morning i'd like to reserve five minutes for i'd like to address three issues primary issues this morning with the court and i want to make sure that the court is clear in with respect to the factual findings of the district court we raised two issues on appeal for the first has to do with the fact that facts in the context of qualified immunity must be viewed in the light most favorable to the plaintiff when we're determining whether or not qualified immunity excess that absolutely did not happen here its course also how that the failure to do that constitutes reversible error and perhaps the best case as to that issue is huckabee versus priest in that case it was a finding of qualified immunity and this court specifically said it what are some of the facts that you're concerned the government of the district court was assuming against your client or now essentially all of them your honor we had to give me a top three or four list and and if if they're good i'll keep i'll be interested if they're not so good i might not be interested after that we and i witness to the fact that after the police shot my quickly so yes so you know i when i read your brief the first time or debrief i go oh my gosh because you provide on some of the statements from this woman's deposition that really did seem problematic but then i learn oh wait she qualified some of this later in the deposition she did so had so we had thought it went the way the inference thing goes is you don't get to take your witnesses in when they say two different things you get to pick the best one we did the work of witnesses here what we said we didn't have two witnesses here we had mr hawker who you know i'm saying if there we have this one woman that's the woman you're but it doesn't acknowledge the stuff she later qualifies in the deposition oh ok i guess i couldn't see that and i think the only way the only verb left that has some anxiety some problematic components to is the verb hitting that's all that's left after further cross examination of the deposition and she also we also have the photographic evidence that was never the court was never able to even view that  in those pictures we submitted to this court that show blood splatter all over the officers shoes in the bottoms of their pant legs after they claim that they shot this guy nine times some of that some of those gunshots went into his chest they tried to give c p r yet they had not a speck of blood on their actual clothing and had blood splatter all over their shoes now that what does that show the kicking portion because ms meade also testified that she she thought that she saw them kicking him as well and then we had the photographs of his neck ok i'm going to give them i thought she qualified that one away she didn't she didn't know no but in addition to ms i mean there was the expert our expert witness who was a former kentucky state police commissioner who testified that based on his review of the evidence this this perspective about whether they were following whether all the see whether they were justified in doing it whether they followed police policy and whether they would have been justified in a constitutional context as well he focused primarily on the fact that the gunshots in this case every single bullet hole was in the side of the vehicle the officers at that point were by definition out of harm's way of the vehicle and that this court has repeatedly held there's there's three separate cases where this court has said when you're firing into the side of a moving vehicle you are by definition out of harm's way there are there are very very very narrow and rare instances in which you may use deadly force to apprehend even a fleeing felon and in this case in all of those cases the court said when you're when you're firing to the side of a vehicle you're not in harm's way you're not in the path of that vehicle so is your your theory that all of the shots you've got is backing up ok wrecked they get out of the way it is your theory that all the shots were fired after the backing up and while the car was at rest or is your theory that well someone fired them but then the car was moving and leaving on its way out you know what happened here is how her back to be a call out he hit the  brennan was already out of the way ten to fifteen feet to the left to the driver side fired eight times got eight shots off before but i just want to be clear because they are you saying the i read it in both places but the read brief says officer br car no the other officer officer based in was actually to the left he was not behind he was to the side and if you see if you're pushing or from the other officers car he'd have to be behind harker's in some respect that so why is that an issue of fact as to what was going on there what's the what's the disputed issue of fact as to that point he testified here's where was i was panned it's backing up correct to accept that but the fact of the matter was that he's on to the side of the car even though he's just hit your car you know as i say timeout you know let him go let him roll you don't get to still shoot him at that point that's the that's the problem here is once that the officers are out of harm's way they don't get to shoot were there any shots fired after hawkers vehicle stopped was clearly stopped we don't know that what is when your theory what your theory of what happened when you want to read the inference is you're way oh sure are just here hear me out the car backs up it hits the cruiser you're saying no shots are fired until after hits the cruiser is that your theory that's correct ok and then is your theory that all of the shots  it's just stopped there it hasn't started moving again no it's the cars moving but the point is that it's starting to leave both the well known so hikers vehicle is he's touching it's like this that he's backing up right both officers get out of the way and they shoot him from the side of the vehicle they didn't have the right to use deadly force at that point because you're stopped huge huge i'm still losing me on this i'm trying to figure out all of the shooting is after his car hits the officer's car this is correct ok so just answer this question are all the shots fired while hawkers vehicle is still sit still or is talkers vehicle start to move away it doesn't it didn't move anywhere it's moving backward still it's the vehicle is still moving backwards their theory was that how car was trying to push the cruiser backwards in a little honda prelude and that he so so i see what you're saying it hit the car but it was still moving in the same direction exactly he and all the shots are fired so what's your theory your is your theory that the cars had stopped in the shots were fired is your theory in fact it's true the haka vehicle was still moving backward as the shots were fired it had to have been moving backward it was still moving backward and we don't know if that was because they fired the first two shots and high or passed out from the police officers perspective all they see that i know about this four thousand r p m problem with the car that they're not supposed to know that all they know is this thing rammed them they've been at the end of this long chase the car still backing up it's still moving he's still in the car they're not about the fire shots they are not no they are not under under six circuit case law they're not under their own department policy which their police captain admitted at his own definition he said that if they were out of harm's way if they were out of the vehicles path when they began fire out how do we do is there a difference between those two things in the sense of out of harm's way and out of the immediate payoff of the way a car is moving at that moment when you have no idea whether it can come at you again well and that's that's the officers were behind the vehicle one of them was actually fell down into a ditch and this court focused on the fact that no shot i remember who i think i was on that when he fell into a ditch because like off the side of the road right and the court focused on the fact that there were no shots that were fired  the back of the vehicle he wasn't in the standard and i know that i write about the fact that the each officer testified they didn't know where the other officer was that is true but the problem with that statement is that officer based in was into the side that he was forward of brain and he would have had no reason to suspect that the other officer was behind him and was any in any harm to begin with because they both exit their vehicle at point at that point i guess i'm just not following it if they didn't problem here we're talking about a human being's life and you don't get to just kill that person because you suspect that possibly maybe they might come after you with a vehicle or or somebody else is in harm's way you have at least a duty to turn your head and look and he didn't do that here he counseled make your time's expired if you want to save your rebuttal time you'll have five minutes re virginia town of six thousand but our officers and we have a bad fifteen at a time all of our officers are all trying lack all law enforcement officers in kentucky we go to the states academy in richmond kentucky and these two officers went to the cademy intend to get their training site in one of them pression that these are young officers that are trying to you know to me this case really doesn't turn on any particular cases you guys know that there are a whole lot a story that he likes he talks about the human lot right and human raw life and and cites to a bad but he ignores the officers the danger and the peril that he put them in if you believe he is barzan that he knew none of this was going on he didn't know the police officers were following him that's his crime but that's really not believable but going back to some of the facts that have already been addressed were two cruisers she said that they were two car lengths off for the main highway where she was it's under speeded the photographs show at the aerial may they were they were maybe one hundred and judge bogs was obviously looking at my brief when we go through what mrs made actually say s she says assy all this feet and hand action where they officers testified that even after they had shot int slams is the gas in the car and you can see in the grass a black mark from the front wheel drive on a regular horse scratches off in reverse you can see in the dewy grass the tracks where he can a circle back towards the officers their cars kind of add a control coming back he comes back according to the state police detective that investigated he comes back a bath thirty feet he strikes a crown vic automobile and he pushes a crayon big place cruiser back thirty feet into the ditch slot and this is when they officers are shooting at him is when they're trying to get away from the cruiser each of them so you agree all the shots were fired while it was still being pushed backwards yes there and he say it when he last saw officer based and he was between the door the cruiser and head was being knocked down was the last time he saw him again this is it's pitch black dark at the in this grassy field they testified that they didn't know when he was going to stop and then then even judge adkins in his opinion went further say head of these guys no appreciate that after he quits going reverse he's not going to put it and forward and continuous xscape and maybe grant over the officers so i think the evidence is clear that they were never at harm so why would they make a big deal about the bullet holes in isn't pretty obvious if all the bullet holes are in the side door that they were shooting from the side you don't need an expert for that yeah i agree with that but then what angle what i know because you could look at the boathouse in the car and some of them some of them appeared to me as not an ex parte that they could have possibly been a straight forty five others look at goes like a car was coming at sliding backwards this way it looks like there angles and that why they all went through the side their view of the cars coming back toward same in reverse it's because it's on way grass and it's a little bit at heel coming back by on the heel of it which is what the argument is whether the only place that's in harm's way is the exact hundred eighty degree line directly behind the cause or harm's way is a bit bigger than that yes i think that and i guess argument is they want to take these two officers apply less than thirty thousand dollars a year if they guy you just stand there and that car will go right by you i want to extend from you and if you'll just how steel i'll slide in this way of doing grass i'll be able to slide right by  so i mean it and if you look at this case solved the deference disposed to be given to the officers thereafter at night there after bottom sales and a very rural area where you say they did they get  the sense that if any reasonable officer could think that it wasn't unconstitutional they get a difference on the facts they don't get any difference we have to take the other sides of you know exactly exactly  neutral i'm not really sure what the argument but you know it's really under speeded from the kentucky state places investigation that the automobile was strong pushback if you say you say that backing up was part of the escape that's not part of the escape i mean if you're escaping you go forward and leave you don't we ram them he was tracked he had gone up a gravel road the gravel ended and then it was a grassy heel he went spawn apt so for there was a there there was a ditch line to the left of the road why they had the cruiser got pushed into the other thing is over on the right side there was a rock wall so i would the guy was caught in the cold isaak and he's got to come back out around the car is it exactly that case and the smith forces for the last had written down here you know of all to suggest that he wasn't trying to hurt the officers know all of this suggests that he was not trying to hurt the officers in other words you're making it seem pretty clear to me that everyone looking at this would have realized he's not trying to hurt anybody he's just trying to get out and the only way to get ran the vehicles he's not going there's no risk in other words that once he's hit the vehicles he's going to turn around and come back at them he's just trying to kate create an escape valve so that that's it seems to undermine a little bit some of your theory of the case which is that this guy is suicidal he's he's actually trying to hurt the officers but i don't think he is i think he's trying to get the car out of the way so he can get out i mean i don't think there's any evidence really what is his and then dogman and he pled guilty to one in danger mountain said something like eight years so he may not have been tended to hurt that officer but the simple fact he is those officers were behind the car when he chose to to ram that car and push it back on him and and observation actually was had some minor injury was taken to the office to be checked diana you know the other fact is they talked about the blood on their uniform in the photographs that they show you could see some blood spots on their shiny patent leather shoes but the rest of it is navy blue uniforms i mean i don't know that you could have seen any blood on that uniform i first want to address the factual issues here you're exactly right judge if anything was trying to escape this was a residential area of this is it was a holler basically he turned right it's a gravel road it's residential there's houses all along there so this isn't just out in the boonies somewhere in the middle of a field he pulled into a gravel driveway there's houses all along his testimony was that he pulled in he was upset and distracted because he just had a fight with his ex girlfriend slash baby momma pulled over popped a cd and crank the musical really loud wanted to go somewhere and think he backed out he thought he had a telephone pole that's his testimony that's his version of the events now whether or not that's realistic actual intention really are relevant we do have to look at it from the point of view of what the officers saw happening we do in so that i mean no evidence that he absolutely intended to kill them or absolutely evidence that he thought he was doing meditation is really irrelevant isn't that it's the reason well what a reasonable officer would have believed that's correct given the circumstances that the officer was seen at that moment is this car car and that even even in that instance an officer is never ever able to use deadly force to apprehend a fleeing felon that is a supreme court case then my question is fleeting i mean in cases like garner you know where that comes from correct he's going that way and i'm over here and he's going away from me right right and then the question turns on whether or not the officers were in or were reasonable in believing that they were in danger of immediate physical sufficiently dangerous the person has been driving recklessly certainly appears to want to continue driving recklessly i'm not sure i don't think i've read cases on that scott versus clay county is pretty much that way in that they sort of been leading and want to chase right i mean he's going to hundred miles an hour down the back roads and that sort of thing isn't it scott versus clay county even though even if even in those instances though your honor deadly force is still not justified unless race and they finally ram his car off the road and make it that none of those things that's the problem is no those things actually happened here all we have is police officers chasing this gentleman who they believe is intoxicated who pulls off just a garage you can make sure these people don't get back on the road that's what that proves yes but you can't just shoot them i mean he could have taken out the top officers had numerous other what he's you have is that the secretary on the sort of shooting at potosi have you ever encountered  case conceded that the defendants were that the city was entitled to summary judgment because the city police department was the entity that was responsible for the policies with respect to training and in and analyzing that issue for some reason the district court agreed that summary judgment was appropriate and applied the wrong standards in analyzing official official capacity liability excuse me but if there's not a constitutional violation prong one of the qualified immunity  analysis not much to discuss on this was this was a separate issue though that those were the one nine hundred eighty that was the nine hundred eighty three claim this had to do with a negligent failure to train which is a tort claim the two are separate i believe you're talking about a state law claim right now are you talking about  city liability so the liability yeah i'm just saying to you if there's no underlying constitutional violation you don't have a failure to train claimed on should do with that and i know you think you know obviously that's not true if you do have constitutional claim then we get into this i'm just i'm just trying to make sure i understand when i have to look at your argument i believe the case law is that you're correct that if you don't have a ninety nine hundred eighty three claim to the negligent