not shielded by qualified immunity and the result that ultimately led to miss unphased death because trooper parks at the time was on a four foot high snow bank in a position of safety with an unoccupied there's a case with thirty years ago in the circuit mandell rivera case that suggest these facts would not support a seizure under the th amendment but that case law respectfully submit is dated and lead out there it seemed like and the police officer knew that there were two people there and there were some intentionality about the fact that he sees the car with the two passengers in it that's missing in these cases and it's it  concerns me trying to hold the police officer accountable for a seizure that he couldn't have known he was making well your i suggest the record which other officer recently should have known that he was making a seizure of  amber the passenger as well the record demonstrates that he had information beforehand that he was a passenger inside the vehicle he had no information that she was ever removed from the vehicle while the officer says he did not see her in the vehicle at the time he was firing the shots that record indicates that she was in the passenger compartment when she was shot and killed quite a bit of time passed between when when he understood her to be in the passenger seat and when that the shooting actually took place approximately seventeen minutes had passed and when the officer returned to that same location where he had seen her before in the cruiser he had no information at that time to suggest that she had been moved higher comes barreling at him he's trying to stop it he does not see that there is a passenger and the car he sees that this car is coming toward him passengers are thereby sees whether the officer was aware there was passengers or not brennan doesn't limit it by when it's remaining thank you brennan doesn't limit its holding your honour's to a situation the officer makes some traffic stop for you before we get to that point and i'm still confused you're making an argument that a reasonable juror could find that the officer would did see her yes your honor  absolutely based on the evidence that i've already discussed and the record shows that what what are we supposed to do in this case if a reasonable juror if we concluded that the evidence was that a qualified immunity because the question then becomes from his point of view can we say no reasonable officer could possibly have not seen she was in the car but well the question at that point around it though is whether that no reasonable officer would have fired the shots into the vehicle knowing that she was in the vehicle or should have known that she was in the vehicle and all the case law in the case that it's only when there's an immediate threat that the officer is justified in using deadly force and at least there's a factual question here as to whether the officer was an immediate danger  well well well with respect to the there would be a qualified immunity issue as to whether a reasonable officer could have been worried about the imminent danger he posed upon getting out of the car i guess my question is if we thought there was a factual question as to whether he also knew she was in the car how does that affect the reasonableness of his decision to use deadly force against the driver there's a to me i can see the point that if a jury could find that he knew two people were in the car then it's more like a brown one case and then arguably that was clear at the time he should've known it was a seizure then there's the question of would have been reasonable to use force where we might think you know it might have been reasonable to use force or to be worried that he would pose an imminent danger given all he had done in the shots that have been fired the fact he's barreling right you come down the car with a gun what happened even though he's on the snowbank my question is does that calculus change what supports the idea changes from a qualified immunity perspective if he knows that in the car how does that change what case are you relying on to suggest that that would change well ultimately our position is that it doesn't matter if he does matter how it was change the analysis is that it would make the officers decision to use deadly force against a vehicle even more reasonable lying on to suggest that if he knew she was in the car what he knows about her that he she was suspected of also doing these house break ins with him at the time so i guess i'm just wondering why from a qualified immunity perspective it's not as if it's a child in the back seat so but it is also somebody that he's saying is not the person he was aiming at i guess i'm just a what case law helps me figure out about the reasonableness of using force if you know that two people are in the car rather than just the driver from a qualified immunity perspective i don't see anything in your briefing that really addresses that part of the case and i'm not sure there is a case that directly addresses that your honor i think the case all that relevant is the case law that talks about  a fleeting vehicle itself it's not per se a green light to use deadly force and the facts of this case are quite different than the factual cases where the courts upheld qualified immunity for firing at a flea  was an accident it was a tragic accident to be sure but it was an accident the undisputed facts in the summary judgment records show that she was hit by a bullet that was aimed at and intended for her extremely dangerous companion a person who is armed with a gun is driving an s u v towards trooper parks at maximum acceleration or parks and knew to have held a nearby resident gun point in his home and whom trooper parks reasonably believed to have just seconds earlier been involved in a gunfight with the other officers on the scene  i'd like to address the the issue of his knowledge of whether she was in the vehicle because i think the record the summary judgment record is very clear and i think it's even a little bit stronger than what was discussed previously which is that it wasn't just that he couldn't see her in the vehicle it was that he could see into the vehicle he could see the passenger seat and the driver see he saw somebody in the driver and he saw that the passenger seat appeared to be empty and the reason for that we know because of our state's forensic expert was because miss faye grae was not sitting upright in the seat and we know that for a variety of for encik facts that were and conclusions that were that were made during the investigation so he he not only couldn't see her he thought he could see he would have thought that he was seeing whoever was in the vehicle because he could see the passenger seat so it's very clear and i think that overcomes you know any knowledge that he might have had that much earlier in the incident that there was somebody in the past your seat of that vehicle the other point with regard to that is that i mean don't you think a juror could not reasonably find that notwithstanding his testimony he would have seen her i'm i'm not sure i follow the question i'm sorry well i know there's testimony from evidence which would suggest that she was in the car at the time of the approach and i guess i'm saying your position is that it would be unreasonable as a matter of law if the jury found that he did see her but i think is that what you're saying i understand that is that is our position and the reason for that your honor is the only testimony in the record is the testimony of trooper parks that he could see the seat and there in there appeared to be nobody n it and i would add that you don't have to take his word for it because there is the forensic evidence which shows that she wasn't sitting upright or is extremely unlikely that she was sitting upright and and just to be clear there's there's actually two separate pieces of evidence that show that there is the fact that the location of the the bullet holes in the car and the entry and exit wounds show that and also there is the fact that another officer fired a shot into the car from the other side that would have gone right through whether went right through this the space where a passenger would be where they sitting straight up in the car so there's really overwhelming evidence that she was she was leaning over slumped over something that she was not visible at the time as as this vehicle is barreling towards towards trooper parks  the basis if a juror were to find that he would have seen her in the car or known that she was in the car going to be didn't see her in the car i'm just trying to get a sense of what the land was prior to the car approaching the snow bank to get a sense of what a juror could attribute as terms of knowledge of the officer surely and there are at any point is that right i'm sorry i missed the last thing you said there are i'm sorry nothing in the record to suggest that she ever left the cars that right that's correct there's nothing in the record to suggest that she that she left the car yes when when does he prior to the car approaching the officer here at the snow bank what's the last thing he knows about the state of things before that car takes off does he see him get into the car he can see he sees movement maybe it's just painting should just to back up a little bit he sees her in the car seventeen minutes earlier when he st arrives at the scene he leaves the scene to go check on on residents and he comes back he sees a a very difference he hears gunshots sees a very different scene where all the vehicles are now gone except for the except for the s u v he sees movement that he that he can't really distinguish he sees somebody crouched behind a snow bank and he hears gunshots so hears what what he and st to be to be a gun fight he never sees her in the vehicle and because all the other vehicles are gone i think it's reasonable for him to have thought that perhaps she was taken away in one of those vehicles but then that's the fact that he that he can reasonably think that she's not in a vehicle is confirmed when it then the vehicle pulls out of the parking area turns towards them excel or it's of maximum acceleration he looks through the windshield and sees an empty passenger seat so i think you put that together and you have i don't think any reasonable jury could reach the conclusion that he could he could see are in fact they we put that in the summary they're saving material facts that he did he did not see her at any point between when he returned to the scene and when the incident was over and the plaintiff admitted to that fact so that's an undisputed fact that there was a measure that's paragraph eighty six dollars of the of the of the statement of material facts so so i don't think there is any jury question about that at all your honor and under this court's decision and landel rivera i think the fact that it's clear that the that the intent of trooper park's objectively manifested intent of trooper parks was to target specifically the armed and extremely dangerous driver of the durango that under that decision this is not a seizure under the th amendment it does not implicate the th them then then it was and it was an act it was a it was an accident and it was not the intent of the officer as objectively manifested to harm the passenger in any way the brand one decision that that the plaintiffs the plaintiff discusses that does not require this court to overrule its longstanding decision and landel rivera that decision is the culmination of a we don't have to get to that question and theory right if if we conclude that the officer particularly if all he thought was the only person he thought was in the car was the driver if we conclude that at least under qualified immunity he recently be could have thought he would be in imminent danger from that driver even if the car crashed right that's that's absolutely right and i think the you can look at the seizure issue look at this through the seizure issue and whether there was a seizure you can look at it through whether the force was reasonable or not and i think i think you're absolutely right the question of reasonableness because he didn't know she was in the vehicle it would just be a pure question of was it reasonable to use deadly force against mr bailey that would be the only thing the court would have to decide here and i think the evidence is overwhelming that that that was a that would be a reasonable use of force and i think that's th be able to leave the scene in its immediate right bear on how reasonable it would be to using force because of the risk that he would then get out and use it directly against him that that's correct your honor so so the way this unfolds trooper parks is originally taking cover behind the rear of his cruiser which is pointed towards the durango as the durango it becomes clear the durango is going to ram the front of his cruiser he moves quickly to his left onto the side of the road as the durango is is colliding or about to collide with the durango he shoots six to seven shots he put the durango pushes the vehicle back about fifty feet the vehicle the cruiser turns sort of sideways you can see it in some of the photos in the summary judgment record he gets wedged into a snow bank and at that point the engine of the durango's revving but it can't go any further because the cruiser has essentially because it's gotten wedged in the snow bank is preventing it from being pushed any further backwards so at that point the driver is trapped and deadly force not by my client but deadly force was used hiding behind a snow bank is adequate regardless of fact that the cruiser was there what do you say to that argument we've got a st just one clarification i know the district court mentioned described as hiding behind a snow bank what he actually did was climb on top of a snow bank so he wasn't actually behind the snow bank he was he was on top of it and i think my response to that is the record shows in his undisputed that the the vehicles went when the durango crashed into the cruiser and pushed it backwards and both vehicles go by him they passed within two to three feet of where he's standing on that snow bank so i would submit that that is way too close to say that that's that he's in a position of safety at that point if the if the the collision causes the cruiser to jacknife or something like that it could push it into the snow the threat is from the threat posed by the car while it's driving to him at the time he shoots that's where you think the threat is i think that's part of the threat the other threat is the fact that mr bailey was armed he had just been involved the trooper reasonably  d that he had just been involved in a gunfight with the other officers so as the district court held it was reasonable for parks to be afraid that mr bailey would attempt to shoot him either as he was approaching or going by or after as you mentioned he who was right there on the scene saw him for the passenger see the trooper says he saw an empty ass in there see he doesn't say he didn't see anyone in it he said he saw an empty passenger seat seconds later when the vehicle crashes he sitting in the passenger seat passenger compartment so whether he think it got to a jury to decide whether when he looked in there he did not see what was in there seconds later when the vehicle came to a stop and allison about the qualified immunity analysis and whether the officer did actually know that amber was in the vehicle i think it does change it because if he is using force that sees her by killing her when she is not the threat that absolutely with would be a th amendment violation and not protected by qualified immunity there was no information that she ever was involved in the life out of a gun she was not driving the vehicle and even if he didn't intend to shoot her and he was aiming at the passenger this time by