all right our sixth case for this morning is sandstone against gr appeal it will for all practical purposes mark the end of the media appeals from the denial of qualified immunity because a plaintiff could always point to some fact that was material below and was undisputed particular about the the fact which you say was admitted at the district court level that cost or point a gun that's right and officer gray that's right if you look at the record here races revolver in his right hand and pointed it at the three officers standing on the right path where where was the bullet what what's this ballistic shield we're talking about here is that some unknown and big metal thing what is it the record doesn't show i don't know so i think the material but it does have statements about the size of the swat negotiator officer rosenberg talks about in his statement that when officer fenster who was holding the shield and was kneel down on the ground was in front of him  and rosenberg was kneeling behind fenster rosenberg said that the shield came up covered basically his chest area so his head was out over the shield and he was negotiating with the so i could still see mr custer right in the the two officers who were providing force coverage that the less lethal coverage from sergeant walters and the lethal coverage from officer gray were both in standing behind so certainly you know there was some protection provided by the ballistics but it certainly wasn't not their heads for  into that shield and hoping for the best that they don't get hit and that's really the problem here both the burden issue right it was the state's burden to come forward with analogous authority and it came in i nothing suggesting that a police officer who was you know providing cover for someone who's negotiating with possibly suicidal suspect who becomes agitated and points a gun at him can't defend himself but of course they haven't come forward with a single case me ask you this question do you think the critical thing is that the fact of the cost or pointed a gun at the officers or is it that the officers all perceived that a gun in the moment that it was so i don't think that's i think i do object is interacted has to be the fact so as you say it because the fact is conceded below not contested in summary judgment and then cited in their own response the summary judgment motion by quoting the deposition and not contesting that part of it that if the fact that the arm was fully extended and the gun was pointed is there then the legal question is this question of whether the officers provoked the person and put themselves in this situation by negotiating with someone wanted to been a medical call and your contention then is that the cases simply doesn't support that that if that incident with the officers on making that there then deprived of the ability to defend right what w argued below certainly was that there's plenty of authority that suggests that in take the sheehan versus city and county of san francisco case the plaintiffs cannot make out a fourth amendment claim by by claiming that bad tactics led to a deadly encounter that could have decided certainly it wasn't established in january of two thousand and fourteen when officer gray was making that decision in the second or second half yet as the guns coming up whether he could use force and that of course makes sense we as a society ask police officers to do all sorts of dangerous things including negotiate with someone who they think is suicidal and to try to get him to put the gun down but of course you could always avoid the situation if you just pack up and go home and leave him to his own devices but there's no case law suggesting that the officers have to do that quite frankly as this is ask officers to try to talk someone down in that situation the unfortunate reality is when you put a team of police officers in a negotiator in that position someone has to be there providing cover for the negotiator and that person in this instance was officer james gray he was the person designated as the term of sort of our in the swat context as priority of shot that doesn't mean that that doesn't mean to say that lethal force will be necessary but it's a designation of you're the person who if we thought force becomes necessary it's your job to use it so really i think the question we have are these two questions that the district judge pointed to with their expert he suggested the officers failed terminating cover and they failed to away and observe the result of the less lethal force as as we discussed in our briefs the district court nor the state they don't point to a single case that suggests that officer gray couldn't defend himself under these circumstances and you know they point to the salinger case which is a case about police officers beating a handcuffed suspect with a flashlight that doesn't put officer gray on notice of anything in terms of how he can handle himself in this particular circumstance but more fundamentally it's not just their failure to carry the burden the problem here i of those cases seem to confirm not that the officer couldn't react the way he did here but that he could so i think it's even deeper than just a failure to carry the burden here there's plenty of analysis already in the district court never explains how this could be one of those cases that so obviously unconstitutional it's beyond debate in light of those cases there are no other questions at this time i'll reserve my time that would be fine mr williams joe williams on behalf of the state i'm a little perplexed at how we've gotten to this point in the argument with repeated statements throughout the brief that we can see that the fire and every officer on page sixteen of our underlying brief before the trial court we said quote finally the record is clear keith did not personally threaten any police officer rather he expressed his frustration with the officers continued presence stating that he would fire we do not dispute that mr coster before he was killed said i'm going to fire a warning shot if you recall he had been there for about ninety minutes begging these officers to leave him alone the officers testified in their depositions that they realized that the health situation was not emergent they didn't suspect him of any crime he repeatedly asked them to leave and they wouldn't do it they had five officers dressed for dispute that that's officer grace testimony what we dispute is that the gun was actually pointed at him but what evidence did you put in to show that it did have rational trier of fact could conclude otherwise you've said in your brief and obviously it's true you're not going to find out from mr koster of but you know what what evidence you have to have something where you we do not and there are three primary things that i think can get us remember what summary judgment all we need above the guy's head or does he mean he's going to shoot into the ceiling or does he need what is for the police officer to be required to stand there while a test shot is being fired seems like a terrible rule actually your honor we have to look at this from the totality and so i am looking at that one totalities that he actually says he's going to shoot he calls it a warning shot but he says he's going to shoot take that fact and couple it with a couple of other facts to go with the fact that officer gray testified that the reason i shot mr coster is as he's saying i'm going to fire warning shot he points the gun at me and i fire the paramedic erwin martin who was there on the sea testified in his statement to internal affairs i heard mr coster sam going to fire a warning shot one to two minutes later i heard officer gray shoot keith castor that car that casts serious doubt on the  officer crazy statement it's just like what this case said in brown in the brown case which was the consolidated appeal in the if at get the state of williams case there the mother was in the back of the trailer and did not the interaction between the officers and her son the officer said we kicked the door opened and told him to drop the knife he didn't and we shot him but that was a lot of weight on somebody you know on the spot estimate of whether it was one or two minutes versus a few seconds and people say these things subjectively but the commonality is that a shooting is about to happen you are expected to look at what officer great actually said he said it i heard a shot in my left that was the barrel of the beanbag correct yes at that point i don't consciously remember it but i fired two to three rounds at the subject's head and fell backwards when you take that into account with the statement of the warning shot with the statement of the time the statement about the timing of all this happened a reasonable trier of fact can look at those facts and say what happened was he said he was going to fire a warning shot officer gray heard that gun go off and it scared me told the cop that i'm come to full extension holding that gun and others corroborated that the the office d there are three other officers that corroborate that but as we said in our brief and i think a very salient quote from the d c circuit is only when lions have historians will hunter cease to be heroes and this circuit has reiterated that point saying when the only civilian eyewitness left to contradict the officers testimony is dead we have to look very closely at internal inconsistency between the officer statements the timeline we have to look at all of those circumstantial facts and circumstantial facts sufficient to make it reasonable for the facts of a shoe your honor i will concede that point as we stand here today what i will respond with is the cases would suggest that that could very well be illegal in that situation but the situation here is we don't we've got facts that call that question into into dispute but how many of those facts did you bring i want to go back to what the district court record was because it looks to me as though the district court rationally could read the materials that you submitted as materials in which you weren't questioning the cost or was pointing the gun but maybe it was for a warning shot or maybe question of whether shooting was an exercise of excessive force officer gray's in the zone of decision making that qualified immunity protects and your question your honor i'm sorry the question is how much of what you're now saying yes to check your lee said it in your your brief were facts that might be we would have to evaluate this but at least according to you facts that would allow a jury to think that there was a dispute about the the statement from officer gray the timing issue those were all facts that were designated to the trial court and they were in our designation that in certain part of the record and this case they're the circuit has precedent and it's found the rule fifty six c three that the court made considerably the side of materials but it made consider other materials in the record and if you look at what officer great he has pointed this court to several cases that say if the facts that the district court relied upon in reaching its conclusion are not necessarily apparent from the opinion this court can do a review of the record in a review of the facts that were designated to the court the timing issue  i can see was not specifically mentioned in our brief but the statement from the e m t was designated to the trial court as was every fact is included in our brief one appeal was designated to the trial and let seemed think at the trial court you was the legal issue of whether the officers would be deprived of the benefit of qualified immunity because the situation with their own making because of that tactics that that was really focus at the time i i disagree i disagree with that your honor the evidence that we put forward to the trial court and how we argued it really only makes sense if you recognize that we are disputing that he pointed the gun at him when we tend the expert report of roger clark which is discussed in the trial court's opinion below mr clarke never finds that the gun was pointed he also spark pointed at the officers he also says that officer gray should have waited for the outcome of the less lethal munitions before discharging his weapon and killing mr coster that only makes sense if the gun was not aimed at the officers because if the gun was aimed at the officers as  pointed out there are a lot of cases drac it's all the cases he listed that said if you point the weapon at the officer it becomes a much easier case for this court to resolve but the fact the matter is the district court specifically found a question of fact and the fact that she did deprives this court of jurisdiction if they want to take this appeal after we try the case they can but this court doesn't have  jurisdiction to start reevaluating questions of fact found by the trial court all right thank you very much mr was thinking mr morgan mr williams argument highlights the difficult position that we're put in when this is sort of the tactic on appeal to sort of switch a fact that was never disputed below i can't come here and challenge for you the evidence he's now citing on appeal as to why he thinks that created a dispute because if i do it's now sufficiency of the evidence question it's exactly the question this court can decide understands in so i'd say to your point judge what about where this was pointed out to the district court look at the statement of material facts in dispute it never even mentions the shooting much less provide any evidence calling any of those four eyewitness accounts and it is the statement of material facts in dispute ins with the statement from sergeant walters that he's going to fire less less lethal coverage and then it jumps forward and says custer is dead in everything talks about the shooting or where what she says she identifies as questions of fact maybe the there's another place i should look to b fourteen of her opinion she says she's looking at graham she says severity of the crime that issue with that the suspect posed an immediate threat but the suspect was actively resisting arrest or attempting to evade arrest and then there's kind of a dash and she says the court concludes the questions of fact remain that should be resolved by a jury that it didn't start out as criminal investigation that the officers won't leave even though koster wants them take those sorts of considerations things like the fact that the officers didn't really things like and she doesn't just rely generally and clark's opinion she identifies very clearly what two pieces of the opinion she's reliant on failure to remain in cover and failure to wait and  d the officers on the peel this court rejected it then we would suggest it should here too of but but when you take those facts as true under it it's not it's not just their failure to come forward with any case on their own although that enough would do it because they had the burden to overcome qualified immunity but it's the fact that there's all sorts of relevant authority here that suggests that officer gray could do exactly what he did in the district court doesn't even engage in that authority much less explain to us how this is so clearly unconstitutional that it's the question