officer copeland managed to push him away and fire three shots at this moment a maid bradley was moving back an officer copeland's direction and it was reasonable for officer copeland to believe that mr bradley pos immediate threat to his life now as this court teaches and fair versus city of arlington you have to look when evaluating deadly force you have to look at whether the officer was reasonable to believe at that moment that he was in fear for his life or in fear of serious injury but the recent case of mendez vs part of it also puts that in a little bit of context you also have to look at what was going on just before to the to evaluate whether the officers fears and beliefs were reasonable and the facts of this case fully support officer copeland's reasonable belief that he was in and he was in immediate threat of his life or facing serious injury for m recklessly and dangerously away from officer copeland pulling over a double yellow line and speeding away officer copeland followed and officer and then and then mr bradley continued to run on foot to scape officer copeland as he was running bradley seemed to be reaching for his waistband and officer copeland had no idea whether mr bradley was armed or not he chased mr bradley across in one direction to the and if you've seen the video you can see them kind of run off to the left of of officer copeland's camera officer brad copeland tries to pull bradley to the ground telling him to get down get down on the ground although bradley says resistance they continue to run and chase immediately officer copeland draws his taser and tries to use his taser to stop this fleeing suspect a felon who officer copeland believes has engaged not only in fleeing from a traffic stop that is also suspected of serious drug crimes and he developed that belief during the traffic stop that was based on smelling marijuana in the car observing baggies in the car and knock him back down that is also on successful and bradley continues running he tries to climb a fence on the other side and again this is now off camera they engage in hand to hand combat initially copeland gets him down on the ground on all fours and is trying to pull bradley's arms out from underneath him so he can get his hands behind his back and get him on the ground and handcuffed bradley continues to resist officer copeland uses three to five what he calls hammer strikes to strike bradley in the torso and on the side of the head the strikes are ineffective officer copeland becoming tired and exhausted and alone without backup at this point not hearing sirens reaches to his microphone and on the video on the tape you can hear step it up asking for backup to come at that moment bradley takes advantage of copeland reaching off of him stands up and puts officer copeland in a headlock and at this point there's at least one eyewitness that is called in to nine one one who is viewing this fight this eyewitness describes this fight as a fight to the death he sees mr bradley put officer copeland in a headlock began to swim around and eventually get officer copeland down on the ground at all fo and then officer copeland testifies that mr bradley takes his microphone and pulls the cord across his neck in an effort to strengthen the eye witness testified that the eye witness did not specifically see the cord go evidence in the record or out of what this court is what the supreme court has held in scotland says harris and similar cases you have to take the facts as they are set forth in the record and supported by the record of course  the plaintiffs can't rely on some metaphysical doubt to the facts and they have to have citations to evidence in the record to contradict the evidence put forward by by the by the officer in support of his motion for qualified immunity there is simply no evidence in the record to contradict officer copeland's testimony that bradley reached the cord across his neck and in fact some of the physical evidence supports that they found bradley's d n a on the junction where the microphone ripped off the cord both of the eyewitnesses report seen bradley when we reach for officer copeland's gun and officer copeland in the moments after this happened h lot of video saying he was reaching for my gun all that evidence is undisputed there's simply no evidence in the record to dispute that is there any evidence in the record from any other to the contrary we have the police officers version of what happened and i think there are two witnesses that seem to support at least part of what the officer said is there any other witness or anyone else that might contradict either the police officer or are the two eyewitnesses no your honor there is no other witnesses there are two eyewitnesses and there is the police officer's testimony and we also have the physical evidence in the case of physical evidence in the case involves for instance people seeing and pictures of the microphone ripped off the cord which is what happened when it was reached across copeland's and that cup and pulled on it and it's likely that mr bradley was holding the microphone and it ripped off the end of the cord which is why the pressure was immediately released off of copeland's neck so that physical evidence supports that and the eyewitness testimony and copeland's testimony absolutely supports the the evidence that mr bradley was reaching copeland's gun repeatedly in the moments before copeland managed to push him away and fire there's simply no evidence in the record to me and the district court found there was no evidence in the record to the contrary which is one of the only only a factual findings that know no conflict no verbal conflict between the two until until bradley company asks proudly to step out of the car when he when he's going to search it and bradley flees i think that's that's a crucial point because  what and you know i'll say that if you look at our zero eight twenty eight forty five and eight forty six that's mr wright's testimony where he says on two occasions he saw four out of the reach for the gun but mr wright he is he couldn't be sure whether bradley actually grasped the gun or not whether he had his hand fully around it and was pulling on it but he did he says repeatedly in his testimony that he was reaching for it  mr rife also testified that at no point did bradley surrender and he also testified that were in heat where he and copeland shoes based on what he had seen he would have done the same thing that he thought copeland was in legitimate fear for his life because bradley was trying to take his gun and he described it mr right as a fight to the death brenda miller the other eyewitness also said the officer was on the ground and mr bradley was reaching for his gun and all say that the plaintiff's brief has a number of a number of assertions that are simply not supported by the record and you know candidly i don't think the district court did this court any favors in reviewing this case because it did not make detailed factual findings or factual do a factual sort of lay out of what happened in this case and if you look at the case of thompson versus upshur county what it says is which the fifth circuit case what it says is when the dust when those fifth circuit is kind of faced with a situation where the district court hasn't identified the genuine issues of material fact this court can scour the record and go back and look and see what those genuine issues might have been or alternatively it could send the case back t district court to make those findings and i'll say i think it's important to note that in another recent case that came to this court out of the same district court from the same judge called brothers vs sauce which is another excessive force case decided in august this court reversed to the district court based on a very similar order where the district court did not not really identify specifically the genuine issues of material fact but have a very similar order saying things light you have to you have to put the evidence in front of the jury and judge credibility and those sorts of things which i think is just not appropriate on s judgment i pointed out the case of mendez vs point a bit earlier which i think is a really important case of course it's the the plaintiffs burden here to pierce qualified immunity and to do that they have to point to facts in the record which would show that copeland and got into other of a very serious fight with the with the arrestee the arrest he was grabbing for the border patrol officers weapon managed to strike the border patrol officer and run off and i was the border patrol officer days and exhausted from the fight and the border patrol officer fired two shots hit hit the arrestee in the back twice killing him from a distance of fifteen feet in this case the facts are far more extreme  there had been a two and a half minute flight and chase between copeland and bradley copeland was alone exhausted from this fight he had been in a disadvantageous position against bradley for at least a minute was reaching for his weapon when copeland pushed him away mr bradley was coming back in his direction and copeland fired from a distance of six to thirty six inches mr bradley was right on top of him if he had waited a second longer the hand to alleged that mr copeland heard the loud music and decided to call mr bradley oh there's no disagreement that mr bradley stopped immediately i think the electorate's evidently clear throughout that it was approximately twenty seconds after the stop occurred that both gentlemen were standing there it is undisputed that officer brad and of software copeland admitted in depositions that they had just recently had a shooting and this is asked copeland at the deposition are you familiar with these shootings they just happen in this area he says yes i'm familiar with them and i said to him what do you think was in this black man's mind when you pulled out and twelve seconds after stopping and say i'm going to fucking shoot you that's when he said i think his hand signals in this in the video and i'll give you that was that there's something white on your face what's a white on your face he said at that point twenty seconds after the stop he says he suspects that this person to be a drug dealer have major drugs in his vehicle that's when mr bradley drove all mr bradley drove off in the video catches the mr bradley in the video catches the stop mr bradley drives off mr via bradley gets out of his car and then twelve seconds after he gets out running the video captures officer cope and say i'm going to fucking shoot you the video also has mr bradley saying i'm trying to get out i'm trying to get back on the video also captures mr bradley and out of the time frame is somewhere six six forty eight point zero nine continuously saying i'm going to shoot you i'm going to shoot you now at that point in time it's undisputed that mr bradley had been on the ground and i give you the site where he was on the ground being kicked and struck and what i said to officer copeland and but the reference is one hundred ninety four what was your thought when you said to this black man i'm going to fucking shoot you and i said were you serious and tone he said yes were you serious in what you said he said yes and i said so what was your thought when he said this and he says when i said that what he did was push me off and took off running basically eastward so at that point now prior to mr bradley which this part of was off the be the oh but you could hear the conversation prior to that time mr  him did he ever poor a weapon or take any assertive actions against you at any point are a one one nine six no he ever hit you know did he ever do anything to put you in fear no through this entire incident did he ever hit you or physically do anything to you he says the one thing he did was he pushed off but he pushed off when he was attempting to run away that's clear undisputed now it's also undisputed that copeland beat mr frederick there's no question i asked him counsel just said three to five hits actually it was he had no idea how many blows and that's found in r o a one one nine seven he says when mr bradley pushed him as the only allegation of contact initially that was found in one one nine seven he says he pushed him simply trying to get away he says one one nine seven he was never struck at all by mr bradley and then at one three two six officer copeland admits kicking bradley around his right and left when he was down he admits striking him continuously and he admits that all of the bruises and we have photographs that are in the phone in the file are always twelve o two and thirteen twenty six he had missed that the only person responsible for the injuries to bradley which included the beatings a kick you know on the face to kick it around the body was him himself so that's going to be our zero eight twelve zero two and thirteen twenty depositions and we've got those represent over if he hit him at least twice and he says he gave him rabbit punches multiple punchers but the physical damage that we have alleged is an excessive force is all matters that he admits to and those references  there so there's no question about that as to the shooting itself that was not caught on the video that was something that occurred that was well there's physical evidence first of all you asked about proof there's no d n a on the gun even though you've got photographs there that show the bradley says i'm sorry mr copeland says bradley had his hand on the gun and they did it walk through they did they didn't read back reenactment and that was done a month later and that shows according to mr proof of my client touching any part of that and it didn't have any proof that mr copeland who himself said he took both hands and pulled it off at touched it but at the same time we've got an eyewitness mr wright was twenty to thirty yards away twenty twenty five vision he watched the whole thing cites are there he gives a description that he saw and there was never a deal coup or possessed by my client he saw there was never any point where my client but that was six inches away again that's in here that's the i would it's the eyewitness says he saw the boat the whole struggle there was never a time that there was a radio cord but in fact what he does describe is that my client continuously trying his feet over mr bradley's feet and was on top of him he learned still trying to get away well mr bradley was trying to escape the beating that he had already been given which is evident in the photograph that he tried to escape in the car before there was any altercation yes ma'am he was always trying to get away he was trying to escape in the car initially he got out of the car and bradley was laying flat on the back he says delivering it was off the ground was a shoulder two or three inches off the ground he says his feet his butt everything was flat on the ground he says officer was on top of his elbow and to my clients through that had his feet blocking my client's movement he says that officer copeland got up backed away five feet and then fired three shots into my client as he laid on the ground that's a sworn testimony to ream karim is a  that the photographs had reenactment were incorrect because the reenactment shows the bullets going right to left of the body to bullets went straight into the third went to the side but according to the photographs thirty photographs thirty five zero one show mr bradley supposedly on the ground supposedly coming up with his hand down here we've got karim who was a realistic sexpert we've got two other his deposition he was not in fear from the time he stood at the door he was not in fear i asked him was there anything done to you at any point by mr bradley and he says the only thing that he did to me was when he pushed away to run he says that put him in fear because he should never any have never had anybody run and he said secondly when he had the cord being wrapped around his neck that was the only time he indicated fear and we have no evidence to court because n a it was never in touch with his neck we have no evidence that he grabbed it and in addition we have an eyewitness an eyewitness did say he watched and he said that court was not put around his neck i asked him if you see a cord around his neck time he started to go for the gun got about six inches away realized and then pulled back goes a rifle words rife's it our way seven twenty eight he sends granny was saying to himself i shouldn't be doing this and p how many how much time passed in between that moment in the in the she that would have been prior to the time that brennan was almost grown on his back and part of the time that poker was on top of gra was no time factor that right to give but rights describe that as something that happened when there were tests leaving when they were running around when mr bradley was on the ground that's when they were the officer's neck he had his feet on the officer at that point in time after below top for a few seconds he stood up backed up five feet and shot three times into mr bradley so as far as a time factor i'd like to sit here and s seven eight ten seconds with that happened before mr bradley tried to run away that last time was tackled and brought down then they also got on top he says at and again that was our way one forty five one forty six he says an hour away seven twenty eight bradley was flat on his back was not moving upward or poor copeman when koeppen shot him three times he says his bet his back in his but were flat on the ground what's called a reconstructionist and her name is johnson and she testified genest on some she testified that she did a reconstruction and he says the left arm of mr bradley if it had been the way koeppen says it would have would have prevented that bullet from going into his side she says it's a it's a impossibilities she says is a twelve fifteen through twelve seventeen also at twelve twenty two of the record she says it's an impossibility for  the way that it is being told she says the relative position of copeland is not consistent with physical evidence not consistent with the range of fire not consistent with the rear ackman not consistent with a nine one one phone call and she says there's something going on in this dangerous and i think the man is going for the gun she has refused to testify i went up to try and talk to or there's an affidavit or statement in the file and it's due for court where she says i want to have nothing else to do with this i'm just seconds after bradley drives off he's being told i'm going to shoot you sixty seconds later he's been told i'm going to fucking kill you and this is all at a time that copeland admits mr bradley never struck him never hit him never threatened him never physically put hands on except the one time when he's pushing off mr copeland says my time is up i just want to say to you that the concern i have is very simple i asked mr copeland do you have any recollection of ever to anybody prior to this date that i'm going to shoot you it was not your intention he says i have no recollection my next question do you have any recollection part of this state of ever said anybody i'm going to kill you when you are not prepared and ready to couple you have five minutes for a lot of well your honor thought i guess i'll admit this this court has its work cut out for it today because mr taylor and i are reading two separate versions of the record and that's all there is to this i asked this court on behalf of mr polk want to go back and review all of these records citations carefully for instance mr taylor just told you that copeland's d n a was on the gun that's that's just not true the d n a expert the so the contradictions mr taylor speaks of are due to this reenactment photograph about a about a month after the incident the investigators who were investigating the shooting kind of had a hard time sort of unusual position where bradley was on top of copeland but kind of facing away and and they were they were sort of on all fours against each other it's very hard to describe without seeing it but a very dangerous position for officer copeland because you couldn't see he was underneath bradley's torso and then the in any event judge to answer your question during the reagan ackman there was a picture or two of copeland pointing a fake weapon at the individual who was reenact mr bradley and what what the plaintiff's expert says is that it's a little bit too far away the distance is not six to thirty six inches which i think is a fact that actually cuts in favor of officer cope d they were they were all right on top of each other just after a fight when copeland fired and the other fact which mr taylor mention was that it showed the wrong angle of entry for the bullets so we're talking about right to left instead of left to right so we're talking about a couple of feet this way versus a couple of feet that way it's not a material difference judge what about good rice say that bradley was on the ground on his back not doing anything when companies stood up and shot him so that we have to put it in context if he said that or not but he did not say he said rifle he said bradley was on the ground just after he'd been pushed away the shoulder was off the ground your expert also says that the evidence is consistent with the two getting closer together is the bullets were fired and copeland verse that he was standing straight up as he was firing which indicates that bradley was moving slightly closer to him and we know that because there's no powder marks first what she thinks is the first entry under the under the arm but there are the six to thirty six inch powder mercs on his chest as he's getting closer and coming towards bradley which is what standing straight up right he was coming ranks version of what he saw agree with that or not well wright said his shoulder was off the ground right couldn't say whether or not anybody was moving and what right certainly said is that they had just engaged in a fight to the death and mr taylor talked about the idea that wright said he got within six inches but pulled away when you read rights testimony what he senses there were multiple occasions when bradley was reaching for the gun in the first  he only got close and a quarter cord into right said i don't mean to you know maybe i shouldn't do this so i pulled away but in the second instance he's reaching again and it's that second instance where copeland feels it and they're fighting and coke and manages to push him away and that's the moment that puts copeland in a reasonable fear for his life no officer should have to engage in a fight with somebody who's just been reaching for his gun and for that reason i respectfully ask this court to reverse the the district court and