next case on for argument is united states versus mcfadden brown and germany  oh i'm sorry excuse me right my apologies sorry the estate of jake was versus city of new york you know like my sorry f exhibits a summary of each witness and various other materials that very day we were informed by the district court that there would be no trial that the court had changed its mind and that summary judgment would be granted in toto to the defendants the decision that came down a couple of weeks later changed that back and delivered a summary of what i consider an odd summary judgment decision that recognize that there were six deadly shots fired or potentially deadly shots fired but granted summary judgment only with respect to the first five and let us go to trial in the last shot and it also dismissed or grant a summary judgment with respect to the initial uses of force that started the assault on my client's husband mr hockey has i think the easiest way for you all to resolve this case is to have a look at that summary judgment decision because that would knock out the trial issues as well so the summary judgment decision is clearly wrong and ignored relevant admissible and persuasive judgment motion as well as you know with respect to anything that happened a trial if i'm wrong about that i think that's correct and i think that's how the district joy court analyzed it however i think we get past summary judgment with expert and that's the point in the point that let me just say look at two times the point is that when the initial phases were fired the officers had already been told that mr hockey as was trying to surrender and was unarm what can is our own head informant or can't see it anymore right these not looking at that's got a camera anymore right i mean he said i saw him either put the knife in a toilet or left his hands but that's when he stopped watching so how is that inconsistent w either he went back and one of the officer said this in his departmental interview he there is evidence that mr hawkins went back and got the knife from the toilet he comes out on arm and he goes back and that's in the record so what kind of  initial taser shot that's what i'm what i'm focusing on here the one of the point about that i forgot the middle come to me i guess my question is i was inconsistent with what the other officers  judgment purposes these are issues for the for the jury to resolve and i would be better prepared for a closing at a trial pointing out each one the same goes judge might the district court ignored the argument  during the initial volley of shots the the seedings arm was was back that there was a hole going from his bicep into his side enlarging on on his left side there are many ways to explain that certainly one of them is that he was down on the floor pushing up which was observed they claim observed later the officers all testified that at the time of the initial volley of shots his arm was out so that's inconsistent my client's  husband is dead my only witness on the scene is dead so i have to argue from that circumstantial evidence that at the time of those initial shots he wasn't posing an immediate threat given the armor and the relative positions of the officers  so i mean i think i think that's the summary judgment decision if you add to that the expert so we were there was a game of ping pong with the experts where i think a clear double standard was imposed on our expert who is an city employee was permitted to testify about the effects of trauma despite the fact that she hadn't seen a live witness right but not as it was and asked her for a bunch of conclusions about the cause of death about the weather at the time he was handcuffed he was stole i have because of the bruising on his wrist the impact of the rubber bullets you asked that a doctor a lot of yourself when i was at sam bailey when they said well could he push him self up at the time and he didn't object because the well i made a mistake a question is i made a mistake an object i have to face plain error on that lack of objective the second one could have had a knife in his hand i certainly did object yes and the reason so so going back now to the original part of that question the reason it's sandbagging is because everything the point is though the final and key opinions were brought out by the city about whether he had it about how he would have behaved when he was alive let me give you the question this is about the scraping on time that's what you were pursuing right and that's something that is in the can of an autopsy doctor not an emergency room doctor how strong someone is after they've been shot is a classic area for an emergency room doctor to testify about thank you your honor is may it please the courts his impulse and on behalf of the city defendants your honour's officers here were confronted with an extremely difficult situation in which they had an armed and violent and intoxicated emotionally disturbed person when they arrived at the scene they spent in excess of an hour trying to negotiate to persuade mr harkless to surrender and it wasn't until they believe that he might be trying to surrender when mr hauck has himself started to approach the officers who had carefully sequestered themselves another part of the apartment and was defying their orders to show his hands that one of the officers first used a taser from that moment until the tragic ending in this case at most twenty or thirty seconds expired and in that time the officers used a graduated force trying to get mr harkless to surrender or back off starting with tasers and then when he was attacking the flood with a knife then use the rubber bullets and then when he was attacking mcnamee with a knife and they could not get him off only then at the very end of this did they resort to live fire now this all as i said transpired exceedingly quickly after the hour and a half that they spent trying to persuade him to surrender and during that time officer con was observing with the small scout camera and during that time he saw mr hauck was alternately picking up and putting down the knife walking back and forth between the kitchen i'm sorry the the the bathroom in the bedroom and picking up the knife and putting down the knife and picking up the knife and putting down the knife and he was reporting a play by play to the e s u officers and the is is you officers were aware that he was mr harkless was uncertain as to whether what he wanted to do when mr hauck was then finally started to approach them it was reasonable of the officers were unsure whether in fact he had put down the knife it is correct the kind of zorro did not see the knife in mr his hands but certainly on this record no reasonable juror could find that the officer's judgment was so flawed and being certain that he might still have the money for this and that no reasonable officer would have made a similar choice when h was started to approach the officers he was in view and they were no use no longer using the camera to observe his moments and i believe the commas are as a test when he was and he actually left he did not are correct that he did not observe any of the uses of non lethal force or the live fire your honors not only is there no disputed issue of fact as to whether he was defying the commands to show his hands but there was nothing on the face of the that there was nothing on the face of the autopsy report that was inconsistent with the officers testimony about the manner in which was attacking first flood with a knife and then mack to meet with the knife this isn't a situation in which the officer said he was charging us and we shot him and the autopsy shows that the shot was to the back then the autopsy would contradict the evidence and there would be a disputed issue of fact but here dr landy said you cannot tell the body positions from the autopsy the autopsy on its face to a layperson without an expert to interpret it there was no expert to say that this autopsy showing the entry exit and entry points of the bullets and their trajectories contradicted the testimony of the officer was an expert but estified to that well your honor he himself emitted that he he had to consult a forensic pathologist because he lacked expertise that he had no experience in crime scene reconstruction that he had no experience in psychiatry he was he so he admitted he was unqualified in this way fine and is different issue that's yes around with how do you handle yes your honor but the with respect to this i guess i'm just commonsense opinion and the absolute gospel truth and his opinions in his report were based on his personal interpretation of limited evidence the autopsy report excerpts of the depositions and he said his experience as a wrestler that informed indicated how they were holding the firearm but she said from it she couldn't necessarily draw a conclusion as to whether mr hauck was might have been bending over there was testimony that he was on top of mcnamee at one point and she said final shot where they went with it we live on acct of her investigation they were your honor what she was testifying to was the entry and exit points of the bullets at how they affected the body so she testified that one you know entered the chest muscle and that you know the various ways and then was asked you know would that affect in terms of the workings of the human body like nothing had severed the spine nothing had created a situation that would prevent a person she couldn't say you his capabilities were but she was testifying from the examinations that she had done of the ways in which the specific bullets had impacted the musculature the the the spinal cord in the said that she wouldn't be able to testify to this case i guess i guess what i guess i'm sorry what i was trying to say is that she wasn't saying what she thought mr harkless was or was not doing she was merely saying that with these injuries with the human body still be able to well your honor this sounds to me more like either you need to be some extraordinary specialist in the effects of loons were it something the unary doctors can testify to because i didn't think that land district courts discretion but one might have thought you would strike the conclusion about who's telling the truth which is not the province of an expert but his underlying purported facts that  there's there's no way the ins for his could have done what the officer said they saw him do would be within his expertise but his basis was he said  geometry and common sense opinion and he wasn't basing it upon any expertise that he may or may not have from a long career in medicine here it certainly was not manifestly erroneous for the district court to exclude his the bruises on his hands and asked about the effects of the wounds on the supplemental appendix on page eight eight hundred ninety nine what would be the facts of the bullet wounds to the order and given that when they made a general objection it was not clear what they were objecting to which subjects it to plain error review if reviewed at all which means that it has to go to the very integrity of the trial and here it did not go to the integrity of the trial because there was no contrary evidence the much i want to use my three minutes to be totally clear about what the aspect of dr sullivan is testimony that were appealing and that he would have that he would have testified to at the trial because i think it does go to the integrity of the trial d emergency room physician he deals with trauma and what he was going to testify to was that mr hockey has at the time that he was lying on the ground having been shot already three times with three people with to tie the two bullets in and having shot four times would have been significantly impaired and unable to use a section on anyone sixty four to one sixty five labeled affect effects of the wounds that's what you know that sounds right yes that was the third point that my that m that we offered him for another has made it sort of the the conclusion section lists three things but one of them is that he poses no conceivable threat to anyone after  positioned correct totally different totally separate and within the real coup are of areas that he's been qualified on in the in the second in the in the southern district before and within the core of what he does day in and day out as he sees live people and he sees how different wounds affect them and he treats them in the first thirty minutes that's what emergency medicine is and as i think you pointed out what we're really talking about here is is a double standard a double standard i must expertise because he was available to me at a very limited cost for reasons that the city constantly pointed out to the judge but he was the point about how would it affected this man as he's lying on the ground would he have been able to actually stab the officers that's within his core of expertise and that's the key question at trial was was he actually posing a threat to the officers when they shot him in the back of the head that's different than what the key question is a point out that the the defendants offered a crime scene reconstruction an expert who was someone sort of an ex officer with experience and that we didn't we didn't object to it because we thought that the conclusions that  it would be helpful to reconstruct based on the trajectories and we thought the conclusions were sort of obviously ridiculous because they've never been that it supported a theory of the case that the officers didn't testify to the judge did exclude that expert anyway but again i think what she did was