with the courts mandate that there is this question re for example he found that the court found that mr timothy fired the shot to rapidly as a result all of this or that its actions were reasonable there's no evidence that the shots were my distinguished colleague judge wims wonderful opinion in the slater case because there are an officer shot a gentleman in the back and then proceeded to laugh about it and here he you have a  different situation totally different in those spectrum where the oh my office is actually fighting for his life when you look at the d n a marks on the handle of the weapon where he gets beat up he's fighting for his life and the question is do we you know give him a civil lawsuit on top of it all and so i think you have to have a discern between situations where  officers just go way too far and those where they get to be trying to i'm protectors and to my mind this opinion in the slayer opinion that my distinguished colleague wrote the notion that there was not a pause between the final shots there and that's where this case becomes a little bit more difficult to discern a nuanced and simply bookend case because you have those different sho but by the contention here piers to be is that only last shot he was only ground lying down now whether you win this at trial is a whole different ballgame that's right because it comes down to a credibility question there but the issue here has to right with the first two shots now it may well be at some point that the law could move and said well once it starts it's a continual process sort of like a medical type thing but it's right i don't think there's a rule like that i think from my you a question a couple of things that troubled me about the district court analysis doesn't matter that even though our mandate was really clear that the relevant standard for use of deadly force is garner how many sec applying are to these facts at the district  continue to apply to graham actors and so on the final conclusion by district harlem is that it was factors to any three of graham support the reasonableness of this so he's including the fact of resisting arrest which really is not part of the analysis  the record it was clear that the police officer was shooting to disable and not to kill and i'm unclear about the factual basis for that given that there were two shots to the chest but i'm also wondering is it possible that the district court if you're shooting a gun at someone to e and if our fighting for my life you know struggle i would regard it as a unified struggle not sense it really comes down to once the threat is a baby once there's no threat you don't have a right to employ excessive force you can't before the big kill it before the it because you have a right to but once he is by his favorable if he presents edits that he's lying down to ground on even though discounted evidence and some of it's been contradicted who affidavits back it for it puts us in a position of we don't make that value of these are just talking about a roof fifty six certainly they want to assume is that there is even a genuine issue of record in the case but it's very difficult for one question just on the state of the record in the forensic evidence there is evidence in the record about the gunshot wounds right that it was two in the chest the finger and then one in the back of the leg or shot list that like that's in the record that's right ok clear with your opening statement everything you said i want to be clear who as a whole fully fully appreciates that an officer who's in a moment of danger as a gun pointed at it is entitle to use and you would probably agree as much as anyone that if there's a substantial amount of time between the first two in a sane the defendant is then any cop you can't walk over and shoot him because you got a gun pointed to your earlier that would be to extreme example where the threat was abated a question of fact it's judge workers and say it's very disturbing but the question comes do we as the judges make that determination of do we allow the trial process to allow i think th legal issue before the court here is whether there's any clearly established law that says when somebody who has been harmed all the way through an encounter in the dark where you can't see him well at all which renders you did bats has attempted to murder you  your own firearm your police officer you fire your he goes to the ground you can't him also clearly could not help that night in that rabbit warren in the balance everything you're saying is is very persuasive but it is a kind of argument that would move the premed don't you absolutely and doing so if there is evidence he's lying on the ground and are not moving at that point and there is sufficient time between that the question is is the four shot necessary to abate the threat and it may well be as you say and you might want to look at a holistic says oh yes and probably the jury much in five seconds agree with you but the question is whether we as judges should make that so absolutely argue to a jury oh i didn't know that i couldn't see that well i'll happen very fast i thought he might stand up after his just one and losing his finger i mean i have the gun now but who knows what he'll come up with  the jury but that just seems like it's not something we can decide sitting here that it was still necessary to protect himself to fire the thirty fourth shot then that's why i'm having trouble and i can and the fact that he was  a supreme court has for decades and continues to by my count six times in the last four terms remand us over and over that that the court system should not judge and officers then one second later you've got to stop firing and i'm just repeating my colleagues have said totally understand that this is a really high burden to put on police officers that you have to like cool down catch yourself and within a matter of seconds assess the stipulated to the prosecution minutes summarize the evidence the prosecutor offer the evidence of the struggle the evidence of the d n a on the trigger the pulling of the trigger while the gun was pointed  ineffectiveness of all of the non lethal force that the officer trat used before he employed deadly force again which goes to the issue of the continuing dangerousness of mr harris if he'd been henry did not agree to all of that has would use trial for other instances relating to the stroke and so in this instance the first two shots are not contested at all the only thing that's contested here is either the third of the four shot and the question here as an all cases question then becomes do we decide that as judges or do we allow the trial process to decide that's the only question of the force and if we all feel like well this isn't enough we have to think about what does this mean down the also his test that there was enough time for officer pitman to get up stand over him and fire the last two shots or i again don't see that as being to do so by the playing of this evidence because you have to play at some point where he says he pays me  last two shots and based on that in the totality of the circumstances you know the violence of his prior time get him off the line officer pittman reasonably again without the benefit of twenty twenty hindsight in that  are pounding my life almost in the moment to perceive that herman harris continued to represent a threat with no evidence to show that there was any break in the time to say i kept shooting  that that version of events only comes into play in this issue was never army before this court or the district court is whether or not that version of events has been so only discredited by the record that was just what implicitly adopted it and if that isn't scott b harris then i don't know what it is apparently the case is no longer viable and no i just said you know the whole a lot of supreme court's phrase was when the nonmoving hartings version of the dns so i take that as and i think that and though you think it doesn't have to be the part of the events that sort of relevant to the final two shots carette i think it looks at the kind of ham of laris though i was contradicted was sort of the knob of the legal question and here you're saying that as i understand it maybe there's nothing that explicitly contradicts anything about those last two shots but some other stuff he said originally is clearly contradicted that the totality of his version of events is so discredited that the court should not look to his version of events at all leaving the only evidence before the court being this school here in some respects we don't rose think an inclusion see what you're going to limitation in terms of what the trial judge was permitted to do in this case we asked them to go back and look in these instances well if i may follow up on that p isn't brockington the one where there were several shots fired while the person was a threat the person is wounded falls down and the subsequent shots are held to be excessive and that's pretty you