i well i would i'm only speaking for myself right now because we don't conference to after that patient out there back i would agree with you that there are some disputed facts but the question is  have to be material because you can always have disputed facts and you are entitled to all inferences but if but the question i have issue a claim that the disputed fact is whether any office suspect is driving generally towards the officers because while you can parse this all out i don't think that the supreme court would be supportive of the standard that an officer has to know by the trajectory and that it would have missed him by two inches the officer is faced with a beat up all coming towards him or coming towards his colleagues and it would appear that they would have a right to defend themselves or defense of the other officers because so can you tell me and this is also true factually it's following a high speed chase then going down a dad and then coming back out and the vehicle is it's undisputed to be a call it's moving towards at least some of the her just mentioned in terms of the two issues standard in terms of the supreme court review i believe that what this court held constant versus city and county of san francisco is on point two to your turn in that arc at the beginning about it was aimed you know if your officers mill county and williams it was aimed to your left right because it's driving like it's going to go drive over on the berm and it turns and at some point that turns it goes to the right and actually runs into one of their cruisers and so it's impossible for that vehicle to have gone from the left of the authors to the right of the object without some point having gone and being going right straight toward the officers i mean it is the physical  there that vehicle went from going to the right and going to the left so i think on the st issue they were clearly in that there were at least two officers clearly in the path of the vehicle as far as the vehicle moving and there's a lot in the breeze about how very close proximity so i you know we talk about the vehicle going slow like it's not going sixty miles an hour or something like that but i mean you're these officers that i mean the whole thing happened in four five seconds and the vehicle went right into the middle like literally into the middle of the officers when they went all finished zellner was behind the vehicle and so when in the middle of the officers the vehicle was moving i think that in this close proximity at like fifteen feet per nd or up to twenty feet per  they were clearly in the path and therefore i just don't see how you can dispute little things but like wilkinson says you have to actually like take into account the whole situation also yes roger and i would disagree that the officers were in the path of the vehicle during the dispositive time what's important to the analysis is whether the officers were in the path of the vehicle at the moment that the fire not some time before this court is still council let me let me let me push back a little bit on that i mean this whole thing happened in four point five seconds so you know what you're talking about if we're talking about parsing that four five seconds to saying well was it  you know where where was the path of the vehicle when when the officers were firing at like you know let's say let's say zellner presumed i think you argue that zellner shot before the vehicle the van collided with the police cruiser  well at that point the vehicle would have been either aiming towards or moving in a circle is coming towards the officers that were behind him but at that moment in time judge van dyke office result there was a not shooting to protect the other officers he shot because he said he was protecting himself he had no idea where the other officers were so it's closing down always let me let me push back a little bit on that because i believe in and he said correct so i don't think there's anything in the record that says that he wasn't shooting to protect his fellow officers it did say he was afraid he was going to die i think he said that but he didn't say i was only worried about you can't you can't parse everything you can't supplement it with things like what would be in someone's mind if they you know you secularly that because he was afraid for himself he wasn't afraid for other people that i would at the whole situation set and objectively applying objective standard it would be reasonable for an officer with a vehicle coming right around them and relatively close proximity close proximity as a quote from well consent and headed towards to a fellow if you're honest i'm going to answer both questions by saying this wilkinson versus torre's is distinguishable for here because the dispositive fact in that case was that the shooting officer believed that his partner had already been run over lost sight of his partner and thought his partner was going to be run over again here this case is much more similar to a the versus california highway patrol were just really just like you said it was a high speed chase for a storm in a vehicle over a one hundred miles per hour running red lights this is a the just like our keep it actually ended in a dead end street as well where the van where the suspect vehicle get a fence post so far it's on all fours  council let me ask c you about this this it seems to be that if you think your partner's been run over and you're you know he's already been run over and you're shooting somebody you mean arguably that's like retaliation or something like that i mean i did seems that it seems officers they should be able to use deadly force to stop somebody before somebody gets injured and i think we can all agree that that's definitely a principle in these cases and so i guess the question i've got for you four point five seconds is vehicles coming around started firing at the beginning of the four five seconds the vehicle went from zero to like over one thousand and ten to twelve miles an hour in a half a nd so it was clearly accelerating very fast coming coming off and so how far did the vehicle need to be from hitting his colleagues behind him before he could take deadly force to try to protect him and i mean how climate climb because i don't think it doesn't work to talk about to talk about and i believe plaintiffs might have to concede that if it's if an officer is in the path in the vehicles pass directly towards that officer then an officer can defend his partner's life by using billy force but i don't think that that analysis is directly on point with this case if we take the time when officers ulmer use deadly force at that point in time he had no idea where his partners were just in some place north of him he fired to defend himself out so that's that's true in wilkinson too he did know i mean it looks and says he didn't know exactly where he thought he might have been run over he thought he might get run over that's what the testimony was but he didn't know where his that was part of the point and here's the same thing says i didn't know where they were but i knew they were behind me he knew that they were generally the direction the vehicle was going i think goes another prince between generally in the direction in this case and in wilkinson were these were data that the accelerator was not being depressed at all the vehicle slow from approximately thirteen mph to eight mph and that's when going to raise said that mr moms on it raised his hands in submission and was giving up and then officers ultra fine ok that's fine but the problem with that and i guess we'll pick that fact that he had a pass but somehow while he had his hands in the air in submission the same black box tells us that the wheel cranks from car if you've got the wheel crank this way as he's trying to go around zellner and then the wheel cranks about as far as possible this way to try to get in between the nd and rd cruiser and so somehow he's got his hands up and he's saying i'm submitting but he's also cranking the wheel explained to me about that your honor officer williams was behind off from a cost at the moment of impact with the van and officer mcallister's vehicle it appears that the vehicle moved back to some extent and officer mccarthy whose orders were up went through the rear window and i believe his arm got cut this is not dispositive to the analysis because no one knew about this until later on in hindsight evidence is prejudice it is not included in the telling of circumstances now that's sort of very important factor to consider because officer williams was behind the vehicle the van crashes officer williams says that it's attached or disable then he runs up to the front of the office from across his vehicle and then begins to fire ten rounds what's very important in this case very similar to to  the side even from the back that means at the time that these officers fired the vehicle had already passed their position they were already in the position of safety they were not in the path of the van and when officer  was turning around and it just crashed into the front of their their their vehicle knocking out a vehicle with enough force to hit there are i don't know why an officer in that situation when think this guy's going to back off and he's going to come back out of so i don't i don't but if we were to say but there's no clearly established law how would that affect your other claims to the same your other clearly still have to decide reasonableness and reasonless of the officer's actions because that would be required by your battery claim in your negligence that there are facts that a reasonable jury can find that the force was indeed on reasonable both under the th amendment violation and under the state law claims qualified immunity the nd prong does not apply to the you're in a vehicle in your in a high speed pursuit no matter how fast the speed was it's at the time that the officers use the deadly force is there a person in imminent risk of death or serious bodily injury here the circumstantial evidence shows and the forensic evidence that because those rounds came from his side and even from his back it specially after the vehicle crashed in the no longer moving the force could be seen by a reasonable degree of success going on reasonable ok thank you oh all right now i'm going to go to the city of marietta is all right is it possible that now i don't have either ok now so we're just going to have one council at a if no claim is still alive that would not be affected by qualified immunity next point is i wanted to thank you as my colleagues focus on the subjective tenant of the officers particularly officer s in the use of force because the law does not focus on the subjective intent it suggests object focus on the state of mind the officers in terms of what they knew but it's whether or not object an officer in that situation would use down force and so whether exultant or fired to defend himself were different than his fellow officers is not as important as to whether a reasonable officer in that situation favor what specific facts and made the officers use of deadly force here are reasonable records recognizing that one sign was driving if you give them the emphasis just eight miles an hour and was turning the facts in the van dyck the report are understood it there is no contrary accident reconstruction report from the plaintiffs those facts show that for instance when sure what's more dangerous or scary somebody driving to or in your direction with their hands on the wheel or somebody driving your direction with no hands on the wheel plus the fact that he quickly as judge van dyke pointed out started turning the steering column according to the black box shows that even if his hands were momentarily up they went back on the wheel and he started steering towards the officer and in fact he could have gone through we don't know for sure but it seems to me there's a possibility that the reason you know he was turning i understand an officer looking at this wouldn't necessarily know where he's going to go because he's our king around and coming and part of that time is coming towards you but it does seem like he was trying to hit that space between the two vehicles and the reason one of the reasons he may have but go that was because he he it seems like he may have been shot by the owner as he was going by and so he may have let go because he may have stopped turning because he's actually been shot how does that if that is if that was a fact if we assume that back in their favor how does that affect i mean he didn't intentionally drive into the car into the into the cruiser he makovsky because it appears like they fired on him after he crashed into their car it's all happening within four point five seconds it does not back the reason is because the officers don't know whether he is staring intentionally or whether his body's relaxing because he's been shot yeah they just know what's happening is we're point five seconds which is that this two tons is heading in your direction and that as  report shows there was significant left and right turns of the steering wheel until it hit the cow skis for your car so that means that in this narrow residential street with a dead end this car this band is driving yeah it was kind of wondered what was the point of leaving him an escape route if the officers could use deadly force as soon as he turned his van around in other words what different fact would make the use of deadly force and reasonable from the point m executed is turning began is this game i don't know what you think i don't know i don't know the answer to that but i think what she actually saying it that raises an interesting point i would say if all the officers stayed in their vehicle because as soon as manzano got in there he immediately started turning around and driving out if they stayed in their vehicles and the risk was just to the impact of the vehicles which cannot and is still a danger but not as much a danger and it might be long considered unreasonable here the market the vehicle stopped when it got in there and the officers got out to go to arrest him and flinch because it looked like he was complying because he was stuck then he turned the driver was obeying all traffic laws in the chase and there was nobody in front of the vehicle counting or you also so i looked at this question that my colleagues were asking about and i bit of the i didn't like search through the whole record but i was trying to find because it says i think this is one of the arguments of your posing council as you know they you know you left a they left the path they can't shoot him for trying to go through that i think it is i saw the police procedure say you should leave somebody a path i'm not exactly sure why that is but it seems that i'm not sure that i saw that they actually their parking wasn't to leave him up past his seems to me that their testimony they gave for their parking in a park in that or pattern that you can see in the briefs and seems to me they did that because of their training so that they don't end up with one car parked right behind the other and in a car parked behind them and then they're all stopped where they can't move so they all park and so it's not clear to me that that's what they actually but maybe i'm missing something and i'll let your opposing counsel let me know where in the record it actually says that their reason for doing what they did was to give him a nd think that i thought was interesting is somewhere i thought i remember reading that the actual space be really scary if that was happening to any of us like somebody trying to like go post celebration at eighteen miles an hour through a ten foot gap and so i don't know i guess i'm curious as to whether or not the officers actually were deliberate when they par sure there was some policy but that they were actually trying to leave an escape path or whether they were actually parking in staggered pattern in order to make sure that they could act still if they you know if they needed to quickly the way they are trained i don't recall reason i'm afraid i don't have the specific sites or the records for that your honor the time yet plus the court has any other questions i will let me ask you do wilkinson and the other deadly force cases involving vehicle did not know whether his office his fellow officer was in the path he believed that he may have been run over or was in danger of running over but didn't see him because of all the mud being kicked up and the wilkinson  bad heading in the general direction does make the use of deadly force reasonable on the contrary i decided that how does the events leading up to it in your view how would you argue the undisputed facts leading up to it how would you say those factor in the here and now is the change that going down the doubt and the turning around how how how does that factor in well for one thing going through a very dangerous high speed chase and my colleague pointed out in the record that there wasn't much traffic there he mr manzoni didn't know that when he was going when he was driving like crazy and scott versus harris from the supreme court said his that's a factor for officers to consider in that this person poses a danger not only to the officers but to the public because he's willing to do desperate thinks the fact that he was had stolen vehicle which was a felony back tears into it because that showman's combined with his objective actions that he's desperate time is flight which is one of the grammars as connor factors his resistance to arrest is a factor in showing that nice of deadly force may be more reasonable at all of those factors that never happened before the shooting show this this gentleman is not going to get caught and he's going to drive he's either going to hit an officer or he's going to try to escape no matter who is in his way those are all factors which increase the immediate threat of the situation which is the most important factor in the graham versus conner th amendment  into the record and i haven't seen where anybody said zeller actually testified that he did not intend to block the escape route but he didn't say that he intentionally was trying to create an escape route and importantly the supreme court i think it's been very clear  circuit very clear on the escape issue in his he vs gardner quote the author when the author has probable cause to believe the suspect poses a risk of serious physical harm to the officer or others it's not uncons unreasonable to prevent escape using deadly force so i guess regard again it like you said on the run of the objective standard regardless of if the officers were trying to leave them some room to escape i don't know how they could be in trouble for not having a less than optimal room if were if it was reasonable for them to think that he was when he was driving through the way he was driving through that he was presenting a risk of of serious physical harm to them or to one of their fellow officers they had the tennessee versus governor from the supreme court says that they had well i'll jump straight in and i'll respond to judge lee's question and his comment that you were correct joyously that the position of the vehicles was to allow him to escape now judge van dyke in the record at two  officer mcallister who still positioned is important here because he's going into the gap specifically parked he said two car lengths behind officer bradley's bugle in order for him to have space to continue to flee now it's just like you said judge callahan that how can the officers justify their use of deadly force when they gave the suspect room to flee and then when he took the room the flee they then use deadly force to prevent him from this is very similar to the case that this court had just last year and has army he versus brown are up with this court recognize the officers role in creating the danger that when the officer creates an emergency situation you cannot  accordance with the defendant's own expert testimony he was driving through that space albeit not the largest space in the world but he was driving for another experience and would have made it safely through the x rays had it not been for the officer know why he's white you know he's driving for a gap and then all of a sudden these trains out and runs right in your car and you don't know that you don't know that so i don't see i think he's got a point not particularly relevant why if that is the reason why he why he didn't make it through the gap and the other officers don't know that as objective officer well let's focus and judge vandyke on the moment right after the collision officer mccown's he states that he fired six rounds succession right after the collision he said that is soon as he stopped firing the van started rolling backwards now officer williams stated that it took him three to five seconds after the collision to run up to the front of the vehicle before he started firing ten rounds by reasonable inference the vehicle was at least struck it's not rolling backwards it could have been rolling backwards because at that point mr man's on had already been shot a number of times an hour into my into my cruiser knocking that cruiser into my fellow and to my fellow officer i mean there's glass breaking there's all this stuff going on and i'm thinking this guy just backed up ran to a fence post and and and then drove towards me why would i think my goodness this guy just drove his car into our car he's going to back up and and then take the force i don't see how that changes i mean for some seconds after that it seems to me to be reasonable for an officer to use deadly force to stop precisely what he had just done like ten seconds earlier at the end of the at the end of the dead end street him backing up and then trying again your honor if you did indeed did it back up and try again after the collusion with tests you can be wanting to escape but that doesn't mean you're not have seen a danger either they're not mutually exclusive are today no you want to they're not mutually exclusive there could a good things are in a different scenario i mean the any danger to officers but there can also be a situation where the flight that's caused that well i think where we're now going we're five minutes over that i in last to any of my colleagues have additional question anyone have additional questions right thank you both you're very helpful argument you're both extremely prepared this is it's a difficult case and we know we recognize it's important to everyone involved in i it's always a