has returned with guns and initial responding officers are on bicycle patrol they need observations of these gentlemen that tempted to engage or not field interview oh man mr smith ran from them and if the officer failed to abide by their commands and orders to surrender ultimately within a few minutes officers tinkly in style appeared at the rooftop they had information out there and they believe that this gentleman either had a gun on his person or hidden somewhere on the rooftop he had been hiding behind this air conditioning unit again we had officers ordering him to surrender i specifically officer stahl very strongly ordered him to put his hands in the air you're surrounded if you don't give up or something of that nature you can hear the other officers if he knows it's coming and as officer style and officer figley are running toward the garage and running up the stairs and so forth and so all of this information was going on all of this activity was going on officers found officer think lee knew about the fact that this was someone who had engaged in violent behavior was thought to have possessed a gun was observed by officers who reported to dispatchers were following the guy with a gun when they got there they had information which suggested to them that the gun was either on his person or hidden somewhere on the rooftop within reach yes one of the other officers tell him that smith didn't have a gun in his hands were too many in their words that he used was he we didn't see anything in his hands but he was hiding behind the air conditioning unit so that gave the officer stollen officer frankly the impression that while it might not have been in his hands it certainly could be still somewhere on that rooftop or hidden on his person and his clothing and  don't you agree that if mr smith were going to lay down to surrender by by rain down on the rooftop that it would not have been reasonable to shoot him well if the officers  that and if that had been the command but that was not the command given this highly rapidly evolving set of circumstances he it had to have had a command to lay down on the ground in order what if people believed that just laying down would be the best way to surrender as opposed to stand in there and throwing up his arms well part at least a couple of minutes he had been commanded to surrender by the initial responding officers and by officers stopped he did not abide by  order to be re simple not to shoot him so if you look at that video if you watch a video which i did and if a reasonable fact finder thought that he was going to lay down on the ground to surrender video as to what was going on in the officers and and thinking that the jury would be determining what was going on inside their heads or their thought process in deciding this but this is that objectively reasonable standard that should be applied here and in this particular  opposing counsel of the plaintiff's counsel did not dispute the officers description of what they observed what they knew when they got on top of this roof top and the conclusions they reached from the information that was presented to them in the set of circumstances which were government about with regard to the factual circumstance was there ever any kind of consensus use of the disk recorder or among the parties as to when the phone where the phone was  with raises his hands of the drops his hands and how the phone then fell out was his left hand was in the pocket is there any consensus on the there wasn't any kind of consensus regarding that because at the time that officer stahl made the decision to fire his hands and doesn't know if mr smith had retrieved a weapon from his pocket in this motion that was being made where it's obvious or think lee is there on evidence that mr smith was being told by the officers who were on the ground that on top to lay on the ground you know in looking and listening to the body camera videos of officer stahl as he's approaching them to lay down i think the initial there might have been one of the initial officers on telling him does submit and lay down or company i think they're more their commands were my memory is that they were telling him to come here come over here come by us put your hands in the air that type of thing but here clearly officer styles that you know put your hands in the air and turn around that was not done and rather there was this fluid motion hands going down hands going forward going down towards the air conditioning unit that was between mr smith and officer think lee officer frankly could not see through that you're convinced conditioning unit and given all the information that was presented to him and what had happened in that eight seconds from when he steps on the roof twenty fires the st shot he made a very quick decision that there was an eminent threat posed by that movement and determined to fire his weapon to protect not only himself and officer style but the other officers and citizens who are in the area and so i think that given those facts those undisputed facts that plaintive did not dispute and even given the court's decision if you take out the concept about having a jury decide what was going on the officers had which is not the appropriate standard if you look at this from the objectively reasonable perspective it's all about given what i'm just indisputably the officer saw what they knew was that i'm resolved for them to fire their weapons in their possession that it was not and even aside from that that the case law was not so clear as to direct them or indicate to them that their decisions to shoot were in those instances something that would violate mr mr smith constitutional rights and i i see at the here number one mr smith was a an r male number two nothing was done or set to threaten the officers with a gun or any other him physically you can see is him so if you look at the video i think that's a telling video because it shows that in fact there was no threat  probable cause to believe that there was a physical threat to the officers there was no evidence that he was anything other than an arm they let  hands to confirm whether or not he was armed except for that fraction of a nd it's really like a nd and a half on the videotape that he gestures with his hands and that reaches down word  that that is confirming evidence that he might be reaching for a gun that they were told he had either on  person or perhaps had hidden behind the air conditioning unit that hundreds of i didn't not not to be twenty times play based on what we now know that he was not armed but based on what information the officers had going up to the roof into this dangerous stand up they were told he was unarmed but that it was not then that the other officers did not see the gun in his hand so it could have been in his pocket it could have been on the roof behind the air conditioner where it was hiding and so we judge this from the viewpoint reasonable officer in possession of all that whether a reasonable officer in possession of the facts that i just outlined in that fraction of a nd whether it would be reasonable to conclude that he was reaching for a gun while he was told  the officers were told by officer ferrell robert farrell that he didn't have a gun and he didn't have a gun in his hand the officer said that's right it would and the proper question here  where the district judge applied the one standard that the judge said well there's a jury question about whether this was reasonable or not that's not the right standard for qualified immunity the right standard is whether or no reasonable officer in the circumstances that these officers were confronting could believe that he was reaching for no reasonable officer having never seen a god having officer wenzel never seen a g information that was extent at the time but the information was never confirmed whatsoever and if we look at the touts all say someone had our ups and that there was a fight over a girl and that my client was hit and beaten up by the people involved and and that's what the district court said that there was no evidence that this man was armed and it took eight seconds that's that's a millisecond and i'm looking at it from the position of the officer had any arms behind the air conditioning on and i think that they should have taken some opportunity since they didn't see him on and looking at some of the cases in every case it was cited by the police there was actually a well there was something seen something visible a fast or  that are reasonable obvious or what have them have fired the shots using deadly force which it was to fire at this gentleman and there is a reasonable conclusion that there is an imminent threat here an officer can use deadly force in the case as we see officers have been found to act reasonably when they fire at cars that are trying to be away from them when they see somebody simply reaching for a weapon or when they're