arguing both yes your honor in fact that was one of my plenary issues that because we're arguing both i'm just going to interweave them in my argument not argue two separate issues with an american may please the court this case really boils down to whether a plaintiff in a federal court case can alleged facts in their federal court complaint that contradicts facts established by in another court and that if he does if the federal court is that bound by those contradictory facts and doing a qualified immunity analysis and i'd submit to this court that the answer to both of those questions is no the plaintiff cannot plead facts that are contradictory and essentially force a defendant or the court to be bound by those contradictory facts in analyzing qualified immunity and providing that immunity to public officials at an early place in litigation here we have an individual this is mr holloway who pled to and was convicted of a felony violation  and that's violently or by threat or use of force resisting for obstructing arrest and what interest this started with mr holloway going to pull a mary hearing where he was initially charged with a violation of two forty five a d one that's an assault with a deadly weapon on a police officer during that preliminary hearing the court found and held mr holloway to answer finding that there was probable cause that he did in fact assault a police officer with a weapon in fact the transcripts from that preliminary hearing establish through officer horn's testimony that he pointed the weapon at him and officer horn believed that he was going to shoot him there with the officer's testimony that's correct your honor it was court ordered well that was the only testimony for that interaction hearing on it there was no testimony by the defendant to to dispute that there was no testimony by any other officers no i think what you're saying is that just the morri taken excessive force right that's correct your honor in fact we made the hack we have three argument in the trial court as well in addition to the qualified immunity argument however since the qualified immunity argument is the only one that's immediately appealable on the basis interlocutory appeal that's why we're here on the qualified immunity the qualified immunity would essentially do the same thing which would allow us to have immunity for officer horne obviously want to get rid of all of the causes of action whereas the humphrey would but that gets rid of the one nine hundred eighty three cause of action which deals with the majority of the issues here so because of the rulings on the preliminary hearing and then the further more the per the plea in sentencing where holloway's attorney stipulated that there was a factual basis and the court found that there was a factual basis based on the preliminary hearing where officer horn testified that holloway had pointed a gun at him and that is the reason why he shot him but we don't take judicial notice and we don't have or considered this testimony would your argument be the same it would your honor attempts to be chirp prevent an executive officer from performing his duty so do we know what the factual setting aside the documents that you want as the take judicial notice of the we know the fact trial court now has looked at those and has made a ruling which is the basis of the second appeal so i do think that it's something that the court can consider and it's part of the appeal which is why we're here but even assuming your honor that we don't look at the preliminary hearing or the pl sentencing transcripts you still have the docket as to the penal code sixty nine and people look at sixty nine as this court is well aware is very different than a p c penal code one forty eight it's not simply resisting it's not simply obstructing it's doing so by threat or force and use of violence so the any any which way that you look at these facts that have been alleged in the crimp in the federal court complaint by mr have previously threatened the office generally your honor i might agree with you but here's the problem when you look at the federal court complaint from mr holloway here's what he says this is excerpts of record page one thirty seven he says the factual basis for plaintiffs conviction occurred one plaintiff ran away from porn and when he pulled a gun from his pants pocket to toss it over the fence once plaintive stopped running from horn and had thrown the gun over the fence plaintiff was no longer resisting and so he himself has established for whatever reason that those are the acts that led now tried to buy into the defense or the court on this factual basis on this factual scenario for the qualified immunity analysis and that's exactly what the judge said that's exactly what the statute says c sixty nine no your honor because he doesn't say that i attempted to do any one of those things either sure but the conduct if it doesn't meet the elements of actually deterring an officer performance of his duty by means of threat of violence is an attempt to beat her the officer by means of force and violence i agree with your honor it does not matter whether it actually detracted or obstruc it may have just been an attempt to do so but that's not what he claims all of the facts that he's alleging in his complaint do not even amount to an attempt because he simply says that i ran away i pulled a gun and i threw it over the fence that's paragraph forty seven of his complaint that's contradictory to his complaint to his criminal court plea and because that contradicts that essentially is what judge snyder focus or qualified immunity analysis on and that brings me to my next point which is that if there is contradictory evidence in a complaint the court is not bound by that contradictory evidence in doing the qualified immunity analysis it can look at factors outside of that the facts the judicial a noticeable documents outside of that to make that determination and that's where the certified criminal docket the preliminary hearing transcript the planned sentencing offerman to play and since the motion since after that motion to dismiss the court has now considered that and still reaches the same wrong conclusion the well but what  sixty two point one proceeding with that there's zero other evidence right there was elicited at the preliminary hearing that's consistent with the plane's allegations and then recites some of those flak that's actually not correct your honor because if you look at the preliminary hearing transcript the only person who testifies as to the incident of the shooting is officer horn the other three individuals who testified  was not there during the shooting that's why that that portion of the transcript that judge schneider took from the preliminary hearing is actually in cracked it actually says he was not there during the time of the shooting so the only test for you where you were after the shooting right that's correct or and so the only person who was there to establish what happened during the shooting was officer horn so the testimony of officer jones well  because this is what officer jones saw after he came onto the scene after officer horne had already shot holloway after holloway had already pointed the weapon because when you look at the preliminary hearing transcript it's very clear that officer jones was not there to witness the shooting itself or the fact that holloway had pointed the gun at him which necessitated officer horne shooting this section that you're reading from it so it's a little unclear as to why that's broadened there so it's not that it's disputable it's that it's legally insignificant when you look at the facts that are all there when you consider them all it's clear that a qualified immunity applies because you have honor those are i can tell you from what i know those are in the front but that's not part of the record your honor so as part as far as the court knows it does and to establish one of the record establishes where the shots not  according to officer horn's testimony all of the shots were to the front of the body now there's no medical coroner testimony or anything in there because that's not part of the record but the only thing that we have as part of the record is officer horn testifying that notice of appeal from the denial and file a motion in the appellate court to consolidate the new peel with the existing appeal and it directs us to the next section for the from the denial of the few that deal with the same exact issue because it's attached to another interlocutory appeal and that essentially if we didn't deal with th but it doesn't reference any of the other sites but i can let you know based on the review of the medical records none of the socks were to the right now i would first like to address the issue of the ports denial for written indication would also pose judgement orders orders entered after found judgement are usually appealed one this is an order me obviously after judgement right well the appeal with regard to the written indication with regards to the motion to dismiss told the six motion that one day can appeal with regards to the denial of qualified immunity it's been clearly established you could file an interlock atory appeal with regards to denial of qualified immunity that's been held to be an exception to the final judgment rule the denial for written indication is an exception to the final judgment rule procedurally what the defendants would have had to have done when the court denied when the court issued the order denying written indication under twenty eight u s c twelve ninety two b they would have had to petition the district court to certify this order so they could submit it as an interlock atory appeal because it's not in the media only appealable order and the remedy that they're given is to therefore that appeal should be dismissed further not only is it not an immediately appeal a border with regards to the pullin area hearing transcript and the police hearing transcript first of all the only reason those were never submitted to the district court for the motion prior to them bringing the motion to dismiss and it's indicated in the briefs was a lack of due diligence on behalf of the appellant this preliminary hearing transcript was available well in advance of their due date to file their motion to dismiss but it was only for a lack of due diligence that they never attempted to obtain that these transcripts prior to having a file their motion to dismiss the only did it afterwards no i heard first of all response to the fact that the city says that you're bound by the preliminary hearing in a state court where the fact that reported there gave cards for the play were basically the offices testimony and the court found that was sufficient factual basis for the pl is what your response to that being what you have to counter i understand that is a hurdle in this case but i first think it's a point important to point out as the ninth circuit held in the cunningham v gates case that's a two thousand case out of the ninth circuit the ninth circuit specifically held i don't know if you wrote that it didn't as the other one but the ninth circuit specifically held in that case and then there lok at torrey order denying a section one thousand eight defendants assertion of the heck defense is not immediately appealable unlike immunity rights which are lost if the case goes to trial the order denying dismissal based on heck can be reversed after final judgment without departing from appellant's just argued that somehow this is all intertwined but bonafide immunity exactly but qualified immunity could be appealed but the heck issue is not immediately appealed because even if you reserve appealing the heck issue until after the final decision it doesn't depart from what's holding your purpose and that was specifically what the ninth circuit held and cutting hand the gate so are putting the concord qualified immunity they specifically addressed qualified immunity and what they said is that is not the same as qualified immunity what they said heck defense unlike the munity rights which we're talking about qualified immunity when they reference immunity rights unlike community rights which are lost that the case goes to trial at obviously no qualified it immunity is an immunity from soup and immunity not to have to stand trial and the ninth circuit specifically said unlike community rights which are lost if the case goes to trial the order denying dismissal of hec based on the order denying dismissal based on hat can be reversed after final judgment without departing from next holding or purpose so really for purposes of this interlock and they took to distil notice that he pled guilty to section sixty nine of the penal code that was it the none of the transcripts of either the preliminary hearing or the police hearing are part of the record they were part of the record that the district court had and my understanding is the ninth circuit is here to determine whether the district court erred in denying officer horn qualified immunity or the record was limited to the district court to the first and then to the complaint and to the fact they took  only that he had pled no contest to p c sixty nine now this is a motion to dismiss assuming are facts to be true the factual basis for the criminal conviction occurred prior to mr holloway being s mr holloway was in a brief foot pursuit with officer horn keep in mind officer horn is by itself during this brief pursuit during this book pursuit mr holloway pulls out a gun from his pants in the presence of officer horn which causes officer horn to stop and pull out his gun by the way it stops officer horn in his tracks then in the presence of officer horn mr holloway pulls out that gun and then throws it approximately fifteen feet over a fence if we press pause into that specific point in time we have satisfied all of the elements of t c sixty nine this goes back to the heck argument which we say isn't appropriate for this particular point anyways but let's just address it because it's the elephant in the room c sixty nine any person who attempts by means of any threat or violence and this was employed sized in the district court when they sided p c sixty nine any person who attempts by means of any threat or violence to deter prevent an executive  an executive officer from performing any and for performing any duty imposed upon such officer by law or who knowingly resists by the use of force or violence such an officer in the performance of their duty here the threat that occurred clearly if an officer is chasing a suspect by himself and he sees that suspect pull out a gun from his pants anybody is going to be threatened and the district court shot down their argument that that would not constitute a threat because it's obvious you think of the who pulled the gun out from his pants you going to be threatened by that into argue to the contrary simply without merit now going back to the issue of qualified immunity and whether the district court committed error in denying officer horan qualified immunity it's to the sauce year two prong analysis first prong was a constitutional violation let's assume the facts in the first and then the complaint to be true you shot an unarmed guy in the back when you see his hands extended  ok and the officer also sees that this individual's that that mr holloway this facing away from the officer that his hands are extended to the sides and that his hands are visibly empty that's very important he's not moving he's essentially given up at that point if you shoot an individual under those circumstances it's clearly the constitutional while ation it would be hard to argue otherwise now let's talk about the second part of the source of your analysis was that right clearly established i argue that think there's any doubt that that would be a violation i think it's serious question there's something different here is that what the threat occurs when horn is chasing holloway and horn removes that gun from his pants that's part of the threat which causes horn to stop chasing after him that's another part of the threat when he then with the gun in his hand tosses it over the fence that still could be constituted as a threat yes the gun in his hand it's still in possession but once that gun has been flung the proximately fifteen feet over a fence and mr heller way makes absolutely no attempt to go retrieve that gun that is what we're saying would constitute a threat and it was and after he threw the gun over the fence put his arms to the side showing that as he has nothing in his hands you know you're not contending that any other threat occurred prior to pulling out the gun the only threat that what occurred would have been when he was running began the process of pulling out the gun so it would have been before he pulled out the gun if you're running after a suspect and that suspect reaches in his pants a lot of cops are just going to shoot him right then and there because of the threat that is threatening chasing a suspect and having that suspect reach into his pocket into his waistband that would be a threat seeing that which is the proper standard on a motion to dismiss he wasn't shot until after that until after he showing the officer i got nothing in my hands each facing away from them and one of the other things we want to emphasize is some of the shots occurred after he already went onto the ground so not only did you shoot unarmed guy in the back you also continue to shoot him after he went to the don't know before that is in the complaint so what ends up happening if you prevail in this case is they'll be some discovery confident to do that you raise a really interesting point your honor the final judgment rule was intended to prevent piecemeal appeals one potential we could have your we could have potentially four separate appeals we c have an appeal of a motion to dismiss we could have appeal with the written indication we could have an appeal for an m s g then we could have an appeal after the final decision that is the exact type of piecemeal appeals that the final judgment rule was designed to prevent not going back to what you said yes you're right we're going to have to eventually address the preliminary hearing transcript and we're confident to do that because the polyphony hearing transcript as the district court pointed out in their orders both in the motion to withdraw and the motion to dismiss what not just in the motion for a written indication the district court pointed out which we have pointed out to them as well there's testimony in the preliminary hearing transcript and in the plea transcript that supports our position for example officer horan testified he ran after mr holloway and how we pulled out a gun ok horn's partner who arrived just after the shooting arrives on scene sees the officer horn pointing a gun at holloway and says hey he just tossed the gun over there over the fence if you listen to warrants testimony he shot him while he was pointed the gun on him which doesn't make any sense because if you shot him while he's pointing the gun at you why did you not shooting from the front and if you shot him while he's pointing a gun at you why are you telling your partner that he threw it over the fence and then the state's friends it technician testified during the preliminary hearing that we found the gun about fifteen feet from mr holloway had been shot over the fence those are all consistent with the allegations in the first amended complaint so we're confident when even the polyphony are hearing transcript and even the plea transcripts are submitted into evidence when that evidence is viewed in the light most favorable to us we're still going to prevail and be able to establish that the facts which constituted the police the conviction occurred prior to the use of force and those then the use of force is a separate set of facts separate and apart from the facts used to establish the conviction for the p c sixty nine one thing i want to point out which completely is a red herring and has absolutely no relevance crimes that mr hollow didn't plead guilty to if you was charged with two forty five with murder whatever he was charged with if he was never convicted of that you can introduce that under attack argument he didn't plead guilty to it you can't use drugs that he was in found guilty of against him it has  code under twenty eight u s c twelve ninety two section a you can only appeal final decisions and unless there is an exception of a case in this particular type of order no i have i research i've never seen a case on this specific type of order but there is a plethora of cases that state you could only submit an interlock atory appeal of there's an exception to the final judgment rule or if the district court certifies the order so you c mad for one minute to address a quick point that i think should help there are some of these issues something that mr vallance well brought up as a red herring which is this idea of these other crimes that he's not convicted of i'm assuming he's referring to the penal code two forty five b one the reason that's relevant and judge when this goes back to your question if you don't even if you don't look at the preliminary hearing or even if you don't look at the plea transcripts you do still have the criminal court docket which establishes that the court found there was probable cause on the penal code to forty five d one which which was the assault with a deadly weapon on a police officer which indicates that there is something in that trial court's record that established that there were facts that mr holloway committed an assault with a deadly weapon on a police officer so even if you don't have those underlying transcripts  that you have the fact that the criminal court found that there was probable cause to hold him to answer so for those reasons and all the other reasons have argued your honor we would submit thank you