and with that will move to our first case on the calendar for argument seventeen dash five five five three six and counsel i'm hoping you can help me with the pronunciation of this name if you will all right if you will versus state of california this we start with the fact that the officers version of events could not have happened it is factually impossible there is positively no way when looking at the physical evidence in this case that his person could have been struck by the fuel vehicle and there's also possibly impossible for the fuel vehicle to have struck any oncoming motorists that were coming on the freeway but isn't the question whether it's possible for the officers to reasonably thought otherwise they could be wrong it is right they just they just can't be unreasonable and still get qualified immunity so could you speak to that say yes specifically with regard to the first prong qualified immunity does require a fourth amendment fin and along that along those lines i think it's instructive and i'm glad that you brought that up the issue is is there a enough evidence to go to if you're in other words is there enough plausible basis for a jury to conclude two things in this case say that the force that was used was unreasonable or be in the context of the fourteenth amendment claim that officer sanchez acted with a purpose to harm unrelated to a legitimate law enforcement objective and we when we look at what this court has done over the years there have been routinely cases like this in which the court has said if certain factors are present i present a summary judgment is not appropriate one of those factors is an internal inconsistency between an officer statements we have the statement that officer sanchez gave on the night of the incident saying that he thought the truck was going to hit him hit or it would have somehow caused me to be trapped under the cruiser itself and considering the layout and considering the video in this case we know the gut just couldn't happen but more significantly the truck did hit the patrol car didn't it did the car and and at the point where the truck hits the patrol car the two of them are pretty much blocking the intersection correct yes i would a pretty diverse a busy street right it's not a busy street residential there were cars coming there was a single car coming and i'm glad you brought that up because when we look at the video on this is something that wasn't briefed as as well as i thought it might have been when we look at the video and you see the headlights of that car coming down the street you will notice the car significantly slopes obviously the driver of the motorist in that car sees what's going on and sufficiently slows prior to the onset of the shooting so this concept somehow this pickup is going to be able to breach the c h p cruiser and get into the street and hit this car it's also belied by the actual video video evidence because when we look at that there's no way that the car would have even been in the pa of the of the fuel vehicle at some point the truck breaks free as it goes over a curb but when you say when the court says brakes free i think that that might imply that it was able to get into the residential street and it was able to actually be in a position where i meant that we've seen the video i've seen the video watch it a number of times the truck backs into the patrol car and keeps backing in and you can hear the tires spinning in the smoke coming from the tire but at some point doesn't the truck break free of the patrol car or no i don't see that in the video you're i look at it again yes mike my view of the video is that the shots are fired into the truck the truck has got its where's wheels are spinning in reverse and after these to say scene of the shooting the the wheels are spinning in reverse over and over again so much that you see burning rubber unreasonable and still get qualified immunity and your brief side to cruise which is a case that's similar in some ways it's a police officer shooting case involving a person looks sort of similar i know you're familiar with it but in that and that case we did reverse an interest summary judgment and sent it back because we thought that a jury could disagree that the facts in that case seem so different and that's what would be helpful for me if you could maybe  in in that case several officers have testified that the decision got out of the driver's vehicle right and then of course when all the dust settled he was he was found still in his seat belt so it could not have been the case or at least that was certainly appropriate for a jury to find but here we have watched the video and they're shouting shouting shouting to stop doesn't stop he continues to try to extricate his vehicle why was it unreasonable for the officer to think that that that he was in harm's way or that the truck if it broke free would create a public danger by going off into the street where your honor specifically in terms of his perception  is something that they would disagree with in other words he is stating that i believe my life was in danger i believe that the lives of the motorists of young coming i can't tell from your brief is your theory that a jury could decide that he is was not truthful or is your theory that a jury could decide that it was unreasonable to for him to have that belief it would be more the latter specifically when we have a factual impossibility the obvious question is we all know he made a mistake we all know he got it wrong and he's saying that the fuel vehicle was going to do things that it couldn't do the issue is if there was a reasonable officer in that same position faced with that same set of circumstances with that reasonable officer get it right the fact that he got it wrong by its very nature suggests that a reasonable officer that was in that same position might perceive the events correctly might act in a manner that was consistent with the physical training and one of the reasons why we put the photograph of the picking sanchez's perspective in the reply we actually is not coming anywhere near his person now we all know that you can't use deadly force for property damage and you cannot kill the driver of the of the pickup out of the stated fear that he believes that the pickup is going to hit his car it has to a reasonable officer were in that position it stands to reason that a jury could conclude that he would perceive what was happening correctly and it did i answer your question i think you did ok the other issue that i really would like to draw the court's attention to is the number of shots that were fired twelve shots versus one he literally into this clip he fired every round that was in his gun there has been a reference to the fact that clump off another case to say  an officer has a reasonable belief that shot should be fired that he should shoot as many times until the threat has ended and we don't disagree with that we don't disagree with that as a principle but the concept of the number of shots that were fired here does not on its own presuppose the reasonable miss of the amount of shots it doesn't on its own mean that because he fired twelve times that all twelve shots were reasonable and that fact really illustrated by the fact that his his partner sorenson who was on the scene who was really close to him who is who is seeing everything that he's seeing does not choose to fire that many times if i want you fired once and if you look at the video with documented that four seconds there were four seconds of additional firing which may not sound like a lot to a layperson but a lot of shots can be fired in four seconds and when you understand that you realize that simply the fact that he is saying i had to fire fifteen shots standing alone twelve shots standing alone does not mean that every bullet that was fired was reasonable and that's that's a point that that i thought was significant  the questions i think you want to research sometime you've got five minutes and i did all right thank you very much and thank you second the use of force in this case was reasonable objectively reasonable and it was not for a purpose to harm unrelated to a legitimate law important law enforcement purpose and finally all of the court below didn't reach it under the second prong of qualified immunity the undisputed facts in this case and judge fisher carefully went through all of the evidence and laid out in her opinion all of the facts undisputed and disputed and her and her reasoning with respect to everything there's no dispute that mr pugh was reported as a reckless driver a possible drunk driver driving on the wrong side of the road and is in fact the has confirmed later by his toxicology that he was at a point three six blood alcohol level it's not disputed that he ignored repeated commands to stop the truck and put his hands up it's not disputed the position of where officer sanchez was standing where officer or deputy sorenson were standing those issues are not disputed the positions of the vehicle are not disputed the path and direction of new movement of the vehicle is not disputed and is not disputed the view that the truck suddenly lurch backwards before the firing happens and then with respect to the expert's report george which are cited by the plaintiffs it's actually questioning whether his belief was reasonable or not whether or not he did he accurately predicted the future path of that truck whether or not he had the ability to determine based on physics based on electrical earth mechanical engineering knowledge whether he could figure out whether that truck was going to hit him hit his his car but whether it was going to run him over the opposing counsel said he's got two theories that he thinks a reasonable jury could find that the officers belief that he was in danger was unreasonable or that a reasonable jury could find i think from the inconsistencies or the or the different way he stated this in the aftermath that a reasonable jury could could could find that officer sent chest will was not truthful going to the first issue about whether reasonable jury could find that the belief that he was in imminent danger was reasonable or not again it's it's all based on this expert's report a mechanical engineer with a ph d who is calculating things after the fact he's not at this has to be viewed from the perspective of the officer on the scene and whether or not he his belief at that time was reasonable you can't do twenty twenty hindsight you can't do armchair quarterbacking this officer had seconds to react to a two ton truck coming at him right and so we appreciate that it's well briefed and we we we know that part so could i ask you to focus on the other part of his argument which is that another officer there that night shot just one time and this officer shot twelve times what is your response to that please let's twofold one is it says that another officer on the on our side it another officer reasonably believed that officer sanchez was in imminent danger with respect to the fact of who fired when and how many times i don't believe that their expert is a mechanical engineer he's not a  his opinions in that regard her questionable but even so even if you took his opinions as correct the that the one shot that actually hit mr pugh according to their expert was fired one or two seconds after was fired and they're examining in different positions and actually that photo in appellants reply brief shows you that this deputy sorenson was more to the side of the vehicle whereas officer sanchez was more behind the vehicle and so they are their perceptions are slightly different as to when the threat ended but as some of states if they're officer reasonably believes that there is a threat he can fire until he perceives that the threat has ended was there any testimony all about whether or not either of the officers had time to step out of the way to just move out of the trajectory of the truck there was i think there was i are sorry i don't recall that at the top of my head but when you see the position of where officers and ships was standing he's between the the c h p patrol car and barbara county sheriff's car so he's in a position where he really can't move and they're there they're tactically trained they don't backpedal limit yourself to records but there's there is the only way he could get out of that path or that area where he was in would have been to go backwards around one of the vehicles there was no no path for him to go sideways and you can see that in the video you can see that  when they finished for what was the position of the truck what was it doing that i think my recollection from the video is that the wheels were still spinning and it was that you you were speaking with pla a sort of a lurch backwards just before the shooting that's correct yeah i think that's what we're and that's never any and that's the point on which the focus should be is that's that's the second the split second where officer sanchez had to make the decision as to what to do in that split second with that truck coming backwards toward him toward his patrol vehicle the issue about the inconsistency of the statement i think that's really just a red herring he said in his initial statement after the shooting incident that he was afraid the car was going to his words were i was scared he was going to hit me he didn't specifically say he was going to strike my person he was going to hit my car he's going to drag me backwards he just said i was scared he was going to hit me nothing that he said since then has been inconsistent with that he said in his deposition testimony that he was afraid he would get struck by the truck he was afraid that the truck might hit his patrol car and push backwards and track him under the car or the door it's all consistent with the idea that he reasonably feared that he was in a you are you are putting in you're applying the wrong rule and the wrong perception that to to the issue because it's you have to look at it from the perception of the ultimate or question you know i'm trying to figure out whether or not we're talking about a summary judgment and we're saying that judges looked at all of the evidence either the law does not permit the judge to consider the expert testimony meaningfully on the standards of these burdens of proof or if the judge does or or if a jury were to consider these this testimony would a jury then be accomplishing anything where how does that advance the bali fit all i don't think it does because it's not looking at it from the perception of the officer on the scene in the moment of of the incident it's looking at it from hindsight armchair quarterbacking somebody with a with a professional degree is looking back at the arcs and the trajectories and the physical physics of the force of the vehicle this is unlike cruise and the george case also cited by plaintiffs where the  the experts in those cases the coroner for instance the autopsy report they actually conflicted with the statements of the officers as to what happened that night we don't have that kind of conflict here so the expert testimony doesn't conflict with  and if that argument alone isn't sufficient to to to give judgment against officer sanchez you know we're talking about going to a jury as opposed to whether or not he wins that's not the issue the questions with the mouth the summary judgment should be sustained  artifact question is raised in that regard that's all i was asking and that's and that's how i would distinguish it is that the other cases actually call into question what happened that night we don't have that kind of dispute here we know where everybody was positioned we have the video that shows that the expert is only calling into question whether or not officer sanchez's belief whether he was mistaken as to whether or not his what the level of harm he was facing at that point and then just a couple other quick points the back row quickly to be assured that the twelve shots versus the one shot as i said before deputy for instance was in a different angle he could see he wasn't looking at the truck from behind coming toward him he was looking at the truck from side point going backwards so his perception as to when the threat ended if it was a few seconds before officer sanchez i think that's insignificant looking at the the qualified immunity for question clearly established law question the plaintiffs have not cited any controlling authority or repressed consensus of authority to show that officer sanchez is conduct was indisputably unconstitutional in this case they don't cite a case where a pla an officer in the in a similar situation has been held to have acted on reasonably they're also defining the clearly established law and to general of the level they're defining it as fourth amendment says you can't use a reasonable force fourteenth amendment says you can act with a purpose to harm unrelated to a legitimate law enforcement purpose but they're not getting digging down to what the most recent us supreme court cases have said about the level of specificity that's required for the clearly established law part of the qualified immunity analysis they also cite several cases which are distinguishable on their facts and so they don't help with the clearly established law because there's cases where the officer was standing beside the truck when he fired or that the vehicle when he fired the officer was clearly out of the path of the truck clearly not in danger and then some of the cases like adams and a just a lot of distinguishing facts in those cases that that take it out of the realm of clearly established law autopsy showed he was shot in the back so that basically the autopsy in that case disputed the account of the incident that the officer gave in cordova the officer the suspect was shot in the back of the head in the side as he was fleeing moving away from the officer so that's just english people in mccaslin there were some disputes about whether the truck drove in the direction of the officers or not whether it even drove at all and there's no video like there is in this case and then kowen is also another case where the officer was at the side of the vehicle when he fired so none of those cases help us with the clearly established prong of the qualified immunity because they're not similar enough to this case where  officer is standing behind the truck and even if you want to talk about the officer standing behind the truck in between to patrol vehicles there with respect to the fourteenth amendment i'm running short on time here there is absolutely no evidence of a purpose to harm and related to a legitimate law enforcement purpose here that you like the case mainly relied upon by the plaintiffs that eighty versus state of california had several material factual disputes in addition there was evidence to demonstrate that there was a provocation of the officer in that case none of that is is present here and frankly just on the the state law  claims obviously the battery claim follows along with the fourth amendment claim and then the negligence claim there is no indication of any negligent preceding conduct by officer sanchez here so based on all of that and what's in my briefs brief i would argue that the this judgment should be affirmed because there's no dispute of fact their use of force was reasonable there was no purpose to harm and in the alternative officer sanchez intent is entitled to qualified immunity thank  as this court has repeatedly held one of the issues that's presented by an officer involved shooting is that more often than not the officer is the only surviving witness and that's the same situation that we have here so when you have a statement that says in essence i feared for my safety we can create a factual dispute simply by demonstrating that that statement is one that a reasonable jury may disagree with that  a self serving statement and that with regard to this case i have to take issue with the comment that was made by counsel such that mr sanchez or officer sanchez couldn't get out of the way he is standing behind this door throughout the incident when shooting at the point of impact with the impact is so slight that the door doesn't even close he could have easily stepped to the side and there with regard to the factual record i'd like to turn the court's attacked about that in  for my safety would invent caused you to fear for your safety the vehicle was backing towards me why did you stop firing i was able to move to a position of safety so you stopped firing because you were able he could have just stepped out of the trajectory of the pickup truck with regard to that he was asked that but essentially what he said was i chose not to and the what page i find is that what you just have f m page fifty six in looking at discussion if you think it's in there i'll take another look myself as your answer that you think he was asked about why he didn't step out of the way when he was asked was when you after the shooting stopped yes he was asked what he did and he said i moved to the back of  issue has to do with the concept of the expert now this case did not turn on the pins of the expert the expert merely said that this was factually impossible now this is not a police practice is expert he doesn't have any opinions about the reasonableness of the officers shooting he's a scientist and he's saying this couldn't have happened but if you even look at the photo you can determine that his it could've happened do you mean  think is my understanding is that his his opinion is that the officer was not in fact in danger and he didn't apply now about whether the officer may or may not have reason to leave to disengage he just said he wasn't that is correct and your honor that's a very important point because he's not taking this away from the jury if it was a police practices expert who just brought out an opinion that i think this is unreasonable i would understand his front and center but here he says he simply saying that the key is not in the path of the vehicle  that if you are shooting into a car from a position of safety would that violate the fourth amendment that is that's the issue and that has been decided over and over again by this court we have the acosta case we have the fourteenth amendment claim the a d case is directly on point because it does demonstrate that the officer fired into a car he was firing from a position of safety and as a result the verdict that