so here we're switching a little bit from the law i'm not going to focus on the law this court is very well aware of what the requirements are for the granting or denial of a motion for summary judgment so in this case we have to look at the facts and there's in our opinion and i think it's justified based on the record evidence in both the filings here as the appellant and the appellate that there is a genuine issue of material fact in fact the district court addresses this on page fourteen of their of their order it says that the undisputed dash cam covers most of the facts well that's the problem here with this dash cam this dash cam isn't undisputed in fact there are multiple versions of this dash cam video that exist in the case now the dash cam was shown both to the benjamin and the family of of that scene but also shown to a grand jury now the grand jury version it's the testimony of the sworn af that this is different that it's been edited that the resolution is different that it skewed that it cuts off the left side of the screen where we can see the penultimate facts of this case which is the death of mr benjamin were six versions of this video and the person showing the video clicked on one of those i mean is it your idea that maybe there were six a different video cams of what was that or know i it's our it's our good faith belief that there was one video that was cut in multiple different ways to draw attention to it much like when we see a closed circuit television cameras say or a convenience store the focus in on the cashier and it gets grainier and we see the resolution change that's our position here so the grand jury would be able to see this from multiple different aspects or maybe focus in on on various different parts of the video although there was one in our belief one stream of video and that's how we've seen this  in the various discussions with who it's about that's how the other cars got there it was all over yes it was it was there is just one and you're as far as we know yes one verse one video that has been edited multiple times and in fact the the the the possibility in the concept that they're being six different video shows up there shows that there are at least some different versions there of i had the good fortune in was that you had if there were differ it doesn't seem like you've developed this at all eviden  lies but my understanding was there may have been six different and since recorded that video camera and that's and possible explanation it was a grand jury looking at lots of things not just your clients it would be suppositional for me to say because i was not party to the grand jury so i wasn't able to see that question to you is this is interesting but what and what steps did you take to develop this evidence and discovery to actually give rise to a disputed issue fact on my office during the discovery phase had been in contact with the with the state with the district attorney's office had gone through and discussed these these issues in fact when we had reviewed with mr benjamin and mr benjamin the video that they had seen immediately they said this is not right this is not the video that we saw obviously this is a traumatic experience you know mother watches her son be killed you don't forget the little details every time you see it it's burned into your brain  slight details the slight movement movements the motions forward motions backwards getting into the vehicle getting out of the vehicle these are things that are burned into her mind and she was able to articulate to us very clearly and concisely the discrepanc dispute part of the incident where mr benton is going in and out of the vehicle there the police says that the orders were consistent stay in the vehicle stay in the vehicle stay in the vehicle however the record evidence and what we've supposed t we saw you're not saying any of that was like a different actor was put in oh no the video as it stands represents that portion of the video that we're actually able to see our contention and there are more to it there's a larger video one which shows the actions leading up to mr benjamin's death at a very close point when we look at whether or not it was a justified use of force when we look at whether or not this was appropriate in the situation we were forced to look at those last few seconds right because these decisions come in those last few pointing as far and appear to give him a push and joyous pulls away from officer thomas and tries to move away from him trying to move past officer thomas and so when i watch the video i did i did not see that so is that that's a discrepancy or on a that's the contention is that there's this portion on the left side of the video that doesn't show that we don't actually see the final moments of mr benjamin's life in our contention is that this video is different from the one that was shown don't see the final minutes there out of camera range how do you respond to that with seven eight witnesses who consistently testified that mr benjamin was the aggressor that he was coming toward the officer the officer was retreating to the point where he now responding backwards mr benjamin was looking to be assaulting him or trying to solve him but getting closer and closer to that gun that is the undisputed testimony or well the testimony of those i went to says is unreliable from the standpoint of their distance from the incident some say was mr benjamin three feet away to five feet away the contention to be was about six feet away when he was shot and he was actually retreating  the officer following being aggressively treated by this person he's seems to be quite angry and quite aggressive that an officer in that position could reasonably fire a shot at that point i don't believe so your honor  because we have discussion in the police response that mr benjamin is trying to grab the officer as he gets out of the vehicle and take his fire and all that what in the officer shoot then the obvious shows incredible restraint and all these with the cameras move he's moving back and mr benjamin is moving toward him in the you're right the camera shot saw the witnesses are uniform and saying that he was in retreat mr benjamin was the aggressor looked to be ready to attack him the gun was that mr benjamin is twenty or thirty years younger a lot bigger what do you think the officer should have done in that case what should he have done he's following somebody is attacking him he's afraid he's going to grab the gun what do you say a reasonable officer of this case then i think that the officer would have had to make a split second decision i'm not a police officer for that very same reason i can't and i can't second guess it neither can in the courts we have to look at it what the officer thought at that time period now what the that the time period would have to be reflected in that video the video which is missing and that's the key component here what is your alternate that's there facts what are your alternate facts that you could be considering that off the video mr benjamin moved away from the officer moved off to his side and started to walk away that is that is our alternative version of these facts one that we believe in good faith was shown by the video was that we just have to totally discount  witnesses now i think the witnesses go up to the point of the video ending as well the eight witnesses don't fully articulate those final few seconds and it's almost scary that so many witnesses from so many different perspective so far away could have such a similar view of things when we ourselves looking at a video from one point of view over and over and over can't come to that so i think we have to look at that with a grain of salt that these witnesses may may not have actually seen exactly what they she's thomas at the time of this event was this a sergeant and so we're going to i will refer to him as sergeant throughout my discussion contrary to this it's the outset ask you about  the video is you understand there to be a single video as well there's not more than one that's correct there is only one video that i asked about that so in  your response to note let's see something there's some filing that you made in this record i'm not sure i think it's a documentary thirty four you said something about you tried to get the video from the different aspect ratio that's what you say in your pleading the video that had different traffic stops on it the one at issue here is the one involving mr benjamin the other traffic stops who are related to other individuals so what so when you say they reflect different aspect ratios your time out completely different traffic such you're not talking about this one well this video was take that the one that the g b i has was the original disk taken out of the car the police car they are not going to release that to me as an attorney but can they did give an affidavit confirming that the video that was given to ab and states and that we submitted in this case is the same video that they have say what do you mean when you say they simply reflect a different aspect ratio that on some computers you're going to see the image there the black sides as opposed to it filling up the whole screen that different computers are going to show that image wider or narrower but it does not change the image that's being seen it doesn't cut off any part of the image you know it's hard but this of my one show officer thomas placing his free hand on genesis torso born in the far arm and give them a push do you say never was on the video you never saw that on the video that is not on the video and i am not has been submitted as the dash cam video is the only video that has ever existed now and you've seen it and that's the one that's on the record correct and i will also point out that the video we submitted although mr benjamin and sergeant thomas do leave the frame for the last few seconds the audio continues and you can hear the struggle in the audio which is consistent with sergeant thomas's testimony that there was a struggle and also consistent with seven of the eight eyewitnesses who said that there was a struggle or there was contact between mr benjamin and starship thomas  the one eyewitness that said she didn't see the struggle said that she had looked away to grab her cell phone and so in order to believe there is this alternate video then the district court in this court would have to believe that there has been this conspiracy among the g b i the avondale estates police the district attorney's office and these eight eyewitnesses and i will respectfully disagree with what my colleague said that the eight eyewitnesses don't tell us what happened off the camera those witnesses tell us moment by moment up until the shot was fired in fact several of them describe the shot and that they were fearful at that moment that sergeant thomas was going to be overcome by mr benjamin and their description is of exactly what was happening even off the camera is there anywhere i mean  weight and height in the i do not aware that the specific hide in weight or in the record i do you know we make the statement that there was a significant disparity between his height and weight and that of mr benjamin and i believe that's also in some of the witness affidavit that there was a size difference between sergeant thomas and mr benjamin  so i would submit that this case is not a case on summary judgment where there are disputed facts and therefore they have to be interpreted in favor of the non movement as the supreme court told us in scott the harris and this court recently again recognized in the city of selma this is a case where there is a video of what has occurred and that video is undisputed and despite the fact that my colleagues says that the video is in the case there is no other video in the case what has been submitted is affidavit or affidavits that describe this video and this video has not been submitted in fact there's been no testimony or evidence that the plaintiff even sought this video  frankly this is the first time i've heard today about mr howe scott's efforts to obtain the video from the da that was not in the record there is nothing in the record where they made an open records act request or duffy to issue an order to get this alleged video so that video does not exist in the record what we have is affidavits and i submit those violate the best evidence rule they contain rank hearsay they're describing what the d a has said in a confidential grand jury proceeding and what green jury members have said and that can't be reduced to an admissible form of testimony at trial because the da and the grand jury members can't testify about a confidential grand jury proceeding and so these affidavits are not even admissible and should not be considered and judge deathy recognized that  footnote eleven of his order he notes that the plaintiff tries to cast doubt on the events that occurred in the seconds after sergeant tom and and mr benjamin leave the frame and he goes on to articulate that he does not find it to be credible or evidence that is to any facts that are substantiated not your understanding the judged of the excluded any of their evidence is a it is he did not explicitly make a ruling that those affidavits were excluded however but note eleven of his order like that as i stated he does acknowledge that plaintiff attempts to cast doubt on the events taking place after defendant and mr benjamin disappear from the view of the defendants dash cam then he refers to the audio version of the dash cam video that is consistent with the eyewitness statements  that there was a struggle and he states that mr b the plaintiff's claim that mr benjamin was retreating from the defendant is simply without merit or testimony and there is no evidence in the case that these that the dash cam video was altered there's no expert testimony from anyone to indicate that the dash cam video has been altered in any way and i also would note that that dash cam video was in the hands of plaintiff's counsel from the very inception of the case it was turned over with initial disclosures actually even before we'd sent a letter but in a nischelle disclosures and so i i mean we don't second guess what police officers do you know we have a lot of police officers that help us around the courthouse  this about this case is that there had been i mean i just so there's a traffic violation the twenty euro person and that person ends up i mean there sergeant thomas doesn't ever indicate that he believed mr benjamin was armed so you know it's not for the courts to do but single avenue possible to try to diffuse the situation is serious he got out of his car he began issuing warnings stay in the car he was in the car he had his gun in his hand when he got out of the car he was checking his holster to make sure his gun was there and it was unlatched when he approaches the car he does not have his gun out and he at some point while he's standing there he does take it out as mr benjamin is coming out of the driver's side window in that was i mean it was not clear to me that he was consistently say in the words he was using was do not get out of the car but i thought at some point he was saying get out of the car well i mean i'll look at a couple well your honor i will say that all eight witnesses except the one who couldn't hear what was being said to seven the eight indicate they understood what he was saying i think that the video is pretty clear he was saying stay in the car stay in the car do not get out of the car when he climbs out he says stop get back in the car get down i mean he's giving warnings but as he in his haste giving these warnings after mr benjamin gets out of the car the officer is backing up he's holding his gun out at that point but he's retreating he's trying to give mr benjamin every opportunity possible to stop and you know could he could have i guess shot when he first approached the car that was what my colleague suggested he could have done but he didn't because he wanted to defuse the situation and he's backing up retreat retreat giving warnings until mr benjamin continues to pursue and is on top of him and the officers on his back and so in the cases are very clear that officers are not required to late to wait until the very last second and just hope for the best but that they can defend themselves and others and in this situation officer thomas is using deadly force was his last resort because if mr benjamin he didn't know whether mr benjamin had a weapon that is the facts in the case he didn't see one but there is no evidence that he didn't have one either well we found out after the fact that he did not have one but in the situation which is what we're looking at this from sergeant thomas didn't know whether he had a weapon or not but he was being attacked and so whether it was an attack with mr benjamin's physical body or with a gun he's entitled to defend himself and had to defend him so we would we submit that this case is not one that there are diversions in the facts the undisputed evidence is clear there is the dash cam video and eight i witness says to this and under scott the harris that video is to be believed  and we ask that this court affirmed the grant of summary judgment to sergeant thomas thank you thank you on one hand they want to say that our at the davids are inadmissible hearsay but they're perfectly fine with affidavits of the g b i saying that this is the version the video they have even though they've admitted the g b i wouldn't give them the original video so got some conflicts there now they say why would da and the police and the state conspire in this remember this isn't sergeant thomas now this is chief thomas now the politics that come into holding a high office as a police officer i know i have many friends that are that i'm not going to say there's a conspiracy and i would not say that here now your honor you seized on the concept of an aspect ratio this is incredibly important as a term of art and in yes this is incredibly important when we look at an aspect ratio just like your t v being a four three or sixteen by nine when you watch those those shows on t v and it crops it down it's cutting off pieces of information it's cutting off parts on the side the difference there we can't rebut this because we can't get the original video and this is apple these assertion that they can even get the original video only having to rely here on affidavits and this is kind of like earlier your honor when you spoke about this this kind of insult to injury where the fire away this morning wasn't allowed to amend their complaint and then the police said well because they could amend their complaint they found themselves in the situation and that's where we're finding ourselves here with this we're being told we don't have the video we can't produce a different version the video we can't put the affidavits in even though there was no exclusionary ruling by the district court we don't have this video we can't get the video because you can't get the video then we can't use that to david's to prove this video that we couldn't get that they couldn't even get so this is really difficult position to find ourselves in we're really looking to get to the bottom of this and those are the facts that are in dispute here and those are material facts if we look at the best evidence and we're being told that this is not the best evidence that's what the filing said by the police that this is not the best evidence but they neglect that if they're the ones who are in charge of the evidence or they couldn't get the evidence then you have to go with what is left and in this case for us that is an affidavit and again the court did not exclude any kind of affidavit evidence and in this case the epically also says that the officer didn't know sergeant thomas didn't know there was a weapon of course he did we have to under disputed  this is hands up and they're screaming you all see what they're trying to do to me right this appears in both of our briefs you all see what you're trying they're trying to do to me his hands are up his hands never going to pocket there's never any dispute about whether hands going his pocket there's no weapon there's no objective objective reason to believe that there is a weapon and these are understated facts there the district court simply weighed the evidence here instead of allowing this to go to the jury the district court said i've looked at this evidence and i've weighed it and once again the evidence is and to speed it there eight witnesses seven of them say that your client your at the deceased was the aggressor he outweighed the person he was on attack and that they thought the officer was going to be seriously hurt that's the undisputed at that the evidence that is undisputed is not the entire evidence it is not the what would be the other evidence other than in these a what other evidence the affidavits in support of the complete video which this court has heard nobody's been able to get the g b i has the video and we just have to take their word for it in their affidavit that's the complete video although at police says aspect ratio aspect ratio is a term of art the video has been edited it is very clear the resolution is different and we need to get to the bottom of it to get this in order for this this to move forward but those affidavit critically set up this disputed issue of material fact thank you thank you and that concludes our core proceedings for the morning thank you for the presentation and we are