on june twenty seventh twenty fifteen joshua put in was gunned down and shot by the taliban police department he was gunned down in a side yard of his friend's parents home was broad daylight at the time that he was gunned down in the yard at the time of the shooting mr president did not have a weapon in his hand he was not flame he was not e skill shot is unclear enough and i also believe that even if there was a weapon on his person at the time that the officer had had no right to shoot and kill joshua credit you're talking about a weapon that he had the ground or the time he i don't believe that the record indicates that at all we have obvious or tanner statement that mr credit and possessed a gun in his hand and that he was charging at him at the time that the shots were fired that is directly contradicted and then we actually do have video where we can see mr clinton in the attic from the outside of the house through the body cam but you don't see a weapon and mr craven's hand we also know that in the video the entirety of the  t lose out the window the video the part that you can see your honor is when mr president is in the attic you can see him up there from the outside and you don't see a weapon and in their statement the video runs the entire time that he's out there there is video right in the entire time he's up there we have different vantage points because we have different officers who are in different locations on the premises but what we don't see in the video that was stated in the record was that joshua created and was scanning back and forth with a pistol which is what the officer said but we do see mr grig in the attic it at no point in time is he ever scanning with a weapon health we know that mr brown swore under oath that joshua had left his weapon in his truck because at the time that he'd been to his parents house before joshua knew that his parents wouldn't allow the weapon in the home we know that benjamin brown when he was questioned by o s b i immediately following the incident stated that joshua perper didn't never had a weapon in his hand at no point in time did he have a point a weapon at the officer we also have testimony from mr brown that prior to descending from the attic that mr president repeatedly stated i'm coming down i'm coming down don't shoot i'm coming down twenty seconds later we hear gunshots fired about whether he has a gun on his person or not it's whether or not there was in that risk to the office or in this case but we have is we've got contradicting testimony with that tanner saying he was charging at me with a weapon pointed at me we've got another what is saying he never had a gun pointed at the avs or any never had a gun in his hand could that could he have had a weapon that i don't think that i don't think that are these circumstances that he could but even if you took that questions officer tanner immediately following the incident they asked him could benjamin brown have seen the shooting from where he was sitting in the patrol vehicle and i says yes he could have seen it from where he was sitting deposition said that brock could have been a witness to the shooting and would have been the only other witness who was alive other than obviously tampa so we take the statements made right after the investigation starts we've got tanner saying that mr brown was in a position to see the shooting we've got jim clark there expert in a deposition saying brad would have been in the position to see the shooting and the court chooses to discredit the testimony  brown because they said well he said something different to us we are but that again it isn't the case brad never says anything inconsistent to o s b i that he says in his affidavit that was submitted in this case welp i don't know i mean i can't say one hundred percent he could have had a gun on his person and and so there's no inconsistency in those statements the issue was did joshua cruden have a gun in his hand and point that gun at the time it was shot by officer tanner the evidence the unit in a light most favorable to the plane that is he did not the evidence in view light most favorable to the plane to busy was surrendering he was coming down out of the attic he told them don't shoot benjamin bratt says he didn't have a weapon when he came out of the attic and he clearly saw the shooting which was corroborated by the fact that both car and tanner acknowledge that brad would have been in a think under the polygraph by the new supreme court case from twenty seventeen it's are there a set of cases out there that would have put an officer on that as that shooting an unarmed suspect who was not presenting him a any kind of imminent trust case which is at page twenty three of our brief but there are a number of cases that if you view the light and if you view the evidence in the light most favorable to mr president that and so i think those cases especially the booker case as far as whether or not is clearly established right if you view the evidence in this case in a light most favorable to the plaintiff and then you take those cases clearly there's enough notice to put the  ridiculous that they didn't allow the mts to access mr hood and that wasn't my question my question is whether there was a legitimate concern to secure the scene that you're at the scene where the shooting took place for mr period was brief i believe she said it's ridiculous she said it's ridiculous she said but it's patently absurd where i just don't understand why it was unreasonable for the officers to check the house it wasn't unreasonable for the officers to check the house what was in reasonable if you watched the video you said the need to clear the house and secure this was patently absurd as a denial for access to medical i'm not saying that the need to ch where there was no ongoing concern about whether there were any other shooters or others in the room and when the player suffered medical problems there the different environment than what we're talking about here i wouldn't i would agree that it's a different environment and what we're talking about as far as a correctional setting in the jail setting versus out in the field but i think when you watch the video from the shooting after the incident it's clear by the way that the officers are responding after the shooting there milling around the yard now when i was walking down the perimeter there's nothing going on that would indicate in the video when you watch it that there was any sense of fear that these officers had that they were going to be harmed that they allowed the empties to access mr president and  providing emergency aid and i think that it is clearly established that the denial of preventing as a suspect or inmate in a jail setting from receiving emergency medical treatment if that worsens the pain would be thinking at the top places he's supposed to be thinking oh my gosh this could be a constitutional violation in my perception is wrong it what's interesting about this case is it's not a case where someone says well he kind of pointed a gun or he kind of didn't put a gun or even raises arm in a motion that looked like he was pointing a gun and he didn't actually have a gun this is a situation where yet two contradicting testimonies you got one guy saying look he never at once showed anything that would have led an officer to believe that there was an imminent threat if you were to believe benjamin brand's testimony that he had no weapon he never raised his arm he never tried to flee a never came of the officer there is no imminent threat and for an obvious are to use lethal force in a situation where there is no imminent threat of danger to himself or to others is clearly established ok but your circumstances you know this guy is attic window  constitutional violation in the law under these cases you cited is clearly established i believe that is your prerogative well and i and i think that you know what we're asking law enforcement to do on a day to day basis are make split second decisions that have proper training to evaluate situations all the time these are rapidly involved in situations and so i think that when you look at the press of the case was established you have to look at it from the standpoint is are are there cases out there a lot of cases out there that say if you brown as well as some of the other evidence i think it's you if you accept that as true at this stage of the game may can certainly be challenged obviously a trial but if you accept that as true there was no imminent threat to officer tanner pose if he was unarmed and he's there and he's got no weapon let me ask this in the general law that we have the do you agree that excessive force cases are different in that they require more specificity corresponding facts with the cases that you are relying upon from clearly  corresponds with facts to say cousteau's i think that there's so much debate with clearly established right now between the circuits and the supreme court as far as what does that mean and as many cases that i've dealt with the way that i've seen it used it's hard to understand whether or not that's a specific requirement specifically for excessive force case or not we see it all the time come up in the medical context we see it come up in excessive force cases and to sit there and for me to tell you do i agree or disagree with that i can't because there's so much happening in the in the circuit courts on fairly established right right now that it's hard for to get it answered and that's the only way i could answer your question who was on the scene that day may please the court to really understand how this the allegation of being shot in arm came up you have to understand the timeline that you can and the complaint alleges excessive force but never makes a factual allegation that mr crittendon was unarmed at the time he was shot in fact paragraph sixty four of the complaint says at the time tender began to use force against crittenden some force may have been justified however fired six shots at least group which struck kryten clearly constitutes a necessary and excessive use of force armed at the time that he was shot we follow our motion for some judge but and then whatever response comes we find this affidavit from benjamin bratt and if you look  the the very first contact that we can see with mr brown after the shooting is what oklahoma state highway patrol trooper goes to the car to move him and transport him to jail i think what you get when you pull a gun on the public face so from that standpoint mr brown doesn't make any response to that doesn't say by god he didn't have anything to say and he didn't pull a gun on it's clearly a gun and not something else absolutely one of the things you can see in both photographs and the crime scene photograph is obviously better than the one another piece of physical evidence that does that as well in the yemenis report there is a diagram she drew about the wound he had on his right hand  and it's found at ten sixty five in the record and i got the small copy right here and it shows the right hand extended out in front and shows that the  you can read the description in the enemy's report that there's a grace gunshot wound that goes up the back of the hand that distil approximate right here on the front knuckle there is only one way that can happen in this scenario his hand had to be extended like this when he was shot was like this the good shot would go through the knuckles i guess if you had his hands up in the air and tanner shot straight up and it came down it may be but the most rational reasonable explanation is that is hand was involved in title qualified immunity even if under this scenario we've got a guy surrounded in a house he's got it we've seen him two officers have seen him with a gun they've announced it on the radio they've called for swat gun belongs to somebody other than jobs i do a lot of believe so i think from the very beginning because you know when you initially see him in the picture the first thing you see is when they roll him over is he has a gun holster or on his right side so from that standpoint let me just address the level of threat that existed they arrived they discover a stolen vehicle that vehicles that is full of guns and ammunition and then they have this guy who's in the attic in two officers see him holding a gun to say that any won't come down and he won't give up and so the tense certain rapidly evolving he had to make a split second decision about what he could do to fend him self he may have just seen the arm coming out straight like that we have other cases were the people have cell phones or  don't have a gun and they get shot because they make a sudden furtive movement in a circumstance where the officers already have assessed the situation is a high level of threat this group of church the marshals was at a nearby restaurant and and came to the same shannon buell is the head of the church marshals swat team so i will say that at once he arrived he kind of took control of managing the scene and what was going on and you know in fairness to bell who was a fairly new officer she did make that statement this is ridiculous hole in the opening of the attic right there when there were there should have been a real concern from the very start that a potential threat could well it was there any evidence that they followed protocol in not attending to mr greer are not allowed yet you know there was testimony about that every officer that was asked said they had no medical training on what to do for a penetrating gunshot wound of the  also the first responsibility of the police is to make sure that they are safe from the public and say well i understand that the video the video shows them pretty much just standing  and if you watch the second video e m t gets there they pretty much stand around the body this was a fatal head wound which no amount of treatment could have changed but that's  from which which it was which didn't change anything it might have changed the like the time it was soccer well there's no there's no established case law that says a police officer has that duty what about