factually disputed event that occurred on june fourth two thousand and twelve in phoenix arizona on a park specifically designed for this is labeled individuals this young man had mental the tape is very clear it's a defendant's exhibit is a recording by dispatch of the phoenix p d of the entire event it's about five minutes long but the shooting itself the officers get to the scene is about twenty seconds that the found and in the inst that our deal with an expert there is no evidence that according to that ground down on the ground down on the ground and less than a second after the last down on the ground five shots are fired four in the chest one in head now why is that important because  picked all of that all of that so if the officers allegedly would be saying stop why would they be talking over each other certainly that after that was saying down on the ground was being picked up didn't randy and we should make clear for the record this is not the former baseball that you know it's not but he was an individual who encountered mr o'brien and in fact was the person who made the nine eleven call and i guess left his phone on  this entire thing was happening was or isn't his version of events or brian did indeed but the bat down but then he picked it back up and advanced on the officers through that's what he says but several points here on first i would like to reserve time to respond and i apologize i think say that about three minutes if i could second that mr johnson he called nine one one and he says that making suppositions and conflicting accounts of the event one by an eyewitness that an ax to grind because if you look listen to the entire tape he says that young man he stretton and his kids it didn't never threaten anybody he banged with a t ball bat we've got we have at least four eye witnesses do we know we have the two officers we have mr randy johnson we have mr randy johnson son and then we have office right also so what your argument is because there are inconsistency is or witnesses who didn't see things that other witnesses say occurred a jury's going to have to sort out in addition to an interview that was done by the police that night and he says i have a not an op skewed view of the shooting the man has no back he has no back falling and he didn't and he was one hundred thirty five feet away at the time deceiving was dressed in black and the bat was black is that true that's what he said possibly i don't know about all of the no no you took his deposition remember i didn't i don't remember all the details on the bat that's all and well isn't that kind of significant i mean that a jury might think given the similarity in color that the deceit may have in fact had a black a small black metal bat that the officer couldn't see him his vantage point one hundred thirty five feet away you know i asked him all those questions he never raised that issue and when did the i'm not saying she's telling the truth i'm just suggesting to you that a jury is going to have to decide which my witnesses is why crime had was in the best position to see what happened that's right but it's still a factual dispute i'm not arguing with you but my point is may actually be trying to help you thank you so much on  isn't correct that every witness johnson taught the officers involved in the shooting probably not johnson's son because i believe he had when the difficulties broke out isn't it correct that every witness witness who had an ability to observe said that when o'brien was on the everything he says he saw and heard that's right ok absolutely right now one of the things that's troublesome for the other side is that at least officer tiger in a deposition says that he instructed mr bryant to drop the bat and he instructed him several times to drop the bag and that is not heard on the tape the other side as well but that's because maybe it was too far away or whatever what's your response or  not there of course is just a self serving allegation by a police officer that killed the man i mean but the reality is that is just explanations of the even existence of the evidence this is just  conflict between the dispute a factual dispute over what happened and the gentleman that certainly could qualify that is that right so we need to go with the other forty and sick or scientific evidence and the only forty and sick scientific evidence that eggs this of what happened is that video that you apologize that i'll do from the nine one one thousand it's not totally true i mean because it depends on what your definition of forensic evidence is but i would say that the bat underneath the body of mr o'brien is forensic evidence corroborating to some extent the testimony of the officers that he had not completely relinquished control or custody over the bad as they were ordering him to do on arrival one stance i disagree with i mean i would do that for his togetherness but when i asked when i asked the c s i eaton that did the investigation for the police department crime scene investigator is that any evidence based an entire investigation of the scene that he was holding the bat at the time of the shooting he said no well he clearly had possession of it at some point prior to the you know of course so what forensic blood on the back that he laid on top of the twenty died but but but that doesn't answer the question as to whether or not he retrieved the bat after he's heard throwing it down to the ground if they doing something that is against what the police officer i saying the police officer would make commands that don't do that don't reach forty not go out of this whole thing happened in seventy seven seconds i understand and your argument here is that they could have said more than they said before they started shooting but you know if you're telling me that this whole thing went down literally in a matter of seconds you know that a jury is going to have to decide whether the officers acted reasonably or not and believing that their lives were in danger or that the lives of others were and at this stage you should be a dad innocent alike more favorable to my client we accept i am viewing me in a light more favorable but you're suggesting to me that just because it's on the tape it couldn't possibly have happened no no no the problem is there are some things that the witnesses say happened that i wouldn't expect to hear on an oral audio tape from the cell phone of mr randy johnson that was absolutely that the there's a dispute as to whether o'brien threw the bat down and was not advancing toward the officers and they had the officers had told him at least twice stop don't advance when the shooting occurred that's one possible the other possibility is that he threw the bad aside and he was not so instructed and he didn't have the bat in his hand when he was shot and the factual dispute it seems to me gets down to two things one officer todd who in his initial statement said i didn't see a bat i didn't see o'brien with the bat he said he could have had one but i didn't see one day and the fact that in the in the eleventh's second gap in the tape there is not a second command to stop don't advance whatever the words might have been which your clients said was saying it and everything else can be heard other in that description you current will ensure the commands to drop the bat were given before he dropped the bat you can hear yelling in the background that sounds like it's a police officer from far far away and you have not only kyle johnson randy johnson and both officers saying that they gave multiple commands to drop the bat but cure stanley hill house the life guard who didn't see anything because she was on a lifeguard chair and her back was to them her also hurt the commands to drop the bat now they ask let me ask you this are you saying that the commands to drop the bat took place before he dropped it the first time or the two plays after he picked it up on your view of the welsh my view of the evidence is that it was stated at both times but it doesn't matter whether it was said because i think as i said i read what the officers are testifying to they said bat after he picked it up well both yes right now i understand that they said drop about first time around he does drop the baton their contention is that he picks the bat up again at which point they shoot him after having told him to drop it my problem is although we denied the motion to play the tape here into the court room all three of us a list of those he had probably several times probably not as many of them and the what happens on the tape is actually after he picked it up again i find it inconceivable that we would not have heard that because we're hearing them say other words get down on the ground that strikes me as presenting a jury question at them at a minimum as to whether or not that is not materiel factual dispute as to whether it behaved but just see the whole the whole your whole case hinges upon in terms of whether another's excessive force whether he had a bat in his hand if he has no bat and his hand and he's standing there even though he's a fairly large man the shooting takes place awfully quickly you're in trouble if he has a baton is here and i think your officers have a very good defense so that the case really hinges on did he pick about again so i think this is very material i'm not what i said is an immaterial factual dispute is whether the command was given to drop the bat you hear them saying get on the ground get down on the ground get down on the ground three times he doesn't comply with that so let's look at the facts about whether he was advancing with the bat well we did everything but he did my point and understand that it's not comfortable point you don't want to agree with me the officers he picked up the bat again we told him to drop the bat there's no evidence on the tape that they told him to drop the bat if the jury says the officers are making that up making up the part about drop the bat the jury might well then and for you know he really didn't pick up the baton the officers are making this up how do we respond do you respond to that again your honor can i walk you through every every  witness who saw the incident so that he was advancing with them on the bat he says shots were fired if you go to supplemental excerpt of record five sixty eight he testified that he did it he did i'm sorry if you go to supplemental excerpt of record five seventy five he states that as he exited his patrol vehicle he heard shots being fired so he's not seeing anything yet he then looked toward the sound of the shots same as c r supplemental excerpt of record five seventy five he says the first time he saw timothy o'brien he was already going down the testimony from both randy johnson and hisle johnson is that after timothy o'brien had been shot he continued advancing toward the officers so he had been shot multiple times before he went down so what that means is that the first time officer todd is seeing the wrong about what he observed he looked at the officers and i don't recall him saying that they were still advancing  but i don't think that matters kyle johnson testified this is s c r three seventy nine kyle johnson testified that timothy o'brien quote kind of dropped the bat in the position while he was getting todd also very clearly testified that he ran toward the area where this incident occurred he had his eyes on both officers the entire time and hit he had his eye on timothy o'brien when he reached the body the bat was underneath timothy o'brien timothy o'brien dropped the bat under the ramada that is undisputed timothy o'brien is twenty six feet from the ramada at the time he shot and goes down so it is impossible for the bat to have been underneath timothy o'brien when he was shot and less he had been holding onto it so he was clearly in possession of the ba at the time he was shot it's physically impossible for the bat to have gotten from underneath the ramada where he dropped it to where he ended up going down on the ground unless he had possession of it how what there's no other explanation for how the back got there officer todd was very clear that he watched everything nobody touched him at the o'brien nobody put anything underneath him and he said he would have seen that if it happened and  so i'll move on to the fact that there can't hear timothy o'brien pick up the bat well that's not something that would be associated with the noise ok so i can move on from how you know i'm with you on that one ok and the the ryan eaton issue he testified at his deposition that it wasn't part of his job responsibility to make a determination as to whether there was a bat and timothy dropped the bat and at the time he shot he's forty feet from there or twenty six feet from there how did he get there he was advancing toward the officers and how did the bac their the bat was in his hands that's the only possible explanation is it and as you know officer todd testified that it's very possible that o'brien had the bat the bat was black that shown in the photographs and i don't know if your honour's know where that photograph is i did note it and my cous all the biomechanical expert sites to publish surrounding the key fact here which was was o'brien threatening the officers with the bat at the time that they both simultaneously fire there there is no evidence to refute that well there is some testimony from todd who says he could see everything clearly and he never saw that again officer todd did not see the events that led up to the shooting intimidate the o'briens hams at the time the officers made the decision to shoot and shot their guns and nationally he said he was getting out of his vehicle at that time he heard shooting he does announce that and it is in the record but i can't remember as i stand here right now but it's definitely part of the record on appeal as to when he arrived there and i know  i don't recall the exact measurement but both officers perceived it was a regular bat kyle johnson thought it was a louisville slugger regular bat this so i know that doesn't help about as long as a regular right and there's no dispute here that timothy o'brien knew these were police officers the evidence is abundantly clear he randy johnson told them he was calling the police he saw the police he said he's going to he and his intention he first that is on the record explanation why the bat would be moved mr kyle johnson testified that he saw the police officer kicking the path after the shooting so it could be an explanation w honor we have assuming this is the most into the violation on the on the fourth amendment killing of a life so let's be specific about what the evidence shows or not so we're trying to be very specific i haven't discerned that in forty only threat that you will listen on that tape for the five minutes is randy johnson threatening to shoot him between the eyes didn't did a lot of things but he certainly didn't touch anybody didn't hurt anybody other testimony by anybody in and around the pool that o'brien had been threatening and that all comes from randy johnson my understanding yes because initially went in there into the pool and he was told that he could not swim so he came out sense no also again your honor on page three fifty two of the record you told the officer that you so that you saw both officers shooting correct on the police clients do as well i'm sure you're very effective roger but when you're arguing in front of a court of appeals you're not arguing to a jury and smike colleague was going to make the argument but he couldn't be all right thank you so much you know you did a fine job thank you both sides for a good argument for f