see what half a jury can see the video they can see the teenager literally crawling from the deputy and being shot in the back repeatedly and it's clear from the video that he's on became very violent that he did approach the struggle at every over the gun and was wearing a bulky sweatshirt that might have concealed a gun why wasn't it reasonable for mr project to perceive him as a potential threat like the other three men even as he attempted to flee while there's there's a number of things first he was distinguishable by the way he was acting first second and i'll go into that secondly the circumstances it changed there's really two parts to this entire event there's the pre obtaining of the guns  priya painting of the guns there was the struggle over the guns and then what happened up until then and what happened afterwards there's essentially two different things up there in fact that well that's one of the things that's not clear so there is video but if you look at the video and you play it there's two timestamps actually one is we see the date in time on the actual video itself until october first two thousand and eleven and it gives you the military time but then when you look at the media player or whatever player you are using to use the video in play it you can see that it's actually twice as long as the time that's on the timestamp of the video itself so you know this report says forty five seconds long defenders claim i thirty five seconds long while it's probably at least twice as long as that but getting to your point is while maybe perhaps there is a justification to shoot michael when he's going towards the struggle maybe even when the struggles going on but there was to criminal trials in this case there's dozens of depositions literally thousands of pages of documents and not once does anyone ever say that michael does anything over the struggle of the gun it's all clear that all he did was stand there is matter of fact his deposition project he himself said that michael was just standing with him with his hands by his side so yes he was there i think he left his post as the lookout yes and comes into this violence drug oh you know we were were talking about seconds yes he had a different color sweatshirt gone yes he didn't engage in the struggle over the gun but in the space of thirty five forty five let's say sixty seconds because he never did anything that his lookout hosts he never reached for a weapon he never had an infertile movements and the record is clear that there was nothing on his person that appeared like a weapon he never reach for a weapon he never did anything to pure like you reach for what what was he doing there obviously he was a look oh yeah right you are he was part of the of the robbery he was and if you're talking about shooting him and this court has said before that if if deadly force justified at one point in time it's not always justified their anger and so here we're talking about struggle is over but jackie has one gun tarrar has the other doesn't shoot anyone by the way you can see it he's pointing at these people but he doesn't perceive a danger not to shoot them object he however does but what had changed is the armed robbery was now over the object he was in charge he had the gun he was shooting everybody and michael was the last person he shot and at the point that he shot him if michael had presented a threat prior to that he certainly didn't present a threat at the time that he was crawling away  doing in the first good sorry dangerous and then when project object he sees this he jumps into the fray he didn't ends up getting the owner's gun off of him i don't know why that guy didn't reach for his gun but maybe that this is well in hindsight i'm not sure but then so he ends up with a gun and this is where his is no one is good driver is pointing out this time frame here goes in a hurry it does go in a hurry but the circumstances clearly change and one thing that i think is a salient point is that project he actually turned his back to michael and if you look now the defense he was turns back for maybe five to ten seconds in reality was with it coming into the frame but that was before the shot of running away he's walking right into that is he walked into it but then he just stood there and that's what the record establishes is that yes he probably shouldn't have gone in and yes when he ran into the fray i'm not saying he couldn't be shot during the fray i'm not saying he couldn't be shot i'm saying the phrase over the guns have been obtained by the good guys for lack of a better term is making the same judgments and he's not trained to look at you know what is and what isn't dangerous he's just a layperson like any of us he looked at the exact same situation he didn't shoot anyone but project he was the trained officer did and he turned his back to this person and yes i think that the strongest point to which of the to the not knowing whether a gun was there another gun is during this struggle i michael had a gun why wouldn't he pulled it out and shot the other people when they were struggling with these other two guns why didn't when a junkie is standing in front of him shooting at the other people michael not pull up a gun and shoot him i think the fact that none of these things happened show that he didn't have a weapon he never made a movement for a gun he never he never put his hand out as if he's pointing like there's a guy he never said anything to threaten anybody and also this question about fleeing i think you have to it's the question is whether he's fleeing rest he didn't know that this was a police officer at that point i think you have to know that there's a police officer involved in actually to be able to actually fully which is you know he could have said by two he just ignored everything i understand it think the question is could a jury look at the circumstances and conclude that it was an unreasonable shooting and i'd like i like to reserve the rest of the time f the district court properly found that deputy project his actions were effectively reasonable under the fourth amendment and that he was a title to qualified immunity this courtroom first there is no question genuine issue of material fa do you agree that michael seiko was not wearing a male i believe he was not wearing a mask like a bandana over his face as the other three assailants however he was wearing a hood over his head covering his face in addition to him being the only saillant wearing gloves over his hands he entered the maries pizza with three masked the sale it's all quoted one carrying one carrying a weapon the he there is no doubt  states that i tried i think i think he had a glove in one on one hand and mitt on the other that correct your honor it looked like it appeared that he had a glove on one hand and perhaps a sack on the other plaintiff has waived such an argument but with regards to whether or not he engaged in the actual struggle whether he gave there is no evidence to show that he whether or not he engaged in the actual struggle the evidence does show that he was initially the look that he conspired  an armed robbery he was initially the lookout and blocking the door he then shows after a viewing a struggle over the weapon chose to enter the fray rushed to the area of the struggle which is only remind you three approximately maybe three foot area many several grown men are struggling over a revolver he goes directly to that area now you see it images bouncing up and down during that time frame there's a struggle over the revolver and somebody is striking mr winter in the back room  immaterial his presence the view is from an objective leap reasonable officer and seen that's based upon the totality of the circumstances here first also two years under scott vs here's plaintiff initiated the entering after there was already a struggle after the weapon and after there had been shots fired yes or the one or point out a couple other things the as far as when we talk about scott versus harris how he initiated the encounter he chose to commit the armed robbery and plaintiff must this court must consider plaintiff's couple billett in creating the danger as this court stated in schreiber says barry there is no guaranteed right one will be free from circumstances where he will be endangered by the misinterpret played it goes at lengths to state that he was an armed that's not reflected by the record i'm sure adverse is very shows that that's irrelevant further as the court noted as a district court noted and as this court has been noting that he was wearing a baggy sweatshirt at least one assailant was armed was trained to believe that if one assailant is armed then all of them could be armed and throughout that time he never gave up he never surrendered deputy bijective doesn't know what he was doing whether he's going to put whether he's going to turn to pull a gun or whether he's reaching for a gut we must also remember at that time that after the struggle how do you think he should have surrendered to he didn't even know that jackie was a law enforcement officer i'm not a i'm not understanding w with the gun pointed at him he put his hands up in a surrendering type motion so he'd show that he was not a threat to anybody that's what i'm referring to as far as plaintiff plaintiffs never show that he wasn't a threat i  he was trying to surrender that when he lifted his left arm in the air he was trying to surrender i mean that is sorry it's played it's argument but it's not supported by the record as a district court noted further your honor it's the it shows that the only time that a hand was raised was when he was going for the door intending to push open the door not in a surrendering motion certainly if he was attacked and if he was intending to surrender he would have surrendered at the time shots were fired at some time before he was before he approached deputy project the record doesn't show nor reasonable in converse could be showed that it was a surrender further not all surrenders kit is there or is there a the counsel relies upon that in his brief in that in that case this court noted that after the suspect threw the drugs and the coat after and then turned and ran away so he was a distance away at that time of course there was also factual dispute regarding the fact there was a factual dispute as whether the acts were reasonable but this court believed that at the at the at the time of the act when the drugs were thrown at him and whether the coat was thrown at him or crawling crawling skirting what that whatever type of movement you want to describe the plaintiff as well as all the suspects were moving on their hands knees and feet and they never stop moving from a g m jack to reasonably from a reasonable police of circumstances it was reason to believe that they were a threat at all times see my time is expired if there are no questions they briefly conclude that i just asked that your honor while we both cited case law there was not one case that was cited in which the officer was the victim all the cases cited where is where the officers responded to a crime multiple officers i'm responding to a crime knowing what was it what was happening deputy project he was a victim and  the victim as who acquired to take quick action and split second decisions thank you for your  please the court but there's another issue that your honour's have to address in the event despite the clarity of the evidence that the or the court concludes that that question exists whether or not the force used was reasonable that is whether the sheriff had unconstitutional policy of killing the plaintiffs counsel in order to get around this court's decision and calhoun which address the issue of gaps in policy and widespread practice plaintiff's counsel at page sixteen of the brief says there was an express policy and that's why he doesn't have to show other instances of deadly force being used unreasonably he has an expression he said but what he's claiming is that the winnebago county sheriff had a policy of shooting people in the back that's what he claims that's not what the written policy the sheriff's department is the written policy of the sheriff as we cite in our memorandum and in the undisputed facts squared with tennessee v garner regarding the use of deadly force what he tries to argue is that based upon testimony of object in the criminal trial and based upon testimony of deputy did in this case that those two individuals the evidence you will show based upon their testimony that the department had an is an individual who doesn't have a weapon object you said you can use one level of force above that which is standard training for police officers what's one level of force above someone who's not armed and doesn't have any type of a weapon or a club plane it's consul hasn't said it what it is but in standard practice it's using a baton it's using a taser it's not using a gun that's one level above the force when an individual is not armed so project his testimony does not establish as plaintiffs counsel would argue that it was the policy of the department to use deadly force without any justification this was testimony was simply an opinion on whether or not it was appropriate to use deadly force when the individual entered plaintiff's counsel says there was no caviar expressed by deputy did he's wrong there was if one looks at pages nine hundred ninety nine to one hundred of his testimony what he said was i assume that the individual entered to join the ferrari if an armed robber enters a store with the intent of helping other armed robbers deadly force can certainly be used to record against him so his opinion was appropriate equally important it didn't test if he didn't give any testimony as to what department policy answers your co counsel what what the timeframe was he enter the the door with regard to shots being fired he entered the door before any shots were fired he entered the door joined into the struggle and a struggle occurred for approximately seven or eight seconds until we first see one of the individuals other than other than the deceased start scurrying out that's when shots were fired he had already been involved in the struggle he had already and then as he was involved in the struggle after that as i said provide eight or ten second shots were fired he soon they started screaming out when the owner was able to get the assailant well done it was when he went once he's disarmed i guess they'd started to take off that well correct or not i correct and so of the owner and he's that he they don't remember his name the owner is the person that got the gun away from the attacker correct the owner the owner ended up getting possession of one of shows that those efforts occurred after the door was closed and everybody was outside of that ambulance and others well coats coats culture was lying against the floor with a gunshot wound the other took seven minutes to get nine one one for nine one one two i believe for nine one one to arrive your honor for n p r was to arrive was between seven and eleven minutes is my recollection it was your honor and i must confess that your recollection is i believe better than mine i was focused on the policy claim of the part right i probably was a better question addressed to your friend if i may your honor under rule eight on one d two d not everything that an agent says involves a matter within the matter within the scope of his employment without regard to to what the officers may have said they were not final policy makers neither of the deputies nor did they have any meaningful input into the policy making process i would point out that this claim of express policy was not contained in the complaint was not contained in his was there any evidence identified in his answers to iraq tours so it's inappropriate to bring it up at this point in time and its policy argument was brought up for the first time in his reply which is against the law in all circuits thank you thank you couse how much time i'll give you another minute if you have five minutes yeah well i gave you another minute and i'll start off right handed which is before i get to the policy claim but i think what's clear indicated the yes that's not what happened with respect to what project he said about what michael was doing when he was off camera mr olmert says well that was when he first came into the store i pointed out in the course of the position w this is is clear he wouldn't back down from this what was michael doing when he was shot was he still approaching or was it crawling away the defense still won't mean that in that second or two one comes out from the tourists way well i think that you're saying that he could shoot michael because of what might happen you're talking in pure hypotheticals and i think there's well those are as a as an armed robbery shoot no one it you know in an armed robbery common sense tells you if an armed robbers got a gun he's not going to hold it while someone shooting him he's not going to hold it while his friends are fighting over two other guns common sense will tell you he's going to pull it out and shoot the guy in the face he did one with another gun never materialized i think a reasonable inference the jury can take is there were no other guns particularly by michael because he wasn't doing anything he was standing there and by the time i was shot circumstances had changed correct that loam but by the time he was that's not when he was shot he was shot later the struggle was over like maybe three seconds four seconds five seconds maybe twenty seconds after project he turns his back to him and that's that's a syrian point i think i think i have to stress is if there's a police officer that believes this is something he testified this is something that the deputy chief testify to is that they are trained police officers are trained that if there's a deadly force assailant that you believe there's a deadly force assailant you never take your eyes out that person and he did it in a reasonable inference where to put a size there for  would you know where to put your we should bring you into it he didn't know where to put is sides who knows where his eyes were going while the defendant's own bad eyes in the back of his head w being here today won't only have to do is turn his head to see in the fact that he didn't tells me that he didn't believe that he was a deadly force is still there and i ask you to assume that one is armor all arms i'm sorry if one was armed they were all armed i don't think that's a reasonable assumption i think if they're all armed they all pull out their weapons i mean i don't think it was in the case here but it could be the case that that was it were is at an assumption that the officers permitted to make i think you could initially but when it never happened i think at that point the circumstances had changed all as judge rohner was pointing out the guy just came in and no knows what he might point out that's what he never did and he never did anything to indicate that he was going to my point is circumstances that changed at the time he was shot he was no longer involved in a struggle he was no longer making a furtive movement he was crawling and it's not reasonable if he had made a furtive movement is crawling away if he had said i'm going to get you if you had said something if you had done something other than at the time he was crawling away yes maybe perhaps then it's unreasonable to say should the shot but at that time it's twenty seconds thirty seconds after the struggle is over everyone else is shot everyone else is gone he's crawling it down point is when i'm saying it's no longer reasonable if he had done something that i'm not saying don't point the gun it just in case he pulls out a gun i'm counsel in the cases taken under advisement