morning your honor may i please the court with the palm and your to novo review of this case you will see that the district court minimized the internal conflicts with officer king statement and also it failed to focus on the conflicts between christopher christoph statements and king statements that's what this court top had to do and interpret those facts favorable to us because they've struck it has been extremely consistent with the view that you have to look at the totality of the circumstances the severity of the crime in his shoe whether or not the suspect poses a threat to the safety of the officers and whether the suspect is actually fleeing or resisting arrest in this case this was just not something that was any issue but what i found more than anything in looking at cases and how they interpret this is they really get into the facts and what i want to do this morning and less quote directs me otherwise to look at the facts in this case in a know that christophe is ahead of king that's undisputed we also know that neither one of them at mit's that the gun was pointed at either of them through this confrontation we also know that there were inconsistent statements made by king with regard to the weapon and this is what he said that it's inconsistent one that christophe's finger was not on the unresponsive kristoff says she was responsive and answered what her name was she told them to go away king says well i didn't hear any of that conversation so she walks out of the come up to her head and come back down again not in their direction at all both king and christoph agree with that with their weapons out where that's enough to go to the jury what did you mean by gun is that enough to justify use of force if she raised it up even if it's only addition level what i think it's the issue is whether or not that's enough to create a jury issue for us to go forward and shoot those facts have been in in that light as opposed to how the district judge interpreted those facts it was a jury issue the fact jury issue on what the jury issue on whether or not there as a conflict in the facts between the officers and i go back to the wilson right that's the fact it should be but i think what judge well he was saying is even if it was only the lower that that's enough to get a call fight immunity what's wrong with that it's terribly wrong and ok wh the first factor is wrong because both officers did not make that observation at the time it was race christoff never said it was pointed at him until after the fact when they kicked the gun away that's the first thing the second thing is that christophe who was engaged in the conversation with her that mr king officer king had never heard was actually trying to calm her down at that point officer king said he never heard any such conversation that you never responded so christophe directly in front of her from five to seven feet had the best observation so consequently his testimony conflicts with kings which creates a jury said did you see her raise the gun and he says i saw it too but that's still a conflict that creates a jury question that's what we're trying to get to whether or not those faction of been interpreted to say that was objective reasonable as a matter of law staff did not dismiss the case they raised that on appeal and judge long and they circuit said two things to look at the internal conflicts so if we can see the conflicts an officer king's testimony which the house where he's been threatening to commit suicide and that casey walks out of the house he has a danger to other people at that point he has a shotgun and this case is just the opposite of that she's in a house they know before they go in that she doesn't have a weapon that she does have a weapon and they've given a description of what the weapon is so it should not have been a surprise to them when they went up the stairs in that eighteen seconds to confront her with a weapon that that's what they were going to find because they told him when christophe field the gun that was not a surprise to them so to go back judge of all going to answer your question you have to take all of the facts in perspective this is a person who's inside of the home never out in public nobody else at threat and you know that's a question that kept troubling the district court judge in this and i think that's why he got a little bit sidetracked he kept saying well the most troubling aspect on page twenty five of his transcript he talks about that in the hearing he says the most troubling aspect of the case why the officers just walk away well obviously we can't get that on the extra get to that and they sort of law until after we show them the constitutional violation which we believe it is on the facts of this case we can then get that so in our final jury instructions we can present to the fact finder which should be the jury in this case not the judge that look if she came in and she was not a threat to anybody should these officers have walked out of the house and that's what judge wally kept asking he asked that question twice he started it was interrupted and he started again he says look why didn't they just leave so i mean let me go back to make sure floor dying after she's been shot for the third time after the first two bullets move her back into her bedroom then she shot a third time by this off at the start was a deliberate pull the trigger for the third time why didn't just you know once if it stopped to answer your specific now he does not say at that point that she's pointing the weapon at me if you look at his testimony at his deposition and also his testimony at his d c i interview he does not say that neither descaling say at any point in time it was pointing at them they contradict each other several times with regard to that point and those are the points we think that the just a could judge minimized the other thing he says is that she was  it perhaps he didn't see it so when he comes all the way up you can see that she's now raising this gun up perhaps for the second time but to christophe the second time for king it may be the first time and those are the disputed  with regard to that your honor that we think a jury should decide i to say that is undisputed we won't go that for what we think there's a question a jury question about it that's disputed that perhaps the district court judge should not have found that as an undisputed fact sufficient to give these offices qualified immunity ok thank you and please the court counsel i first want to dispel the notion that there are any disputed facts in this record that would prevent this court from affirming the district brief is devoid of how he how he his statements are different from a statement to the d c i and his deposition testimony moreover there is no external conflicts between what officer chrystopher has stated to the d c i in his deposition testimony and what officer king said for instance after a kristoff this is at the appendix two fifty six believed mr boyd was going to point the gun at him he further continues he believed his life was in danger and he was about to shoot but king shot first kristoff further believed boyd was raising the weapon was threatening deadly force against him that's at the three twenty one he further stated the gun was being raised in his general direction and around my shin level and she may be attempting to shoot me that's going to panic street twenty one and twenty two finally and this is a quote after christophe states when i realized her weapon had come up to about my shin level once again he says again up to my shin level i was i did interpret it at that point that it was being raised in my general direction i realize he may be attempting to shoot me right about that time as when aaron fired rounds to stop the threat officer kristoff has made it very clear that the gun raised to his shin level  what i do you think judge will he never cited that as an undisputed fact he just said confronted by a reportedly suicidal boy who shakily move the arm in which he held the gun king made the decision to fire i don't know why it was a rather short opinion he did go through the recitation of facts that i think we laid out in our summary judgment papers he chose to be very very straightforward and simply state that the force that officer king used was objective within reason do you think a person with shakily moving the arm in which he held the gun would be enough to justify the use of force or do you think you need an undisputed fact that she pointed  officers talk about her waving it around but not shakingly with the hand number two whether she was seeking moving the gun is with out of any importance you can still obviously shoot it whether it was shaking  moving up officer christophe's body it's still a threat at that time so that is a non material fact that the jury has no reason to decide an officer king in his d c i statement stated that the gun was on christophe's lower body that said joint appendix two forty four he further stated i was just scared she was going to shoot officer christophe because she had the best angle on him because it was in her right hand and was coming around him we talked about the microphone in which he stayed at right after the shooting she raise it up christophe and his response she did i saw it and one of the issues here is that during the appendix three ten it's very clear that your definition of pointing is different than mine that's what officer king state after king continued in his deposition testimony that the gun was being raised to the level of officer crist and we know from the case law that that is objectively within reason for him to fire the weapon there was probable cause at that point that serious harm or occur and in this very tense moving situation this court time and time again has said we're not going to have twenty twenty hindsight and there's a split second decision based upon it wall enforcement officers conduct this case is not even that this court believes that there is a disputed fact first of all it's not the cap's case and it's not the wilson v demoing case where in those cases there was there was plea or material contradictions on how the shooting occurred in caps there was a dispute whether caps had a nine phone was running toward the officer and there was that dispute because it was clear from the autopsy that capps was shot in the back we don't have that here we don't have a situation where mrs boyd was shot in the back and whether she fleeing or leaving or not we don't have that and wilson once again there was legions of fact disputes on how he was standing whether he had one hand on the gun what type of stance he had there was even a dispute whether he was armed and in fact in wilson he was not on so this is not a situation where we have material disputed facts on how this shooting occurred even if you look at the sinclair case versus the city of the morning this court stated that the district court properly concluded the no constitutional or statutory right exists that would prohibit a police officer from using deadly force when fa apparently loaded weapon it is and just viewed here in this boy had a weapon it is undisputed she was toll approximately twenty times to drop that weapon and she did not it is undisputed prior to the shooting she had waved it around again thompson this court stated then an officer is not constitutionally acquired to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect he turns and moves as though to draw a gun and this isn't a fleeing situation but certainly in thompson the court said we're not going to hold a police officer to that standard even when the police officer there didn't see the gun here in that there was a gun present we told her twenty times to drop the gun and she did not so for those reasons the shooting was undoubtedly within reason second of all i would note that the plaintiff lives that and that does not and that does not mean there was no constitutional violation and therefore you have to do more analysis is needed on the failure train line i think in theory that's that's right it more than theory agreed but in this case that would be correct because the plaintiffs have set forth no facts to show that the city or the chief was deliberately indifferent to  addressed all four counts and addressed that training issue and it's clear based upon the record that there was not even one prior currents of this type of a situation that would alert the city that would alert the chief of police that there was an improper training issue and even rise to the level of being deliberately indifferent so as it relates to this case i think that would in this matter because there's certainly no case  case where he talks about the four votes i believe that was one of judgment ways case in that case there were four bullets in the front i think and one in the bat and he said that created a factual issue even though you couldn't establish at which point it was done so that was enough to create cases to talk about the uniqueness of what the circuit is that they look at the unique case in each case we've talked about here today and each case you hear before the circuit you had him out in public you can't come up with one case where except one  or i think in his apartment he goes in with someone else and then they try to arrest him of something that was that case but there is no other case where a person was trying to commit suicide when an officer goes in in these unique circumstances with an eight knew in advance that she had been drinking knew all of these factors and knew they had no authority to go in there because the person who made the call said look i don't even have authority to let you go in the i question whether or not you can break the door down which was your son who didn't even live in the apartment so you have those unique facts that you when looking at the totality of the circumstances that this court has always reviewed it's never review these facts and isolation it's talked about how do we get here how did these officers get in there and then once they get up the steps i don't totally disagree with counsel in this case franken and king in kristoff because their statements all inconsistent with each other and offices they were disputed facts of how the gun was pointed where was being held where they were standing the observations that mr king had as opposed to what mr kristoff had the fact that he was engaging her in conversation and was trying to talk or down which was his comments that's what he said to under oath so those are disputed facts that does not establish qualified immunity a jury should decide this case and it's all we're asking this court to