immunity is appropriate for several reasons in this case the district tort court held and the apple ease of cert that officer trios claim for qualified immunity depends upon whether he was threatened by mr rodriguez but that is not the correct legal inquiry the correct inquiry is whether officer to hero reasonably perceived a threat by mr rodriguez two distinct inquiries and if you choose the former that is contrary to what the case law regarding qualified immunity holds supreme court jurisprudence expressly mandate that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the benefit of twenty twenty hindsight and the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments a police officer may's deadly force when the officer has sound reason to believe that a suspect poses a threat of serious physical harm to the officer others in evaluating whether an officer acted reasonably courts may consider the severity of the crime at issue whether the suspect poses an immediate threat to the safety of others or the officer and whether he is actively resisting arrest or attempting to read evade arrest by flight the court must consider all of the circumstances leading the video is to cannot you cannot determine what happened inside the vehicle exactly yes the fourth amendment does not require omniscient officers need not be absolutely sure of the nature of the threat of the suspects intent to cause the harm the constitution does not require certitude to proceed the act of self defense or self protection the case for instruction instructs us one that a law enforcement officer reasonably  if he is mistaken that an individual poses a serious threat to the officer safety that officer is justified in using greater force than in fact we may be later found was needed because reasonable mistakes can be made as to the legal constraints on police conduct in such circumstances really familiar with the case don this is because we see this so frequently correct can you address is it your position that even if the officer was wrong and he wasn't grabbing a metal object but he was shifting bit it was still not unreasonable for him to get that wrong in the uk is that your position what is your position your honor i mean even if taking contention what mr rodriguez may have been doing inside the vehicle their contention is that he was possibly shifting gears ok even taking that mr officer to your hero still had reasonable belief to fear for  but just that one instance you know you have the suspect driver's closing the door officer trujillo losing sight of the suspects hands in the middle area not knowing where his hands are this court has even addressed cases and most recently and i think believe it's romero vs city of grapevine where even if the officer loses sight at least one of the suspects hands that still reason it's reasonable for that officer to fear for his safety to think that that suspect may be reaching for a weapon so is it then it doesn't matter whether he's actually going for a screwdriver a weapon or something it doesn't matter because he can't tell what he's doing and that he can shoot him if he can't tell such a position i'm just trying to get it straight i understand your honor my position is that whether or not it was reasonable for officer  for his safety and and yes he perceived that that threat an object coming out of him and i'm saying that case law that this court has already addressed says that it's enough that the officer sees that the see what the gentleman is doing in the car yes your honor the fact that the shut continued after the call hit the gas i mean it's pretty quick it's bad but nonetheless it i case but going into little it even states in little that if the officer fired immediately after the suspect vehicle had moved the officers actions would still be constitutional so even in little which i feel is distinguishable and it doesn't even get to where we're at in this case even that case address that if the officer fires his weapon immediately that's still within the where that was in fact what happened the case is just actually it's level your honor i'm sorry for that but it's a little because that's exactly what happened the contention was  the suspect vehicle i think was a about three or four houses away from the police officer at the time that the officer was shooting which is clearly distinguishable than what happened here and that's clearly shown on the video was as grainy is it maybe you can see though the goal wasn't so far away as to where the threat had stopped and this is a misdemeanor right correct this was a class b misdemeanor for what he was being pursu because it was dark i take it  back yes it was late at night it was the early morning hours i believe the description of the suspect vehicle and the suspect as well that the same description a bolo that had just gone out to the officers  suspects that were involved in aggravated robbery where gun was brandish and i believe a knife was and those are the print outs of the bolos are attached and in the record so these things were going through the officer's mind at the time these are possibly the suspects that were involved in these other recent robberies that were had guns involved and had weapons involved the officer had the unknown of whether or not there was the weapon inside the vehicle you had the passenger suspect that fled on foot into a vacant open field so taking into account all of that information it wasn't just simply taking and looking at it ok i have a beer and you know this is what it is it's the totality of the circumstances of what that officer knew at the time i'll be it later whether or not it may have been mistaken and the case was clear though that the officer can be mistaken so to answer your question your honor i believe it's not just looking at it from that aspect they they stole a few cases of beer t three six packs i think it was six or eight hundred packs i'm not sure but yes i mean it was a misdemeanor you're correct and i'm not going to i'm not disputing that but definitely i do want to bring it to the court's attention that there were several other factors going into this traffic so i'm just shoot all brownish or goldish older model s u v s because that was the bolo it wasn't any more specific and that could describe a lot of cars out on the room i believe that had the description i think it had two individual suspects i mean it didn't have their names or anything and of course the officer did not know who the suspect he were he was pursuing  what are the specific facts under the did make this case different than just willy nilly shooting someone for being ok your honor this incident occurred in the late evening early hour morning so you have  relevant because it goes into the mindset of the officer had at that time he had the information of a similar described vehicle that was involved in two aggravated robberies where weapons were used so that's why the vehicle description description is relevant to what was in the officer's mind set at the time he was he did not have the knowledge of whether those specific suspect he was pursuing had any weapons or not when he may be moving that there was no crime that he was investigating at that point now the words that the theft of the to that that was question was never asked it was a brief encounter what direction was the vehicle going takes off to pursue the vehicle i thought it was the jews to your position and maybe correct me if i'm wrong but i thought your position was that on they slammed the door and he couldn't see his hands that is when it became ok to shoot because he quickly shut the door and then all of a sudden he can't see him and he doesn't know whether he and he's right there in the car and the officer is in so he doesn't know whether he's about to be shot that that's i thought that was why it was ok from your perspective yes it doesn't matter so much about the bo slammed the door and he couldn't see i'm there for a second then he wouldn't be allowed to shoot him had he had a vision a visual of what his hands were doing and had the individual if he was compliant it would change the whole dynamic of what happened at that and as a police officer approaches a car and it's dark it's in the middle of the night and he can't see what's happening to the hands well i'm obviously east it depends on the factual certain circumstances i don't think that there's a blanket generality that that should be espoused just so that contention your honor but i believe there are several cases that have held that once the officer loses sight of the suspects hands it's reasonable for him to believe to fear for his safety and that belief is what would determine his decision to shoot ok so that's what we need the message we need to get out is that if you get stopped in the middle of the night and the officer can't see your hands you may be shot that's the message i don't believe it's a message your honor i think the case law that ought to be a message from this case if that's one way or the other there's going to be a message so your message is you get stopped in the middle of the night it can happen happened to me i didn't actually get stopped but i was approached by the police so if you get stopped in the middle of the night and the officer can't see your hands and you could be shot i wouldn't spend i wouldn't make a blanket rule like that your honor i would i think each case is determined on the facts of the you know it's facts specific so so what was the  complying the officer last visual all of the suspects can and feared that he was grabbing for a weapon because he slammed the door on the side yes i mean it's clear on the video that that's what he did that t it's not appropriate to come up here in one minute into it talk about a case that you didn't get to the other side but i'm going to go the other side an opportunity if they want to submit a twenty eight j on that case they may plaintiffs the of the facts had been believed there was no basis for that there was no the qualified immunity defense was appropriate because in that instance the officers participation in the swearing out of the warrant was insufficient as a matter of law to support liability under section one thousand nine hundred eighty three and more importantly it gave basis of basis for his qualified immunity shifting looking from the perspective of what it could a reasonable officer fear for his safety if he doesn't know what he's reaching for that's that's the high part of this case i understand i have two respon that question the first is that throughout his briefing officer trujillo does not simply rest his argument upon a belief that there may have been a weapon he states affirmatively at a number of points in time and by way of example i would say pages nine and ten and twenty six of his brief that it's not just that he feared that perhaps mr rodriguez had a weapon he states affirmatively that mr rodriguez was holding an object and moving it towards him in the period of time between the door closing and the vehicle moving which on the videotape is a total of one point one two seconds so officer trujillo's argument in that regard does not depend on  existential threat that there may have been a weapon or even the fact that the that mr rodriguez's hands may have disappeared from his line of sight for a brief period of time it depends according to his brief upon his affirmative believe that there was a weapon brandished and being moved towards and that is where the district court found the material question to lie because there is no way to tell from the videotape whether or not mr rodriguez in fact moved across his body with the weapon towards the officer before the shots were fired but even if he didn't have a weapon he could still shoot him if he was afraid that he might or if he was mistaken as to the systems of the weapon right i'm not sure i would agree with that totally i certainly understand that officers make split second decisions and tense situations and in those scheme of things they were allowed to misspoke and for qualified immunity well and for that on that issue in particular i would say that this case is a single shabelle from those cases cases like aunts of arrows for example it's distinguish i think because in particular officer tour he'll never bothered to mention the possibility of a weapon the possibility of a lunge at the scene all he mentioned was that mr rodriguez had reached for the center console so as as for saying the more the officer lies the more it draws into question what really happened i don't know that i would go quite that far but i do think that there is a sound body of to just wrong that his story isn't i think what we know is that in the in the immediate aftermath of this event he made absolutely no mention of a weapon in the immediate aftermath of the event he went into the vehicle moved materials around and then later claim that a screwdriver was after he had visited with counsel and had six days to recall you know collect his thoughts he claimed suddenly that a screwdriver had been wielded at him and i don't know that it's impossible a jury could assess that evidence certainly and conclude that officer cheerios story is what it chooses to believe and in that instance i have to concede that if the jury makes that determination he's entitled to qualified immunity almost certainly but there doesn't have to be a screwdriver first for him to get qualified immunity right well i think there has to be a reason to believe his story that there was some of step back i do think that his assertion that this item was directed towards him affirmatively makes a difference in terms of how the court by themselves it might be a different case so if he didn't if say i think i think you know if they had a he was reaching for something specific then it would be a different case i still think given the circumstances and particularly given the fact that the videotape in this case doesn't do much to fully corroborate officer trujillo story it doesn't grab right anybody stuart it doesn't but it leaves open i think the question of fact as to what happened in the vehicle the material fact question is as to taint and noted to what was officer trujillo responding if it was simply a driver who was choosing to flee a stop a misdemeanor stop there's constitutionally no justification for the use of lethal forc it isn't sped to his perception that a weapon was being wheeled toward him then the constitutional question is very different and so are you relying on the fact that one of the shots maybe two of the shots take place as he's starting to drive away there is it all do you can see that it's all one fell swoop kind of thing it's really quick it occurs very quickly but i would say this the the witnesses who have testified in deposition been shown the videotape have agree that the shots were fired after the vehicle left had begun to depart the scene and not as it remained in place but you're not saying that one shot is before money shot it's after he should have held lunch engine and then put the current to drive all of this of course happens in the span of one point one two seconds from the time he closes the door until the car departs but the videotape while not corroborating either side story of the actual  transaction between officer cheerio and mr rodriguez in the vehicle does corroborate the fact that the engine revved then the vehicle was put into gear and the part of the reading could be that doesn't cut in your favor drive when it landed in neutral and he pushed the gas pedal the engine would necessarily read in response to that he realized he wasn't going anywhere and he put the vehicle in to drive of course a significant problem here is that we only have one person who was a participant in the transaction available to testify about what occurred and i think as i noted at the d c circuit in flight and i think virtually every other circuit including this one has recognized that where there are inconsistency is where where a videotape may in the sense that i've just noted corroborated or cast doubt upon the story told by the police officer maybe it may not be this one point one two yes you ok and it also shows that the shots occur after he's already my news ending is that the witnesses testified that that is true but it does not actually show that on the body at you can't really if you try to time it with a stopwatch  in denying the motion for summary judgment to recognize that a jury could look at that videotape and make these assessments in a way that would not require the appellate court to do that ok so the other gentlemen there's no one there to corroborate grabbing for something or is it just have to be in fear of that he might be well i think the club officer can't just walk up there and shoot him because it's dark thinks he might be grabbing and i can't see it and that's why the police are always saying show me  account of the event is that in dispute i don't know that it's in serious dispute although i would say that it is significant that there is no recording of the officer ordering mr rodriguez out of the vehicle or asking mr rodriguez to show his hands or anything like god i mean it may very well be prudent for but we do have him saying what happened that there man it's the beginning of that conversation that we have that recording but the rest of the encounter is there's no yes i know to what you're referring i believe that's correct i don't recall off the top of my head and i apologize whether that is simply officer trujillo's account of their conversation or not but it's something you can hear on the tape i think i'm sorry i  the idea that there's a conflict in the evidence because in that case the court took the best side of the story for the plaintiffs and it recognized that there were facts in the plaintiff's view of the case that actually supported the officers view of the story and there was nothing else in the record t controvert the officer's view of the event well i'm just thinking about this case that we had where the the it's an officer in a lone gentleman and he gets out of the car and he starts running and there's an if in there's an issue between whether he's running away or whether he's running towards the officer and the the plaintiff side said that he says that he's running away but he has to run kind of an angle and  in the end the defense side is saying that he's running towards the officer we didn't find there was a fact issue we said the reasonable officer could perceive that he was running towards him even though he judicial worrying i suppose about where qualified immunity stands and and how it's wavering between moving closer and closer to being an absolute immunity in every case under every circumstance and the court is well aware of that scholarship and follows it closely but we have to follow the existing law as it is right now i absolutely agree and i think again our our our  well judge chain and did was look at the evidence decide that there were two different sides of the story that the video didn't type break the tie and based on that decided to let the jury resolve that issue and with that i thank you for your thank you very much following up on on what opposing counsel just stated how what how judge chain viewed i want to take a moment just to address the the standard of review the legal standard of how the facts should be viewed in versus compared to how judge hanan viewed them and it's true yes the court must accept the plaintiff's version of the facts but only to the extent supportable by the record and here there is nothing on the record one that don't know what testimony he's referring to on the record i don't recall any of that on the record stating that there was witnesses stating that the shots were fired after the vehicle was moving i recall during depositions to be hit the video was shown to each witness and i mean as we've discussed already here it's very fast and instantaneous if it's not at the moment the vehicle is moving it's immediately there after so take but the court should not take the officers account of what happened the cases that they cited in the circuit i believe it's state vs state of texas vs kleiner that wasn't even a case involving qualified immunity but does matter that the officer story changes i mean i understand got two people that really are witnesses one of them's dead so the guy that's the defendant in this case he's the only storyteller who was there ok so but that's ok that doesn't prevent qualified immunity he's kind of expanding enlarging on changing somewhat modifying and not completely consistent with the not contradicted by the videotape does that make a difference on this whole analysis of whether we have jurisdiction over this interlock to repeal no and i think you had it right there when you said there was nothing contradicting in any of his statements yes he went into more detail when he was interviewed by the texas rangers and gave his full statement but when you're judging him at the scene immediately after an event where a tragic event i don't think anyone can expect someone to be in full detail as if they are sitting in front seems like the sort of detail just like i would have expected the shopkeeper if  held a gun to get the beer to say that instead of just saying this guy took some beer without paying for me to sort of thing you say he was reaching for no weapon i had no choice made as like the first thing you would say or at least a reasonable jury  conclude i believe your honor he stated that he was reaching for the console it wasn't as detailed as his statement but even then the cases that have been cited by the apple leaves that try to assess where they're trying to assert that the officers account shouldn't be taken for you know the version shouldn't be a taken they all are involving cases where there was contradicting testimony either by independent witnesses other officers or even witnesses say for one even if they did say that i was in those depositions i did have video was shown to them and it was based off on questions about where the video was shown so their answer to that it would have been  moving but as i don't think it even i mean we're we're losing the sight of what the officers perception was in the decision that he made at that moment to shoot it can't see if it happens