it's interesting that what occurred in terms of the defendants bringing their motion for summary judgment is that they chose to rely upon a declaration from the defendant officer rather than utilizing his deposition which had been taken and i think that that's very telling because in his deposition that you know it as we know he used deadly force on a person who was unarmed and they were they relied on that carefully crafted pumping and the reason for that is that in this case the amount of time was about three to four minutes that's about the amount of time that was utilized i don't in this interaction i'm sorry to interrupt but i don't think i don't quite kalinda those guilty plea conviction for obstruction would be negated if he pursues if he if he had prevailed on his nine hundred eighty three action and it's that simple as i understand it so i don't understand what you're arguing in terms of why a deposition as opposed to other testimony as of the officer is relevant it seems to me that the conviction gets you into the  versus humphrey the district court looked at the elements of the conviction and looked at the one nine hundred eighty three claim applied the law and that's that's what the issue is on appeal right i understand your question your honor but heck it deals with other judgment in favor the plaintiff would necessarily imply the invalidity of his conviction or some such as we know under hooper the hooper case makes it clear that what is important is whether in fact the use of force was based upon different actions or if we go to the smith versus hemet case whether it was it whether there was a break in the continuous sequence or tries to who were tries to correct smith to some extent i think for sure but i guess i my worry about this has to do with my campaign i can says if you make allegations in your eighty three complaint that are inconsistent with the facts in your criminal conviction nano the plaintiff was attempting to provide his id to defendant he was standing in a city inside the garage i go to paragraph eighteen you say that he has the liberty interest to be free of one's  person for unlawful search and seizure and the right not to use excessive force against him i go to paragraph nineteen you say a plaintiff was not offering resistance i go to paragraph twenty you say there is no reason for him not to have been free from being detained yeah go to paragraph twenty one you say do not represent a threat go to twenty two you say was engaged in lawful activity that in no way shape or form can not be pled without flying in the force of the conviction well your honor the reason that i think that those elements in the complaint frankly  do not matter in this case is only do matter because if you can tweet this and that's what you're going to prove that's absolutely flying in be in the face of what he pled to he pled to willfully and knowingly and  resisting delaying and obstructing knowing that the person was a law police officer lawfully performing his duties as a police officer by and then goes through what he says i mean that is absolutely contrary but your honor under the cooper case the question is whether in fact it was the use of force was based upon a different action and well bill is human is it just a minute you could if you planned all of the things that you suggest you pled guilty to and then you said he went over and above what he could should have done based on all of the things we did that's one thing and that would be something hooper mike condone but hooper did not condone pleading to all of this and then in your complaint saying i didn't act that way but this is based on a motion for summary judgment doesn't matter if in fact i read did you read mccann if in fact i read mccann it says by making specific allegations in the eighty three complaint that are inconsistent with the facts of the criminal conviction your complaint is barred but it's not making allegations  inconsistent the criminal conviction because the criminal conviction was based upon the facts that say the following walking into an open garage if you see the show is you know i see even if i read refusing his commands walking in an open garage refusing to show his hands turning around and reaching in his pockets you cannot suggest that by doing all of that and agreeing that he know full knowingly willfully and unlawfully resisted delayed and obstruct an officer law awfully doing his duty and read your complaint and say that's the same but your honor that that those actions that we're talking about in the three to four minutes are not what caused the officer to use force  complaint does plead that in fact the use of force by the officer was excessive so the reason if the officer used force is that is that the plaintiff crouched down in fact he said that is the plaintiff had not coached down that he would not have shot him the deadly force in this case was based only on the plane approaching down not on walking into an open garage not in refusing to show his hands and naaman turning around and reaching into his pockets and so that's why it's important as to what was in that deposition mr  the problem be resolved if we sent this back to the district court and told the district court to order you to repleat and to eliminate from your complain all of the factual allegations that if we allowed you to replete that the officer had probable cause to arrest mr goh indo for the p c one forty eight a one violation but that he nonetheless used too much force in affecting that wra but that's not what you've said in this complaint the problem with the way you've drafted your first amended complaint is you're making factual allegations in there that are flat inconsistent with what he said in connection with this plea of guilty but in this court's review of the granting of a motion for summary judgment which is done on the basis of an over review with all factual inferences in favor of the plaintiff the facts in this case as were borne out by the defendant's deposition are that in fact the only reason he shot him was because he crouched down which is not at all a part any part of the plea to which they had him plead guilty in fact you can have p c one why wouldn't the crouching down be part and parcel of refusing to comply with the officer's lawful commands to show his hair no because when he crouched down he made it clear that you could still see his right hand and and can see the left here right he the left hand was slightly above the pocket but there was no weapon shown remember the under graham and under jury instruction one point two two which discusses those factors the officer can only use deadly force when there is an imminent threat of harm to his own life or safety and in this particular case you're talking about a person who was visibly armed who is crouching down who the officer first pulled out a taser and that taser was in response to all of the activity that had taken place for three to four minutes it was only when it comes down that he switched the gun and he shot him and used deadly force and so none of that is in the guilty plea and he admits in his deposition i'm not sure that none of it is in the guilty plea that's why i talked about what did you plea turning around and reaching into my pocket since and it is unclear when that happened it is unclear about that because what we had was that guy the officer is right there he starts to crash crouch down in the officer says he takes a position advantage and prepares to reach for a gun as he crouched down and took the thousand yard stare giving the officer the idea was going to shoot him he continued to hold his left hand hold land that on hand down on the left side which the officer could not see and then he moved his right hand toward the left side now who's to say when that is turning round and reaching into his pockets it seems as if that's that reaching into the pockets the officer thought was the problem my worry about when you read what you plead it's totally different than even what you read too and i'm not sure you can play that around it that's why i thought my good friend thomas question was very careful because i'm sure that willie fletcher's opinion and hooper would allow continuous action and for force than necessary given the action that's take it but i'm not sure based on what he said that you can reach that and it's excessive force and you've got to have the officer lawfully doing what he should have been doing up to the point of shooting two times and i understand that her court's concern and i and i hope and i appreciate your comments of is so you've thought carefully about this but i would just point out to you that really the deposition testimony when he talks about crouching down it's after he has been telling the plaintiffs or the appellant he's been telling him that he wants to him to get on his knees in looking at the facts and taking them is a reasonable inference in favor of the plaintiff in the will review the reasonable inference of him crouching down is that a person cannot get on their knees until they begin to squat down and using deadly force at that point in time is something that is excessive in other words more than necessary i would just point out the cooper remember examined cases from a bunch of different circuits and found that in situations where too much force is used that despite a conviction for resisting or obstructing and by the way one forty eight in california you can be guilty of obstruction by doing this stop and you take an additional two steps you just violated one forty eight hours the officer in that situation is in imminent peril and does he have a right to use deadly force of course he doesn't and the same is true here he didn't have a right to use deadly force when he had selected an intermediate use of force of the taser for all of you activities that are contained in the guilty plea and it was only when he began to crouch down that he decided now i'm going to use deadly force really crouching down as our police practices experts stated in his declaration is not in a position of advantage you cannot run at the position of advantage and preparing to reach for the gun and giving the the officer thousand yard stare which says i'm going to shoot him which is exactly what was alleged the the i mean you know i'm just trying to add judge tomans question right i'm not trying to take away his question was very good that's why i'm not sure you can allege this based on what was played i don't know that you could get here but i know you can't get there based on what you the lived in your complaint because this would strike down everything you pled to well i don't i don't think it was strikes and everything applied to because i do think that the complaint does contain some allegations that the force that was used by the officer in the circumstances of this case was excessive in the necessary i mean we standardly plead that and that and as it turned out in terms of the factual allegations the officer flat out admitted i frankly by the way i frankly think this case this case is stronger than both smith versus and hooper because in this particular case if you look at under smith under continuous sequence the sequence wasn't continuous because the thing that the officer says was a break in the sequence is that up until the point he utilized the taser and only pointed at him that was a selection of intermediate force for all the activities that took place the part under cooper that's a different think the problem i'm having with your argument and it may be a flaw in our continuous transaction doctrine is that the officer had not yet affected the erast he was trying to take control of your client but by virtue of the fact that your client was resisting he wasn't able to arrest him and so to say that we can break that into discrete calm ponens is difficult i think and the district are basically said look this is one continuous transaction based on these facts and i'm not sure whether we can review that  argument counsel but i want you to listen very carefully to what carriage coleman just told because it doesn't seem to me that unless you have hooper you can get by smith or the very reason judge tallman just coun aims to me your best case is hooper because judge fletcher tried to eliminate smith based on california precedent in hooper and said it could come from the same but he didn't say you can't do that you could decide minute everything you know alleged and then say it's ok and so it seems to me what you've got to do is look very carefully at what you admitted and still you know even if he had not yet effectuated the arrest the way that the california standard as it is an officer is never justified in using more force than is necessary to overcome resistance or effectuate an arrest the federal standard is basically the same in saying under graham versus conner in tennessee versus gardner and so forth that you cannot use excessive force and i would just end with this i think that hooper is still consistent with graham versus conner in tennessee versus garner and our jury instruction that summarizes those which is a nine point two two or nine point two three that jury instruction that talks about the nature of the crime or the issue of alle ability of alternative methods of taking someone into custody and the amount of force that was used the amount of even if you did some things that could be categorized as resistance it's a jury issue a factual issue as whether the amount of force that someone used to overcome that resistance was too much force and therefore you have an excessive force case under the with the with the graham and with the tennessee versus garner in that saying that just because you've been convicted of delaying or obstructing which could be as easy as you not as you walking into an open garage with instead of immediately any time and it was not done in front of the district court your honor i will absolutely admit my ignorance at this stage in the game we have we have done all that we can to protect the city as well as the officer because the request has not been made before either the district court or this court i believe that it would be shocking still allow it to occur it's been years witnesses have been lost the time for that has i believe long gone as it relates to your questions as to what in fact  the factual allegations we can argue about each and every breath that each individual tough on the day of the events it was painstaking for me to decide what to do in these events but what i was faced with as a practitioner was a very very detailed criminal plea which matched so closely to the events that were detailed by the officer as well as a complaint that disavowed any wrongdoing that occurred and i believe this is exactly what heck tries to protect police officers who are attempting to protect residents of the city of orange and i will address anything that has caused confusion but i really have nothing more to add to here leigh your