good morning may it please the court my name is kim spear represents b officer john marsh i would like to reserve three minutes of time for you but please ok thank you officer marsh should be granted qualified immunity in this case because of the time of this incident there is not a case law that clearly established that his actions would violate mr anderson's constitutional rights and nd that th the material facts in this case are undisputed and the district court erred by taking facts of questionable materiality at best and extrapolat essence speculating that a jury could use those or could look at that evidence and come to a conclusion that might affect that officer marsh wasn't telling what really happened so officer marsh says that the deceit didn't reach for something that looked like he was reaching for a gun for and that's the point that the district court thought was debatable and might be an open question factually so when you say that it wasn't clearly established law that the conduct was impermissible are you assuming that there was a reach like if we assume there was no reach then do you think that it's still ok that the dissident was shot let me let me answer it this way the district court the the scenario that the district court reviewed was the the relevant want to look at was the one before the shot was fired when mr anderson  stopped trying to prove the car by rocking it forwards and backwards and had one or two hands on the wheel and that sliver of time the court held was  showed that mr anderson was not a threat and the point to well i think as i understood it the point was if he didn't reach for a gun he wasn't a threat so it doesn't at all turn on whether or not he reached for a gun or reach for something that looked like he might have a reaching for a gun it turns on whether officer marsh reasonably perceived that he was making a threatening movement which in this case was his hands disappeared and he turned away but if  the jury did not believe that the hands ever moved then that was it ok for our officer march to shoot no and that was clearly established right if it was clearly  not have been a threats and yes so we do have a factual dispute than i guess and now you can argue we don't really have a factual dispute but it it your argument that there wasn't clearly established really turns on your factual dispute question as i understand it well there is no factual dispute about the events that occurred in the car mr anderson's movements in the car there is no evidence that either directly or circumstantially opposes watch officer marsh testified happened why not the testimony that he said he shot because he thought he was going to run over by the car instead of saying he shot because i reach for a tape which is in the record here officer marsh is shots pot shots fired and then there is something in audible and you hear my car and the reason that doesn't freeze rise to the level of raising implication that  he said something else about the reason is reason for shooting is st we don't know what was said and that the woman who prepared the transcript admits that she doesn't hear it she doesn't know why the transcript was written the way it was at the time no one else hears it officer marsh doesn't hear it there is so the transcript itself is the only source of that alleged fact and it has a great in disha of invalidity because that information in the transcript is not on when the st time that officer marse i shot him because i saw him reaching for something that i thought was a gun officer maher says he told that  that's the only thing he recalls if you look at the transcript th is saying that is the only thing that he recalls officer marsh saying he does not say that that was what officer marsh described as the reason for firing the shot it was just the only thing that  as they went by that he recalls so the right of so but there's nothing he says that officer marsh at the time says he was reaching for something you know does not answer to help me is it going to be an impermissible conclusion based upon the evidence and it comes rather late and i think the jury would be permitted to just believe him when he says i told it officer hamilton when hamilton themselves as i don't remember him saying that the events that happen after there is an incident such as this is that the officer is instructed to not discuss with anyone he's removed from the scene fairly quickly which is what happened here well you've got to look at when he was st he was removed from the scene taken back to the office when he met with the investigators from the fresno police department not from c h p fresno p d was the one who had found the witness across the street had found the air transmission video and fresno p d took him to see showed it to see the trend scuse me to see the video from air transmission he did officer marsh was not asking to have body cams but the dash he didn't know their dash cam was was was not working and that's also only if we believe him right i mean if he turned it off he knew it wasn't running there is no evidence he turned it off well he wasn't on it was not on and that was that was an idiosyncratic thing that just happened because the car had been turned off while officer marsh stopped by metro uniform to drop off you know for for adjustment and when officer marsh got back in the car he didn't know that the  hadn't just automatically booted out the only person who can tell us that is him that's not correct officer perot's was deposed as the person is most knowledgeable about the operation of the embers system and there is no show signature that something had been turned off there is no evidence that anyone after the fact when often went over and messed with the emperor system when the embargoes boots up it will record a period of time before  an incident of course and there is no example of the employees being turned suddenly stopping in the mid stream and the whole embargoes theory would require officer marsh to have known ahead of time that he was going to be involved in something he didn't want to have reviewed and he would turn it off ahead of time there is no evidence of that that is complete speculation on played its part because there is no evidence that contradicts what officer marsh says happened in this instance all of the circumstantial evidence supports officer marshall statement all of the the video evidence if you will of that requires speculation on the part of the jury is if the it's a court in an effort to try to find some way around that the very direct  plain undisputed facts is just hunting for something that a jury could could look at and there is speculation is not a basis for this case to go to a jury there has to be some affirmative evidence of a fact that will bring officer marcia's testimony into dispute that we there are two reasons why the court should not have been searching for for something of  that brings into the world into speculation st the case law says that the court looks when the when the subject is unavailable you should because they've been killed in the incident court can look at the surrounding circumstances of the incident to see if they are consistent with what the officer testified to and in this case mr anderson was not killed at the scene he was alive he at any right i mean you could ask him directly did you have a gun were you reaching for a gun nobody asked him during the investigation there president putin did attempt to speak with him  and we did depose members of his family his mother his wife did he tell you anything and no one had had information to you but i mean in the immediate aftermath of the incident when you were investigating officer marcia's behavior investigation and what did he say he said he didn't recall now is that in the record where the complete interview by the investigation report from fresno p d is in the record i believe in the interview investigation report from fresno is in the record i think i better read the transcripts when precisely what the question is that was asked correct and i'm not sure that is in the transcript that well i'm not sure we even have a transcript it looks like a very short like one page and what not but i'm sorry i know i'm just trying to look at a question so we have no transcript of anything but mr anderson at the time of the initial investigation and of course he wasn't opposed to connection with this case because by the time that might have happened he had done correct and but he had an opportunity to respond to discovery and did not come forward with any written discovery responses which asked discovery he was asked for his yes i believe so again that though is not in the record but he didn't come forward with anything from his written discovery that could have have gone to this point about what happened inside the car but there's no there was no discovery violation i mean it is not like you have a claim that you asked him a lot of questions and he wouldn't answer it happens that the case hadn't proceeded far enough by the time he died but i don't understand it seems like you're asking for like a discovery sanction but there was no misconduct was there no no no that's that's not what we're saying and it's not that would not be our point our point is that he was alive he could have he had nearly three years between the time that this incident happened and when he died it was methadose that he could have given a statement  would even have to be notarized he could have given his version of events he was always available to contradict what officer marsh and officer marsh marcia's position has been clear from the very start  it's not just when the case was filed that this came out from the time of the incident when mr anderson was alive mr anderson could have provided evidence to contradict what officer maher said and that did not occur therefore under the technical reading of the crib the rule in cruise or scott vs hemorrhage there was no reason for the court to be checking with all the other all the other sources of information even when morning your honor is may please the court and madam carlson to represent the estate of wayne andersen and the question really for the court is whether or not the law was clearly established at the time and a law was clearly established at the time of the incident that an officer cannot shoot someone unless there is probable cause to believe that the suspect poses a significant threat of death or serious bodily injury essentially the inquiry boils down to the simple question of have we presented sufficient evidence that a reasonable jury could conclude andersen did not make a sudden furtive gesture they can see that that's the question for the court with the  or could conclude that mr anderson did not make a motion that looked as though he was reaching for a gun that's correct and so help me out why is there not evidence for that the other side's as there's not enough well i like vehicle when the police got there was the vehicle untangled from the fence or was it therefore it was disabled on the fence and actually there's videos that have been submitted their officers that respond to the scene believe officer hall or who responds and parks his vehicle to the back right of marsh's vehicle and the camry and his dash cam was recording and so you can see to answer your question directly the camry was still lodged on the fence and the evidence is that it was disabled on the fence the front two tires had blown out on incapable of being moved and the evidences that had come to a complete stop before the interaction that we're really here to talk about and what we're talking about is officer marsh being the only evidence that there was this movement and his conduct in statements on the scene are different after he gets an opportunity to review videos it's the st time we're hearing this new version and it's inconsistent with not only his statements but his conduct on the scene and we find several facts to be particularly compelling when evaluating officer marsh and whether or not he's credible when he states that he believed that the individual in the car possessed the gun he has his fellow officers arriving on the scene going up to this vehicle to detain this individual and he doesn't warn that there's a gun it's reasonable jury could believe that officer marsh at the time this is after the shooting doesn't harbor the belief that he was that there is a weapon in there that there was a gun and we find that to be particularly compelling and then we're talking about inconsistent statements and we have direct and circumstantial evidence of marsh's other reasons why he shot him he gives a statement that was recorded by c h p dispatch that he ran into my car and i want to point out that that was not a transcript prepared by the plaintiff's side this is a c h p a dispatcher who's been trained in years of creating these transcripts not a pla presented evidence they say the audio is shots fired he ran into my car and we adrenals or we can believe that he's making that statement because the only other statement attributed to him on the scene about why he shot him is a sergeant hauler and sergeant hall are saying well he told me that he thought he was going to get run over by the car and so we have all this mention about a car and now later after as we've gone over he's got an opportunity to look at the surveillance video which is certainly you know was unique as conceded by the individual expert who is the posed on these issues that this he hadn't heard of this happening before we have we can present to a jury reasons why there is officer marsh is not credible and we're talking about a question of fact they can see that this is the law is clear he's not entitled to qualified immunity unless there is this reach for a weapon which would present a credible threat there's also  the passenger floorboard and on the other side of the vehicle it's an evolving story over time and this all comes down to the credibility of officer marsh and whether or not a jury would disbelieve his statement that anderson reach for a weapon and of course we have the fact that mr anderson was an armed and that makes it less likely sc excuse me i makes him more likely that he did not make that sudden furtive gesture so the evidence really is quite compelling that we will be able put forth through a jury and are reasonable jury could conclude under those facts it i've gone over that mr anderson did not make a sudden furtive sure what about this issue about whether anyone ever asked him if he that he kept as hands on that wheel or had done something with this hands well see answer that question the evidence before the court doesn't really  have an indication of an interview of mr anderson i have a recollection of some other statements that were attributed to him that are not before the court but i do recall him mr anderson being attributed the statement of why did you shoot me and i think that even if there is whether or not there is a statement doesn't mean that you get to disregard circumstantial evidence over here just because we don't have this evidence over here it's just not about whether or not the plaintiff has sufficient evidence whether director circumstantial about this issue so i think it's a it's a moot issue that they're trying to raise to say that this case is distinguishable from others where the individual died but we have cases going back to two thousand and one u s versus tain where in this court where the individual survived when he doesn't recall and so i'm trying to understand a piece of your answer it sounded to me as though you're telling me that we have the record and what either is or is not on the record but that there are some statements not in the record made by mr anderson is that what you're saying i can say what i can say to the court is the evidence before the court does not address whether or not he made statements that's the that's what i can represent to the court there's a thought you said maybe you maybe you want to tell me you didn't say that i thought you were saying that there were some statements of which you are aware but they're not in the record that's you know it's  statement it's my recollection i don't have because it wasn't in the record preparing for this i can't state affirmatively one way or the other what was statements virtually any amount of course were limited to what's in the record right correct and i apologize if that was misleading was he still alive when the complaint was filed yes ok so should we be troubled by the fact that i think the key paragraph is probably paragraph ten on our four  where it says when the plane if it did not immediately comply with defendant marsh's alleged commands defendant marsh fired two shots at playing with one bullet lodged in the door frame of plaintiff's car the other entered plaintiff's upper left arm and lodged near his spine i mean should we be worried that that paragraph doesn't say when i did not immediately comply and kept my hands on the wheel i don't think that's a concern for the court that the court the question for the court is whether or not there is sufficient evidence that a reasonable jury could conclude anderson did not make a sudden furtive gesture and it's and it's weighing we're getting to a question of fact and whether or not mr anderson made a statement or or whether or not we attribute a statement to him he could have not remembered because he was shot in under us versus teaching in the th circuit two thousand nine hundred and ninety one excuse me goes back even that far the individual suffered from unusual and did not recall being shot and the plaintiff which was his wife presented evidence from which the jury could reasonably conclude that he was shot at close range while in a prone position on his hands and knees there was other circumstantial evidence we have the individual not recalling being shot we can you can assume that that's the statement of mr anderson doesn't matter it doesn't matter what he says what happened because we don't have that evidence that i do remember that i all the sudden want to grab for my phone that would be relevant well we don't have that evidence that i'd stop if it were i mean it is possible he could have made a statement that would be relevant he just the this or that's fair was overstating it i think the court should just the question is really well it out there sufficient evidence and then the fact that as the courts have pointed out you know they could have interviewed him they could have asked some questions about why did they could have try and get him to if they could have tried to get him to admit that he did make a furtive gesture of the they had those tools at their disposal to try and find out what happened on the scene but i think that that partly goes to this notion that officer marsh's conduct on the scene is not conveying to these responding officers if that's what they're looking for so i think that the fact that they're not even investigating that is further circumstantial evidence that officer marsh didn't believe that it isn't conveying that's a fellow officers about what's being investigated me that would be a serious crime if someone how to felony it could have could be a crime if there was a gun in a car of some marshes and conveying that on the scene this conduct is completely inconsistent with harboring the belief that there was a reach for a weapon and unless a court has any other questions ok thank you would you put two minutes on the clock please to correct a few of the misstatements st there is evidence of mr anderson making a movement in the cart in this sense the air transmission video shows officer barsh with the car starts to come forward a rd time and it stops and that is the point at which officer marsh said he saw mr anderson make some gesture and that's what he fired we do not see the gesture in the video but what we do see is officer marsh holding his fire the time the car is going forward and when mr anderson cannot do that that is the point at which you know that something different has happened in the video because that is the point at which the shot fired is fired you can't quite tell from video w happened but the point is that officer marsh was holding his fire and there had to have it is a reasonable conclusion to reach that something happened that was different and that was threatening because all the time that he's  before then he has not fired and why did he fire because he saw something different if all he saw was someone who was stopping with his hands on the wheel say ok it got me he would not have fired it is a reasonable conclusion to bring marsh was aware that in fact everything he saw the car was moving forwards and backwards and so it is not a case of the car being immobilized and there is also no policy the c h p has that officer