there are several facts on each side which are in disagreement in this case the distances between the parties the positioning of the parties whether spoken words were overt threats and the actions of these parties in the final seconds of joshua wow's life are vitally important and under very much disagreement in this case summary judgment mandates that at this stage the facts of the matter are taken in the light most favorable to appellants our version of facts in this case with ample support from the record is that joshua was at least twenty feet from any person at the time he was shot he was turning to run away he had a small pocket knife that was legal to possess at the time of his death and that he hadn't been exactly align with what your client  in her initial interview that's correct i understand the argument that we don't need to pay much attention because she was under stress that's the argument but it's true that that is a part of the record and her initial things in her the light most favorable to her i acknowledge that but it's there correct in her initial interview and we think that's a perfectly acceptable point for the defense to bring out the trial  continuing on with this in the why most favorably viewed towards the plaintiff in this case the cases that closest align with this are tennessee v garner and do just the mattingly tennesee the garners been good law in this nation for over thirty years and it clearly says that if someone is running away from the police you cannot use deadly force unless they are an imminent threat to someone in the immediate area and that's just not the case here very right what evidence that he was running he was turning away under cross examination yes i thought she said he turned around and took one or two steps that not right i believe her exact statement was that he took a step like this motion and went to move away so he wasn't you said earlier turned around and running away that's not exactly what she test well that brings me to the ballistic evidence in this case i'm sorry to interrupt you yes it isn't exactly what she testified to right her testimony is that she he took a step to time though he made the statement that you're going to have to kill me he stepped just tell me if i'm wrong about this he step towards the officer as he made the statement and then she testified he turned away and took one or two steps is that an accurate i believe it was all one motion ok i think that's what her testimony ok  that brings me to the ballistic evidence and the ballistic evidence as i'm going to exhibit my lack of flexibility here but the st bullet entered somewhere around this region moved from back to front and that's consistent with her statement that he was turning to run away you know that was the that is a question for the jury ok but you use that word correct because in this case we have to take the facts most favorable to us who testified that it was the st man to reach but how would he know she stated that when he was turning around they st shot him in the back he then turned around and said you shot me and that's when they shot him again this time in the front of the side which the board came in this way after grazing it on the par ask you how would he know he doesn't i don't think there's no testimony that he had medical expertise right correct  and the reason that i emphasize that is because the ballistics expert said that he determined the sequencing of shots based on testimony he said that there was and that would have been heard he ignored her testimony but her testimony matches up with the positioning of the bullets her her description of how the shots occurred matches up with the ballistics evidence is how they came in and he was there how close  she claims that she was roughly twenty feet away and and he claims that he heard you shot me between the two shots correct and that he and not confirm that in crossing the ballistics expert dr spock he did say in his deposition under cross examination that he only determine the sequencing the shots based on the officers testimony of how how they perceive the situation he had no scientific way to determine which shot came st and so that becomes a question for the jury if the absurd interruptive can i walk back to the distance which you passed by the distance twenty feet comes from our affidavit because it her deposition so judge cook gave you what she said in ashley then at her deposition i thought she said she didn't know that distance is that accurate or my misremembering i don't think that's exactly right basically the question was posed to her in her deposition how far away is she was was it twenty feet thirty feet forty feet it's  classic deposition question or what was her answer the answer was i would say about twenty feet and then when pressed further on that she said i don't want to guess further ok but it was all right go ahead in your deposition that i'm reading at the question i'm trying to get an idea was just ten peter way twenty feet thirty feet away fifty feet away and the answer is i would think about twenty right brings me to the affidavit which i'd like to discuss very briefly there is case law out there that says affidavits to sharpen or bring points into focus are allowed the cases that were cited by the defendants saying that affidavits are not allowed at that point they were based on cases where there were basically sham affidavits that were look i'm moving back to the deposition should i have that she den said i don't feel comfortable with the estimating the lank them summarizing i don't feel comfortable with that so your testimony is you have no idea how far was from the officers when he was shot right but he was far enough he wasn't a threat that's what she said when pressed right at the deposition i think after she had said twenty feet right but then she said i have no idea that's the sharper focus we're talking about maybe you say oh wait i have no idea you're saying we should accept five feet and not i have no idea i think that's an important credibility determination once once you have conflicting testimony in a deposition now once  i think in this case it's important to determine the credibility of the witness and you have to take her deposition in the light most favorable to the pretty opposing summary judgment and he did say at pages o six i believe it is her counsel don't get and she says ok and then she says yeah i don't feel comfortable with the estimated l comfortable with it because it's been a long time and i just don't feel comfortable with estimating on that and then she said your testimony is you don't have any idea how far just josh was from the right but he was far enough so the interesting question is is it a conflict in his affidavit in in her affidavit we have this entire team her deposition i don't think it presents that way and i think that's a question for the jury and i have just a few seconds left i think it's important to note that everyone involved here agreed on the landmarks if not the exact distance and that's what needs to be talked about at some point weight for this search shall go or it will start ok morning your honor jason bell it's my privilege to represent the city of elizabethtown along with deborah shaw who's with me today we also represent the officers in their individual capacities in this  qualified immunity summary judgment appeal by the other side we were we want at the lower court level the court knows that i'd like to address some of the issues that have been addressed already i can go through the facts or however we want to but really quickly ballistics evidence that was referred to you guys have these photographs dr smock testified very clearly as to the shot sequence and he testified very clearly that mr blount the evidence in this case supports that going at the officers at the time they were shot and we saw so i saw that testimony can you explain to me how he would know the shot sequence he says that the the graze on the arm is the st shot and then that in the chest and then as he went like that the nd shot came in and right here i recognize what he said i don't understand how he knew that except for reliance on the officers may have relied on the officers for saying that know there was mike i'm sorry i should ask a better question it's not scientific as to the order could be as to the fact that he was going at the officers that is scientific and we're missing a major piece here there's independent testimony that scientific in answer to judge the park are you saying it scientific because the doctor recognizes the difference in the wound entry he said that's what i'm wondering if that's your point yes that the medicine slash science i think that is his testimony now they can cross examine that or whatever but i think they have taken him he very clearly on his in his report says when de is mills who was an independent witness fifty feet away who said he didn't obey commands they gave more warnings he wouldn't drop the knife charge that the police aggressively with chest bowed down and they shot him six feet away independent witness independent but the mis read if if we want to use her testimony and i agree with judge the par when they're all over the board i think you disregard that for summary judgment she says in her statement to the k s p immediately after he was probably two feet away from me and they was two feet from me so he was a good four feet from them then he asked some more and she said probably enormously so the day of the incident she estimated it at forty six feet my arms are thirty that's not a sworn statement right that is  said twenty she goes and then she backed it down to seventeen or eighteen because she said he did take a step forward in the important point for the distance issue i've looked at the case also of you there's no case that says you have to be five feet or six feet or twenty feet or whatever the issue is  was an imminent threat and the independent testimony establishes that there was an in and in there a line with the feet that we can draw i mean what's the furthest distance he could what if he was fifty feet would it be acceptable they shot him if he was threatening someone else yes i wouldn't think that i wouldn't think they were going to threat to the officer no no your honor i would think it fifty feet i would think there would not be a threat to an immediate threat about twenty feet will you know there's that twenty one dollars foot rule ready that they all talk about th guideline but this idea that with an edged weapon that you can close the distance within twenty one feet faster than the officer came and holster and respond what i thought they saw i think no and i think that's why the case law doesn't do that because we don't want to get into that yes ma'am yes when when they st saw him know as he made a beeline toward them about what about when he raised his knife and said you're going to have to kill me enough or you know he had his gun out at that point  he had his weapon out within twenty one feet yes your honor i think so i'm not really on the twenty one dollars foot rule i don't think the courts do i don't think we can want to come up with a bright line rule i think i did mention it but i'm not reliable but i was just in response to a question list not ignore the independent testimony of david mills of harry mills of miss reach anywhere from so on distances four to six feet dr smock says that and here's the other thing before i leave that if you look at the top of her statement  me in sworn but it is on video and when you watch your own video they ask her he didn't try to run away and she goes like this she raises her hands i mean it was very persuasive she was one hundred percent certain what is the legal standard by which the district court should be that change i know that the i agree with judge the part i think i think you either disregard it or here's the thing in my opinion on the legal standard it is you don't just take what the plaintiffs is absolutely i know it has to be viewed in a fact you know in a light most favorable to them but you don't ignore independent testimony you don't and nor objective proof in the record you don't know nor the testimony of other witnesses so when you put all of that together and you consider the totality of the circumstances on summary judgment you don't consider that to tell you the circumstances if there's a factual dispute yes then the plaintiff points that's right but if there is not a factual dispute then you consider that testimony and much of this evidence that we're talking about is as undisputed the district court concerned at that point it's using its discretion am i correct that is the standard by which the court decides whether or not to treat this affidavit as a later post etc sham after david or whether to to credit it yes and that's the miers case that we signed and there are others that she sides out of the position was she was so traumatized that she couldn't go back out to the scene but when she staring down the gun barrel of a motion for summary judgment apparently she was healed quickly and could all of a sudden then go back to the scene i'm not being adversarial but that affidavit is a sham it definitely should be considered judge jennings ropes very simply this is improper and it is proper evidence and we all know that there should be a motion for leave to submit late affidavit or something like that none of that was it done very briefly change the standard of discretion i mean why is the motion matter does it think it should have been done it should not have should not have been done exactly right one is sworn one is not the affidavit a sworn testimony her statement is not there's a video clip that you can review where it seems her what i don't think so what she said in her rip handwritten statement was he looked like he was trying to get away now they've interpreted that as turning around and going the other direction but i think those are different and i'm not trying to pick at her words her sworn testimony is that he was still moving at the officers at the time he was shot which is consistent with the other witnesses wouldn't there be at least a question as to which was more reliable her statement contemporaneous with the event which is written you d all been a problem throughout this argument i understand understanding my question irrelevant no i'm not ok absolutely no and if so if wouldn't there be at least a question as to which is more reliable these contemporaneous statement to the police or the later affidavit i think that's something that i think there is a question but i think it's a legal question that a judge can determine when his sworn testimony one is not so so are you saying that there is a rule that a judge should follow that that the sworn testimony has to be believed over a contemporaneous police report i don't believe whether it's mystery sure whether it's mis how like i'm not i was dealing with howie in particular because i thought she would be that complex emotional reaction but i don't mean to be emotional but you agree for both of them i know you like reaches and you might not like the other one but for both of them me there are admissible and that is the standard right for summary judgment purposes it has to be in a form that would ultimately be admissible that is true and unfortunately miss how it has since passed away she was in the holder a woman the only proof that will be coming in a trial would be the sworn affidavit i would argue so i'm curious then it is a police report not admissible that's true typically push reports are not in  of course but you can cross examine those folks about those but i think it all it all can be considered by us the issue that i want to talk about briefly is the clearly established law this court knows them all but there are nine cases that we've cited one that was decided pollard was decided in march of two thousand and fifteen newcomb rhodes boyd will get his southwards until in chapel and pollard there are cases where they shot people on the ground there are cases where they've been nd volleys of shots there are cases where people have one person was retreating one time they shot somebody in pollard they shot a guy eighty times one time they shot him sixteen times one per one time the person had an unloaded gun they shot a free man with a gun thirteen eleven person had a knife in his pocket there are all those cases in my estimation the facts are worse than ours worst meaning the police action was more egregious and qualified immunity was granted in each of those instances so in this situation as this court is well where we get qualified immunity and two potential bases one was the constitutional violation two was that right clearly established this self defense that richardson exhibited in this fact it was not clearly established that you can't shoot a man coming at you with a edged weapon making a verbal threat that was not clearly established at all running away if he's turning away if there's still a threat to someone else i ladies who drove by the intersection one of them expressed in the nine hundred and eleven call i'm concerned about this lady out here this guy's got a knife he looks like he's going to stab someone so there was hysteria in the neighborhood there were nine hundred and eleven calls and ye him on one of the back patio is looking like he's trying to get in somebody's house so i think absolutely it's so but so that means that he could be shot in the back if he was going away if he had been on someone's property no i didn't say that i'm just curious about matter of opinion but it's not a big these are big homes in a big yards if there are differences between them and having a knife and someone having a gun in terms of the danger to the people in the neighborhood yes i think all of those facts have to be considered many of the cases that we established involved edged weapons but yes i do think it's i do think it's a i think all those facts have to be considered by you all whether there's a gun whether there's a knife whether their arm whether they were had toxic levels of meth whether they were responsive all of those things you everyone i want to bring up st i heard something daryn that that argument where he said we could cross examine certain witnesses at trial and we agree that's all we're really asking for here we're not asking for the case to be eminently decided in our favor today that you want her what's your best case for this is clearly established because it seems to me he made verbal threats there's a lot of evidence that he was within a distance which if they perceived he was a threat to themselves or others they could do what they did so what's your best case my best case is the matter where a suspected crack dealer was wrestling with a police officer had a weapon on him and eventually broke away and started to run that police officer believe that person was threatening they'd been in a physical altercation with him which is a much more threatening unclear if the officer knew about it and that's not the case where the weapon dropped to the ground because we've also got a case where the same we have several cases for the weapon drop to the ground but in those cases there was a reasonable belief that the weapon dropping to the ground was a more aggressive maneuver based on the officers perception i think it's important to note the cotton here there's a lot of similarities in that case and ours and tolan was not something that decided qualified immunity or not at that stage it just says this needs to go to trial and the material issues the fact in that case were whether certain spoken words were threats that are similar to the spoken words that we have in this case the positioning of the parties the lighting conditions and basically the nature of the scene at the time and tolan says you can't just accept the police officer version of facts there's another case that says you have to look at the circumstantial evidence which tends to discredit the officer statements you have to give some weight to that and it's summary judgment  everyone has to look at the totality of the circumstances and not make credibility determinations the district court said in its own opinion there's a dispute whether the plaintiff was still approaching the officers or in step to turn away that's that's a note right there that the district court should refrain from weighing that in their favor yet they didn't do that they said we're going to act as if he's still approaching the officers that and argue that mr black would be a danger to others in the community how do you respond to that it's my understanding that at the time of the shooting no one was outside in the neighborhood by that time everyone had gone back into their houses and the police officers main concern when shooting was actually there back drop whether they were going to hit a house in the neighborhood they didn't mention if they were concerned about anyone outside i think what about right was at risk of being hurt by this i think the police officers own action show that they did not perceive it that way they not only allowed her but encouraged her to approach mr  try to diffuse the situation they can't realistically argue that all of a sudden she was under this huge threat after they'd already told her to go up and tell their evidence in the record to how he was at the time it was  at the time he was shot i don't think there was any affirmative evidence how far away she was at some point before he was shot he was with she was within an arm's length and