before based upon an appeal from a judgment on the pleadings and it was sent back down it was reversed and sent back but on that st appeal there was never a ruling on the question of the head bar and so the case below proceeded apace and on conflicting motions for summary judgment the magistrate judge recommended that the case be dismissed proceeding representing himself in those cases this court indulges on represented plaintiffs and i would ask that the court in this particular don't have to object i'm not going to say that there's an exception our position is that even without an exception it's a revers obviously misunderstanding the procedures of the court he argued in a summary judgment motion essentially that the ruling of the th circuit in the st appeal was sufficient to overcome the far without submitting sufficient sworn evidence to support at that particular point however he did submit a variety of documents in opposition to the defendant's motion for judgment summary judgment based upon the high bar and he opposed out did he specifically object to the order and he did not but he did file fact and out of time once the district judge entered the order of dismissal from which this appeal follows but i cannot i cannot advise th by the district judge ruled that consideration should be given to all sorts of matters which were not presented to the trial judge the trial court in the criminal proceeding and state court and that is the nub of this appeal because the bar st asked does the claim a successful in this case necessarily contradict the conviction in the underlying criminal case and we would submit that the examination o evidence in that underlying criminal case has to be the examination of that evidence in this case it's clear that the magistrate judge did not follow that requirement the magistrate judge reviewed not only the evidence of the criminal proceeding but also the mr harrigan's deposition and also the internal affairs statement of the defendant in this case officer rodriguez those matters were not presented to the trial in the criminal case and could not have had any bearing upon the jury's verdict in the criminal case so as a result the use of the rule for summary judgment in this particular case was not properly whether a judgment in favor of the plaintiff would not solely imply the invalidity of this team that shane and or stand but wouldn't you consider there's no limitation why would you consider all the evidence that could be presented trial in a summary judgment proceeding to determine if it would result in belated does that make my question well it does and i do think it's a two step process but the st one is to try and figure out can can we look at the evidence presented and the underlying state trial and can we tease out exactly what the basis for the jury verdict was an answer that is not in this case the jury instructions given an underlying state prosecution together with the conflicting evidence leads to the conclusion that we do not know what the basis of the jury's general verdict was in order for the heck bar to apply in this case the jury would necessarily have had to conclude that that mr harrigan was shot as his vehicle was was moving toward an officer and there is conflicting evidence on that the jury instructions don't require that there's no jury on that i'm sorry to interrupt you so you're a really thoughtful point in your grief and one i struggled with so i get how you can separate the assault on the officer from the shooting he could have shot him st and then he could have been a fact for example and ran in at the officer let's just assume those are two separate and the thing of the defense in the criminal trial as to the charge of aggravated assault on a law enforcement officer with a load of vehicle was seemed to be turning when the shooting occurred but your argument was at the criminal trial that he was shot st and then tried to get away rather than the other way around the government's argument and theory of the case upon which it presented it in the evidence presented was that the the aggravated assault as he was getting away yes i mean based on the record and based on the matter in which the case was presented the mr harrigan's vehicle was stationary there was no reading of the engine and when he heard the shots he looked up and the pickup truck was in reverse so in that particular situation the pickup truck could presumably have continued in reverse and there was no need to put it in and drive and proceed forward and in danger and officer so in that particular circumstance the the jury could easily have determined that there was an alternative to placing an officer in threat and the that conclusion is invited by the necessity instruction which says that there was no alternative and i would note that there was no self defense instruction given to the jury in this particular case jury found beyond a reasonable doubt that he did not act out of necessity yet now in this one hundred and eighty three case arrogant as claiming it reasonable for a jury to find that he did this is exactly the have concluded that harrigan was shot st by officer rodriguez and then committed aggravated assault against officer baldwin not out of necessity and that's because the  and eighty three plan that's not always framed excessive force and he has maintained from the beginning of this case and in fact he filed this case while his criminal charges were pending in the complaint he refers to the charges his charges and in his response to officer agree give his motion to dismiss kerrigan even admitted that he filed this case while his criminal case was open in order to counter the charges pending against him quote without relying on in the quill and the way he framed this case and the way he testified in his deposition was not that he was admitted to aggravated assault or that he admitted to any wrongdoing whatsoever in fact it is deposition he maintains just as he did at trial that he was an innocent participant from the very beginning in this whole police in town or that officer rodriguez opened fire on him while he was stopped peacefully at the red life and that only then in the same matter of seconds did he drive that he put the truck a stolen truck back into motion entire series of events occurred in a matter of mere seconds and that is the sole basis for his excessive force claim but again the officer this is judge marcus is i theoretically possible even if it's exceedingly in the remote that a jury could have accepted the theory that he was shot st and then gunned his car at the officer later in which case he would have been guilty of an aggravated assault even if the police officer had improvidently shot of him before the car i think in another parallel universe of facts it could be your honour's but here it's everything occurred quickly and it's undisputed was in a matter of seconds forty five shots and succession and he drives the car that's well if they could have reached that conclusion but i don't believe that they could have based on the record in this case in the testimony at trial and you know the instance that we see for example that we see a lot of times where  where there's no x bar is similar to an example you mentioned where the alleged the underlying criminal conduct occurs st and then in a separate space or time the alleged excessive force occurred here we can't parse it out like that because it all occurred right there at that intersection in just a mere matter of seconds and his and it's important to note that harrigan is only in this position because of the way he chose to frame his case he rests his entire case on his complete innocence here and in cases where this court has found not to apply they've noted that there are cases where it's possible that the underlying criminal conduct occurred followed by the alleged excessive force such as when an individual resists arrest but then once taken into police custody the officers use excessive force against him but here again it all occurred in just a mere matter of seconds it was a single uninterrupted violent encounter with police and as i noted in my brief i was not able to find any th circuit precedents that speaks to this exact type of scenario where it's a single uninterrupted violent counter with police where the one thousand and three point if maintains he was innocent throughout that entire encounter but i did point to several cases in the th and th circuits that have examined this and i believe that this court should look to those cases for guidance and and rule for officer rodriguez or or uphold i'm sorry the decision below because just like in those cases harri that his own deposition testimony cannot be used in this case there's no legal support for it that was cited in the briefs and it flies in the face of the summary judgment standard which is that a plaintiff deposition testimony of particular is one that he relies heavily on they are distinguishable because in those cases there are there is the possibility that the underlying criminal conduct can occur in a separate time and place could find that officer rodriguez shot him he then he could have after the shooting stop turn he could have turned themselves in so the necessity defense is  so i think we have to examine both the evidence that was in the trial or aren't you really saying here this is judge marcus in response to the question that judge the park put you put to you that yes it is theoretically possible but it is at war with how the case was presented and what the proof actually wore but yes it is possible well i think not to say that it's possible or does it have to be reasonably plausible given the theory of the cases and the evidence presented yes it's the latter your honor because i think it means as i believe was stated in dyer logically inconsistent and that inconsistency is between the verdict the trial and the evidence th you is there any case law saying it has to be reasonably plausible which makes sense possible because it seems to me to necessarily imply and logical consistency could be read both way say that as long as it's possible that the one thousand a three claim can co exist with the conviction here in this particular case first of all know that several cases  because of the way that kerrigan has chosen to frame his case here so he could have at the beginning of this case said yes i did commit aggravated assault against officer  rodriguez but as i was fleeing the intersection he opened fire on me and that was excessive force or he could have said that you know i was shot at without provocation but then you know i defense because it came to the conclusion that he caused a danger to himself by stealing the truck and driving it so i don't think that that is certainly it's not plausible and i would go so far as to say i don't believe it's possible when you look at the trial evidence and really know  we don't really know the answer the question do we cannot read the jurors minds no we don't but i think there's simply no reasonable construction of the trial evidence that would lend itself to that conclusion and in one of the cases from appellant film brief william him being the last and it says in the typical case where a jury reaches a verdict in the face of disputed issues of fact we simply accept as true the version of facts for which evidence was presented by the party who won the jury for and in this case the evidence was officer baldwin's testimony from that trial that gunshot occurred only after to never maintained his complete innocence in this encounter it's quite clear he was charged with grand theft auto and his vehicle was stopped because police officers were there he never maintained his innocen grand theft auto the evidence in this case he was also charged with a multi to have other charges including fleeing lewd and and malicious mischief and so forth and these he never realistically was able to establish and a sense on those and never claimed that what is really being at issue here is the sequence of events leading up to the shooting and then the driving away it is logically it is not logically contradictory that the shooting occurred st just as officer carter says the vehicle then went in reverse the vehicle then went on forward and it endangered an officer the suitor's not against the officer who was in danger at the citizen hence the officer who shot him and the liability for the officer is based upon the unlawful use of force against a person who is not be presented and because the act here was simultaneous in nature rather than sequenced in space separately by time and space let me give you an example of basically what he's saying and help me with a defendant in a criminal case may have solved a police officer the officer then may assaults the defendant under those circumstances the defendant would have a good nine hundred and eighty three dollars excess of force case for the nd act of assault by the police officer which was distinct in time and space from the initial violent encounter but he says your opponent says in this case you really can't look at it that way because the events were simultaneous it came to a stop and almost immediately thereafter where they were shot st or not he drove the car toward or swerved around the officer so this is not that kind of case it's not that case because the way it was argued by your client and necessarily implying the invalidity this couldn't possibly be that kind of case does the gap in time and the space and the way your client has can reach a certain answer what is clear here is there were three police cars this pickup truck which was the subject of the initial inquiry stop and was not moving there was officer carter immediately behind it it was time for two other cars police cars to come up then turn their lights on and then two police officers to exit these things do not happen in some light of speech speed of light fashion they happen in a sequence over time and only when these other events happened and officer carter was on doing a seatbelt which again would have taken time he did the following out thence occur i would submit but these are separable events they are divided by time and that if an officer in a hypothetical case can be excused from the excesses and unlawful use of force just because he shoots a subject immediately before the subject attempts to escape and there's no evidence that the subject would have attempted otherwise then we place an undue burden upon any person who seeks release and in one thousand nine hundred reaction this case is that the summary judgment level it should proceed to trial and allow the jury to determine these disputed issues if that is the defendant contends that it is obvious and that the time sequence establishes that there is no i belittle than the jury will speak that you were appointed by the court to represent mr paragon in this case and mr gao in the court thank you for your for your service of course thank you it's been a pleasure and that completes the docket this morning the court will be in recess until nine o'clock tomorrow morning