declaration he filed in support of the most of summary judgment he stated that it was quote a few feet or i don't know so we believe that that raises a material issue of fact it could certainly affect the has his weapon outstretch of the other person how stretches his arm and one of the distances about forty two feet for each arm he said maybe sixty maybe set a few feet i will say the difference between those three characterizations is pretty small well that the difference is maybe more particularly directed toward obstacle arks testimony in his deposition the victim could actually reach out and grasp his weapon versus him being at a distance of six feet and i would suggest to the court that is material and that is a difference in his testimony and it was certainly ignored by the court there's no evidence in the read or there's nothing in the court's opinion that the court dealt with it and or concluded that that was not a material fact on summary judgment the question the court that the differences are material because officer clark while he is extending his gun he is intending to use deadly force and whether the suspect is in a position to actually reach out and grab his gun is material and at six feet i would suggest to the court that he would not be able to reach out ingress well that statement that he gave to the investigator in the criminal investigation it's officer clark's own words and i believe he stated that he was physically six feet away from mr b a pond at the time  hand near said in one hand on top of his head at the moment that he fired the shot now there's nothing in the record that officer clarke bring brought to the trial court they did indicate that mr pantos hands were moving at the time that he fired the shot now every case cited by officer clark in the trial court in this court involves a suspect where their hands are moving or the suspect is lunging towards the officer of the off the suspect is running towards the officer the suspect is moving his hands in such a way that it would indicate that he was could be reaching for a weapon as the court knows the presence of a weapon is really irrelevant because there are many cases where unarmed suspects ha been shot by law enforcement officers and the court has found that to be reasonable in the circumstances because the hands were being moved in such a way that it indicated to the officer that there was a reasonable belief that the suspect could be reaching behind his back that the video shows us for a full three minutes before the shooting that mr b a pond as hands or even either extended outstretched there either on his head or there is a period of time where he put him behind his back but he takes his hand the hands were always visible to the officer when they're behind well if you look at the video that mr via pinder had turned its back to the saucer and it's only at that moment that he put his hands behind his back at all times as millions were visible to the officer so  or to push him into the line of traffic which was quite close even educate quite like that but that does raise the same kind of concern about life threatening actions by a person involved officers that were bring approached by suspects which may or may not have been armed and in both of those cases the blossum case and the de luna case the suspect lunged who are the officers and after clark was very clear in his testimony that mr v a pond was moving towards him at the same pace that is shown on the video and there are only two seconds that are not shown on the video so the evidence is clear that there is no munching involved toward officer clark in the record but the issue judge southwick about the traffic is  there is no oncoming traffic at the moment of the shooting when the traffic be coming from behind or because that's true and he could be trying to listen to it i guess but he would not have as much awareness of what's right behind him which approaching at the moment that he made the decision to shoot in other words the issue of traffic was was was not a situation where officer clark said i've got a car coming i feel a car evidence or lack thereof in favor of officer clark there's another thing i would like to point to the court's attention is and officer clark testified about it is that he was not aware of any occurrence ever in the history of law enforcement where an officer had been pushed into traffic and i would commit to the court that that is part of the reasonableness analysis in other words can a reasonable officer believe that something is getting ready to happen that has never happened in the history of their knowledge that they have no knowledge of that ever happening in law enforcement and what also goes into that reasonable in this analysis are the relative sizes of the individuals and that that factor is weighed in many cases where as and especially in one of the cases cited by the traffic with the boss and case where there was a mismatch between the law the officer and the suspect these two men were similarly situated in their size that also goes into the reasonableness analysis where that officer clark did not give any verbal warning of his intent to use deadly force prior to using deadly force in violation of the city break that police policy so while that's not determinative it's certainly a factor for the trial court to consider in the range of reasonableness analysis in the trial court didn't even mention that in the in the record the trial court totally disregarded officer clark's failure to give a verbal warning p of the time he used lethal force thing he'd already given time had already told him thirty times keep your hands up staying in the car stock of the guy and took him on a high speed chase and the guy was facing him a few feet away saying kill well i agree it's not a normal situation there are two things that i would like to address in courts comments first is the high speed chase we breathe that article in the for the court which we believe that's not relevant to the court consideration the high speed chase a totally concluded prior to the time that mr bill find an officer clark had their encounter on the roadside by different matter it's already proven to this policeman that this man is not exactly observant of the laws it's not really someone he could trust i think the cases in the circuit would dictate that that issue is irrelevant that the issue of the high speed chase and we've started those cases for the court in our brief that talk about that and and for example where suspects have had physical struggles with law enforcement officers and that struggle has consideration as to what occur what is occurring between the two parties at the time of the use of lethal force that there was and you raised two points and i'm trying to please the court i'm jim jeffrey and i have the honor of representing grapevine police officer clark the city and police chief salim a g solomon is with me here today i'd like to start with the claim that there was no officer facing a suspect who's ignored thirty five orders including twelve orders to keep your hands visible while he's sitting in a car and then is encountering this suspect officer required to know the distance between them exactly before he can stop the threat but law does require that there's not a single case that's been cited where that would be a material there was a when there was questioning at the deposition that was referred to here today or officer clark could not say that another officer to his knowledge had been shoved into traffic well the burden is not on officer clark under the qualified immunity defense to show that a court has approved his conduct is certainly useful if an officer can find a case under similar facts but in a supreme court the plaintiffs in this case to show a violation of clearly established law which means showing the legal principle clearly prohibits the officers cond up in the particular circumstances before and that's that's the exact opposite of what we heard here today the burden is not a monster clarke to find that a court said it's ok to use deadly force when somebody is with an estimated sixty or arms only for something like whether the the high speed chase was relevant it certainly was relevant that you wrote in the mendez the point of it case that the court needs to consider all of the facts known to the officers of the court can be informed as to the reasonableness of the officers conduct all those circumstances have occurred as part of this incident the officer chased this man through five o'clock rush hour traffic on a friday afternoon on state highway one twenty one which is a very heavily trafficked road with jason to or near dallas fort worth airport it's a major hub in the metro lives and call at high rates of speed drives on the shoulder of the road to get around r s that either stop or almost stop and then finally exits stopping at the very edge of the exit ramp and as the photographs that cut and pasted in the breeze and as the entire video showed the rest of this incident played out at the very edge of the roadway seventy six cars pass and i put in the briefing page thirty six what i've heard here today is the plaintiff would want to put the burden on the officer to watch this threat that's coming out and there's a number arning of a handgun pointed continuously it's undisputed continuously at the suspect there's even a photograph from bystanders that page eight of my brain so only the officer is holding his gun up in fact it shows in the next picture the officer has backed up and then he continued to back up and that's not captured on video or pictures with a speed limit on the act i believe is the limit in the area unfortunately i don't think it's actually in the record clearly but i think it's forty five or fifty and the cars you can see going by are going by fast not all of them some are going by slowly or more slowly but they're all going by fast enough to kill you there's no doubt of that and so the argument we hear that and there's no case that cited something a lot of require that before the officer can fire a shot to stop the threat and that's what happened here what else was officer clark supposed to do and you have the case that we actually sighed in our brave about this issue of the verb of the morning and the eleventh circuit case we cite will use the below says that the pointing of the gun is a non verbal warning to somebody who's approaching the officer and in that case the suspect approached to an estimated ten feet before the officer shot to stop the threat of his or clarke explained the dea this suspect to get a lot closer because he had his gun pointed already and he also explained normal reaction time as he's been trained that if the suspect had been a distance of an estimated twenty eight feet away and his gun was in this whole story the suspect could close the distance and harm him before he can draw point and fire the gun now certainly he had his gun up but we put that into the record that explain just how fast movie things and yet and very sudden so in the eleventh circuit case that we cited we use the deal it was found to be lawful for the officer to shoot a suspect ten feet away and here we're hearing argument over whether it was for fifteen or sixty or arms and all of those i submit are close enough that suddenly if the suspect did make the lines he would be the only officer in the two of them could be in the traffic lanes or seventy six cars that passed and again as i know in the mentioned early on it was an added to the explanation later i believe that's both in his statement and in his deposition and well as declaration thing and then that the deposition there's no argument in any part of this being pushed into traffic could have launched a gun the gun away from me none of those or later arriving explanations of why he failed at risk no need and even if they were  intent sure i'm not trying to quibble with you you're not sure one way or the other you to scare me no i'm i believe that in his statement he said he's in his statement to the initial investigators he said he feared that he could be shot of or pushed into traffic i believe that satan but i would also submit under the case law both under the fourth amendment analysis and the qualified immunity analysis that the state of mind of the suspect and the officer is not relevant it's what the facts objectively demonstrate that's relevant and so in some of the cases is the obligation maybe not meeting legal obligation but training to do gradual escalation of force as opposed to going from verbal word commands to shooting you had mace i think some sort of device on him there could have been other things he did is that  doesn't fit into this case i would submit that at most that might be a question about policy but not a violation of law and i further submit you're asking for the officer to be second guessed if he had used the pepper spray which is intended to make people disabled to incapacitate them and the suspect fell in a traffic lane and was hit by a car we'd be here on the case just with somewhat different facts the  purpose of pepper spray is to make it harder brain to burn your eyes and potentially close them and make you lose your vision and make you take the fight out of them but that often causes you to stumble and fall or wander in a place where you can't see where you're going so i would submit with all due respect monday morning quarterbacking that issue could still result in the same thing the death of the suspect just not from a fired gunshot other policies of the grapevine police department in the record and it should say nothing about graduate school ation of course before use of deadly force i think that some of the policies i'm not sure if they're entirely are in the record but i think that some are submitted and generally the policies as written do state yes we prefer some sort of an escalation but the policies also allow going immediately from one level to another if the year last week was it was nothing to do with force but it did deal with the probable cause analysis and dating all the way back to tennessee the gone or deadly force is authorized if an officer has probable cause to believe he faces an imminent threat of serious injury that's the standard and probable cause is both a flexible and somewhat vague notion and that's what the supreme court restates last week in the west me case that probable cause deals with probable not probabilities not beyond reasonable doubt not proof beyond reasonable doubt it is a reasonable belief that  circumstances exists in the case of a search justifying a search and in the case of an arrest and justifying the arrest and believing that a crime has been committed and here when you're looking at the probable cause analysis for use of force you have to consider the totality of the circumstances tennessee to garner states that from the beginning and judge clement's opinion in the mendez the point of that case you have to consider all of the circumstances so here we have the officer trying to make the traffic stop high speed chase orders the suspect to keep his hands visible before the suspect gets out of the car orders  suspect is a suspect not to get out of the car following getting out of the car there are twenty three disobey orders from the suspect and i would submit to you i don't i can't think of something else the officer could have done at that point he is he is within a very short distance of the suspect who has disobey numerous orders has shown an utter disregard for his own life in the life of the people that happened to be driving nearby and he has not approached so close that in the judgment of the officer if something doesn't stop the threat i'm going to be fighting for my gun i'm going to be physically  grappling in the road or i'm going to be shoved into the road and so i'm not sure what deescalation is available he has been issued so many dozens of orders i would submit that is an attempt to deescalate a shot in the way i i've had that argument made and i would submit this isn't hollywood your honor with all due respect that's still deadly force and you know the i've actually guys he could die he might not die but it's still doing the ordinary well but then again shooting somebody in the leg or trying to shoot them in the arm or shoot to do something that's not the goal of the use of deadly force the use of deadly force is to stop the threat that officers are trained that the most likely way to stop the threat is by hitting your target the best way to hit your target is to aim at the center mass of the body so that's what he did he did as he was trained in the law doesn't require otherwise and i would submit that even if he had shot intentionally to hit him in the leg i i have seen again with that hypothetical i've seen the training film that's used from mr an aside i use that is the originator the twenty foot twenty eight foot rule about stopping the threat when your gun is holster and in one of the training films created by mr i use as a freak accident the suspect i'm sorry the person in the training film broke his leg when he twisted it as running on one of the mats and yet was still able to close the gap and with his knife the rubber knife that had read on it to simulate a knife strike hit the officer with a broken leg so the best way to stop the threat is to hit the large target area the body center mass and that's what the officer did but i again in the hypothetical it would still be deadly force and so even if he survived we would have claims against them and we submit that the claims against these the city and the chief fail there purely conclusory the plaintiff had an opportunity to amend the complaint and only came back with more conclus allegations no specific facts are alleged showing anything that would amount to deliberate indifference in city policies no specific factual allegations are in the record within the  supreme court case and it all that would show a cut customer policy that the policy makers actually constructively knew about their constitutional violation occurred in a policy is a moving force behind the del rio case and it is not from the circuit in the los angeles the heller case the supreme court if there is not a constitutional violation then of necessity the claims against the chief and the city would also fail and prior discipline with the police department who resigned under questionable circumstances he was discharged from the navy under questionable circumstances and he had been rejected for firing for hiring by a couple of different law enforcement agencies prior to his hiring and interesting lee in his job application with turkana community college he  stated this job is like ny times spent in the military which raises an interesting issue about military training versus law enforcement training which are two dept i magically opposed concepts military training is of course you trained to kill people and and law enforcement you train are trained to preserve life at a possible so i would submit to the courts that that does create some issue with regard to the hiring and the need for additional training of officer cla traffic volume danger to the officer in service i mean we get the videos more and more as opposed to you know just he said she said so you're looking at it so what's your best argument of how does video help you is it what you've already said in terms of the placement or not of this bill upon those you know hands etc and what do you do with the sort of the counter arguments about you know danger  end but this one is pretty long going on this long long trance you know period between to stop thirty times whatever the numbers are boom boom boom and all it says is that not negate maybe what otherwise might be a strong point about saints given this lengthy period of time between them close proximity and similar might i do i think the benefit of the video or our of the other cases landing qualified me so i do think it's been official there i do think it's been official on the issue of the traffic even though there is traffic nobody has disputed there was traffic the argued cases will be in recess until nine am in the morning