warning to all of you my name is i'm representing mindy lo see who is the mother of brienne chart and she's present in court today i realize there's been a lot of cases and talk about shooting cases both in the media and in our published opinions both in the ninth circuit and with our supreme court but i would submit in this case and i really want to focus if i can on the first four shots by officers russian because i think it's very important to look at those independently that if you take all the plaintiff's facts as true and you take all reasonable inferences there from that this case should go to a jury both on the federal and state claims with respect to officers i should write and i and i really think you can parse out the officers because i think i was going to ask you that because as to the others at that point miss sharp car the honda is coming towards them yes it it's actually hits one of them so so what what i was going to ask you and maybe your argument suggest this to be the case isn't it a different case with respect to the other officers and officers yes and as to them don't they have a reasonable apprehension that they're in danger i think yes with one possible kaviak and now as you're trying to point out in  fired fired by officer vega the problem that we had with vega shot was that he continued shooting as the car was passing him well but it is then there's two officers after that and he  cited their policy which way we believe zeshan violated one of the reasons that shooting at drivers of vehicles is to scourge unless it's a true immediate defense of life is because you're likely to disable the driver which could chaotic so you correctly wanted to focus on session and so yes so again because the because casella is the is the eight hundred pound elephant in the room tell me and the supreme court seems to have upholding cases in which we don't find qualified immunity in this police shootings tell me what your best case is for the clearly established right i had a feeling you were going to ask me that question judge  i have a several cases because this is deadly force and because it in involves someone fleeing in this case in a vehicle i would submit we really go back as far as california highway patrol a two thousand and thirteen case from the ninth circuit that was decided and published according to some information i have about five months before this incident we also meet me at to tell you what my what concerns me maybe you can help me before officers russian fired here as i reconstruct the events your client have been somebody following your client with the lights on it's actually two police cars and that flashlight satyrs she'd gone down a street hit a curb turned around come back out hit a curb again hit a utility pole and then as officers  russian approaches the car from behind she's backing up towards him he may or may let's assume for purposes of this case that he could have gotten out of the way do all those events that occurred before the shots here distinguish those other cases because most of those are just somebody's fleeing or somebody wanted to shot someone i would say part of the distinction and no i would say no and i would say this is not a high speed pursuit as we've seen in some other cases even talked about by the supreme court no evidence of threats or weapons i think what's most important i think the record fairly clear that before she hits that pole it would have been inappropriate to shoot and kill her  verde nobody should be fired and what i think's important and again taking all the reasonable inferences in favor of the plaintiff for purposes of this motion once she hits the pole and he some distance away towards the rear of his vehicle at first he sees the reverse lights come on he says the ten or fifteen seconds i think is estimates a bit long but ten or fifteen seconds passed between seeing the reverse lights and his for shot and so for him to approach the rear of the vehicle i don't really believe he did i think it's an issue of fact as to where he was exactly why there was an issue of fact the there's no expert testimony about where he was so the only thing in the record is his test i understand the expert testimony about the speed of the car and  was going to vehicle c twenty three to take cover that's what he said in his statement in his deposition he has i'm self more in the open but i think what's really important is he had noticed that the car was coming back there is evidence that the car only move six to eight feet which we think is very important i asked him how close did it get to him i don't know said ten to he said ten to something twenty feet how fast was it going i don't know i think there is evidence that that car only backed up six to eight feet because obviously it had to back up to continue to go and maybe more importantly i think it's more likely that the shot that hit her in the head was not one of the first two shots because i think a reasonable inference could be at some likely that after she was shot in the head she then would have been able to take the car from her nursing it around to drive so they did and that's why it's not that i want to ask you say thank you for getting there so let's assume that he heading towards the other officers is he justified then and she well no i would suggest both groups of shots by zeshan are excessive and on reasonable and certainly it should go to a jury on both the federal and state claims the first shots for the reasons we already discussed slowly backing up six to eight feet i don't even think he was close to being about to be struck and he clearly had room to get out of the way and he violated his own policy the next two shots by his own admission the vehicles pulling forward and that's that's what that's what i was asking it a vehicle does a u turn but the this is what's important your honor again all reasonable inferences in our favor and if you look at every part of the record the u turn happens after the two shots i know the defense wants to suggest that she was making this wild u turn and then that's when he fired those two shots but those two shots when you take the reasonable inference is in the plaintiff's favor happen almost immediately after the car started never once in this record did those two shots were also from the rear oh there's no question because he admits he shot through the rea windshield on those two shots he admitted that he is there was a slight pause between the two shots he claims he quickly said shots fired and we have four shots right right the first two through the back windshield the second two he says he shot through the back windshield and important he was asked a deposition did you look to see if there were any officers in front of the car around the car anywhere near yes did you see any officers know so that i think is very important to the analysis of the immediate threat because there was no one in front of the car he didn't see anyone in front of the car he looked so from our perspective those two shots are even more egregious than the first two and it's probably that she was shot by one of it but i think a jury can easily find that all four fish shots were excessive could you go back for a second to see things actions before the shot i mean  me from broken headlight run because what you would then have your honor you'd have a situation where and let's face it there's a lot of different reasons some good and some not so good most not so good and sometimes you know not well thought out that any person including a young person may not stop for the police turns out she's on unfettered methamphetamine right but again as although they tried to cite a lot of information in their briefing that was not known by the officer that as the time we don't think that's part of the analysis when you start saying there's lots of reasons why some but of course now with the recent yes so what i'm saying is that when that does not elevate all of a sudden it's ok to shoot and kill people and given the death penalty i mean truly i mean one of the things that i feel has been pretty clear in the law for a long time if you're talking about deadly force you're talking about something that should be an imminent threat of death or serious bodily injury and if it's not there or if there's facts that a jury may find that's not there then there's evidence to support the shootings excessive and based on that i'm sorry i'm just going to judge oliver i was just going to make sure that me before you your time is out yet you  felt there was evidence to suggest there was no threat to the offices and to the public that would justify the firing of those shots they got i think you want to address yes and then the other so let me take the latter first if that's ok judge oliver with respect to the other officers i don't think qualified immunity would necessarily apply to them but because the forensics was such that none of them struck her we decided we don't have to pursue those claims against them i don't think it's important because we were most concerned with the two shots that actually struck her and zeshan was the main one but let me address vega now i will agree as judge wits pointed out that a lot changes after those first shots and she struck in the head in a reasonable entrance the car may be somewhat out of control now because she's got a fatal wound to her head however if you look carefully at the sights to vegas testimony he stood in one spot which he clearly i don't believe or a reasonable inference as he was not in the path of the car because he never moved he says he was standing there for forty seconds but i think again his estimates long and i do understand judge your wits and to the panel that there were other people they thought that could be somewhere around but what bothers me most about vegas shots is not even this first shot per se necessarily but as he's continuing to shoot through the open or to the driver's window of that car as he's standing some distance away as it's passing by him without seeing anyone in the path of that car anyone about to be struck by that car and he sees one of the shots she sees her flinch so he was confident that one of his shot struck her and we believe that obviously the shot that struck the to the left shoulder those shots we think at least a jury could find were excessive and reasoned that point she'd already gone up on the curb hit a tree skinned i think officer someone's car or somebody's car a close call however in the supreme court tell us if it's a close call it goes to the no go as well cops not not necessarily although the supreme court has had a lot of things to say recently but not necessarily because again you've got to take it from vegas perspective they get says the cars passing me i don't see anyone in front of that i don't see anyone about to be hit i continue just fire multiple shots to the side of the car we again believe the laws clearly established and would be up to a jury to decide i agree what we now know is that these other officers say gee it was kind of coming my direction too but they didn't see that or know that at the time until we do we look at is subjective with the objective facts objective and that's the whole thing i think a lot of the officers is subjective they thought they were about to be run over but they're not in the path of the car they thought someone would be run over by the car but they didn't see anyone inspect so that's the issue i'm very sorry thank you all very much  driving directly in his direction as well as the direction of officer sal and that he knew at least one other police officer was behind him because during the pursuit an officer had given him the right away when coming around the corner on to eighth street so although he couldn't identify who specifically that officer was at the time he knew there was at least another officer behind him and in the path of sharpe's vehicle with respect to sergeant session he testified that miss miss sharp started to pull away he scanned the horizon he could see things in his periphery he knew that there were police vehicles positioned in the street behind him he saw her drive in the direction of there's evidence in this record that he fired as she was backing up towards a craft point we just have a bad driver a traffic stop we don't have any violence that's occurred towards anybody  and we have some case law that says if you can get out of the way you should get out of the way rather than firing so is he firing in self defense at that point or is he firing to protect other people it's both he's well it's in self defense doesn't the poster suggest that your first self defense is just step sideways well and that's the thing that the officer sergeant session also testified during his deposition that there was a vehicle to us left there was a vehicle behind him there were bushes to the right and at that moment he didn't have anywhere to go so to say that he could have he should have taken a chance and tried to run around the vehicle essentially the same thing we do talk about excessive force  level of force and the way they do it that's how an expert would testify that why the driver why not shoot the tires of the car i mean why do you go for the head of the driver well there is actually a policy says that the that an officer is not supposed to shoot at a vehicle in a manner that isn't intended to disable the vehicle and that would be a balancing act and chill person then shoot at the vehicle and disable the vehicle i'm sorry there's a policy that you'd rather have kill someone than  just the vehicle and disabled you know that's not that's not what the policy says what the policy says and i think that levels of escalating force correct correct that's not that that's not what the policy says and actually on the subject of the policies one thing that is  missing from the opponents view of the facts here is the idea that we do have a policy that's directly on point that's that's completely ignored it's policy three hundred four point four point one which says an officer may as here discharge a firearm at a moving vehicle or its occupants when the officer reason to believe that there are no other reasonable means available to avert your policy doesn't establish the constitution your policy may be evidence at a trial which i'm trying to figure out here whether or not there was a constitutional violation and if so whether there's clearly established case law so break down those four shots were off russian she's she's backing up towards him he says he fires two shots while she's backing up towards correct then she pulls away in a direction away from the officers i think it's east on eighth street but i i may have my compas toward the wrong way but she's turning to she's going in effect to the away from the officers and there's evidence in this record that he fires twice again into the rear of the car so what's the justification even if i assume that the first two shots were to defend himself what's the justification for the second two shots the residence is that she was driving toward she wasn't driving down the street she was headed north either he was shooting at that point to protect the people inside the houses the people he says he testified in the residences and the officers that he knew her well there weren't but again there were no officers fought in the direction she was going she was going she started away from the officers correct away he testified to that she started in that she wasn't moving in a straight motion she was moving in a turning fashion and so he testified that the direction of right and he may be right no jury may believe him but taking the facts in the light most favorable to the plaintiff in this case she was driving the seating was driving away from where the officers were and officers russian even if he was justified in firing the first two shots to protect himself fired two more into the rear of the vehicle probably the one they killed or if it is the justification for that simply that she may have run into a house or somebody oh yes sure they get yes that she was the neck or like any drunk driver or a no no absolutely absolutely not and it would be and listening here and i'm obviously you can you may have to shoot to protect the public  use excessive force use force to protect the public or protect officers but the notion that what she was driving fast down the street and therefore there was a danger to the residences i'm not sure about that argument i think one thing to consider in this case like this is certainly the speed at which she was driving i mean obviously she was driving at a sufficient speed to create the tire friction works that were at the scene and that sort of thing to sever a tree those sorts of things cause significant damage to police vehicles but in addition to that what we need to look at is the space where this incident occurred if there's a diagram of this and it is a very confined space even more so when you look at the number of police vehicles that are positioned in the street so it's not necessarily the speed what compounded the danger to the officers in this situation was the confines space that i mentioned with the focus on i understand your argument with respect to once he makes that turn and he's out of control and heading towards the cars i understand officers might have at that point a reasonable apprehension that they're going to be home right and what i'm trying to focus on the officers action at a point when away because it is it he personally saw that she was had she wasn't head in the direction just down the street where there was nothing in front of her she was headed toward in a turning direction toward homes and other vehicles and people positioned in the street that's that's the distinction here and i do want to add that there are cases that that stand for the proposition that in order to establish qualified immunity the department or the officers don't need to show point to a specific individual and say that person was in the path of travel it's sufficient that there is a reasonable threat to people officers who may be in the it has to be a reasonable belief yes and that's correct and we know here that there were plenty of people in her pet the path of trouble she narrowly hit missing two officers struck two police vehicle increase the danger to other people because that played a disabled person driving this car and that's when other things started happening she went into the pollen all that and and it's almost like that shot exacerbated the danger it didn't decrease the danger i understand that point but in terms of whether the fourth amendment claim or there was a right that was clearly established and whether  diagrams and we've seen it appears that at least for some appears of four shots go to the rear of the car correct so if they're going through the rear of the car how can she be headed towards the other officers at that given where officers action was positioned where he she is pulling away that is his his the direction that he fires that's how he strikes the vehicles from the rear but you have to want is not needed towards the other officer no that's not exactly not exactly true because she's in this in a turning direction she's not traveling straight so from when when she when he fires he's firing from where she takes off from the location where she stops puts the car in drive and takes off again but it's not a straight path down the street she's heading and turning into a residential area and the direction of where the you know could potentially incapacitated her i just want to wanted to reiterate that the the that allegation is essentially immaterial because of the the requirement that under graham that cases of excessive force like this be judged to the perspective of a reasonable officer without the you know the benefit of twenty twentieth's hindsight so the rest of the officers who were behind him and fired after sergeant session had no reason to believe that she was incapacitated the threat remained the same issue this is a wrongful death case i'm sorry this is a wrongful death case it's i believe that there was a state claim for wrongful death but it's trying to figure out the shots that missed given that as the shots hit are we concerned with the shots had missed in this case no i believe that all of the shots were were were found within within the vehicle this was a work and it would concern with the two shots that actually struck the scene well from that from the department's perspective even those those particular shots were  know whether or not they were justified in asking a separate question we are only two shots hit correct miss and this is a case in which he was killed correct so are we really worried about the shots that other officers fired that missed no i know whether they were