in this case there was evidence offered by the defense at the officer described a brutal attack and in fact part of the attack in hopkins was found to be quite brutal however the only evidence of hopkins that was that's correct that's correct  the evidence i think that the court should be looking at to determine whether sufficient evidence to raise a substantial or genuine dispute here is the testimony at deposition of what is wrong good evil there's also the i don't recall whether the evidence that was offered established exactly where he was my recollection was that he was on the same level it was in a motel how to him and he was on the same level looking  perhaps fifty feet away after going on i might be mistaken about that but there was no attraction indicated he knew him personally he testified that within a couple of seconds that was what was his own statement within a couple of and that the two officers were losing the battle and i think that at this point i have to that would be the few the court to adopt a rule car and heading south but she didn't react that in order to according to what she said with respect other people from a potential high speed chase here  in almost every confrontation with a police officer the police officer brings a gun whether it's a traffic stop or investigation rest or murder suspect the police officer over use a gun and other circumstances where the police officer gets involved in any kind of hand to hand combat  back where it was on reality where it was not unreasonable for the officer respond that way and that's why the this is a dispute about the nature of the facts in this case i think becomes important and also if you look at alternatives and there's really no no demonstrated need the use of force i'm not aware i may have missed a case but i'm not aware of any case where the court or appellate court found that as a matter of law a police officer who was losing a fist fight was entitle to use deadly force to prevent himself from being injured in a fist fight i do believe that's that's an appropriate issue to be raised to a jury and i think in this case that that will be raised to the jury get back to the trial  t the the concerns that then we should have is to a doctor rule that would fit the difference position here i think we would have to adopt  the district judge go through the lodestar kind of calculus to get there i mean obviously he did some right i'm sure but i'm not concerned about is now i'm concerned about how he even got to that point the day after the shooting as opposed to cancer given in current decoration the statement to dr reeves contained nothing about any injury or any physical attack after being struck by the suspect from behind other aspect the other aspect but by the way that statement is on all fours with mr good eagles description of what he saw he was struck from behind within a couple seconds standing shot so i think that's an important issue with respect to the dispute cracks but another source of strong circumstantial evidence is the discrepancy between the physical injuries that dr reeves was able to observe the day after this this meeting and what is described by officer all in his statement to dr reeves he didn't say i was went unconscious temporarily i woke up i was down on the ground i was struck and that's the same kind of factual disparity that the court