door of his friends or girlfriend's home and while standing there shaking the dollar for at least thirty seconds receive to the back and the side at no point in time was he ever a threat to the occupants or the officer frankly the bullets in the back yes it is that a disputed issue it is not the corners tactics expert as well as the ballistics expert as well as the deputy coroner concluded that that was improbable because of the man's hands being both on the door knob and it was inconceivable that that the question is whether or not he removed his hand from the door and then turned as as officer davis testified is there a what is the disputed factual issue that you tender on that question i thought i would go with the deputy coroner the deputy coroner says that that's not sponsible because at that point in time officer davis began firing if you believe and accept his version of the story or the fact back why is it inconsistent with the notion that he might turn and turn back anything although i'm not sure that's even suggest on the record all of this happened within thirty seconds that's sort of without dispute it was very quick rattling the door they i believe some of the witnesses testified that they were inside they heard open the door bang bang bang the rattling of the door and then shot no question but no on the porch light was off everyone testified that the porch light was on with how do we deal with bruce so how can case you relied on that our opinion which was reversed by the supreme court how do you think that plays into this analysis i believe that an officer there was just he switched the story and stated that that was his main concern you don't find burglaries that want to enter the home knocking on the door first that you put officer gave us on notice or  alert him to the fact that this man knew the home knew someone in there in order to knock and announce his presence so you're going to basically as a straight tennessee versus garner argument officer davis to youth deadly force this is an absolute there's nothing in the record to suggest that the man was threatening anyone he was running away from the officer he never looked back he never said anything to the reasonable basis to fear for his safety that is if that is saying that i got a gun and refused to stop but the issue as i understand it is whether there's a genuine issue of material fact that so many people heard officer the officer say don't go in the house yet they never heard the word gun or i have a beer and come out of the scenes now and these were neighbors just one man driving by that stopped to watch and the other witnesses that were in the house within one to two feet of the door so to that extent that may please the court good afternoon my name is sean bell and i represent the city of west covina and author excuse me officer count davis in this matter i like to say first that this is precisely the type of case that qualified immunity was by an independent witness mr land arabs who he himself without the benefit of knowledge of the car chase form the belief that mystery geary first tried to enter lend their list of house and  told him not to you second that mr geary may have been carrying a gun to the fact that his hand was in the side and he was running in a candid position three that he had that mr geary had no idea who lived at the house this was mr land ar opinion for mr land there arose also heard exchanges from the officer and mr geary although they didn't know he couldn't tell what was said but he did hear stop at least twice myster costing him his life but officer davis is decisions were reasonable he saw it's not it's not based on your or the officer's statements of fact i mean if i take if i credit the officers that you have an unarmed man who is just trying to get in he's opening the door he's not trying to break in the window of a residence it's girlfriend and there's no warning and he shot four times in the back you say well qualified immunity doesn't apply that so if that's true then don't we have to send that to a jury to sort it out if it was true that there were no warnings given you know if it's i mean it's not for us to decide one way or the other what happened duty to create a record for this court and to introduce admissible evidence to their facts that they did have at the district court and they didn't do that i would about the congress return the coroner's report in the corner and i did bring it to a few sector i mean i brought my opening brief here and i'd like to address back and just read it one sentence within with the body in motion i can't tell you with a degree of certainty what angle what the angles would be that the corner testified that he couldn't tell it exactly what when they lay the body down in a static position what the angles eventually would have been had the body been in motion but did he testify that they shot from the back would you test it i don't know that he said the were shot from the back of the what the report is is that there were shot in the right scout below below and he said where the shoulder bone connects to the back in the right axillary line right beneath the armpit in the in the back of the right leg which came out most likely re entered in abdomen all those bullets entered in the right side of the body whether the angle what the angles were the corner couldn't tell but they entered in the right size of the body which would at least support the inference that mr geary started to turn to his right the the evidence here that that the appellant's off or the ballistics well  in light of the coroner's statement or in light of the statements of other witnesses who didn't hear any reference to a con then would there be an issue of fa material issue of fact that i don't believe that i realize your position i seem is that you don't believe so so i would want you to tell me why there is no there is no question th fact that exists because the appellant haven't offered any all of the questions of the fact that the polish of tried to raise do you not go to the reasonable reasonable davis's actions whether or no one heard other than officer davis or actually i can't say that the question was never posed any witnesses whether they heard whether i mr a gary  from from going to trial coupled with mr or officer davis is what he saw under totality of the circumstances as he ran up to the door and he said i heard he had a gun he reasonably feared for the occupants of a thirty two the fact that mr geary may or may have not known somebody in the house after the fact really we're limited to what gary knew at the time he heard that i have a gun state back in a situation where an officer has a version of events and the other person is a deceit and we looked at the internal consistency of the officer statements both his statement on the night to the investigators and later in the deposition we're consistent we look at the corroborating evidence which would be mr land arrow says testimony then there's no way that we can tell whether or not mr geary said i have a gun no no testimony is going to tell us definitively yes or no we have officer davis is testimony it's not a tribal issue of  because there's no evidence that's been offered as a summary judgment or in any deposition that would give law allow the trier of fact to make a decision one way or another you have officer davis testimony have other people saying i heard statements but i couldn't hear exactly what was said well under garner the office that would have to show that he had probable cause to believe that the suspect posed a threat of serious physical harm to the office or others now are you saying that on the record before the jury would be compelled to find that there was a threat of serious physical harm to the officer or that given the facts that  reasonable officer in that office or shoes would clearly understand that the he was violating constitutional right with the circumstances that we he was faced with so in the second prong we certainly need to look at exactly the specific circumstances that were facing mister rymer officer that branch of that i don't think we can get into his subjective beliefs at this point what we have is his testimony but what we also for certain if there was a trial and the jury credit at the officer he would he should win but in a summary judgment context is the jury compelled to file to make a finding that seems that i have a guy when other witnesses didn't relate that so if you give all inferences to the palate are they entitled to the any threats that maybe these people didn't say that because they didn't hear that admissible evidence the witnesses that we're talking about here it was hearsay there is no admissible evidence from any of these witnesses mr land there as it is the only one excuse me except for i believe it was a result she was sitting in a car and said i didn't hear anything the rest of the evidence is inadmissible and that their counsel referred to as ballistics did and police tactics experts that's not the expert or whether there was a declaration submitted on behalf of the appellant's but either way it is not here and i had dick the district court judge below also said that the witnesses the witness statements came out of detective brown's investigation his notes it took it a palace took a deposition of mr brown who was a sheriff and he had interviewed these people  the night based on what they heard so it's the witnesses saying what they heard to detective brown who said what what they told him in a deposition months later that's inherently unreliable and district court judge i believe correctly deemed that inadmissible first he said that it actually supported the officer guaranteed west covina side because they corroborated that warnings were given for him to stop not to enter reynolds versus the county of san diego where a minor inconsistency in officer statement does not create a trouble fact as to a reasonable belief here if we say that because it's not corroborated that mr geary said i have a gun if that was the only basis for allowing mr officer david to use deadly force then that would have far reaching far reaching effect the other part of this is that officer davis reasonably believed that the people at eight thirty two west michel were in fear for their lives that that officer that mr geary was trying to break into the house independent witness planned their os also said that he saw mr geary banging on the door pulling the door knob back and forth out shouting open a mystery giri left car down the street not into the parking not into the driveway of a house there were no facts to indicate officer davis that mr geary knew who was in that house given the high speed chase given the rec mr geary used in driving through a residential neighborhood at high speed given his failure to obey any orders that that officer davis was giving out and then running up to the front door and shaking the door it's reasonable to believe that mr geary posed a threat to the inhabitants moreover if we take it down and say to the clearly whether it was clearly established that officer that was officer davis violating nothing on the record that indicate that mr davis or the officer davis was plainly incompetent nor did he knowingly violate the law now the question is whether the danger posed on the objective facts to someone into the sanity which  issue you just briefly that no no no liability is derivative of a constitutional violation if there is no constitutional violation there there is no no no  liability the excuse me one second what we had here and it really wasn't addressed in the column soaping brief but the district court found that there was no violation of there was no evidence to support now theory of conspiracy theory or failure to train we also argue that the negligence theory when it was not cognizable of law what i would point the court because i believe i didn't sort of records page eighty one and the response of excerpts of record eighty two to eighty one eighty two and what all these question shows we specifically asked the opponents their theory and the facts that support the theories of no no conspiracy and failure to train and all we got were dilatory objections there was not one factual response given and based on cell attacks the teletext decision and the ability to point to a lack of admissible evidence that the defendants have satisfied their burden as to those counts i take it discovery was closed part of the filing of motion for summary judgment i believe it was but because i was in the trial monorail officer gave us his test and deposition testimony at page fifty lines two through fifteen in effect states that he had he was instructed use deadly force even if he was not threatened i think that and began to go west bank town of or back to from where he was on the sidewalk and at that point in time a slip there else was in his yard on his lawn and simply stated don't come in  had a gun in his hand or had had a weapon on him and i believe there was an objection and he volunteered said yes i i do really couldn't i didn't know but possibly he did mr davis  gang signs were just as an aside but all of the witnesses that were in that home were taken down to the police station immediately and interviewed by the officers as well as the company district attorney a jury well they just record excluded the statements as i understand it because you only put the man through detective brown and didn't have direct evidence is that right there a deposition that we take and i just don't have them off the top but then it concludes and then event the testimony is hearsay and cannot be relied on by the court to grant defendants motion so what we did we presented the copies of the tapes that were provided by mr colton the