but i get into the details an overview of this case is that mr trawled was inside his home at three o'clock am when the police came to us home two police officers entered his home as a they approached the home the only other person living there a female girlfriend who was heard by neighbors yelling there is no god and that was a domestic call that was received by the police and possibly gunshots were heard the police are approaching this house despite the fact they don't have an address and are assuming it's the right address as they're approach the house miss bank stand exits the house closes the door comes down and tells the police offices everything's fine we don't mean shit at which point offices smith police officer and there's a video in this case the dash cam video officer smith standing to the right side of the door slaps the door open and it appears inside the room and season the deceased james adam standing and both offices agree that mr truong is standing there were his arms crossed that he has no shirt on that he has no gun in his hand that he doesn't have a weapon on him that he's wearing a pair of blue jeans and that there is apparently some type of a black nylon empty holster on his hip and that the police offices made entry into his home we don't believe that there was a probable cause for entry into the home at that point for two reasons number one of the district court pointed out that the law was clearly that police officer does not need a warrant unless there is aid required inside the home or someone is under threat there were only two people in the home and the only other person besides the deceased who was present was outside with the police behind them and henri review of the video reflects of it this woman bankston obviously has some type of a relationship with these police officers they don't take her like a suspect they basically receiver down the steps and they  only a second or so weather and time her back and tell her to stay put as they make entry into this man's home and we believe that the fourth amendment was created to protect people from  their castles that dwelling at three o'clock am in the morning and this gentleman unfortunately ended up dying as a result of the interaction as a police officer and of the house the video depicts what happens at that point and as of the trial court correctly pointed out we agree with the there when there is video evidence a greater weight to the video should be taken from the scene however  weighs the evidence of everything that occurred after the police officers leave the video and i inside the house and are not viewed and despite the fact that the entire confrontation with mr truong cannot be viewed factual conclusions are rendered and there are certainly not rendered in a light most favorable to the nonmoving party and no inference is a drawn in favor of the non moving party in fact all inferences are drawn in favor of the police according to the police offices one police officer officer smith says that officer broussard well back up a second they tell him to that the l e v screen on the phaser reflects that it was not fired until thirty minutes after the shooting and there are how taser wounds on mr truong has body and therefore we believe clearly the habits that should be drawn in hands they claim he might have been able to hold a weapon in his armpits i don't know how but they also say when he turned his back to me showed his bare back and dropped as arms and clearly could not have been farmed at any point there and ye officer smith is one bit in the leg by that shotgun blast these are all and francis and conclusions drawn in favor of the police whereas we believe that the facts show it differently in fact we know the facts show differently there were five shell casings taken from the scene of the shooting of mr truong haas home that was fired by officer broussard officer broussard claims that he it's physically impossible and the ballistics don't match that this man could have been in a headlock on the right side of mr draw and began firing his gun and struck him because the only bullet wounds  wounds are in his back pretty close together but all three wounds reflect a different distance of five shot to the left side reflects that it was fired from a further distance than the other two shots to the back because the stipulated pattern of the gunpowder on the wound was greater to the left side than it was to the ones on the back there was a gunshot to the right side that showed a fairly launched up limped out a smaller than the shot to the left but there was also a gunshot to the left side that shows a slit in the wound with raised abrasion collar indicative of a gon be in place right up close to the flesh when it was caliber projectile and as he's handcuffed and his hand cuffed in these photographs and where his arms are lined up and you can see because the blood pools on each side after one person does a blood six a lower spot of the body and where the arms are apt the skin is much clearer and when the arms are in that position where they were as handcuff the grazer wound across the left and fell to the ground according to officer smith both of them were on the ground in an audio statement he gave to the state police he stated both officers were on their back inside the home and  statement he says he carried a gun outside but that's not as great an issue considering the video contradicts the book and reflects that officer smith grabs a hold of the barrel of the shotgun and it down the steps of stairs of the house there are five shots that are fired by officer broussard inside the house of the five shots there are several that are completely on accounted for in the district court's ruling or by the defense or anyone in this case including the coroner the shot to the left side that i mention there is a shot fired through the shotgun but point out respect for live inferences should be drawn in favor of the evidence there is a bullet in the stock of that shotgun and pieces of debris there that reflect that one of those shots hit that sho other mark in the house where that bullet could have gone is in fact the shock that struck officer smith's right leg he gave audio statements to the state police at the beginning of this case and off the floor that he was within five feet of that shotgun he has a clean womb through and through his leg had he been standing with them for five feet of no shell fragment no pell anything yet removed from office minutes later no sir not the medical reflect that he had a through and through on it was one one one clean through his right leg and that that accounts for the fifth shot of the shell casing fired social media you did yes we have social media evidence prior to a subsequent to that i believe it was subsequent to she is a nurse if she she worked for a doctor as opposed to being a nurse she said she was a nurse but the evidence close you just mean that the lack of an engaged is that you mean there's a discernible gap so in other words to the extent the argument been made that the door was a firm belief close completely in one of the office for example had to manipulate a door handle or anything there was i also take issue with mr spears recitation of the timeline of the interaction between the officers once they're inside the residence there was there were commands for mr truong to show his hands it's my prescience in that he made a very fleeting motion which is i can to describe it so they still would not help to determine if mr truong had a pistol on his person he did indicate was noncompliant with commands he walked away from the officers and this is all in tight quarters and would disagree with the mr spears representation of the medical records it was a i mean it it's the size of the wound indicated it only could have come from a shotgun in the met the surgical report indicates that deputy smith conveniently omitted the fact that there was testing done it's it is admitted that the taser unit was not synchronized and so that there was a possibility of time draft which at the time of or argument at the trial court level  spears colleague admitted that it's inconclusive that there's certainly no way to tell when the taser was actually discharged but again turning to the timing of events if there was clearly there was there was there was there were in motion they were not static he did say that mr trost side was pointed towards the floor and nowhere does it say that he was on the floor as mr spira suggested and the coroner was specifically asked about that shot and he said that that type of shot is certainly possible so in terms of anyone commenting upon whether that shot was possible the coroner said that it was its deputy broussard's testimony that he did fire that shot once he was placed inside a head lock and as is your honour's now from the record the testimony is that once mr trenholm was shot the first time he was on top of the shotgun this is another important thing that is clearly depicted in the video deputy smith after he's been shot through the differentiation for some others cases that have been decided by the fifth circuit as to whether the propriety of shots fired after an initial shot once the subject is face down on the floor mr spears from was involved in another one of these cases but in this case the testimony is clear and on unrefuted that mr truong was still struggling for the shotgun presumably still had within his power to use the shotgun and provide further harm to either the deputies or ms bankston who was inside the residence at the time corner was also asked about that he said he was certainly the opinion that mr truong could have continued to offer resistance and perhaps use the firearm again at the time that deputy broussard far the last two shots  this issue about missing bullets i'd respectfully suggest that's never been briefed or discussed at any point before today so i'm certainly not prepared discuss it because this is the first time it's been brought up on appeal as for the alleged report the panel's attention some recent united states supreme court decision specifically casella versus he's in district of columbia versus westby because the supreme court has provided some very recent guidance about what should be considered when there's a call there's an qualified immunity purposes a legal principle must have a sufficiently clear foundation and then existing precedent it must be dictated by controlling authority or robust consensus of cases a persuasive authority that is not enough or that it is  existing precedent there must be clear enough that every reasonable official would interpret it to establish a particular rule the plaintiff seeks to apply the magistrate hannah in his memorandum ruling which was made part of the appeal record as follows this court also finds that there was no clearly established statutory constitutional right that gave deputy broussard fair warning that he could not use deadly force under the circumstances where one in response to a domestic violence call which shots fired to the victim a scene with an empty holster and no sign of the weapon three the victim refuses to follow instructions and retrieves a shotgun which discharges after multiple attempts use non deadly force have proved unsuccessful in for the victim does not relinquish the shotgun without resistance and of course the fifth circuit has also found that there was no excessive force used insincere come stances in which the facts are very similar to the case before us that there was an imminent threat of harm that still could be posed by the individual with the weapon there's been some issue about the timing of the officers interaction what's inside the residence and as everyone has to agree that we can only see the action in the doorway but i would respectfully suggest that  the narrative that was provided by the deputies as your honour's know things happened very quickly in these situations officers have to make split sessions a second decisions based on their training and it was the it was the on i mean it's there were only three witnesses who were sort of a testimony to offices about what happened that well there is but there's no inconsistency about the shotgun being discharged first there being a struggle for the weapon in that i mean control of the weapon in use it again so in of course the you know the excessive force and else of course is limited to what the officers revealing perceived at the time excessive force was used and so i w when the time all three shots are for fired they were close quarters there were two deputies and miss banks and mr trotter had the shotgun he'd already shot at once he did enter deputy smith shot him through the leg and then he still had control of that weapon and so entry and we know after the fact that most banks didn't mr truong were the only two occupants of the house the officer said no way of knowing that and of course there is also a consideration an officer can give that the suspect who may have a weapon may in fact harm themselves there's been numerous decisions by both the couldn't supreme court about that and so that so and so i apologize for my focus on the door issue was not suggesting that that we weren't taking up the issue of the presence of exigent circumstances that's precisely what i did or also wanted to bring to the court's attention that for example that we discussed that or me ok magister had also had this to say about the entering the house the officers did not know the location of the handgun that fit the holster although miss banks attempted to assure the deputies that everything was alright when they encountered at the door the house is reasonable for the deputy suspect that mr prohack may be intending to harm ms bankston or himself once they saw inside mr tr refused to show his hands it was reasonable for them to enter the home in order to attempt to diffuse the situation and then in a footnote that that decision i just sent reference for you brigham city utah versus stuart decided by the court  also provided a timeline with his memorandum opinion saying that based on the you know the uncontroverted testimony that of the deputies is uniform in response to your previous question about the order in which any weapons were destroyed minutes clearly found in the audio of the investigations taken by the state police the total amount of argument that was presented here with the exception of the entry into the home is dealing with things that happened daily the reflection was thirty minutes or more afterwards and if you look at the picture of the taser inside the home the problem is elaine and they appear bent on a hardwood floor and all the poor dead is attached to him when they fire this piled up in a pile as if it was piled directly into the ground where it just stayed there's no indication that mr truong was shot at all inside the home the presence of the pistol that they're talking about that might have gone in that holster there are photographs o pistol sitting pristinely under a cushion on a couch inside that home and in a photograph right next to those is a photograph of a living room with that furniture turned upside down so we've got photographs of the inside of this home in good condition with the exception of mr truong his body and blood and then we've got photographs of the far show flipped upside down and there's no way a pistol could have been hidden inside of that evidence or inside the furniture as it appears there is a lot of facts in this case that indicate that the emphasis should have been drawn in gives different versions of what happened between the audio he gave to the state police and his deposition in fact he gives multiple different versions of his own account saying that he shot into the torso of the gentleman and then after he hit the ground he shot him in the back and a review of the evidence says a photograph of the back of mr truong how the reflects a boot print on the top of mr truong was back and it was not brief look because we didn't see it but we have seen it since and it is in evidence with this court in the record a boot print on his back which reflects that apparently a police officer stood on top of him and fired into his back a description that fits there's a reenactment that officer broussard does standing in front of the patrol cough us period officer when he indicates that he threw him out and then he reaches f indicates that mr truong did not put up any threat what and threaten anybody that he was securely in his own home where no one was being threatened that he didn't need aid he was a as home and the facts regarding the taser the lack of wounds to him when it was fired the disarray of the furniture and one picture of vs it all being pristine and another raises serious the matter on today