record granted summary judgment to the federal agent concluding that he was entitled to qualified immunity as it concerns the f t c a claim the district court granted summary judgment to be united states based on binding precedent from the circuit this court upholding that the united states makes a makes claim on behalf of its agents texas law that privileges the actions of peace officers shot mr mendez in the back and i thought that the other brief that says that the texas rangers report showed that he was shot in the left side on the right side he was shot somewhere under his left arm below the lip repeated the first shot the second shot was on his right side i believe that was when he was falling down if you read the declaration of the third party side that's right that's correct your honor and that that is the test that is in the texas rangers report and that is the testimony of of the disinterested witness second this court has made clear again and again that the determination of whether the use of deadly force is justified and it's reasonable must be made at the time of the shooting was the officer facing a substantial imminent and immediate threat to his life or the life of others at the time of the shooting so what we have here is an individual running away from the federal agent when and then the agent once the individual has covered fifteen feet the agent  one terrible distances around but i can't say that if you look at the declaration from the disinterested witness he said mr mendis covered fifteen feet before the agent declaration he never really comes out and says what what he saw but we do know you have to reconcile two things with his with his declarations and in our opinion there irreconcilable either he he saw one mendis run away and shot him in the back or he didn't see him see him at all and he just shot recklessly it's one of the other either way it was and reasonable for him to use that the agent perceived mr mendis running away in this court again and again and most recently in this court's decision of mason versus lafayette this court said look just because there's a a struggle between a police officer and in an individual it doesn't mean that the officer has a license to do so use deadly weapon but where was the petard we don't know your honor but we do know that the officer that federal point event did not say that mr mendis went for the baton that is not his testimony yesterday we don't know where it was was the officer required to wait until he saw mendez reach that's what i'm asking yes rather we don't know where the baton was then we can assume the officer didn't know where the time was right but we also know that in all this the officer could recently have worried it mendez was looking away he would tackle him and that's when the fight ensued and he would try to run again in the fight ensued and then when every family shot was whenever he was running away from him that's to try to get away and escape that's but then on the other hand back and then finally running away this court has said at the moment of the deadly shooting we're going to look for what's called a menace if he charm the officer did he do furtive movement to go for a weapon did did he raise his hands in a way that threatened the officer we don't have that here we have an individual running away from the officer and the agent perceived shooting not a generalized threat but something that places precisely for that reason the test is was the officer in substantially imminent and immediate threat of harm if he there would be no doubt about this time that it happened and at the time of the happened was he in and in fear of his life or safety and that's the question we have here over the man is running fifteen feet before he starts on  so i mean i just want to i just want to make the point that the agent appreciated the fact that mr mendez had his back to the agents he appreciated that time before he destroyed his weapon but now you say statement of the generalize fear that one man this was coming back or might come back or do something is simply not credible this is not the case of colson versus barnhart where the individual knocked out two police reasonable and i submit that any reasonable officer would not fear for his life if he's seen a fleeing felon run away from him it is not that that discordant supreme court has said it is i close my eyes right now and i blacked out i don't know what that means but we do know that he appreciated the fact that mr mendis was running away from him because he shot him in the back i shot him maybe  declaration is fairly specific that he did not like helped i have to agree he said he was with affright he was going yes your honor and the generalized fear of harm is not enough it must be imminent and immediate harm that unable to perceive which direction the suspect was moving or what the suspect was doing the call that even when we're talking about fifteen or twenty feet we're talking about three or four steps by a person in this  consistently in on to arabs in the house the way casey has consistently required that to disregard and agents explanation to disregard that eighty statement about why he or she used force  scene we have to look at what the agent knew in that moment and what the agent knew in that moment was this was a person who consistently attacked him at every step and that this person could resort to using the baton and he didn't know whether this person could pick up  yes thank you your honor or it importantly whether if he lost consciousness this person might disturb him of his weapon which had already been loosened so recall that we know had when he had been concussed he believed he was quickly going to lose consciousness or he could quickly lose weapon well the critical question is what the judge to be reasonable officer with think in this situation i'm not whether you get put in to testify to that or not and it is critical to understand that in these situations we have to use the words of how when we don't second mendez the suspect might use his baton against him and also his his firearm against him if he blacked out if you blacked out if you lost consciousness and of course he doesn't know in advance that he's going to lose consciousness in the next two or three seconds he knows that he has received a severe blow to the head that according to the eyewitness caused him to buckle with every eyewitness account that is was presented to the court and also that what is right just in the texas rangers report shows that the this blow had a severe fact on the agent and the medical records that i just in the texas rangers report confirmed that there was concussion in the sense i was a victim with a very strong you know there was anything in the record about the  conclusion the medical examiner not accounted for at this very unusual level of resistance it continued for a fairly long period of time this was not this that this decision to fire was was made in a split second as it almost always is  the tort claim fails yes your honor we agree with that because the standard for both is reasonable so what does that also mean if we find in his favor deadly force in those instances but but to go back briefly to the question of discovery i want to emphasize that there were two rounds of reading in this case that were months apart there was an initial round of reading where all the record evidence we presented was presented to the plaintiffs in an opportunity to make a showing under fifty sixty they did not make the showing required of a fifty sixty which is that for specified reasons they could show that they could not present evidence which is unclear in the count and based on the fact that it's unclear on that point in the to self serving it has to be read in the light most favorable to my clients and he doesn't say he blacked out  or his weapon and shot him there is no waiver of the clearly established right you know ever since the supreme court says you didn't take any depositions in this case no your honor we did not and here's the history on the discovery the cases were filed in san antonio they were consolidated they were transferred to the real the magistrate judge entered in order immediately no discoveries to be happened the parties got together they fall a joint statement where the plaintiffs say we believe discovery the circuit precedents and from the from the person from this court is that the court we expected the court to review the pleadings and say ok before because that's a statement from this court before a ruling is me on the qualified immunity the district court will tell the parties what their discoveries to be had we never got that we just got to the decision denying you your question of discovering they did not we requested rangers well because there was that order from the magistrate judge saying there's no discover the discovery was being stuck to the district judge no your honor but again the rules say we can't start discovery until we have a rule twenty six f conference that allows for discovery