year old navy veteran was shining skilled in his driveway they also years of the bell county sheriff's department on the afternoon also want what does the record show as to why i believe up to four forms of complaint and the st action that action was dismissed and then this action was filed i think there i think it was on the rd amended complaint in that st action i could be wrong but does the record reflect any reason for that form a complaint so to speak is there anything in the record as to why the st action was dropped and then this nd action was filed two this is a new lawsuit that was filed i know that counsel i just said that said there was a that was dismissed and then a new action was filed now is there anything in the record as to why my understanding not having been a trial understanding is that it was dismissed based on no i don't want understanding i want to know what's in the record is there  the report by officer clark of the l a police department which has added new elements to the complete right which was attached to the new complaint yes your course that could have been done with us suppose the th version of the complaint in well you know that's what makes this case unusual that we don't just have the complaint per se we have attached to the complaint this report by this mr clark or officer clark which incorporates statements as i understand it that mr greer made a following the shooting and of course an attachment to the complaint is considered part of the complaint  and is considered at their root will be six hearing that's what makes this so unusual i agree normally summary judgment is the stage where we decide qualified immunity but this is unusual in the sense that not only do you look at the four corners of the complaint you look at the attachment to the complaint i gree your honor that this is an unusual case which is borne out by the fact that neither appellate nor pelly could cite to a rule twelve dismissal of a deadly police shooting and that's because the court has repeatedly held that rule twelve dismissal which is still the procedural posture of this case is due to display of are and is rarely granted you know how many are and in this case as you surveyed did you find any where there was  attachment similar to what was attached in this case to the complaint and the brief does state as you mentioned just barksdale that complaints include attachments i'm not sure that we surveyed a case specifically where there was an attachment you didn't find a case where there was an attachment not specifically like the attachment in this case right additionally now along that line there was the video cam video taken in the officers car of the incident yes your honor there is a dash cam video that was made publicly available it is not the complete video and it does have cuts right on the dash cam the district court refused to consider that yes and that is not included in the in the complaint right and there were court refused to take judicial notice of it yes or now what was the basis reason given by the court for refusing to take judicial notice of the gash dash cam recording that it was not included within the complaint and i i believe that the district part could not find case law within the circuit that supported do dish will notice o lanterns killing was objective lee on reasonable because he was an armed shot without warning felt of the ground clearly incapacitated and this fire her number of cases are fort that say when someone's reaching into a pocket or something similar that that gives police justification to think that the person might be used pulling a gun out in about to shoot them what your best case in a situation where someone's reaching into a pocket or stage nd not sure i mean and and as an interesting point you make about rule twelve dismissals being rare in this context but if if we take all the allegations in your favor which will required to do it rule twelve why q i mean i if the last says there's qualified immunity than that's that's the proper rule look i mean i'm not sure d m in the day why the posture matters is long as we're taking all the allegations in your favour i think the plausibility standard is a critical  difference as well as what a judge is required to do at the summary judgment stage those two factors would differentiate the cases between a rule twelve dismissal and summary judgment given the rule twelve liberal pleading standards and there are a lot of other qualified immunity  missals that rule twelve that we've a pro there have been yes your honor i think what's critical about the cases that you were addressing chiefly and cited by this report mannus onto pharaoh's and reese was that two factors about those cases critically that in all of those cases there was noncompliance by the individual and man is for instance when also for standing within arm's reach of the individual he was repeatedly told to show his hands instead of reaching under the seat and in that case  seen retrieving an object and the complaint in this case notes that he never mr blanchard never retrieve that the object he is reaching for his identification and it was never a tree from his pocket and the complaint notes that he was compliant at all times with the orders of officer years now you say he was reaching for his identification obviously that the officer wouldn't know that he would know what was in the man's pocket no your honor but that is stated in the complaint so that that is why i referenced that well but that's just pure conjecture allegation depend on the initial shooting being excessive or is there a separate the area that you know the shots once he was already on the ground are excessive both would do that's borne out in the case law by grazy zachery or the court stated not only was it clearly established but that no case was needed for an officer to know that they should not fire in violation of suspects th amendment right to be free from excessive force on a downed or incapacitated individual and the complaint states that once he had fallen to the ground after being shot at four times he was clearly incapacitated and thus was fired so in either instance you are the st volley four shots or the nd volley and cases such as baker as well as the municipal liability cases also were concerned with the number of shots that were used obviously when an officer chooses to fire his weapon that is the that is the greatest determination that is made in a spectrum of we have to construe the facts in the light most favorable to you than necessarily summary judgment where we construe the facts against a movement so that you know make a difference maybe you've already answered that but why because  which facts in your complaint to the compain of the issue benefit you more with us having to construe it in your favor as true in terms of getting over staying in court as to meet the world twelve stand yeah i think that given at the rule twelve stage that a number of the facts in the complaint would point to would lead to reasonable inferences of liability that the reaching motion dismissed major difference between then and the why of complaint is the addition of the report as a right as right you are in the truck so we're any of the other you know allegations that we typically demonstrate dismissed in the think your answer was was i guess in the face of perhaps an imminent dismissal by the measure judge counsel opted to dismiss and refile right yes or so in the refiling there were no other interesting because and the comment statement by the officer which is included in craft report the officer didn't say he was reaching into a pocket of his cargo shorts he says he reached behind his lower back with his left arm and under the tail of his shirt in a way that place me in fear that he had a gun i'm going to shoot me with it i yelled as loud as i could to show me as hands and also as on coming forward from his or back waist as if he were bringing a gun out and up although i did not clearly see is hand i felt like he had to have a gun and yet by the motion he made and it appeared to me that he was pulling a gun on me now that's quite different from he really was reaching that those are post hoc rationalization i'll let your that's your observation but you're the one counsel attached this statement to the complaint for reasons unknown i don't know whether it the report was attached no the vast difference between what his statement is in the report and what we're being told about he reached into the pocket of his cargo shorts so this does give additional basis for granting the qualified immunity again your honor at the rule twelve it's at the rule twelve stage of this complaint only alleged plausible claims for relief and looking at the body of the complaint as well as the interview given that the interview was thirteen that the court wants me to otherwise i'd like to address a few things that were well let's start with where we finished about the fact that you know the plaintiff makes his or her own case that's there they control their own case for reasons doesn't matter of the reasons the plaintiff attached this craft report by this i suppose former officer  included which include it the statements made by officer gary was as to why he his position on why he did what he did which is vastly different from what the complaint says took place and  we're told well this is just not plausible this is a post hoc rationalization but so on what basis could the district court say well i'm going to go with what they also said and not what the allegations of the complain are because they're both before me well as you pointed out here on our own rule ten see once that once that documents is attached to the pleading it's part of the pleading and i think that just because we're here on rule twelve b six review or the district court was reviewing the rule twelve b six motion does not mean that as part of part of the plausibility standard he can't review the document for internal inconsistency and see that the much more detail statement by deputy gear's simply controver selectively chosen and sometimes outright incorrect allegations of the plaintiff and in that they say it's a post hoc statement all statements are post hoc that's the nature of a statement deposition testimony in court testimony would all be hoc and i think the taso to speak goes to bill county and and deputy gears in that the reason that this statement by by deputy give was offered up and keep in mind it is a statement he made to the texas rangers part of their investigation but the reason it's offered up as part of roger clark report is it's the basis of mr clarke's report why on earth would your expert take a statement and opine upon it if it was not a reliable factually accurate statement i mean that's the nature of rule yours is unreasonable training was deficient there was deliberate indifference here with no analysis no factual basis to support those things and we cited to the court a number of cases where this court said conclusions on the reasonableness of the use of force are legal conclusions that we don't need experts at hiding that's for the year but to the extent that he incorporated deputies your state that and in fact discusses his review of the video those are the facts of this case and part of what this court has consistently sta today the be the facts tomorrow that we the facts use in this case back to the district court but given it i mean as you say you know as well as we do most of the time we're dealing with the same most frequently we're dealing with the qualified i mean this at the summ if your honour's concern is that we're at the twelve the six sage and therefore the only hurdle is possibility it is nevertheless a hurdle you still have to plead facts to show you have a plausible playing for relief as to bill county that means cleaning facts to show that a policy maker was involved in promulgating promulgating an official policy that was the moving force behind this violation and as we've briefed there was no factual allegations on i do any of those elements and i can go through any of those elements that are a particular concern of the court but and then on the use of force as deputy gears again no pleading that demonstrates his force was clearly excessive excessive or objective leon reason water the circumstances and family shot him four once but he unload he shoots him poor times until he goes down in there the other shot so my question conny in the end you know the poor shots unreasonable  opening comments this was a disabled man he's a navy veteran i'm not here of course as counsel for bell county to say it's not a difficult candyass who doesn't know any of this but the officer doesn't know any of that and to kind of answer your question by piggybacking on one of the comments where a d p s trooper pulled someone over on suspicion of dui and therefore that person was potentially intoxicated with all of the implications that go along with that poor judgment that sort of thing and then showed signs of wanting to flee and resist and then ultimately took a couple steps away from the d p s trooper turned back towards the trooper and reached under his shirt towards his waist this court said that was not just a qualified immunity case the use of force there was not unreasonable it was not a violation of the  amendment and i'll point out judge stewart is several some of these other cases have these distinctions it's dark it's this is that what this court said and salazar limone is on summary judgment contents even though there might be factual disputes about some of these other details that would set the stage so to speak about the level of danger that the officers perceived the bottom line was this this court said that the factual dispute that mattered was whether the person made a move towards their waist in a drawing type motion and unless they unless the plaintiff there could present controverted evidence that that move that gesture was not made that settled the case and this court said there is no controverted evidence on that point and so summary judgment was about there it seems to me they allege st that there's a couple shots then it says while he's on the ground obviously injured and bleeding there's additional shots and again at the pleading stage i don't know whether there's really that separation in time and in what the record with the video would actually show but as played they say he's on the ground there's additional shots violet how do you get around that aspect not number one the cases that are mentioned about multiple shots or cases that involve other egregious violence so for example the beach your case that was mentioned in the opening comments that was a case in which there was no question the officer did not warn the person to the officers presence the person was not otherwise aware of the officers presence all sorts of things that would say maybe shooting that many times was an overreaction but here if we're going to assume and we must under graham that from the officers perspective he perceived that the person was drawing a weapon the number of shots to address that fear the number of shots too and i don't think it's so much the number of shots but the allegation is that after he was down had already hit there was a continuation again this is one of these facts a flush out whether it really was you know whether it was just for rapid fire shots or whether there was this separation in time but as i read the complaint it suggest that there is a separation if at least a few seconds where the officer would realize he's down and yet he's keeps firing but i think there's a distinction being made of whether the officer realizes he's down and whether the the threat is gone because a person who is down can still father weapon and that's what officer is doing and that's what this course courts case law says the officer can address the threat and use enough force to do so so whether he's laying on the ground whether he's sitting in the car whether however his position the officer can follow it far enough shots to know that deadly force has been used because it's been just it's justified in that circumstance let's in fact that's what the officer says in his statement is why he continued shooting now been comparing the factual allegations in the complaint a between the allegations in a complaint and the a document that the plaintiffs chose to attach to the complaint as far as paul's ability or the other standard for rule twelve b six panel could look at the face of the pleadings itself and the face of the pleading and by the pleading i mean the complaint itself aside from any attachments and for the reasons we set out in our briefing those are insufficient to stay declining you'll notice in our briefing that we job you go but but your honor if if you look at the body of the complaint itself you will see that their own allegations line up with cases like salazar limone unlike some of the cases that judge stewart is mission where there are other facts or circumstances so this court is held in cases like bells on we don't just look at the moment of the encounter we look at the things leading up to the encounter that set the stage by their own pleading encounter began as a traffic stop on a public paved road rather than pull over on that paved road mr blanchard turned onto a dirt road still didn't stop he then proceeds down that dirt road for a one thousand feet by their own allegations almost a quarter of a mile for no apparent reason and then and only then does a bradley stop exit his vehicle without being instructed to do so turn towards the officer to the poor the deputy and make a motion towards his waist that sounds all along i mean i know we can talk about dark versus light things like that those are the threatening circumstance that i understand you to be saying that the district courts construed the last complaint which overview but it's where we said it i what when number one in response to question your honor i'd be remiss if i didn't say i have made an argument my briefing that this should not be the novo review for many of the reasons that judge barksdale pointed out during his officer says i mean it's just it's hard to rule twelve to that's the difficulty we don't have you know how do you resolve this conflict i mean has to be resolved in favor of the plaintiff but and that's the point i was making and it will conflict with deputy give statement if for no other have a visual of how this encounter home unaided because we're told you know he's reaching into a cargo bay to get his wallet the video is accurate as to that and we've cited cases to say you know if it's in the public forum this court can take  a video at the twelve b six hearing yes yes that's what i thought and is it part of the record was it was it marked for death occasion when the judge refused to consider no we did not go through that process right so it's not even in the record well what we did your honor was we provided a hyperlink to the news coverage because my concern was i wanted to demonstrate that it was in the public record and therefore make it a but it's not it was not marked for  all right mr constitution when he fails to include an a affidavit in support of a search warrant that the person's house to be searched is in fact dead or that they were shot by a peace officer when they didn't have a weapon on them and as or trafficking or whatever whatever so was that the norm i mean he knew him and was dead right yes it was the fact of his decease set forth in the application  th circuit nine hundred and seventy nine to say that i had a seat the person who is deceased does not carry over a th amendment right directly that was what the basis of the district court it's in dismissing the case and i would agree with that also we didn't brief that i'll be honest we were lined up and we were respond that's the question why don't you why don't you brief that case i was responding to the plaintiff's brief i honestly probably should have included that but i was just responding to their brief about kind of the procedural posture of how this case all played out of the two cases and i want to give you some context there because i was involved in both the i believe if you look at if you look at the motion to dismiss i felt in this case in the statement of it issued i believe it quite extensive to a twelve or thirteen page report recommendation to dismiss the case and rather than objecting to the r and r the plan that especially with regards to my client i know they added on the affidavit report from the police officer but that changes again nothing with regards to my client and filed the exact same thing and is in waco yes it's a single district judge regular an eight it does seem like maybe they're trying to get a different judge to go with a single district judge that's not going to happen right when what happened actually what happened was on that that was one of the wake of course have started vacancy and judge pittman even the chance of going to the defense a look you know and that was actually frankly was part of the reason that judge albright sanctioned the play as counsel in this case is that they if jay change nothing they simply have this they just try to set a non s would you add two minutes to most of the remains time we asked a lot of questions almost to a very extended out a little bit he's got a lot to talk so given two additional he's got seven instead of so you question as to the reasonableness of the officers conduct more of a question of fact than a court may dispose of on summary judgment and this is a rule twelve case in terms of the reaching motion case as my co coun stated all those cases are decided on summary judgment and rule twelve does not allow the proper context to understand what type of reaching into a pocket this was there are a lot of different ways that one can reach into their pocket as the video helped you or i the entire video is not part of the record yes your honor and the yes what yes it is part of the record or yes it's not part of the record yes you are correct it is not part of the record right so how can we consider it washington it was about the a wherry court decided not to take judicial mirrors of a youtube video and listen as only one of the decision the of reasons for not taking judicial notice of the video was that its authenticity could not be established but not that that was the only reason we hope that this video will be considered at the proper stayed to the proceeding on the video contradicts the statements made by office in a way there but you're not seeking the have it considered bothers panel  the video being used as the sole consideration whether or not his actions were reasonable but not to provide additional context such as the fact that the video you want us to look at of the fota purpose is that you want us to look  table yes or and we're not scared of the court viewing the video however we is our contention that rule twelve is not the proper place in a proceeding for video to be considered in the response to the rule twelve motion the trial counsel asked that the district court consider the video and convert the proceeding into a summary judgment proceeding that is your court did not do that the district court i believe did not even say anything about the existence of the sense to not looking further when it yes you are and what we're saying is that in the last in the last pleading is a said this before so there's no difference in the allegations from the other versions the only difference in made the statements but not that they're true so considering the complaints at the facts alleged in the complaint as true awhile was that it is there any statement in the complaint as to why it's attached and the only basis given paul how it should be considered yes your honor of the basis for the interview i believe with that mr clarke was considering the video so as to consider both sides of the incident in order to make  analysis that he provided and additionally the interview can be seen as important for the municipal liability issue as it provides a context by which this investigation was taken through  its reasonable inference that the county used the video and the interview when considering whether or not to reprimand or discipline officer gears they did not discipline a reprimand officer gears and he was back on the force within a matter of weeks we contend that this is evidence of a policy that the county has ratified and the case the hobart case it's instructive as it looking at the amount of shots that were fired at in that case also an unarmed individual when considering whether or not a jury could fuck plausibly find that it was an extreme factual scenario that said that the extraordinary number of shots fired and in that case it was six or seven shots fired in an armed individuals but the extraordinary number of shots