obviously a tragic case but one jury waller lunged for and rearm himself his handgun and spun toward officer happen or officer happened or was justified in shooting in self defense that even the district court so that there's a that we're hearing a pleadings challenge your honor and the standard is whether or not these plaintiffs have managed to nudge their claims across that line from possible to plausible and i submit that they have not are pleading standards are not based on quantity but quality and i submit that the six hundred fifty pages that these pleadings consist of speak to the lack of quality in these pleadings and as an example the plaintiffs in this case have relied throughout this litigation on the fact th is gun had no blood on it they've invented a cover up theory where they say that the officers moved the gun away from the body after mr waller was shot not that they placed the gun in his hand that they moved it away from his body the for which they have no direct evidence and they are attempting to make the circumstantial evidence fit their theory not the other way around they say the gun has no blood on it therefore he could not have been shot while he was holding the gun he could not have fallen on the gun because i would have blood blood all over it you can see it in the photographs and we were handed when we got here this morning a package of photographs that these plaintiffs are going to show the court but sequentially deliberately they're missing the best photograph of the gun that we have in the record and they do that obviously i don't want to point to the senate but if you look at the record adversarial system history of course  but look at the record page thirty fourteen they show you pages thirty thirteen and thirty fifteen they don't show you thirty fourteen pages thirty one fifty three through thirty one sixty or more photographs of this gun that show blood on the cartridges within the gun itself so now on appeal they've changed their position to well there was blood on the gun but it wasn't a pool of blood if that if the gun had been under him there be a pool of blood but they moved the gun away from the body when they checked his vitals so they didn't transfer of cool blood along with  gun in determining this all sounds like a jury argument to me in determining why we have juries rather than judges deciding facts right but in the manis case  thompson out the city of alexandria case that i've cited in my brief in those cases there are all types of a legit fact is she's where the gun was where the boot was what happened these facts don't change whether or not the officer was justified in shooting at the moment he shot and on the pleadings standard this court takes into account its common sense after reviewing the facts but with a pleading simply do not permit the court to infer more than the mere possibility of misconduct it's not enough and qualified immunity that's completely absent in this case this court has repeatedly said we're one officer is the only account you have that doesn't discount his testimony or his allegations in this case they've put it all into their pleadings so it's a challenge to the pleadings they chose to put in all this evidence in their pleadings that's why it's not a summary judgment in their current briefing your honor they speak to something that they want the court to believe is a very important allegation that at the time officer heppner was yelling at mr waller to drop the gun drop the gun drop the gun they plan to say three different places in their brief that well officer hanlon said he couldn't understand what officer helped was saying as if that would matter if even if it were true but look at the site references him please look at the site references for all the allegations you want i think they're fantastic lawyers and they're doing their client the best service they can but they have a case where it was a justified shooting and they can't overcome that they cite pages thirty seventy two and thirty seventy three out of the record on those pages officer hanlon is saying i was at the front of the house i hear screaming from the back of the house i don't know what's going on it at that moment but i run around to the back of the house and then i heard and then a softer heppner had a subject at gunpoint he was yelling put the gun down put the gun down and the subject wasn't complying i said fourth police put the gun down and then i put my gun on the subject white of the second then put his gun on the vehicle that was inside the garage but i don't know what happened when what went through his mind but when he went towards the gun again grabbed the gun off the top of amass nothing more than speculation attempting to use undisputed facts to imply a speculative scenario scenario is not sufficient to overcome officers qualified immunity and that comes from the man as on the report is a sort of data that shows gunshot wounds entry points exit points and cause of death and the autopsy shows that he was shot at various angles on his arm indicating that he was shot and it was probably falling as he was being shot because officer happen or sees somebody pointing a gun at him he fires in self defense out of fear for his own life and this court has said that we're not going to use that kind of type of inconclusive evidence to overcome qualified immunity anything could have happened in those moments that that shooting took place and plaintiff's attempt to overwhelm the court with six hundred pages of evidence that most of it is is irrelevant and doesn't speak to i represent officer b s hard in this matter officer hardin along with his partner officer chambers appeared at the scene of this tragedy six to ten minutes after the shooting occurred all of the causes of action that were played against off harden have been dismissed by the district court with the exception that officer harden's actions were a part of a conspiracy to deny the plaintiff's access to the cause so this necessarily means that i'm going to focus on those three elements for the purpose of this appeal the first is officer harden's actions and mr east talked a lot about that but let me just emphasize a couple  things officer harden has noted that what he did because he had e m s training when he appeared at the scene is he went over he removed the gun from underneath mr waller's body and placed it a good distance away and that he checked mr waller for his pulse the plaintiff's on the other hand and said no he couldn't have done that he couldn't have removed the gun from underneath mr waller because there was no blood on  as part and parcel of the plane of soem pleadings they then say there was blood on the dom and so they completely contradict themselves and that's borne out by the photographs that were attached to that of seven a reply and also borne out by officer green's affidavit there is a contradiction of the plaintiffs pleadings and that should mean that there is no clear pleading as required as to what the actions of officer hardin w and therefore they cannot show in these pleadings that there has been any kind of violation of clearly established law part two of this goes to the conspiracy that they claim the actions of these officers did i think it's really important to note that as far as a conspiracy even the playing of is not clear on who is conducting the conspiracy what the actions were of the various offices that were  comprise a conspiracy the requirement for proof a conspiracy obviously is agreement but there is absolutely nothing in the plainest pleadings that goes to any kind of agreement between the various officers that were there whether it be officer heppner officer hamlin my officer officer harden officers who appeared later at the scene officers who were there at the scene after the shooting occurred there is nothing we guarding the agreement between the parties and then there's the final element of this and i frankly think it's the most important element to focus on for the purpose of this appeal and that is denial of access to the courts the case law that  conspiracy is true which of course of the eminently did not but even if that conspiracy was true that's not sufficient to prove denial of access to the court because after all in this case there has been no denial of access to the court because a lawsuit was filed and whether you have allows us from our forward looking perspective or a backwards looking perspective the plaintiffs have not been going out of any rights they have to somehow fooling with the evidence in a way that it should not and gun is that that crime encompassed in that i think that difficulty in bringing their suit and your honor that's not enough it's not enough for there just to be a potential problem there must be some kind of denial of a constitutional right to proceed with your lawsuit into court and they have not shown that in their please and thank you mr maxwell mr jeffrey the morning i'm jim jeffrey have the honor of representing also been german and len and i'm going to focus on the denial of access to the court's climb because if that claim fails then the other claims against my office are fail as fails then that declaratory judgment action would fail as well be the thing to look at are the elements of this backward looking the denial of access to the courts has to be showing  underlying cause of action official actions that frustrate litigation on that cause of action and then the critical one is or must be a showing of a remedy that might be awarded as recommended recompen for the actions but it's not otherwise available and so the focus here is what remedy was there and how was it interfered with or denied and in the christopher reeve harbor case the parties have briefed and referred to it usually as harbor so that's what i'll do for simplicity the supreme court said page four sixteen of the case it's pointless to go through the litigation to seek only the same rhythm that and i'm quoting the actions made it more difficult for the plaintiffs to prove their case and that's in the record on appeal page four seventy four and in the district court's order at record on appeal forty three fifty one the district court points support their claim that because their lawsuit is more difficult as a result of the various actions of the officers involved in this so called denial of access to the courts the moving of the evidence for some of their legit false reports by others but they say that their case is made more difficult but rylan and the foster of the late jackson cases don't say that that's enough to give them this denial of access to the courts under a backward looking theory which is all that's left because judge means did dismiss the forward looking denial of access to the courts as to all the defendants that are here on dismissal motions the other defendants that i have represented previously were dismissed out as well as summary judgment for some but this court's foster case as an important footnote  thirty and in this course this if we question the seventh circuit citing rylan for the proposition that the government cover up of evidence violates a right of access to the courts even the parties were able to successfully file suit while the plaintiffs are so doubt they filed suit the thought of pleading in a rule seven replied that seven hundred or six hundred some odd pages so they certainly were able to follow suit and pursue remedy and there's two cases by this court that no of the none of the parties cited in there were anything unfortunately i wish i had been able to be involved in the reasoning i wasn't but the two cases one was written by key parts are at eight thirty to thirty one it's a two thousand and twelve k s the court was dealing with a criminal case where there was a prosecution attempted for failure or denial of access to the courts and this court sided the three elements from harbor and basically say that the plaintiffs had not proven that the current government had not proven that there was a cause of action that was denied or lost because of allegedly misconduct and that's what we have here the plaintiff seven not shown a deprivation of an access to courts because they didn't lose the right to sue they have in fact i think thank you mr jeffrey thank you and what i want to do is because it's that such a factual analysis proceeds really need to understand that i've got i've had no discovery whatsoever even with the saute a motion that the  judge manes he she they prohibited us from doing a discovery so the evidence that we have is basically from open records requests you don't get everything in open records requests but that's basically what we did if we affirm judge means order in this appeal that would not preclude would it any of the officers ability to research a qualified immunity the neighbor and she said surgery would somebody check on it so it wasn't this was this these also these were not directed to a burglary in progress but to a well sort of call lower priority when they went out there and i'm going to now start where the officers went they ignored their their g p s that would have shown the exact outline of a house with an eye with a number on it they say they didn't use it they went instead of this one i don't understand the relevance of all that let's assume all that is true what does that really have to do with what happened at the scene of the shooting that just good point from what i what i've what i think it has to do with it is that how that how the rest of this develops and let me  that told them that they were at the longhouse and i think that colors what they then say and what they claim from then on as part of the coverup in a conspiracy to cover it up that's what i think if it goes in a play there at the wrong house these people this isn't like a lot of these cases where somebody is involved in some sort of criminal activity and there's this that whatever these people are asleep in their home at one o'clock in the morning and the officers didn't follow procedure instead of they walked well exhibit exhibit three you see they say they stopped at post this mailbox right down here and they knew they were on the wrong side of the street for twelve they were looking for four zero nine but they didn't know that there were odd numbers on one side of the street even numbers on the other standard situation for they said they didn't know that and they've apparently did they went instead of going to the front door and knocking on the door for the welfare check they went to the back and they shone their lights around in the back and all had someone of something would hit it and the alarm would go off it didn't have an audible alarm but the lights would start blinking and he thought that's what happened he goes to shut off that and apparently realizes that there's more to it than that because what happens according to what they did bit different he goes around the back again ok handler is at the front door knocking on the door and he's actually shining his light flashlight on itself to show the people that it's a police officer there well mr waller has gone out seconds later mrs waller says that she when he he was gone for longer than she thought and suddenly she hears some yelling she can't understand what's being said and but she immediately thereafter she hears bam bam bam bam bam which she later finds out or gunshots right now also hutner it his statement agrees he never identified himself as a police officer never identified himself  where the between the where then the concrete is fifty four feet from where the garage was ok fifty four feet from a line extended in the garage if you look at the one right before that number number on right after that number twelve was taken number six it shows a wound through the left phone ok according to according to mr waller had a small gun in both hands according to of the second finger all right and the other thing is he says they claim he had both hands on the gun and if you look at exhibit nine you'll see that there's no the only blood on exhibit nine is blood spatter see little dots that are on the fingers right there that comes from just a wall or having his hands in front of this over as high as like this or the other right hand behind it trying to see his hand pointing at the officer at that point we don't think he had it at any point the gun was either thrown down because he couldn't tell who was out there and he obeyed the command even though he didn't identify himsel that's not his gun but in any event if this and the gun has been we demanded that gun immediately on the fourteenth as did jews and along with these other images we didn't get any of it and we the reason we didn't get any of it was green and what morrow green says it is and it's a part in paragraph two part of the records that will be presented the turner county grand jury include the autopsy records of jerry waller these records are important since the statements of the shooter and or any witnesses involved may conflict with the autopsy findings that's exactly what we said and what we what it what jade's and judge means felt was a plausible pleading in there as i understand  there's nothing in your allegation that is the case that you're presenting at this point that suggests that it was mr waller's gun and that he brought it into this onto the we don't know what we know what we know is this this is waller was this is from one of mrs waller walks out this find this scene of the situation ok and and when she does her husband is laying like this with his arms pro cetera and she's interviewed by a plainclothes police officer her baggage and also baggage surreptitiously tapes this conversation and this is an old rather about one of answering a question but all this is this is the best answer i give you during that conversation is when she basically says but i just got to tell you that all of a sudden these she heard the yelling the same yelling that officer hammond heard on the other side of the house he couldn't understand was being shot revolver she's apparently saying this could have been his gun but he so he has he owned a gun ok whether it's this going to not they wipe the wife completely clean of blood realized dealing with i don't have discovery i have but they got it every other over anything but but they have not provided me a copy of any analysis of that gun except they did it at about the time i was request to get shortly thereafter it's a single shot gun which i believe means a the old style was from single action gun where you have to cock it each time before you shoot it she says it's a single shot revolver that's what i think she's describing this is not a single shot revolve and there's some other evidence that i've since discovered but i guess not the record i won't describe it but but i'm just saying it could be his we have got on the assumption that was his was his gun that he had a gun is had he dropped it and it could happen is there a story about all this running around and all that sort of thing in the in the reason for that is first of all you're once again never gets closer than forty feet by his own admission ok til after he shoots the man and they're trying to study well this shot that we're saying could this this angle so forth can't happen very there are only two proper ways it could happen you have to in this position or you could be possibly in a position like this either while you're not pointing a gun at some buddy but here's but i think copters discussion of it is is this is that because they're arguing contrary to what their own client says and what he says is i punched out and they don't even  what does that mean nobody knows what it means i shoot in and like i put rounds on him he starts following in kalak it wasn't falling like it wasn't a freefall he kind of bent over a lot of times in the academy we see play video of people getting hit and then bending over and all of a sudden they're really gauging you know we have to stop all the threat he was still a threat with a gun in his hand so then so like i shoot him i know there was one delayed shot i put rounds on him at first i cut and those that he counted he kind of like he was taking them like that and then he kind of hunched over i'm not sure falling over or he's bending over because it hurt so much i saw that he still had the gun in his hand and so i put the another around him and that's when he fell forward and the other thing that this man says by the way is ok this whole thing happens the reason i say is forty seconds is because it minutes they were they arrive it a little before one o'clock it's six minutes after one o'clock six minutes and six seconds is when hanlon radios to hop in and when he see he's at the front door he says he's knocking he sees a li fifteen seconds to the long house the one around the back but she says she hears the sounds of midi after that same reality ok he runs around the back and he claims that this that there is this back and forth that mr waller puts the gun on the back of the away ok that once again the it's in conflict with the autopsy there's no gunpowder residue on the body there would have to believe it was that distance up to four or five feet there would have to be there where there's there's none ok so  rules and in the reason that they did was when they got back there they saw what had happened they that mrs waller comes out of the house she sees him laying there they get her out of the way and then hamlet goes in along with two others  is the house they don't have a warrant or anything like that as they then search again later on with their lawyers ok and all this is happening before they then give the statements which we are now saying this is the public record and that's what we're taking so what's the situation with the gun being wiped clean if that is so and it's not so tell us it's no big gun was wiped clean months after the grand jury investigation was concluded and the evidence department that has nothing to do with officer happened or returned it to the suspect or apparently fort worth policy we have a spec meaning i'm not sure  suspect about but if the gun was wiped clean it was done and nothing to do with my client wiping the gun clean it was done months after the investigation is complete the grand jury came back and no bill the officers it was returned to the family and i guess p d policy is you don't return contaminated materials i don't know but there are numerous photographs of this gun in all sorts of stages on the scene and in the crime lab that has nothing to do with allegations against my client with all due respect and nothing in this mountain of documents that makes sense that officer happen or got mr waller to drop his gun and then shot him in cold blood for no reason and now the plaintiff or the first time saying well maybe you didn't even have a gun that's not a officer heppner didn't identify himself as a police officer he was continually yelling drop the gun went off for hanlon came around as i just read while ago and said fort worth police after that mr waller set the gun down and only after that that he brander talks about the first shot hitting what does this come from there's nothing in the autopsy report that says which shot was first it chronicles it documents the shots but it doesn't come up with an idea about which order the shots were  fired and it's it's just a mountain of allegations and an attempt to spin undisputed facts to support their speculative theory the exact words this court has repeatedly said is not sufficient to overcome qualified immunity under the access to the court's claim which i think is an easy claim for this court to reverse on mr jeffrey didn't get to the point of saying that even if the law is something other than what you follow your case you don't have a