for starters i guess i won't be as lucky as to just be able to rely on my briefs in this case starting with the decision of the of the district court i think there are three issues that are paramount they must stand out in the opinions of all of the judges reviewing this matter and that being the reasonableness of the actions of the state police making a decision and this really to enter the woods and put themselves in what might be perceived as as harm's way would that you know that is wasn't contemporaneous with him searching a car that this card just been stolen he just had reported stolen a few days before out of a different town turns on his lights the judge accept that there was not a high speed chase he did attempt across the median his car became disabled but what we have is at least three separate local officers who were involved in a police chase with this individual the individual did not have any acts towards those officers no question too or does officers when he  your brief you were your arguments in the alternative beginning with this alleged unreasonable this in entering the woods but do you really think that your strongest argument even though you put it out front respectfully ju this issue or your stronger issues the other two i e that they shouldn't have begun shooting or even if it was reasonable to begin shooting it was unreasonable to shoot over what at least one as indicated was a period of ten seconds that is judgment and the reason for that and the crown of the chronology in a brief in both argument facts is to paint a picture of this building of lego's of how this continued to escalate when you have five or six local officers who don't go into the woods because they don't perceive this to be some eminent threat an emergent situation where they have to run in right away with guns drawn but then you have three rookie state police officers who one up well on the scene jump out of the porch with their guns  where i would say perhaps not one hundred ten mile an hour chase market street would probably not be good judgment whatever the circumstances but here that doesn't seem to me to be a starting issue the issue is where the it starting with why it was not necessary if you look at the tap to touting the circumstances from even these three individual troopers who were in the woods with and their encounters with them the first time they encounter him he's laying in a fetal position on the ground and they they draw their weapon down on him they yell at him show me your hand show me your hands he gets up and he runs for he's in sweatpants and a t shirt and no shoes in the woods in a pitch black five police officers bond with guns like her but he's it does i would disagree respectfully judge mckee because my client had nothing to see he had no flashlights he had no visibility while the troopers all had but in in recounting all the facts it seems to me you're conflating the alternative theories here to me in reciting the length of the firing and how many shots were fired and how many actually hit mr quick while still alive would seem to me to suggest your third theory here that at some point in time it was on reasonable to continue what all the officers agree and the attorney general guideline is it to it's call it to tap method shoot twice and assess there's continuous firing from these three officers the entire time so that's the first issue they did not to others there's five officers in the woods one has twenty years of experience one has seven years of experience in a fire single shot so at no time during the course of their interaction with mike mr quick the day feel that the room selves perceived any action by him enough that they initiated were the first people to shoot it was the three rookie state police officers who initiated the firing yet or should become there so that their lines of sight there anywhere from six to eight feet apart could be up to hundred feet away but every one of them testified that they were looking he was looking directly at them that creates a genuine issue of fact there's discrepancies in what each of them could have seen and there was also the medical testimony from the medical examiner that said his he shot wounds to his right hand they all allege was in his in his pants that he tried to pull out like a gun had two bullet holes in it well the many at the medical examiner did testify did he know in his deposition that quicks right hand was not in his waist it had to be clearly out and there was nothing in his hand other than a two inch crack pipe that was the size of the cigarette what do you do if that is something that trial that opinion can come in because circumstances that are going to part of the problem in this case is the fact that our expert talked about he was a new jersey state police he was the chief of police he worked for twenty years for the u s department of justice and the d a he talked about policies and procedures  what should have occur that there are less intrusive means when you have five officers so landing someone in sweatpants and a t shirt with five flashlights in his eyes then to say show me your hands and then shooting them thirty nine times are certainly less intrusive means then just going from show me your hands to initiating deadly force and shooting someone thirty nine times more there were no reports throughout the entire pendency of the chase and what p medical examiners opinions controverted be opinions of the officers you said his body spawn to explain why i mean you have a trajectory of a bullet if you like going up funny you're like he could be standing upright because the as a matter of law in that none of these facts were viewed in the light most favorable to mr quick to the congress they were viewed in every light favorable to the state and if you look at the opinion the opinion of self and i say this respectfully was a comedy of errors every factor that we need in favor of the plaintiffs was placed in a footnote in his written opinion that's obviously not the standard summary judgment or factor to be viewed the light most favorable to the planet under excessive force and excessive force cases in fact the list they're supposed to be accepted as true and in this case none of them are neither the opinions or the expert not to the opinions of the medical examiner nor statements of officers they can contradict the statements of state police none of that was taken as true in connell from archer and runner of half the defense the sole legal issue in this case is whether the conduct of the police officers in question in using deadly force was objective we are reasonable under the to tally of the circumstances once we've articulated that legal principle we then jump off the diving board into the large and deep pool of facts in this case the fact the matter is though that the object or object of reason most of their conduct must be measured against issues such as the severity the crime which we here know and the police knew at the time was a felony it was a theft of a vehicle not an inherently dangerous absolutely but would you agree that if the guard principles  under these circumstances present in this case still and there was testimony that he used the vehicle to ram another police car he was first going north and interstate two ninety five then cross the median to go south this testimony that the speed was in excess of i think one hundred ten miles an hour that he was swerving from the shoulder to the i guess that would be the far left lane limited movement into this is not a situation where there's a finding of a high speed chase they listen understand him to say that  e i understand the deep the the issue was as i think judge smith pointed out with the use of deadly force occurred in the woods but all of this these were facts that colored the impression of the officers as they entered the and then the after showing the officers his hands becomes the reason for exercising deadly force because it did him doing what he's asked to do at gun point becomes the fruit of the gesture that justifies the for three officers in a very deep thick wood in dark night with flashlights trained on the style and screaming at them in this position is a at least a terrifying situation having known what he did before he entered those conduct was agog be reasonable therefore they're entitled to qualified immunity shouldn't he have stopped if that's what he really thought that the first inquiry if he is making a reasonable this finding isn't really a jury issue not an issue of war for the court no because qualified in any in the first instance is always a question of law for the court based upon the undisputed facts and the facts here are in fact undisputed what is the law for the court i think it's pretty well established that the excessive use of force  have stopped there but then again he stops on what seems to me to be a jury issue i don't understand why that would be a jury issue if the court in fact in addressing the crawford munity issue is required to assess the object of will object the reason less of the conduct of the office based on the industry of facts that becomes a question of law which the court is entitled to make so did make in fact in this case so reasonable is at least in some instances may be determined as a matter of law absolute reasonable is sometimes based upon the facts that are before us may require us to determine that it's a jury that would turn upon as i understand the case law whether or not the plaintiff has been successful relative to the commanded show your hands words to that effect in fact just to perhaps confuse matters that weren't there by the testimony in the depositions actually conflicting commands given wasn't there show us your hands command and also freeze command by someone does not appear somewhere in the test there could be arguing made that there were conflicting commands the point was they were trying to wrest from the deceit and his compliance in stopping the conduct that he was engaged in a of you saying there could be an arguer made in week seven the practical point of view of the plane and let's saying don't make me again when it's worth it and that's compelling testimony here heard by two of the four officers well and you have made the point have you not that irrespective of anything he said or may have said that the consistent testimony of the officers is that what his response is conduct was was anything but command was that it was it was it was abrupt referred to as the testimony of some witnesses character that is correct and furthermore i would add every one of the officers including the other two at the scene who did not  shoot swanson and carson i think it was every one of them said based upon his actions they absolutely believed he had a well isn't that the only fact it may be a powerful fact it made be determin all the circumstances of opening fire on mr quinn that is the quick were brought response in removing his hand from his waist there is no question that those opposed to those officers a serious risk of physical harm one of their minds at least was there any testimony inconsistent with or in conflict with the testimony that excessive force i e deadly force is almost never whelan that back in an urban setting that's not the case but in this kind of saying would be the case where there is no one to testify to contradict the police officers the officers did not give statements right away they waited two or three days after consultation with the attorney they gave statements which are as i said later or statements remarkably similar if if we're not able to look at still to proffer contravening proofs now in this case the standard is the same under those circumstances in terms of a review of a summary judgment motion and i might is right and i think you cited our case of abraham versus russell rice on which wherein a panel of this court did say we should be cautious where those are the circumstances a lineup of witnesses police officers present and no one surviving on the other side that's absolutely lost and your honor to address your point sure the officers all have the same rendition of the story you know maybe that's just because that's exactly what they all saw i mean the fact the matter is plaintiff did have the opportunity to depose these officers at length to question at length to grill them to find him probing and discover what the week this is where in their case we produced to the plaintiff and now to the court almost fourteen hundred pages of investigatory materials that document what was undertaken in the wake of the shooting to find out what actually did occur and every aspect of that investigation corroborates the the account on the part of the officers keep in mind to one of the five officers at the scene swanson was a municipal officer violation but i think the threshold question is actually would any reasonable officer conclude differently that these officers did and the answer to that was unequivocally no go to qualified immunity yes absolutely absolutely well and that's frankly the i mean that's the that the justices but all brought up and it is whether or not he did was pulling his hand out in a manner that was consistent with some of the instructions of show me your hands and that is a key question there's two things that i'd like to note that  that i disagree with my steam counsel who did argue there were five officers in the woods and they were in a semicircle and corson heard mr quick not say don't make me do it his where i'll do it but yet motile well he who is looking directly at him said he never said a word swanson who standing right behind motor rally and right next to carson said he never said a word morir who's to the right of him said he never said a word kirkbride who's on the edge of the woods said quick never said a word let's assume that's an issue back to what was assume that he never said were let us assume that the only thing upon which we can base our own image determination the only fact that the district court could look at was what mr connally's indicated was not refuted not contradicted and that was this quick move this sudden this furtive gesture however it's clear correct but all of them testified that he was stuck in thick stick and he might have been does that mean that he was completely immobilized that he could not move anything i mean that's why we ask you to look just at this one we don't and that and that's why i believe the opinions of of dr williams come into play in that there are less intrusive means than deadly force if this and this panel is to accept the decision of the of the district court i would submit that every officer who is ever involved in deadly force can just say yeah the guy made a furtive movie on a shopping and there's there's no one will ever be able to beat that case from today to the day my children hopefully don't practice law it will never be able to be beaten because an officer will just simply say him in a furtive movement i thought he was calling a gun i mean he had five dead five flashlight shined on him he had a closed fist with no weapon and are we as a panel going to allow that simply he had a closed fist in his weapon to say well from now on all you have to say is an officers guy had a close festers his hand was around his waistband and he moved quickly so deadly force is acceptable and not only deadly force but wasn't one of two shots hit center mass because they were fearing for the safety thirty nine shots