and then fired several times officer graus entitled to qualified immunity because the only reason he fired the self protection he explained this to the other officers at the scene neither plaintiffs or the district court have ever and then if i had any ulterior motive for the shooting let alone what evidence supports that sound or do you think this is a cruise case so we have to look at circumstantial evidence you know i think that the cruise framework flies any survivor and we have to look at the circumstantial evidence right yes and no your honor i mean i think the court disposed to carefully look at the record but mr shier did survive and these are vital you're going to get testimony he didn't he said i have i think thirty minutes and we didn't mr shier didn't say once the other officers were there that guy shot me for no reason but yes he did not give any testimony but he also never leveled any accusation and then in his own conduct was continuing to reach for the pocket and then fighting with the paramedics so there's a dispute about exactly what he told the paramedics oh that's off the table what conduct yourself or what what about the inconsistency between officer johnson's interview and his deposition testimony if i remember the record correctly at one point he says that he heard the deceased say shoot me in the head or shoot me or something and in the other place he said he didn't say anything after he got not this was suicide by cop or i hesitate to use the term trigger happy officer open because even apostle john saw the never heard that we still have officer gross testimony combined with the corroborating evidence combined with a lack of inconsistency is on the key facts justifying the use of force so i just focus on that because i agree with that's tom and that is that that is serious issue that we need to poke at and delve into and so just to break it down a little bit i think that there isn't an inconsistency about what officer johnson said about what he heard before the shooting right he was consistent in saying i could hear officer aggressing don't do it don't shoot and that he could hear the couldn't understand what the dissidents said is that right that's correct or ok so the inconsistency comes from what officer johnson said he heard and could understand from the dissidents after the shooting yes yes ok and it seems to me that as to those utterances we have several witnesses in the form of e m t who heard what the dissidents had to say after the shooting is that right yes i think three of the m p s heard and they're not entirely consistent as i understand it of that i think they say that that the season either said i'm dying or may have said just let me die that's correct and officer johnson said what did he think he heard i think my memory is he and his deposition said that mr shier said shoot me in the head but he had not said that in his interview he said i didn't understand well no no no no no this is important this goes to judge thomas point i think what he said on the day of the incident i'm going to give you a chance to response you can check your notes but i think on the day of against event the johnson said that he didn't hear that's a pretty big discrepancy so so if i've got those notes wrong of a chance to check yours and let me know i think the point always is it's not material because the question still whether officer ground is still entitled to qualified immunity even if nothing's ever been said by mr shier after the shooting so we still have to go look at what is the plaintiff's version of events one we don't ever actually get one provided to us that is a violation of clearly established law and supported by the record so they've pointed out that some of the corroborating evidence that officer guerrero has offered can be cut down and so in sort of the pile of corroborating evidence isn't as big as it used to be but what they need to oppose so is prejudgment is their version of events that they've clearly stated what happened and then is there evidence that supports that version of events and then this court can look and see if that's a violation  that's what's missing here so even if we take away from the corroborating pile we still need to contradict officer guerrero's testimony and then the corroborating evidence whatever's left does that support it yes it does the question is there something on the other son and that's why that's what the district court fundamentally erred in this case is there are there are facts that had they been true would be material but just because they're not true or there's a dispute about them doesn't make a material if officer gross still untitled fall behind him you know i under the remaining i think i agree with you that the use of deadly force would be appropriate if the incident occurred exactly as officer guerrero says it occurred but our precedent says that we have to look at the physical evidence what the other witnesses said and determine whether or not there are material facts that the jury has to resolve because if the jury could find contrary to what officer guerrero said that mr schorr our didn't make any furtive moves didn't go for the bulge in his pocket then deadly force would not be appropriate and the problem is on this record it's really difficult to say one way or the other and the evidence could go either way depending on how the fact finder resolves these inconsistency i disagree your honor because the poem is the inconsistency aren't about anything mr shier said or he was reaching for his pockets well they don't need to be because going to run through them so you can answer judge thomas question the first inconsistency they point to this might not be in the right order but one of them is the lighting conditions guerrero and johnson were inconsistent about the lighting conditions does that matter i don't think so your honor because one is there's always going to be some inconsisten and the detective at the scene went out later the next day to look at the lighter made his two days later and he confirmed that it was in fact arc this is just off the johnson's memory is slightly off but he's not the one who observed the actual  know what time sunrise was at subjectively verifiable and as we know these men were standing around for some quite a period of time after said certainly got light yes or well but he's he's on a he's on a plateau of an embankment under the overpass right so even if the if morning light was coming we don't know whether or not the area was wide it might have it might have been it might not a minute might still have been in the shadows at that hour of the day  it's very likely right so it's not an inconsistency it seems to me that undermines the officers testimony that went to his testimony as he was using a flashlight that's right you're ok i mean i don't think i'm missing we're missing anything on that point another ok so what about the that the i want you to have a chance to respond to the other side what they're saying is that that's inconsistent put your hand up is you know defensively it's inconsistent with asking to be shocked so what's your response to that but i don't think it is inconsistent because and being asking to be shot is you know an intention your mind is having your hands have to be somewhere he's lying on his side with both hands where it's his left hand not under him that's very clear both hands were out right there's no his left hand which is alleged means pocket there's no wounds near his left pocket area so it's not like there's a hole in his pocket and in his hand that's why there's no inconsistency with the hand that was that is right on that again the argument is that the inconsistency is that he asked to be that's what they all cases like this before this what they always said they never the medical examiner never says anything more than it could sit inconsistent with this are consistent with that so you can't you can't draw anything sort of minimizing that other the fact that that's the language that the person used your honor but i don't think you can also draw the conclusion that it was probably a self defense it could have been involuntary right even if he wanted to be shot i mean who knows what a human being would do under those circumstances i  and he's high on what was it that he had meth in his system your arm and bright whether he was actually intoxicated the time i think that's not so you don't have a toxicology report you have an expert who says based on these levels of methamphetamine in the system yes you're on and it was his consume method last three to two days so easy to forty eight hours i don't think we're seeing this intoxicate he had meth in his system so nobody said that he was intoxicated at the time or likely officer parentless also remembered a thing about six feet which corroborates officer guerrero thirty or sixty feet that's just that's a perception problem and it's not material because even if it was thirty feet  heard the shouting because they were looking groan and and johnson were looking for this individual who was missing from the truck right and when and when officer johnson described hearing the shouting and you know running to the s  he described officer girl being much farther away he does run he thought he was thirty feet away but then i think he later explained he thought there were thirty feet away the whole time so it's not like he said he saw off the ground moving it's just his perception of the distance as he's remembering at a deposition is ots but that would have an impact of depending upon the distance it would have an impact on officer gross ability to see what he says he saw a right given the light conditions and so on i mean like the point being that ok yeah maybe there's a perception problem that he's missed perceiving the distance that's a nice argument to make to a jury but in terms of the evidence it's in the record there's the stuff that's the problem and i don't think there is actually evidence the record that thirty feet makes a difference on what the officer could see so there's no evidence that it mattered when the using a flashlight you get if it's if it's dark and you have to use a flashlight the difference between six feet and thirty feet doesn't make a difference from terms of what you can see well there's no evidence that obstacles flashlight isn't effective at thirty feet to be able to see a person lying on its side otherwise completely visible in the flashlight light you know a greater distance the flashlight looking was there any evidence about what the flashlight could do and couldn't do no your honor what i would say is they did ask the testimony his deposition the evidence was that there was a tiny amount of of mass that is residual is therapeutic levels of point zero three milligrams per liter it indicates use within forty eight to seventy two i'm not sure i can i will answer that but i have i don't know that i can quantify it because there are two key facts there are the fact that he allegedly reached and then there's the fact that he allegedly threatened and so you have to look at  those inconsistent know there are two key facts that they need to show i question i know a lot my question is you're relying on inconsistent season and physical evidence i think and that circumstantial evidence i'm just asking you which ones which would be looking at and  tiriel please the autopsy is certainly one of the most important things the autopsy shows that there was potentially self defense wounds the autopsy shows that we're told that the self defense on winning the hand yes ma'am anything on the autopsy also shows that the shooting occurred in a way that miguel guerrero officer guerrero describes inconsistent with what officer guerrero described officer guerrero describes the gentleman laying prone on his right side with his legs straight the trajectories of those bullets show that it's more likely than not he was not that way but it was probably that he was in a fetal position as he was observed by officer perot's who mediately followed up and came to the scene some with his hands underneath him not straight out with his legs straight out and his hands somewhere at his upper torso your point is that the trajectory evidence suggests that's not right we know from the autopsy that five bullets you me of the seven bullet one of the bullet wounds was a subject area of six o'clock because we use the head as we use the head is twelve o'clock all the others came from eleven o'clock we know that from the autopsy so why is that material counsel because that tells you that it's inconsistent with says he was which is at nine o'clock right we know about inconsistency is but your burden is to show that that when you talk about whether the material and inconsistent is in the because it's always the case that witnesses in you know remember things a little bit differently so can you help me with the materiality i immaterial because it shows that this didn't happen the way to where rose said it happened and if it didn't happen the way guerrero said it happened then it undermines his entire account of the event with your conclusion but i really need you to help me out and this is your opportunity please if you could just bear with me i see that you're impatient but could use another page i'd have to hear he could be off by a foot arrow could be he could be standing one foot differently than where he thought he was standing in terms of the church exactly because it wasn't very far away so why is that material because it's material because it's robert is curled up in a ball being blinded by a flashlight bleeding from his head covered in blood it's immaterial because he didn't reach into his pocket it's material because it shows what he did after he was shot that we're trying to focus on what the officer reasonably perceived at the time he decided to fire and it seems to me that you're quarrelling on a point that could easily be explained by the fact that the officer was moving although there wasn't any cover he could have been moving  to the side in order to protect himself if he believed with that sharara was reaching for a gun in his pocket i wouldn't necessarily expect the officer to be simply standing and firing without trying to move to a position of better safety with a gross say about that he claimed he was standing still and didn't move that's what he said from the same point that a year from your point about this trajectory evidence is that it shows that it tends to show that he was that that he wasn't in a position where he could have been reaching for his pocket they already the other thing i want to point out and this is very important that we know that that's your point he couldn't have been reaching for his pocket my point my point is that evidence that my point is that the evidence doesn't that there's contrary evidence that he wasn't that he didn't threaten officer guerrero at the council and again i'm no mean to interrupt you but i think you answered yes a judge can at least question as a very different question say it may be misheard it know my i believe they answer was he was in a different position and so the the the story he is giving about reaching into his pocket if how do you get to if you're standing still in your firing how do you get a bullet wound that comes from six o'clock if the body is lying prone you have to be in a fetal position but i really i need to i am sorry it's very important that i respond to this idea that that my that my colleague has raised too that you have to view this from the officers perspective only that was addressed in footnote three and cru the evidence that we have is that he told his mom he would call or write back and he was planning for the next day he's asked for an ambulance he's got defensive wounds on his hands that's inconsistent with being asked to be killed officer johnson actually he didn't ask for the air move the officer asked are you injured and then he radioed for an ambulance that's incorrect he asked do you want to ambulance and mr shier said yes that is in officer guerrero's deposition in addition officer  hearing him say stop and i'm sorry that's in officer johnson's report that's c h p zero six five one he absolutely asked for he answered affirmatively when he wanted an ambulance those are facts that are inconsistent with someone say please kill me please shoot me that the officers claims he reached into his pocket the autopsy shows that he's got defensive roots as judge for neil said i think consistent with being able to put your hands up well  right doesn't say it says only he's only had injuries to one hand right but that doesn't necessarily need didn't have a hand up and if that's a defensive wound defensive movement i don't know that you put one hand up as well close encounters argument is i'm not i don't have a dog in that i'm trying to get to that the story changes after grout once point says the hand went into the pocket when he started shooting at another point as deposition officer guerrero says i saw the hands the entire time i was shooting he actually says the entire time a page fifty eight and fifty five he says the hand when the pocket and it didn't come out until he was done shooting at page fifty six his story is internally inconsistent with that was it the left hand her that was a bill under the body one  robert was in a fetal position with both hands underneath and he couldn't see any of the hands which by the way is also inconsistent with the story that guerrero tells the counsel the counsel once once whereas of over so it really wouldn't be reasonable to expect the body wouldn't move at all by that and he was alive because the testimony of guerrero is that the body didn't move at all that was his testimony i mean i i agree with you that things after the fact shouldn't necessarily matter but it certainly undermines the credibility as the sole surviving officer when his testimony is different from other officers on the scene let me move you to the fourteenth amendment issue help me with the time lapse here i assume the radio calls were all recorded and so we know down to the fraction of a second when each call was made how much time elapsed between the call for the ambulance and the report that shots had been fired one minute all right so the question is within that one minute and all of this activity that we've just been talking about is that sufficient time under our authority to establish a purpose to harm  determine if there was a purpose to harm was whether there was an overt threat whether there was a warning of deadly force the sudden escalation of the circumstances the movement of a vehicle and regulate whether regulations were followed it's the same here we have regular things that were against regulations like the starbucks huddle we have no movement no let's go back to the one minute period of time that we're talking about in circumstances which are ten rapidly evolving and unpredictable and explain to me what evidence you have here of purpose to harm aside from the officer firing in what he says with self defense a purpose to harm can be form a purpose are i don't think so i don't think so i thought wrong that argument i agree with you you're looking at circumstances and we have to blame so what's your strongest argument that this evidence could satisfy that required showing the fact that the story that was and by by officer guerrero doesn't doesn't make sense with having it decision in one minute it doesn't make sense that he went up to robert after asking for an ambulance so that in the at the start the clock is ticking he now has asked for an ambulance he says why did you leave the car what are you doing he has a conversation with him then robert suddenly turns and officer guerrero claims that there were fifteen exchanges on each side tend of ten to fifteen warnings and up to fifteen statements by robert that were something in the nature of don't do it i'm going to kill you etc etc he claims that all of this went down within such a short period of time and it doesn't make a lot of sense it doesn't make a lot of sense that within and then and within that same minute he also has time to radio in shots fired it doesn't make sense that all that could have happened so the answer to the question i asked earlier i think is your four zero three about the strongest evidence this is a deposition testimony of officer greer i my first words to the man where are you ok he said no did you ask any sort anything further of him i asked if you needed an ambulance what did he say yes and it does seem to me to judge tom and point that we have the radio evidence of that timing so that the one minute seemed pretty solid yes and then within a minute of at least responding yes to the question about whether he needed an ambulance he's apparently making movements according to officer grow up wanting to be shot i don't disagree that it's a one minute time frame and i just kind of ask you the counsel on the day of the deposition of course is many months later on the day of did offer to describe it this same way about whether the individual said he needed an ambulance or asked for an ambulance he did it he did say that he did he did he did describe that the same way what he didn't  i'm not sure that's the way it played out on the day of but i can go back and check the only other thing i would also mention you know you talk about a consistencies you know you say that officer grow says that robert reached into his hand and he said something like you're dead if you look at what he said on the day of he makes statements like robert quote looks at me like i'm going to fucking kill you or pardon me or he says and then he goes on to say he talks about putting that look and that's zero seven nine seven c h p seven nine nine by pointed he made statements that suggested he acted based his shot his gun when he put his hand into his pocket allegedly based upon a look and that according to those statements on the day of he didn't even say anything but then what happens is detective marshall is very apologetic throughout the whole interview that i'm sorry we have to ask you the tough questions says well is that what he said and then he backs up his story and says yeah ok yeah that's what he said those were his words so his own actual words in describing it weren't the and that's the day that is the day i'm going to run and i asked him if he was hurt and he said yeah i'm hurt ok i'll whatever that means i'll get a nameless going for you is that's what he explained at his interview that's a little different it's a little different yes your honor ok turning to the fourteenth amendment issue i think it's it's more than just the officer story can be a question i think under gonzales there actually has to be evidence of an ulterior motive and what we don't have in this case is what is the alterian motive as much as it may not make sense that mr shier it within one minute is saying he's heard and then asking to be killed he's also acting very or radically and doing all sorts of strange things what's the explanation for why always going from something a nameless to shooting a man i agree with you i think that's a very strong point but there are a lot of other points that undercut his story that's the problem  clearly established law is it supported by the record and that's what the part that i think is missing what is the version of events what is the i heard your opponent say we basically have to sort of piece it together circumstantially and infer from all these things that happened afterwards and the inconsistency and so on that he must have acted with evil motives to punish or harm as opposed to self defense or he could have been scared and maybe you know it's thinking consolidated set up a person also can still act on reasonably and using force but if the evidence can still be lacking that it's actually outside of the construct of you know acting a law enforcement purpose even up and reasonably ok and then i think for the think i mean his what he remembers about actually shooting on is actually not a lie he thinks maybe he shot once is just but so he's not moving in his version but because the corner says assure him mr shier sorry moves at all that would explain it