this is an interesting case procedurally because originally the complaint that was filed was a state court claim it was found in june of two thousand and ten assault and battery and gross negligence officer phillips filed a motion for summary disposition it was denied it went up to the michigan court of appeals michigan court of appeals reversed in doing so they specifically determined that officer phillips was entitled to governmental immunity because he was acting in good faith while he during the shooting they also determined that he used deadly force in order to ensure his safety and the safety of others and i think that's court to dismiss the case and or summary disposition in favor of the defendant now what the court did was originally there's some confusion as to why the original order was and turd it was entered on september thirteenth and september fourteenth she held a hearing and a motion to amend the complaint after that is when she entered the second order that basically said i'm dismissing the state law claims but i'm going to allow an amendment of the  complaint i think this is really interesting here because if she would have just dismiss the complaint like she was supposed to do based on the court of appeals direction then we wouldn't be here because if he were to be filed in federal court alleging a a fourth  did because michigan has adopted a bright application of race judicata and you cannot if you could have brought the claim before then you're barred from bringing it in federal court there's absolutely no reason he couldn't drop the fourth amendment claim back in two thousand and ten when he originally filed this motion so it would have been barred but instead the trial court is basically allowing a second bite at the apple here that was a submitted order by monder standing is that there was even a point at which officer phillips had agreed to stipulate and i set aside that order that word is not at issue my point is that it's what's interesting about the application of collateral stoppel in law the case here is if she would have just dismissed it and not allowed the plaintiff to him and then raced you to kind of what about it instead she left now she met decision that that was not appropriate so what she could have done and what was done iranian is not at issue here the question is what was done right and what was done is she allowed the plaintiff to amend the complaint she allowed a second bite at the apple she didn't like what the court of appeals said she didn't like the fact that she was reversed so she let the plaintiff amend the complaint you know that's not really  my play is that that is where i understand mark or i do well but i think that that's an issue here because proceed really to allow a trial court to avoid the application of race  a by merely allowing them to amend the complaint is concerning but let me move to address how it could even be raised judicata when what you have is a decision by the michigan court of appeals regarding a subjective component of good faith as opposed to what is before this court which is a fourth amendment objectively reasonable notice standard practice and i wanted to be clear we are not arguing that they decided the fourth a man may object of reasonableness our position is that based on the legal conclusions made by the court of appeals there is no way the plain f could establish a fourth amendment claim here for example the court of appeals found specifically that officer phillips fired his weapon to ensure his safety and the safety of others in the case before us whose facts do we look to we look to the pla but that's exactly so what does it matter what the michigan court of appeals fail and on and on a subjective component on here assessment of the facts when what we have to look to in a qualified immunity case is what is the point of pointed and whether your client except for the purpose of determining the qualified immunity case because the collateral estoppel and law of the case arguments affect whether qualified immunity applies here but you've conceded that you do not have an applicable judgment that even lead to you in two collateral stop aligned no we have not conceded that this court has held that a court's opinion and what is the final judgment the court of appeals opinion is sort of appeals opinion is on an on michigan state good qualified immunity is a barring judgment to a fourth amendment object of reasonableness kline based on these facts yes the court found that he acted in defense of himself and others that is a justification to use deadly force under federal law so our point is that if it goes forward to a fourth amendment claim even though it's a different test based on that legal conclusion he cannot establish a fourth amendment violation he he can establish that officer phillips was not justified in using deadly force based on that legal conclusion isn't legal conclusion that officer philips believe subjectively that he had to take action to protect himself that's the conclusion you have a right officer under michigan law to believe that it's necessary for you to use force and that good faith belief protection in michigan's law of immunity how in the world would that have any impact on a question of whether in fact his actions were objective reasonable or because in this case that's where the court found that he fired his weapon to ensure the safety of himself and others was matt necessarily court found that he believed no and no rather now want to protect himself that is not the language of the court the court said that based on the facts of this case he had a right to fire the weapon because he was protecting himself and other officers that's what the corps analyzed based on the facts of this case just because they applied it to the good faith analysis does not mean that that erased in a fourth amendment claim if he acted in defense it if he acted in defense of himself and others like the court found not that he believes he acted but that he acted in defense of himself and others then how can they establish a fourth amendment claim doesn't the united states supreme court in graham versus conner if the objective reasonableness of an officer's conduct under the fourth amendment is decided without regard to the officers underlying intent or the officers motivation it is but that's where our that's what i'm distinguishing your i'm trying to distinguish this is that the court didn't say he believed he was acting in defense of himself the court said he was acting in defense of himself based on the facts of the case he was acting in defense of himself and others they said because of that then he they can't show malice so in return he acted in good faith under the fourth amendment when the court looks at the fourth amendment was he acting in fact in their complaint they say he was not acting in defense of himself or others the court in michigan court of appeals are to be determined he was based on these facts he was acting in defense of himself and others you know qualified immunity the the basis for classified immunity under one hundred verses bryant says it g room for mistaken judgments by protecting our but the plainly incompetent or those who knowingly violate the law if he acted cases under the fourth amendment that fourth amendment court is on a determination of a state court under a different standard and in a different question well making its objective reasonable in this determination well any cases the but the point here is that it's it's bound by legal conclusions i'm not i'm not getting specific to the good faith this court has recognized judge clay wrote the opinion and mary versus waiting that good faith under state law not identical is specifically related to the analysis of whether an officer's actions were objective lee reasonable in evaluating an excessive force claim that's what we're arguing here whether officer phillips actions were objective lee reason why under the fourth amendment it follows the state courts inquiry into whether he acted in good faith and whether he acted regular recklessly with regard to all the other issues i'll just rely on the arguments in my brief i don't have anything to add i just wanted to briefly draw the court's attention to the recent supreme court case of hospices recovered the underlying facts in that case almost identical here as to the facts here there the decision led the police on a high speed chase he spun out in a parking lot at the obvious or fired three shots into the car when he attempted to move his car as he tried to speed away they fired twelve more shots and in that case not only did the supreme court find that they did not violate the fourth amendment but that even if they had they were still entitle to qualified immunity because the unconstitutionality of using lethal force to end a high speed chase was not clearly established based upon that ruling allowing there is no way that the plaintiff could succeed in establishing that defendant's conduct violated clearly establish on my time's up doctoring is a limited doctor and qualified immunity analysis when a defendant raises qualified immunity before the trial court and loses it can seek  concede the well pled allegations in the complaint in this case the defendant hasn't even mentioned our complaint they never wants concede the facts that are pled in our complaint in fact their entire argument is based on a summary of facts and what i will explain in a minute are basically or abided dictum statements in the state  court decision that's their basis of facts that serve basis of appeal they don't concede are facts at all never once they don't even pay lip service to the idea that will concede the facts as played by plaintiff but they still don't win  on the facts here so as a plymouth preliminary matter this court lacks jurisdiction and in fact that the defendant at mit's in their reply brief page three they said they basically said you're right we're not conceding the facts we're relying on the state appellate court decision they argue that the state appellate court decision is somehow preclude of of our complaint it precludes us from  under the fourth amendment but in the only state court opinion in the only state court order which ever decided whether the state appellate court opinion precluded us from filing a fourth amendment claim which was the trial court's decision on our motion to amend the complaint the trial court stated that we were not precluded from pleading a fourth amendment claim from stating a fourth amendment claim by the and in fact they the defendant raised the precise argument that they're raising here and that they raised in the district court in front of the state trial court that the appellate court opinion from the state court precluded us from amending our complaint and pleading a fourth amendment claim and the state trial court rejected that argument and that's the only state court opinion that ever even brushed on the issue the issue decided by the state court decision is precisely whether the defendant acted in subjective good faith based on michigan's interlocutory appeal dr and the defendant could only appeal the issue of state law immunity when the when the trial court denied his motion for summary judgment on our state law assault and battery claims the only issue that the on was whether there was state law on the unity and under the ross test which governs the state line immunity analysis the court stated that the test is whether the officer acted in subjective good thing  i have a brief quote here from it and it said id sixty six and here's the quote that the lattice court citing r provided that the question is they were citing rason it said the mere existence of probable cause however is not the proper inquiry afleet a police officer would be entitled to immunity under ross if he acted in good faith and honestly believed he had probable cause to arrest even if he later learned that he was mistaken in the court continues the good faith element of the ross test is subjective in nature it protects a defendant's honest belief in good faith conduct with the cook cloak of immunity that is issued before the state court the state court decides whether under this subjective past from the perspective of an officer not a reasonable officer but a subjective test from this officers perspective whether he acted in good faith community the that is the only ultimate fact that the state appellate court decision decided that was the only fact they had jurisdiction to decide the only issue they had jurisdiction to decide and thus the only fact ultimate fact they did decide everything else in that state court opinion is that any any any suggestion that they found as my colleague said that mr mr phillips was was actually protecting others when he shot that's dicta but i've that's not exactly what they said if you read it in context they said he had a good faith believe he was doing that but even assuming that they did say that it doesn't matter that not that wasn't central to their holding their holding is whether he acted in good faith and all these preclusion arguments that the defendant needs are completely inapplicable because the only state court decision on whether we have whether we can still state a claim despite the the court of appeals opinion says that we do have a right to state a fourth amendment claim we can plead a fourth amendment claim so there's no final decision that has any precludes of effect here and the idea that that that this state court summary of facts is the the universe of our world of facts here that we can't dispute anything that's in the state court does decision is simply n supported by anywhere in the law by any case or any statute or anything and the the issue is beyond that because what the defendant is essentially saying is that that state court opinion supplants our complaint for what purpose is about twelve the motion and that even for the purposes of a forsyte the peel before this court that that's that's those are the facts that the court has to use they have to completely disregard our facts that is contrary to every decision about the court's jurisdiction on this  to accept our facts especially at the at the pleading stage the court has to look to our facts as planned and they never once even remotely rely on those facts and this this submit that this this appeal is completely baseless when when you consider the the collateral the preclusion arguments because there is no final order into the extent there is it says we can do this from the state courts there is no final order from the state court except the one that says we can't state a fourth amendment claim what are the material facts that the officer  i'm not well in fact it's hard to determine because they're just relying on the court of appeals opinion but if i made if i may just mention briefly  the claim that this case is similar to the recent supreme court case of what harm offor plum hop in that case there was a hundred mile an hour chase it that lasted for over five minutes so its pursuit presumably nine or ten miles long where over two dozen motorists were put at risk and it resulted in the officer sh man when he was still trying to force a patrol car forward he had his car but it up against car with his foot with the excel rater peg in this case the the there was a there that was like the the typical how hollywood style chase and that in the supreme court has often said that that gives rise to a right to use deadly force because of the of the danger to which the other that's that's not even close to the case here and it's not close to the facts as we played in our complaint which is it's basically a low speed chase it's not a residential area last very short period of time there's no indication that this person's dangerous he's being pulled over for a traffic stop and it's completely in apropos to this case and it had does nothing to the qualified immunity analysis in the case here and in the eyes in this case the facts as we plead down provide a basis for a fourth amendment claim and a basis that the officer should have reasonably known that his conduct was illegal or unconstitutional and the fact that the defendant will not even concede any of our facts in the complaint shows that the court just doesn't have jurisdiction  shows the i submit the baseless nature of this appeal and its fundamental that you can appeal a qualified of community denial unless you accept the plaintiff's allegations as the facts right that's correct so h serious is your motion present actions as to this being a baseless appeal well since they haven't conceded a single fact i think that it's a substantial motion i i don't i think when they admit they're not and when they're basically flagrant about it i think that if if if any case calls for it this is the type of case that when did you file your first complaint i'm sorry when did you file your first complaint  it was two thousand i think august perhaps august two thousand and already going on for four years four years and every time there's a tory appear on qualified immunity you lose another additional issues because there were going to be back on another forsyth appeal after they fell the rule fifty six motions so i think that the delay might be a component in the reason that we today just briefly i want to make clear that with regard to plumb off we're not arguing as to the facts alleged by the plaintiff where i guess as to the facts as found and the legal conclusions as found by the machine court of appeals case the defendant moved for summary judgment on grounds of qualified immunity and collateral estoppel specifically that a stake ruling collaterally a stop the plaintiff from litigating probable cause in federal court just like here the district court there denied the motion how collateral estoppel was an appropriate and that there are issues of fact with respect to qualified immunity and appealed the second circuit addressed both the collateral estoppel issue and the qualified immunity issue and they they have that they had jurisdiction to consider both issues because by rejecting the collateral estoppel argument that was a purely legal ruling that specifically affected whether qualified immunity is available as a matter of la give us the authority to deny jurisdiction to pursue the qualified immunity claim correct correct would you address the sanctions request well first of all it's not proper under the court rules in order to ask for sanctions or has to be a separately filed in this case it was not a separately filed motion and there's court there's case law that says that it shouldn't be addressed by the squire unless it is separately filed motion if the plaintiff files a separately file a motion that will address the sanctions case was exactly the same thing they did not they did not the they absolutely disputed the facts as alleged by the plaintiff but it's the same things here were saying that if if the michigan court of appeals legal determination and applies in federal court then they can argue those dispute those facts then their facts are not supported by anything they can