good morning your honour's may it please the court angela powell on behalf of the opponents at this time your honors i'd like to reserve three minutes of my time for  that the court the district court found her driving to be erratic she drove into oncoming traffic putting others at risk of collision injury or death surely was ultimately forced to stop by a still did not stop the officer still did not use force deadly force at that point well it is if they use deadly force when she after the guy she hit in the back ran that's right that is video she was turning out and the officer you can't really see it really well but if you there are real issues a genuine issue of material fact and the the video showed that she was turning out is if the jury could decide that she was trying to get away again as opposed to creating a danger for him your honor there were three officers who fired that day the st some video i would submit it's excerpts the predicate to fifteen is taken from the perspective of a customer at the chevron gas station doesn't capture with the officers perceive that day the officers all perceived her coming toward her and coming toward each one of those officers and then turning her will i believe the chevron video which at two minutes and thirty five seconds excerpts of record t nineteen give you a better perspective even though it's still not the perspective of the officers that day each one of them from a different vantage point officer guy over officer naki i'm an officer saying to each perceive something her you know i know it's difficult to determine who shot st it appears that they are fired simultaneously which gives rise to the issue in this case they are perceived an immediate threat at that same point when miss shirley accelerated  came toward the officers each with a slightly different perspective of who she was going to get and at that point your honour's the officers knew that if based upon the force that if they did not use deadly force to can see in the video approximately six lanes of traffic it's two hundred and thirty in the afternoon it's heavily populated with occupied we had goals the concern was that they had continued to let  everything from the officers perspective a reasonable police officer on the scene not in hindsight your honour's would believe that mr lee presented an immediate threat it seems like officer along didn't act like he thought she was a danger that his behavior on the video is really odd to me because she backs up in his car maybe that was on purpose or maybe it wasn't but then he gets out and he basically runs right where she could hit him if he thought she was a risk i don't understand what that's about do you can you explain that at all in your honor i would try the distinction between the false and the idea and the chevron video because what captures on the chevron video is when officer alon is running out of his bit better than the st some video does for whatever reason the folsom video perhaps because he was behind a barrier doesn't show when exactly officer along was running away but he was in fact running away from this surely because it looks like he's running like right by her instead of running away he could've gone backwards but instead he goes forwards right by her car right by where she could hit him it's still i believe to the left of where m was she was backing up and he you know it's a split nd that this happened so he is and you know best effort to try and get away probably because he sees the other officers with their guns drawn trying to get out of their line of sight so he officer was at risk and i guess it would really make a difference who shot st and i can't really tell you that i don't know what if they would testify if that's in the record but it seems to me the officer who is greatest risk was the one that was a print of the car and it's really hard to tell if he was at risk because she turned i mean i and that and that's why i think maybe there's i wondering if there's a genuine issue of material fact no your honor because the office i don't know if the court is referring to officer levy he was seated in his car getting out of his vehicle as initially turned to the left and then took his vehicle up the chevron gas station or if you're referring to officer ron who didn't have an opportunity to draw his weapon at that point you're and you see him running but the other officers officer well had not only thought he had a taser so the other officers who all had their weapons drawn at that point use deadly force because of the exact threat that they are perceived was what was the threat because the what i perceived to be the threat was the officer who was in front of her vehicle after she backed up then she's moves forward but i really can't and moving forward i don't know if that there's a question of whether that occur it's a risk for the officers your honor again i would direct your attention to the chevron video but again what the officers are stealing tell me in that chevron video which establishes as a matter of law that the officers were at risk and ones you see her vehicle driving toward those officers and your honor it's not just a matter of where those particular officers at risk their belief their reasonable belief was that if mr lee continued to drive past them or through the chevron gas station she presented a deadly threat to the other citizens of torrance when you look at this there it doesn't seem so automatic that  what would happen here with it he acted reasonably for two reasons your honor one the officers did perceive a threat and any reasonable police officer in the district court found that there was a threat the question is should they have perceived threat before they shot her yes and you have to tell us the facts that want to stablish that as a matter of law certainly what the district court found was undisputed was that given her erratic driving pattern prior to when she drove forward toward these officers the officers had a reasonable belief that had she continued to use their drive toward them drive in any other direction your honor there were members of the public who are at risk in public and they and the videos but if so it seems to me that had to be the officers who were at risk and if they perhaps they were right maybe as a matter of for the jury decide but then the question is whether she should have been stride and i think something like twenty five twenty five bullets your honor the individual who was taking the video was at the chevron gas station his life was at risk there were other patrons inside that gas station whose lives were at risk and then you can see from the video the numerous cars in fact we have misplaced testimony numerous cars that are stopped at that intersection there's lives  well you know but the district court said well yes many of the undisputed facts would support a finding that the officer is reasonable we believe that surely posed an immediate threat and then the district court says much of the disputed evidence however see what's walk where the district court got that wrong where the district court got it wrong your honor is because the court instead of looking at the facts he looked at the intent or what lee's actions could have been perceived to be from a shirley's perspective that i mean he outlined several different things that the is noted in the record whether miss shirley was mentally ill he said whether mischka surely was that's something for the jury to decide because it's really from my perspective i'm not the jury and i and i think judge schroeder has a very good point is if there's a possibility she was moving slowly as i see it and i haven't a juror in a long time but that certainly would be something for a jury to decide because that's a factual issue your honor the factual issue is that she was driving slowly but she was driving to these officers quotes of help that driving a car is a deadly weapon regardless of the speed at which she was going that she was threatening the lives of those officers and the other members of the public what the district court did in this case was he took what could be the subjective intent of mr lee and said that that created a triable issue there's no trouble issue as to the facts as to whether or not miss shirley was headed toward these officers turned her  than drug the other officer officer louis into that gas station with her where there were several patrons and then on to it had been able to continue on on to supposed little boulevard the honors i also want to address  remaining time the district court in another area not just with respect to the reasonableness of the officers conduct that day but in denying qualified immunity and we know that that's already been addressed by this court earlier today and i want to touch on that the district court in this case did exactly what the united states supreme court commanded courts not to do the district court and now it says of the nd prong of the qualified immunity question consisted of the following this is what judge or terrell found that in reasonable excessive force that results in the deprivation of life is the most egregious the th amendment violations and as such is clearly established under the law here is exactly what the united states supreme court cautioned the courts not to do this year the supreme court reiterated that quote some does not define clearly established law at a high level of generality especially in an excessive course force case and you know her i submit to you that is u lasted five minutes and officers were like here unable to successfully intervene lots of all times and when the palm of car was finally pinned in the driver as here with mr early refused to surrender collided with a police cruiser attempted to escape that was the court's findings and palm off collided with another police cruiser and that officer then fired three rounds into the car the driver then maneuvered onto a street st seen an officer to step aside to avoid the car as the driver continued to flee two other officers fired twelve more shots but i'm like the case our case your honour's punk hof did not involve a hof did not involve a mid day high traffic area involving businesses residence a high school a preschool a gas station full of patrons who are capturing this incident on their cell phone video and a multiple lane intersection full of occupied cars most significantly and you're over your time sorry i'll give you a minute for a bit of i think we need to stop you thin trees on for or for the police contrary to my colleague's representation the facts are very much in dispute of this case as a matter of fact poems brief lays out the facts in which they believe them to be the facts that plaintive believes them to be are very much different so there is but there are they admissible facts seven miles an hour so even if that's contested maybe they think it was faster i'm not sure it matters because you can hurt someone driving a car twenty seven miles an hour and she's swerving into oncoming traffic and if you drive straight into an oncoming car that's going forty now you've got a sixty mile an hour collision so i don't really understand how that fact is material that dispute is material i actually agree with you and the reason i agree with you is because that part of the pursuit and they have a box them they're moving a car behind or we're dealing with a situation i think that part is i mean the fact that they started this whole incident by following her knowing that she's engaging in this very dangerous driving that could have hurt people doesn't that relate to what would have happened if she had i mean on your version of the fact she was trying to get away rather than trying to drive into the officers but if she was trying to get away why is there any reason to believe she's not going to get away and her driving it on coming traffic again because the fact that there is prior behavior by a person who scream look clearly experiencing an alter consciousness moment it's the officers are trained the minute they've been trained to diagnose on the spot of the people if the person is behaving in an irrational moment and they say it's one of the i mean it's very sad situation but but if she's a rational and so driving into oncoming traffic that's a real danger to the people on the other side of the road i don't understand what the officers are supposed to do instead they're supposed to stop or what they try to they put their cars all around her then she drove into they did well actually should she didn't which is there's music blasting in the car the windows are up the car is clearly experience of mechanical issues  and she does not it sounds like she went on a long track she's trying to turn into the gas station unfortunately because she's no longer with yeah you you are if you're saying that but where's the evidence to establish that questions of the fact these are questions for the jury to determine did it but i think you're opposing counsel argue that whether she what she meant to do isn't really the point right it's what the officers would perceive so she is driving into an area where their officers just feet away you're right and however and that's where the court were judge a tariff focused his intention he's focusing attention on the fact the officers do not clear the gas station folks this attention on the fact that officers are smiling and laughing at the situation he's sad that they were laughing while they were shooting or no they were laughing immediately prior to the time they were shooting they were done do not appear to be a fear for themselves at risk and there there is we have video we have audio transcripts of this we have every single thing to do for a jury to decide what were these offices truly perceiving with the truth perceiving this to be a threat and if they're so concerned as a council or they fired thirty five rounds doesn't that indicate unless they kind of implied nine didn't understand that they were intending to just go after her doesn't that also indicated that they might be in fact in fear no yana because there's two instances of firing even if you give the benefit of the doubt to the nischelle firing initial release of the firearm as she turns as they already hit or the fire mortar round after round after round it keeps going they don't know why because they're already shot her they don't know how she's behaving or that they're clearly can see that if they're shooting at her they're standing feet away they're disabling the car they're disabling the person they're causing her to move forward because now body starts acting in voluntarily that she's being struck over and over by bullets even if she's experiencing a altered state of consciousness we don't know what she's thinking and it's probably not important as the council says what we do know is there's various ways to look at these facts and those facts are for the jury to decide they can perceive whether the officers should be in fear in their lives they can they can interpret whether the officers looking at smiling and making comments frankly flip comments about the fact that how they're looking at her if they're truly in fear of their lives how much you focus on qualified immunity the other  was arguably prior dangerous driving prior prior erratic driving this is not the situation here she is essentially inching forward she does not take off she does not  can look at the video she is literally turned a wheel and moving that's all she's doing the officer of the law and it's parallel and twenty five dollars or thirty five feet away depending on how you measure it the officers in front are protected by their cars they're not exposed we have every situation the only feasible damage is either immediate damage would be to the cars and then the non immediate damage would be theoretically somebody in the gas station but they're dangerous officers firing in the back i read scotty harris is telling us that that when someone creates a danger that then the police might have to put other people at risk we're not supposed to consider the other people at risk because the real issue is the person who created the danger in the st place and i have trouble seeing how even in this i mean it's very sad situation but that mr lee isn't who created the danger here well we don't know if maturity created the danger we believe that whatever prior incident was physical incident may have triggered her bipolar condition we don't we don't know if she's she is diagnosed bipolar not be her fault on some level but it was her driving that started all this it's not that the officers came and they're shooting at a gas station w would agree with that because that's a rational conclusion something occurred that caused her to drive and in a manner we don't expect a reasonable driver and do it why can't the officers then think this is a person acting irrationally there may be a really sad cause of that but there are a lot of people right near her that she could hit isn't that for the jury to decide i mean i'm yes scott here is you could say the same thing in the supreme court said look at the video and i don't know i look at these videos and i think i would have been really scared if i was one of these officers i mean if they tried to stop her with their cars st but then when that didn't work at that point it's because she's now she's moving toward them i don't know it's hard for me to see how how the jury what the jury could say here you are i would understand but if you were acting really scared would you be laughing and kind of i don't understand how some of the officers are laughing but it's an objective standard so i'm not sure how we can kind of have it both ways like i think is an objective standard so maybe a couple of these officers subjectively i don't know what they were doing but objectively looking at the video it's a real it isn't it a dangerous situation it's an unfortunate situation in a situation that could became dangerous frankly by the actions of the officers they t becomes she's behind the wheel of a car but so is everybody there's instances where people drive or radically that does not give somebody a right to shoot them she has stopped pit maneuver other ways they have blocked her and they less lethal ways a veil of bull to them to stop or they can disable the car they can do anything i mean they maybe they thought once they had her surrounded that she would stop and so i mean if they hadn't thought that maybe they could have shot the tires or something but but they probably thought when she was surrounded she would stop but then she didn't stop so that at the moment they only have a moment to the situation if you wish the video took longer than a moment you know and i'm going to watch the video as i don't know it seems like they're pretty close to her so it doesn't take very long to drive that far you know what i have at this point i have watched the video so many times i think it's burned into my mind unfortunately i feel every single shot as it's fired and for the life of me i don't understand if they're laughing if they're smiling if officer alond is not running but he's moseying along right there's no sense that anybody's perceiving this to be a threat what about though and i keep repeating this fact they don't know why you say bipolar or whatever they can't say that they know she's erratic they don't know why and that could be because she's on drugs and that makes somebody on occasion more erratic the police officers know that more than anyone think this is going what you mean by that he's behind the door you know but if she hits the i mean that doesn't mean he's protected she can't really hit the door she would hit the front of the car it would end you on when you made that movement was your hand you movement was faster than the rate at which she was moving she literally inches the officer go when she started moving what choice did he have he had three choices he or she can move inside the car which would protect him well i mean so me why is that it as a matter of law what does he have to do that you want to because he's supposed to do reasonable things to use less lethal means in order to protect even this person to protect even the surely he can you have to do it now or theoretically every single time you walk through a parking lot a car starts backing out an officer isn't titled pull out a gun and shoot him but a rational way is to step back a little bit of the car pass or to do something less lethal we have  lethal force thirty five dollars rounds one after another after another after another and i think we do know the sequence was when she was with shots were started and once an offer to start shooting all the others joined in and that's true but if  let let's assume that the officer who was there and that we've been talking about i'm sorry don't remember his name but who was there in front of her car could have done something to protect themselves the other officers couldn't see that they knew he was there and we don't know who began shooting we're respectful of a messmate how to shooting her protect the officer if anything it exposes him to greater danger if she's moving now she loses ability to stop to win on the papers we're supposed to when it's a question of fact for the jury to decide and the court viewed everything that viewed in the light of its question of fact for the jury to decide excessive force but if you're suggesting on whether or not  in qualified immunity and there was a an established right and that the officers didn't comply with that particular right that's a legal issue it is a legal less and less you're saying have to have an arriving teri's to go to the jury to restaff establish something before we can as to we can determine whether there is qualified immunity as a matter of law i don't know what you're saying well what i'm saying is viewing the evidence that was presented before the court in viewing the evidence meet the evidence may be viewed in multiple ways those are the questions of the fact right and the could the court exercised its discretion it viewed the facts and says i do not believe there is qualified immunity after hearing the evidence of course and that's what we're saying we're not winning or losing the case on motions we're losing the case to that we're winning or losing the case to the jury lot of information highly unusual case  immunity and i do not find whether as a matter of law officers use reasonable force thank you counsel thank you whether or not mr shirley was in an altered state had an altered conscious is not relevant from the perspective of the police officers the police officers had to observe her actions not what she may have been experiencing inside that car but what her actions were and the actions that michelle really displayed that day presented a dangerous and deadly threat to not just the officers but to the public council repeatedly said that there is no clearly established right at this time to the contrary the cases are established that the officers and the circumstance would be entitled to use deadly force adams versus spears is a completely different case where the court in that instance found that we had a rule the police officer who had his own agenda the council doesn't say to any other case that would have suggested that the officers in this case were not had noticed that firing at michelle really was in violation of a clearly established right and your honor just freely and you noted that in scotland says harris this is exactly what the court in that case looked at and the mere existence this is where the court said of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment the requirement is that there be no genuine issue of material fact the things that counsel has raised that the district court raised have nothing to do with any material facts that are in dispute these are off earings theories that were outlined by the district court theories that