sudden recognized mr vice as presenting signs of mental illness plainest witness stated that mr device was talking to himself and making gestures with his hands if either testified he did not think the subject was dangerous but he watched him because he thought he may be having mental health issues counsel can i just do you need this argument to win meaning does it matter whether the officer thought he was mentally  or not or is there just a question on negligence about whether it was appropriate to fire the shots under the owners or not well the question under negligence is not solely whether it was appropriate to fire the shots at the moment of the shooting but it's the challenge of the circumstances and all of the preceding tactical conduct that's really the difference between zero and zero allow that you take into account all the preceding actual conduct so i would say that this is an interesting because we have three separate bit here is of what actually happened you know so many times we get stuck with affidavits you know which we have no basis of knowing whether they accurately represent what happened or what didn't happen but if you watch that video or all three of those videos and you put them together can you just say there is a question of fact as to whether when mr to virus was standing there and armed and the officer stepping away from him there's a question of fact whether or not it was reasonable to fire those shots  absolutely it isn't that enough i mean i guess i'm not i'm not trying to take away all the of the other issues because i think you actually have some good arguments on them but i'm just wondering how far this court house  o i was a little bit confused by the district board's opinion because it seemed to a suggest that the standard and maybe this is what you're alluding to already that the standard under state law seemed to be the same almost as if the district court said well here i've made these decisions under federal law the state law is the same thing so that's why we're that's why we're dismissing these claims and that that  itself seems to be erroneous and so the question then is how how much further do we need to go into looking at all this do you do we still need to address all these different factors that you're talking about or do we just need to say most at a fundamental level the state court standard under state law is different than the federal constitutional standard you've got to really look at this absolutely that is that's all that this crane is to find is that the district or am i the wrong standard and that the court should consider the state law standard or declined supplemental jurisdiction that's it chooses but there is no need to reach all these issues if that part i know that the wrong legal standard was applie ok and i don't want to take away from these other arguments you're you're finding go i just wanted to kind of get your position straight for me because i wasn't sure if you were asking as if there's something that required us to find that there was because you have evidence that i mean it's it's also pretty amazing that you had an x officer on scene that this saw this and then put in an affidavit about you know what is impression was as i didn't know if that was the key to your case or if the most fundamental point is was it unreasonable to fire the shot absolutely i mean i think the most fundamental point is whether or not that this shooting was unreasonable under state law and i think this court has been clear in the past and he's made very clear that a police shooting can be unreasonable under state law it takes into account all of the preceding conduct have brought out this attack that shooting there is a duty of care that the police to citizens and that this shooting like this is intact and reasonable under california law and that the court doesn't have to reach of the question of whether amendment i didn't see the district court as is dismissing it under qualified immunity is simply is no constitutional violation full stop yes well we don't agree with i mean you didn't appeal it but i'm absolutely shocked that the district court said that there was no absolutely no possible way of there being a constitutional violation here now whether there was qualified immunity is a separate question but that's not what the district court lied on and so many of these cases we get out of or the plaintiffs end up losing because of qualified immunity and the supreme court is set down a pretty tough standard for all of it but that's not this case so i'm just wondering what i'm missing about this case because this seems the district court's opinion here seems way off the reservation of what the case law would normally require and i'm just wondering when i'm a state law negligence claim i think to the extent that we try and conflate those two standards we we we we've totally undermined the constitution and and that's why i'm i'm admittedly a little bit discord made the decision that it did on the on the constitutional claim i you agree that the district court found there was no constitutional violation it did not say that the officer was entitle to qualified immunity on the on the constitutional violation but the officer was titled qualified immunity or there just was no way under you know at all that there was a constitutional violation and you agree that the district court did not rely upon qualified toss that show that he had methamphetamine in his system then the the fact that all of the witnesses agreed that's the deceit and aggressively advanced on the officer when the officers and at that point he just didn't swings his right fist and connects with the officers head they go to the ground and it's an all out struggle as one of the independent witness accept that that is on i just that's where this whole thing falls apart for me if you're in the struggle perhaps but here where he had the officer had gotten away from mr to barra's and was backing up had his gun i mean we can see the whole thing i understand your but just don't understand how this can possibly under any reasonable theory b b a b negligen except exactly the same as what occurred my understand it and they may have had a separation but he was coming out of no if two bars headed if two bars had charged him a nd time this might be a different case and your honor in this honor but don't don't talk about oh he was holding an object let's look at a reasonable doubt what he was holding it was last light he wasn't holding a knife it wasn't holding a gun it was holding a flashlight under the th amendment he supports and houses so again she's bound by it ok but the other thing that determination i thought there was not a specific determination  shape as his night i count so i really don't know how you can say that i really don't know how i watched the video you watch the video we've all watched it he said i mediately after the shooting when he called it ended that he was holding  training that officers received are they taught that if their tactical flashlight is taken off of their belt that they're justified in shooting the suspect you're not i think going to tell you the circumstances here the officers told that if a suspect wrestled away their tactical flashlight they should shoot to kill your honor i think under th to bring a negligence claim when when they were shot seven times well if i could be clear i'm not saying that he understood that that's what you said i'm not saying that they i don't like saying that cell was a hell now we're saying the idea that you've argued that therefore closed your your be on your time is to ask you to conclude your argument with you know in the next twenty seconds well with the surviving broader appreciating negligence claim has to be based on things that were not adjudicated under the th amendment and with that we  degree of precludes of effect does that give to the findings and we have maybe have to go back to him parse them out a little more of the district court and how do you still have a has person was stopped without probable cause it was not a felony stop the officer approached to immediately gave him commands to stop when he tried to leave and avoid the encounter and doctors admitted that he followed him i think that sort of last argument case for today and so we will now adjourn for the day