officer the california highway patrol was reasonable in shooting in an armed suspect mr cecil elkins who is running away from that the time there are many tribal issues the fact as to whether the actions of officer elkins actually reached inside of his waistband but if the court resistance of the officers that statement actually was not made there's some testimony that he jumped from an eight foot wall lands in a crowd to position a mediately begins running in a running position your hands are me you would lose because when i look at what the cough serves themselves say seems to me that all of those suggest that he was going for his waistband would you agree with that i disagree with that your that they say which don't go to that the officer is all say that immediately upon mr elton thing that if he started to run away from the officers well now just a minute it seems to me that all of them have agreed that he went went for his waistband the thing that bothers me about it is that because i believe that most officers will say that in these situations then i've got to look at the circumstantial evidence that there is in the record to see what the officer sad bears some validity would you agree with i'd agree with that yeah well that's one thing that i'm getting at seems to me the officers were pretty unanimous in suggesting that that's what he did but then i've got to look at the evidence what's going to if you will help the officers what's going to take away from the officers and i saw the evidence in the record it you have suggested about the officer him self and the things he's done or at least the one is instant these down in the past which would lead us in it maybe in a different direction however then i look at what you suggested in your stuff and all of those seem to suggest he would have gone for his waistline which gives me circumstantial evidence to believe that he did for instance you argue that fan and was carrying a meth pipe here is wa the stadium was that there was a meth pipe found in this trail things pocket well i understand but it seems to me that given that kind of evidence what you're suggesting that and i think your client then might have even admitted that it's possible he reached for his waistband after his jump digging because the meth pipe was digging in his abdomen or caused him pain or to steady the math the math pipe or even the diff the state comes back with and he could have been trying to discard it because he was fleeing how that supports the fact that he would've done that as a doctor well i don't think that i think that that point was razor out or just to show that there are a lot of variables that should be considered by the jury as to where mr elkins hands were positioned well i understand but what i'm trying to say is if i'm trying to decide whether the police are right in their testimony that he reached for his waistband i'm going to look at all the other potentials and i realize that you are saying he didn't go for a gun he could have been gone for a meth  but none the less he could have gone to his waistband based on your argument let's go to this there was an idea that he was wearing baggy pants and that after the jump he was just pulling him up nonetheless and even there's a video that shows he did the same thing when he was getting out of his car but none the less he would have gone for his waistband none the less he this is circumstantial evidence to from the side to ever see them but nonetheless it seems to me when you make your arguments about what he could have been doing rather than going for a weapon it doesn't really say he didn't go for his  waistband it says he may have gone for it for a different reason but i and that worries me but i think we go to the bigger issue your honor that we are arguing facts and these facts i should not have been determined at the district  understand that there was a suspicion of a weapon apart from this motion that is that we're talking about now want to testify to seeing a weapon or thinking he had a weapon correct that's correct but they did testify did they not that previously he had used the car to try to go at the officers but i think even that goes that testimony comes from officer marvin who is testifying about the intent to mr elkins in trying to run him over and all i'm trying to  sure in this process we don't under estimate the facts that are in the record about his potential his potential for running away so if i don't i have another factual question and that is there's the question about if running away i'm a little unclear as to whether anyone any of the officers testified that he was  i misunderstand that if you look on pace to sixty two it's unclear he says i really can't see i couldn't see his hand see his hands could have been somewhere in the middle so it's a little bit of a back and forth as to what he actually saw there's no affirmative statement that officer guzman saw mr elkins reach into his waistband if i say if the record says i thought he did reach for his arrest i'm wrong about that i mean i'm reading right from the from the record in the record there are several there are different statements by the officer about what they actually saw when mr elkins clear the thin so i'm not saying that your honor did not see a statement or someone say that he reached for a waistband but you would have to consider the previous statement where they said that they did not see what he was reaching for i mean look at it in order to make this real determination it seems to me that i ought to look at the graham factor that's correct if i look at the gram factors they are the severity of the crime at issue the crime at issue was assault and attempted could have been if we believe the car incident attempted can't use lethal force to detain a suspect who has been achieved for assault with a deadly weapon thought you have to consider that if this is why officer palaeo thinks that mr elton's is dangerous he can't use lethal lethal force to subdue him for that type well all i'm trying to do is measure up this if you will graham factors the severity of the crime at issue seems to be quite severe weather the suspect poses an immediate threat to the safety of the officers it seems to me that that's where the waistband stuff comes in because if we got the officers testimony he poses a threat if we don't have the officer's testimony we won't have opposing of a theory and then whether he was actively resisting arrest or attempting to evade there's no doubt he was actively resisting arrest or attempting to evade so if i look at the graham factors it seems to me then the officers testimony as confirmed by evidence that is not theirs but something which  argued as to whether you know he minded to go in there for carrying a meth pipe while he may have he might have done that because of a baggy by maggie pants that could have happened he may have been cradling his injured arm you even argue that could have happened but all of those sustain the fact he went for his waistband they don't sustain the fact that mr elkins went for a waistband they explained that they are that there are things that officer palaeo could have considered before he use lethal force against mr elkins ms jones if hypothetically there was not the evidence from the two thousand and ten incident of officer player and everything else was the same would summary judgment for defendant be a correct ruling here i don't think so your honor because i think that if you look at the totality of a set the circumstances you're looking at an unarmed man who has been running he's never done anything dangerous there's never been any report that he used a gun there's never been any report that he threatened to use again there's never been any they were they chased a mystery elkins from his car through a convenience store through a tire shop they were in this close space and reaching towards his waistband and that put off for play in fear for his life and so if that's all we had why wouldn't qualified immunity apply because i thought you were going to say yes you probably concede that and then i would go to so it's really been a credibility issue based on the two thousand and ten incident there's a credibility issue definitely based on the two thousand and ten and sit in but there's a credibility issue over on the officer players a name to thin and in this case the jury's going to have to assess whether or not his version of the facts is are as they are they actually happen but don't do wouldn't we need some wouldn't a jury need some alternative some other facts in which to find a genuine issue a factual dispute other than the two circumstantial evidence which the court is looking for to see if you may question the credibility of the officer and in that case they had a ballistic expert testimony where it appeared that the bullets  shot at the suspect while he was in the process of lowering him self in other words he was in the process of surrendering well here we have a credibility question that my colleague has asked opposing counsel about which is officer elian's past and also we have as i understand the record there is never a statement by any officer or anyone else that this person had ever had a weapon it was not they didn't receive intelligence that he did they didn't see a weapon and so forth and he had his back to the officer who shot him so when you take all of those facts together and we have to take the facts for this purpose in the light most favorable to the other party why does something equally to a triable issue for a jury your honor if i may i think there are several questions in there if you look at the testimony of the officer and if i may with the court's permission describe what the testimony is as to  actions the moment that he was being that shots were fired and this is the testimony of officer plywood that as counsel has referred to it as blading what that looks like it is this yes he had turned his back away from the officer who at this point is commanding let me see your hand stop stop let me see your hands and this is what the officer is looking for instead what happens is and this is the testimony officer that he mr all constrained counterclockwise to the left so that the officer could then see the left side of his face and then see his hand go under his shirt and into the waistband so he may have been turned or way but he was turned almost directly back toward the officer and making this gripping motion toward his waist and i'm am just in terms of looking at at the other evidence in the record there is the odd topsy report which is included in in the record at two fifty one to two fifty four and that's included in as part of the declaration of appellants expert leonardo romero and he was asked to analyze the trajectory of the bullets and his conclusion was that  those bullets the two to the back could have happened if elkins was turgid counterclockwise exactly as described by the officer so rather than having circumstantial evidence if discredits the officer you have circumstantial evidence that bolsters the testimony of the county officers counsel if the jury believes officer palaeo and your description officer play is going to win if the jury disbelieves officer palaeo he may not why isn't that the right way to resolve this dispute your honor it's it is it is the testimony of officer palaeo and then you also is there there is no dispute in fact what i believe there is a concession that mr elkins was reaching for his waist by appellant speculating as to the reason for why he may have done that and in fact this court in in cruise vs city of anaheim has stated that it would be unquestionably reasonable for a police to shoot a suspect in cruz's position who like mr elkins was wanted for very serious crimes if you reaches for a gun in his waist or even if you reaches there for some other reason so there are concession supports the officers actions in there and i may add that you also have the testimony of captain young clan who said that he reached for his waist the exact opposite of what an officer is trying to see under these very tense rapidly evolving situations and i'm captain to address that with the court's permission that is brought up in this case given the ruling in cruise the anaheim and what i'd like to add with respect to that is that was relevant in cruise the anaheim because there were various inconsistency in that case that called into question the testimony of the officers for instance that he had fully merged from the car and took an aggressive stance that then caused the officers to fear for their lives nevertheless after he was killed he had to be cut out of his seat belt and that was one of many many disturbing inconsistency in the testimony of the officers but there was such a you but you would agree with us would you not that it seems to me that this case law would suggest that just because the officers say something happens he is not the end of the story we have to find some circumstantial or other evidence outside of their testimony to affirm what they've said right i agree yes appreciate that you said and young plan and i don't know why you say his name but in glam says i believe i saw it and then he goes on to explain the exact manner that he saw him reach but i guess i'm trying to figure out what is the added evidence that would also suggest what they're saying and by god and all when i'm talking about the evidence that the defense that the plaintiffs come up with that  even though they could have gone to the race band it wouldn't have been going for the waistband for a gun is that the only secure circumstantial evidence i have where you have your honor you also have  the contemporaneous statements of the officer that he believed that elkins was reaching for a gun and that he well i got to three officers and you have also the forensic evidence that supports the testimony of the officers not just that he was turned counterclockwise but but the experts testimony also supports that the that mr elkins had his arm crossed over his body so it supports the evidence of or the testimony of officer player and abune plan regarding that reach across the body and back on that two thousand and ten incident  in cruise the officer in question had used the exact same explanation as this court refer to it or the same song and dance two  to explain away the exact same use of force here yet in cruise it was even the other evidence was even more in favor of the officers because they had been told already i think in that case that he was  armed or that he had a weapon and that he had said i'm not going back to prison so there was actually more evidence in favor of the police i think in cruise than there is here  stronger for the officer but am i correct about what happened in cruise that there was information that this person could be armed and that he had said he wasn't going back to prison yes a real red flag for an officer i would assume right and in this case you you have a briefing where the surveillance team have been advised to use caution if mr elkins were located because he would likely do anything to evade capture and in fact he had demonstrated that he was capable of just that reckless dangerous conduct in the two days leading up to the incident in question the first day where he led the police on a high speed chase and that ended in him crashing his car the second day where you have an officer involved shooting that resulted in him being wanted for attempted homicide because he rammed an occupied police car twice with a stolen vehicle and then almost ran over a second officer who had to discharge his weapon in self defense the incident in two thousand and ten it seems to me though you have a person not known to ever carry a firearm i mean he's high on meth and in this situation he was running away running away running away and there's no indication  he was running away your honor but he had his back turned toward the off that's what running away usually involves yes but with within but while he was turning his his  he made this aggressive furtive movement toward his waist and there is no evidence in the record to support that that did not happen and again you have a concession and then forensic testimony that supports that and the crew's case i think it's an overbroad reading of that case to suggest that just because an officer has some incident however attenuated the relationship that that will always call into question the officer and preclude the entry of summary judgment very different circumstances the officer self reported and it's also in invisible character evidence to suggest that because the officer in a prior it in incident said something along the lines of you know you this is what you get for making me iran or you're lucky i didn't shoot you that he had some propensity to later shoot an individual who running i think that that that goes too deeply into the crew's case where you don't have the song and dance situation here because the the events are just so vastly different i see that i'm almost out of time if i may just provide a brief closing it is undisputed here that mr elkins was wanted for attempted homicide on a peace officer and in fact have conceded many of the facts that would support each of the grand factors the severity the evasion and even even the the the threat there is no material dispute as to whether mr elkins reached for his waistband the evidence in the record that is cited to make a dispute only describe the direction the thing individuals landed and don't raise a dispute that requires this case to go before a jury here because the officers force response was objective lee reasonable given the totality of circumstances there is no fourth amendment violation and appellants have not shown that the force response fell outside of the law for the purpose of defeating the application of qualified immunity and because there is no fourth amendment violation appellants cannot recover under the fourteenth amendment for interference with familial relationship and there is no evidence in the record to support that the officer acted with a purpose to harm on related to a legitimate law enforcement purpose finally the state law claims under the banner act wrongful death and assault and battery are also analyzed under the fourth amendment objective reasonable in a standard thus because there is no fourth amendment violation palance cannot recover under i have nothing further on the reason with force unless the court has additional questions that i didn't want to add on the fourteenth minute cause of action i think that there is evidence that there was perhaps and non legitimate law enforcement motivation for officer if we look at the november i mean to two thousand and ten incident as far as the state law cause of action i think that because there's a question as to whether under the totality of circumstances because of the question of whether or not the force used by officer