judgment in less than about thirty seconds of sorry anderson came on scene but he knew very little about and by the end of those thirty seconds he had fired nine shots and would blank range into k goldston who was sitting in the cab of his pickup truck there is in these were are allegations from the outset he was unarmed there's no question that he was only armed and he was no threat to the public or are there of the on on unless you consider the weapon that's correct he did not have a what he did not have a gun on him and so that's that is that is not an issue here he is in he is in the pickup truck the officers chargeable with knowledge that he's on arm because i believe there was some testimony about him reaching for the either the shade or something in the vehicle that might have indicated a reach for a weapon the officer anderson states at one point that he saw him reaching but because we do you're right we do get a lot of these cases and it and it with some frequency they involve a mistake because the officer is not aware that the deceased doesn't have a weapon but it would appear to a reasonable officer that either somebody is reaching for the belt or reaching inside a co i think that's the chargeable knowledge is it not well but i think that i think the issue here going back to what judge jolly said is is probably the the only real weapon issue is the truck because officer anderson even is that in his affidavit never attributes him reaching for what may or may not have been a weapon as as the act or as what prompted him to open fire on them so the issue really is whether down highway in in the truck earlier yes officer stratton was aware that he had and that was one of his outstanding warrants that he had that he had run into another been brooklynese officer and i believe that had been conveyed prior to this event to officer anderson what kind of record did this man have that was known to these two rolf's from the limited record that we have that is all i know there is there is that warrant that was aggravated assault of a public servant there were some other outstanding warrants that i don't recall being very that that were specified in this record i'm sorry no previous convictions not that i'm aware of from from from this record and so in fact even  stand it in the event that occurred on this day was a stakeout officer stand off stretton policy officer stratton who believe that just only believe that there was drug activity going on at this house what about the benbrook incident about the dragging the vehicle is that something that would play a role in the officers knowledge as they approach this situation i think it should play a role in the officers knowledge as they approach the situation and i put i think it plays a very important role in officer stratton and and what she says in her affidavit as far as whether it is internally inconsistent with what a police officer would have done under the circumstances and whether it actually will provide or can provide conclusive proof that she was in fact hit by the vehicle or in between the vehicle or even outside of the vehicle at any point during this event and that becomes the operative i think the operative event in this case because the district court found that officer anderson was justified because there was there was a threat to the public there was a threat  anderson himself and there was a threat to officer stratton and i think there's any evidence that in we laid this out in the brief that there's any evidence that there was any threat to the public there was some reference to a busy street that officer anderson comes off of  sitting in his truck facing the exact opposite direction towards a street that goes back into the neighborhood as as you can see from the video when he's coming down the street there's nobody on the street there's no there's no  ram off shore and the officers claim that that the truck started moving backwards and then it's some point there was an impact between officer strands minivan and the back no test i'm no expert testimony that it was moving five miles an hour ten miles an hour to make this kind of impact on this thing you know there's no expert testimony in this case the only testimony in this case  squealing and officer anderson attributes that to mr goldstein struck although if you look at the pictures the scuff marks that he identifies in the pictures don't line up with the truck at all and so i think there's at least in it and that gets to the issue here is there's there's inference or were you you so you could hear the screeching of times where did that come from sources so there could have only been two sources of it it's either the truck or it's anderson and so her testimony is is that she gets out of her van and rather than run around to where officer intercity is around the front of the van keeping the van between her and the truck of someone that she knows has run over an officer before she claims that she went along the way went back around the back of the thing and came around the passenger side of the van directly in between the truck and the van and then claims at that point that the truck sped up and she had to either leap out of the way or got knocked out of the way and that's where she claims she got her so i think there are those are internal issues that is there any evidence that contradicts her story i mean circumstantial evidence or contradiction her story that she had to jump out of the way well there there's no evidence and you know there are i think the physical evidence physical evidence of the of the damage to the truck at the location of the truck next to the van in the in the way the damages to the truck indicates that she was pulling her van up as a truck either against the truck or as the truck was moving back because the damage to the minivan begins just behind the rearview mirror or you could test her testimony that she was even out of the van that's correct because the eight in him st there's the physical damage the pictures that that anderson submitted into the record and there's also the testimony  in the house directly in front of the house or goals and was parked in front of it she testified that when she came out she heard an impact she came out heard the shots being fired and the district court disregarded that you know that that testimony was put into the record by officer and was sent to the so and then the district court disregarded that testimony number one without there being any argument on the part of some probative value in here or did you produce this testimony it had already been put in the record by officer anderson which under the summary judgment standards that apply would it need to be construed in favor of the plaintiff it would certainly give some indication that she's not ever she's not ever  thing and she can so without there being a risk to the public without there being a risk to anderson and based on the vehicle without there being a risk to officer stress then it can't be declared objective only recently as a matter of law so the summary judgment should be reversed that was the only issue that the district court reached  on appeal there's been a lot of briefing attributed to him that this court has dealt a lot with already with whether it whether it applies or whether it violates clearly established law but the the issue here especially on summary judgment is the distinction between a no threat case and a case in which there is evidence or at least time to her undisputed evidence that there is some threat and he should be here so what's your closest case to cole where you're talking about a no threat case especially where the facts are disputed as to whether there is in fact a threat that garner is still specific enough and because a deadly force case is always uses an obvious case analysis and no where in the latest briefing here is or reference or discussion of the obvious case analysis the obvious case analysis has its origins in civil cases and hope the polls are i hope the case which is a criminal prosecution basically in that case the court stated that an obvious case in that city again the origin of the obvious case and alice's an example they gave an obvious case analysis is there's never been a case where a court held that selling a foster child into slavery is prohibited by the constitution but that's an obvious case so you have the origin of the obvious case and alice's coming from non dynamic events and in hope the polls or the supreme court says you only use the obvious case analysis and less courts you only use it if courts haven't left open the possibility of clearly established law being the political will to certain particular facts and the situation where the particular facts have not been held to the violence of of a constitutional right then you have to use a particular eyes types in our losses and that is particularly a political in the th amendment cont especially in dynamic fast moving events like what we have here and the us supreme court and s the c of s can did ovi emmons earlier this year so that the obvious case analysis is rare and district of columbia beat last year the us supreme court said the rare the obvious case analysis is rare and in both of those cases using th amendment analysis they say you have to look to the particularized facts and i think it says but many as fifteen times in the last five years the supreme court has reversed lower school lower courts that did not use a particular eyes fact analysis and i'm not aware of any authority where the obvious case analysis has been us dynamic event by the supreme court so garner which was no resemblance to the facts here a teenager who had committed a burglary minor burglary of an occupied ship was shot in the back of the head as he fled into nighttime darkness and he was not suspected of being dangerous or are here we have a man driving is known to have hit and drive another police officer that's why they're trying to arrest him on a  a drug a suspected drug house there's drug warrants out for him and it's also anderson explains that people that are known to be involved in drug dealing or at drug houses are often believed to be armed can be dangerous so you have to suspect that dangerous characteristics of this man before there's even an encounter and then i would urge the courts have a careful attention to what actually misspelt and said yes i put that into the record i didn't want any accusation that the officers were hiding something and we have a court did not have access to her but i'd like you to consider what miss helton actually to the officer i heard the boom of the two cars hitting each other then i went to the window and looked out boom of the two cars hitting each other and then i went to the window i looked up at that correctly pointed out miss health and never said she saw officer stratton getting out of the van a little further on miss elting is describing what she saw after she heard shots and then the lady that was on the other side she was coming out of the van by then and then she was done went around the van and was looking like he was you know good and that's when they opened the door and that's it the recording it's in the record  she st saw her the collision between the vehicles had already happened the plaintiff has argued at the trial court and here in their briefing that there is no evidence that mrs stratton also stratton was already out of the vehicle other than the testimony of the two officers that they described as interested witnesses it shouldn't be believed but the plaintiff ignores also stratton's medical records that are in the record demonstrating substantial injuries they've helped the plaintiff overlooks the fort worth record mandated by state law for employees injured in the line of duty or on the job it's a worker compensation report that the employer has to file with the state that was filed reporting an injury from a pick up getting and it's dated the date of the accident is the date of the incident here so yes there is corroborating evidence in the record i've heard the court actually look at the scuff marks or skid marks that are in the pictures and it's been told here today that those skid marks don't line up with the pickup vehicles bogged there were they hit and they bogged so the fact that there may not be as precise linear linkage or line up between the scuff marks are a little bit offset from the rear tires but there's no other depicted in those pictures and nine year stratton so you go none anywhere else so that's what the record sells and judge jolly and they have to weigh the design of the case at euro two thousand and seven record the plaintive the the plaintiffs family member was a police officer and he gave some so called expert opinions about the position of the vehicle that his son was riding in and when the officer fire him and he gave you no performance evaluation of how the car would work in that situation and the position of the vehicle in the position of the driver and this court in your opinion rejected that attempt to put in stealth evidence because there was no evidence in the record to back up the father's opinions and he was not shown to be an expert but here we don't even have an expert from the other side trying to prove up this conjecture about oh they did it in a trial court they referred to it being a front wheel drive vehicle model year or so and so there's no evidence in the record about the minivans model year or type of drive train or how that would affect the operation of the vehicle we objected to that they didn't put it in their briefing because i think that's so ridiculous but there's no evidence at all from the other side to substantiate their claim their their idea that stratton wasn't in her vehicle and they ignore the medical records and the medical and the worker's compensation report demonstrating she was injured just like she said she was and yes everything did happen anderson and thirty five dollars that goldstein was trying to flee the scene and now we have it the goldston was the one that did it they keep telling a different story without any evidence to back it up almost every time they tell it the story changes and judge means recognize that and didn't buy into it so now we're hearing that not only at the trial court ghost who was trying to flee because he was scared of cocks but now we hear he is stationary in the cop's right in the home but there's no evidence of that and i would submit under any construction of the record regardless if the court wants to be indulgent and accept the plainest version that goldston while reading his engine and they even point to the recording at dot one o nine to one tim or counter want to nanda want him on the record that they say you can hear he's increasing the speed and as they say at record three hundred and thirty five because he's trying to flee even if the court indulges the plaintiffs and said well he's not trying to flee he was enough to it at the time this all happens that he's reaching out with his gun and trying to break the window so he can reach in and try to get the door unlocked that's how close anderson is if stratton's sitting in her vehicle when the impact happens is that still dangerous and i'd point to the fact it's undisputed in the record and she even said it was on the record you can hear stratton calling lane get up here or it's  transcribed is lying but we explained that was probably why in one of the other officers nearby so both officers know other officers are coming to the scene at the beginning of the video as a judge means points out you have four lanes of traffic that's bumper to bumper busy traffic a block away and that's the direction goldston is trying to block up to flee if he gets out fleeing from the officers it is in fact dangerous it's dangerous what he did regardless of whether stratton's you know or out of the vehicle it's dangerous anderson he's standing right there the vehicles recognizing case law we side in the briefing is a deadly weapon and and the public a block away so under the circumstances and the court judge poe asked what's your best case gone and an unarmed teenager stealing a bag of potato chips you shot in the back of the head that's nothing to do with this case but if you look at the cases that we point to brousseau versus haagen the supreme court case was strikingly similar facts where the officer granted qualified immunity because a law wasn't clearly established to prohibit shooting the driver of the jeep as he drove past the officer there was nobody else in the path of that vehicle she feared the officer in that case feared that other officers were in the area and coming to the scene and this man was trying to flee and she shot him in the back and was entitled to qualified immunity i'd also called to his house on a mental health problem and while he was the officers dealing with his the suspects father the suspect gets in the police car and is trying to walk away he's backing down the driveway and the officer shot him because he feared if the suspect had gotten out of the driveway to a public street that that would be a danger to the public so in the th circuit there is no th amendment violation for that kind of conduct and then of course the hathaway bizarrely case the juvenile driving high powered mustang swerves st out the officer away from the officer then back at the officer and then he shot and there was no th amendment violation there so should we make anything of the i mean there it's undisputed that there are nine shots i believe in this case is this just a question of degree at this point or is there an excessive force issue in terms of how much forces you it doesn't matter how many shots or use your honor st of all it's a terrifying situation for an officer to be and all of those shots were fired in less than three there was a pause allegedly there was a pause and the suspect was disabled in the longer threat and the accusation was boom another shot was delivered but these were continuous shots in the in the understated testimony as i started firing when there was a threat i stopped on the threat stop so the number of stocks doesn't matter and i would like to point out very briefly that being the plaintiff has challenge the district court's exercise of discretion to deny discovery i gave a real twenty eight j letter brief late last week because i came across a case of that summary judgment proceeding of a supplementation of an expert report the denial was for similar reasons that judge mean sound here there was no explanation of how the expert report would make a difference if it was accepted and in our and reading here we point to the sterns aircraft airport equipment case basically if you're seeking discovery in a summary judgment proceeding you have to show why it matters you know if you here's what i came to get here's how that would affect the outcome of the case plaintiff hasn't done that either at the district court or here and they're complaining about the district court's denial of their request for discovery when the district court impose immunity scheduling order the district court gave the plain is an invitation that if you think you need discovery seek it under rule fifty six dollars of the plaintiffs waited until after the summary judgment ruling to come in with a vague request for discovery which they still haven't explained in their briefing here the trial court is entirely within his discretion to deny that request and then in the sheppard v shreveport case the other factor the court considered was the docket control trial courts have a right analysis and ruling early as possible in the case and if there's a need for discovery you asked for it appropriately and that's all he did and he did not abuse his discretion i have about thirty eight seconds the request for discovery is a frustrating part of this case so contrary to what counsel just said we we had asked even prior to that scheduling order that we be allowed to take some discovery that's in the record and i think page one but we wanted to talk to the only three witnesses to this event one of the depositions of andersen and stratton and we wanted the deposition of who was held and this was in response to motions that had been fired filed by officer andersen and when she was still part of this case officer stratton to stay discovery entirely in response to that the court issued the order that counsel spoke about it and in that order the court stayed all discovery so that was it when we that i mean you're kind of a catch twenty two at that point because then you're you're looking at a summary judgment that you think is is is fatal on its face because of internal consistency as in your response to it you don't find out about it until the district court issues and the two officers that's correct ok yeah and that that that those make up the bulk of the appendix that was filed in support of their motion for summary judgment getting back to the clearly established law of these the the issue becomes dynamic events but not dynamic events that either show in this case there are fact issues with regard to whether they really are dynamic events and whether they are events they create any sort of risk here and of threat and so as long as there are fact issues with regard to what happened whether there is a threat to either of these officers and those are the fact issues that cannot be resolved either they cannot be resolved on summary judgment under either problem of this and whether it's an objective lee reasonable standard or whether it's clearly established law because if it's no threat there's no threat in the case law is clear and you can't say that that can only be a general rule if there is no threat then you can't use deadly force with regard to the evidence the statement of of of elation held and she says she says  and forty four dollars of the trail of the recording that she saw stratton coming around out of the thing she doesn't say she saw her in the van but she says coming out of the van and under the summary judgment standard counsel wants him to take this court to take his evidence and has and is it as gospel but there's got to be to the extent there inconsistency is or discrepancies in this evidence  claimed to have seen the situation until after the crash or taken place after the boom oh no i mean yeah i mean i think she i think it's correct that she did see the scene after the after the sound had been made so but the but what the medicines we treat it again he's correct her statement is that she heard the crash and then she looked out the window but if she's looking out if when she's looking out the window she sees officer straight and coming out of the van that would necessarily imply that officer stratton is in the van at the time the collision occurs because these are just there's just seconds that separate we have your argument the case is submitted we will take a short break