members of the corps the district court was incorrect and a very important one this was not a very very close case perhaps in front of a jury it could be perhaps after the juries have the opportunity to weigh the  facts and the evidence and decide the many issues it may be but unless this court is prepared to reverse to l specific about that because when i read the district court it it seemed to me that the judge was taking a number of key facts in the light most favorable to mr lopez including you know the fact that officer raines never identified himself as a law enforcement officer and the gun was dropped at a particular time and there were several other things that were really quite central to this but the judge welled up thinking that it was indisputable that mr lopez had fired his gun often if not straight up you know off in the direction of people who were around i've watched all of the videos there were actually quite a few people wandering around considering that it was approximately four o'clock in the morning and so i'd like you to tell me where the make a lot of the st point and i think when you watch the video ok it is indisputable that mr raines is on the street approaching your client at the time the shots are fired in the air and so i don't know how as an object of matter you can't you can't conclude from that that he saw and heard that raises coming from a bar that he was drinking at with his girlfriend and his girlfriend admitted to five or six drinks he's drinking too clearly ok we know we know that there was one shot fired by the st gentleman that stopped out of the car or that stepped out of the car we know that we know that for sure right that's not a fact that you wish to highlight in your brief follow observe but it is objectively true i had no problem admitting that i thought i was shocked so if i asked her raines if mr raines is responding from the birthday gathering to that gunshot he if you're going to our result that level if you're going to argue it at that level you're you are you're being so unfair to what's on the video that the argument is tantamount to saying that in all of these cases there must be a jury trial and i thought the law was fairly clear that we should and this is what i think is very unfortunate about your position because i think you've got some very good points to make but when you but when we can't even agree on how the table is set that's where i think you're doing mr lopez no favor at all yeah i'm sorry i apologize if the court heard i'm just saying that all of the facts district judge i'm just going to throw in before you start doesn't even say that it's clear that raines actually saw the shooting but he says a couple of times saw already minimum heard words to that effect and it's not that big of a space and certainly somebody who's got law enforcement training could probably distinguish the sound of a gun going off from you know other loud sudden sound but anyway i you know if there's a lot about this that's concerning i'd like you to talk about how he gets there and starts this barrage of shooting range studs but i also want you to explain to me once they're once rains has lopez on the sidewalk you can see the bullet entry wound actually in one of the videos what just ranes actually do to lopez other than just sit there and wave his hands around he heard something and certainly it could have been it is it maybe even seventy percent sixty percent whatever percent sure that he heard some sort of gunfire so i don't mean any disrespect my only point is this and i'm going to let you argue my only point is you've got plenty plenty to work with in the district court's opinion as it is written and i can't for the life of me figure out why you're why you're declaring war on that opinion i don't i don't mean to be hyperbolic and if i was in my brief i apologize i don't need to declare war i'm simply saying that there are several questions of fact to judge once point this was a prison guard i'm not sure we could even say that we can presume that he knows the difference if he knew the sound of a gunfire but even let's say we just assume he does here let's assume he does are you asked about what happened after the one after the five bullets or after he shot multiple times use on the ground and i think he's certainly he's i think doing what any person would do in a circumstance like that he's people he's not like punching officer grains he can barely move you know you can see right in arm right so i'm not sure if i'm addressing your question but i just wonder what additional harm came to him at that stage you've divided this advice to more or less three points the st bullet then the barrage of the next you know and emptying the gun out in him shooting him says the six times and then the human shield period but i'd i don't know really what he's already very injured i don't know what happens to him other than just waiting for the medics when he's on the sidewalk i think we would have to in fairness wait for jury to even determine that after hearing about full evidence in the case i certainly think he's bleeding out of that he's it was excessive force we don't in america put people in shock calls and then when they're on our and continue to keep the baby maybe it's the child called maybe it's inflicting further injury on him in the minor nature compared to the other injury he's already had perhaps i think we'll have to hear the medical testimony on it but you know just to address your point about you know just using the graphic in the last few minutes that he had if you know if we look at the severity of the crime at the time the writing s mr lopez i don't think it's disputed that there was no crime being committed at that particular moment when the bird shot his fight at that point it is certainly a minimal arguable or question of fact that the gun was a find this argument by the defense to be quite incredulous because he can't resist arrest if he doesn't know the police are even there and raines did not identify himself or at minimum there's a question of fact i know the defense uses  a summary judgment was improper in tennessee versus government i e uniform a uniform police officer identified himself and shot to flee murder after being told to halt and then was not considered to be the minimum is a question fact the court almost said you can't shoot a fleeing suspect even if he committed a crime and certainly lopez had not committed a crime when the rains shuttle and then shooting fired the shots he knew that mr lopez was on armed can you do you have this specific reference in the record in mind again i'm sorry i don't have a specific reference but you know to be fair judge  this is i think this along with a couple of the other states well that's a bit o t it's a pretty significant if if miss if officer raines it mid that he fired shots t through five or six i'm not sure what the total was when he had knowledge that mr lopez no longer possessed a firearm that's significant and believe it and i know you've argued that an what i've tried to do is find it in the record unless i'm mistaken but i believe it's in the police report which and i'm going to admit to your judge scudder along with defense counsel were using certain things which would be questionable as to whether they would be admissible under either they dead man's act or hearsay rules because but yet the facts council used them and i suppose i used them as well but but certainly again let's assume it's let's assume the district court's opinion the district court does say viewing the facts in the like most favorable to lopez the court takes as true that rains did see lopez drop the gun so at least as to that gun a fair inference would be that raines knew that lopez didn't have the gun anymore it's not like that's right not like he's taking it's true that lopez dropped the gun he critically says rain then say that that was a reasonable or justifiable use of force thank you counsel thank you just an hour may it please the court this case is on appeal from a district court summary judgment ruling the defendant officer michael raines was entitle to qualified immunity for his shooting of the plaintiff fernando look at judgment should be a farm as the victim security video footage in the early morning hours of number thirty a few one thousand and fourteen after a n one of the passengers pulls out a handgun went to the bystanders and discharges the gun in the air causing the bystanders to flee by different takes the gun from his passenger and repeated the point of the gun in the direction of the fleeing bystanders while chasing them across the street indeed kind of later put guilty to aggravated discharge of a firearm and stipulated to the factual basis of that charge in that when the handgun was dropped sorry when the handle was displayed terence hudson and others who had approached ran away from the vehicle when the front was driving towards the south side of ground after these individuals including turns hudson ran from the vehicle the defendant was driving the defendant discharged a firearm that was carrying in the direction of terence hudson and others that had fled from the vehicle and i can see from the video he sort of it's not after it's up in the air in the general direction and i think that's that's a fair reading from the video your honor it's in their general direction he doesn't your argument it's well established that the fact that somebody has pleaded you know in been found guilty of the offense that mr lopez was found guilty doesn't tell you anything about whether he falls into law enforcement's hands through the use of excessive force or not it could be legitimate force and you could be convicted or there could be excessive force and in fact there are all sorts of rules about a cruel of claims and the like and this this claim asserts excessive force so i don't see any hec against humphry problem here the nd thing that worries me a lot about this case is the fact that unlike in some cases it is more like should against lindsay you know he doesn't know who this guy is who comes running up to him and decides to start tussling with him and there are all kinds of  vigilantes out there in the street who take it upon themselves to do whatever they want to do practically with with guns so i don't know how lopez was supposed to know that when that st gun shot comes off the reins has anything to do with law enforcement he's just dressed very casually as one would be who is out for you know for an evening with with their friends and i'm very worried about the additional shooting after is the district court takes it rains sees that lopez drops the gun now course obviously to trial maybe a jury would find the brains didn't see that but we take this the rain sees to distinguish those things that are necessarily incompatible with the conviction the conviction rules in those cases versus things such as excessive force that are not intentionally and knowingly fired in the direction of charles yeah and it doesn't tell us anything about whether whether officer raines used excessive force or not in subduing him doesn't tell us a thing about that we can accept like the gospel truth that set of facts for which he was lawfully convicted but i don't see where that tells us anything does that tell us that lopez could have shot him forty five times  that tell us you know it is quite possible that i'm sorry raines shooting lopez multiple times those are just different inquiries but that's absolutely pushing back against a conviction we can just say that's a bad argument that doesn't mean he hasn't made good arguments to have one and there are respectfully or every line was perfect in this court maybe didn't find fault with an argument or register any guard that we can you know that that's not a critical point we can say you know you're not right about that but there is still an excessive force claim it's not net it's just you know what time did the sunrise mean it doesn't have case well we're going to find fault in your proof you frequently sort of slide beyond the set of facts that the district court took as it construed the the arguments in the light most favorable to the plaintiffs so so for example on page thirty five of your brief you say as plaintiff returned to his car to flee the scene officer act upon at this stage of the case it was contested whether he announced himself and the district judge said i'm going to give that one for right now anyway to mr lopez whether there was  order to drop the firearm contested and the judge appropriately again says for right now we give it to law so so if we're going to get picky i think two sides need to  no factual disputes really of material factual disputes brought in defendant's favor but nevertheless viewing the object in a video as a score directs district courts to do the district court found that officer ranch did not lopez is engaged in is he's on the sidewalk in the choke hold it's she's just kind of flapping his arms in this other guy keeps coming up to him and there may be some conversation we don't have audio unfortunately so i thought that overstated and i don't understand that you know you we just kill people because we feel like it and i think there are a couple of issues they're trying to you whether or not rain is solved opens drop a gun the district court did find that it did presume that two two seconds so that is exactly these blink of an eye of circumstances the courts talk about but we don't want to get into nd guessing officers and how they're responding in these blink of an eye mr palmer as a this this aspect of the fact pattern is what concerns me because i don't think i don't think that officer reins it needed to seen the gun dropped but what do you admitted is neither here nor there we have to take what mr lopez has pled right and the district court did that and why why is it in this circumstance that he was a lot that he's allowed to pull the trigger more than once because when he when he runs and he there's this is a very volatile situation if the video shows nothing else it shows that and he shot him once and it it it's just objectively clear that he hit him with  the st shot where does the authority to come from to fire those that did the bird is the authority to shoot the additional times come from because plaintiffs remains armed and dangerous the video shows he did not immediately drop in gun out of the for a shop the gun was still in his hands for the st four shots lopez remained armed remain dangerous and the threat was not neutral so you're on your position is the one the district court adopted that it's this split nd nature of this yes and in part it's a split nd nature of this and also a reasonable officer who has arrived on the scene and sees that you know it's not just lopez it's sort of there the he has people in his entourage it's a very volatile dangerous situation he's heard one gunshot that he responded to you race is no reason to believe that's necessarily the only gone in testified to the entire time that range shooting from the st of the six up was two three seconds and the gun was still in look as us hands for the st four shots so can i ask you a question about the human shield aspect of this shot so i suppose for example that officer raines did the exact same thing except the person that he was using to shield himself was a lounge patron and not mr lopez your argument change you know i think it would in a and i think the district court  went into this and terms of the question of qualified immunity you got taken to the entire circumstances here that lopez was not you know a lounge patron lopez was  officer raines was trying to arrest and keep under control and in custody while these other people are trying to come up and get lopez out of it and it was ousted from the i you know we can disagree on what the video shows but i don't chance he was going to lose custody of him by the way i mean i really you know into a guy that the gentleman was shot sixty five or six times and you're on our merry orca also shot at officer rains you know if it rains head you know socially distanced and stood six feet away from from lopez on the sidewalk it rains and get shot while an orca comes and takes lopez and they flee you know i think the only way for  so you know again i think the district court got this case right in terms of qualified immunity plaintiff has not wanted to any closely analogous cases either in terms  of the interaction the shooting on the street or then the interaction on the sidewalk and it was not pointed to any closely analogous cases that would have told officer raines or a reasonable officer acting in those circumstances that what he was doing violated lopez's  at a bar was one of the assailants who was punching him in the in the window of the car just a couple of minutes earlier i don't think mr raines had acted on reasonable or i'm sorry i don't think mr lopez unreasonably to drop his gun and move away from this assailant and that could continue to shoot him five or six times and i want to address a point the judge keep came that made with regard to or in response to defense counsel with that being a two two seconds and and then defense counsel said look at the whole circumstances if if an officer raines had shot him once there wouldn't be two two seconds all he had to do if he supposedly really thought it was a and this is a kid sitting this boy i don't think he should have shot it even once but if you shot it once it was dropping his gun you don't continue to shoot a man while he's stumbling away were in the circumstance of mr lopez was that we would have acted to say we would have fired a gun in the air to disperse attackers but beyond that if i were not for cirencester position i certainly would have announced myself drinking at a bar and came and in assess a situation i missed all that and decided to start shooting you could have made the choice not to shoot the very st shot and silly announce themselves as is proper and then shed  lindsay you know even in the case where there is a man who was head got approaching and he was approaching he had a gun to his chest the it set the court in this case in this circuit said it was inappropriate let me conclude by saying twelve people may view the same accident well people here may be the same video but have twelve different versions of what they saw or heard but when we collect those  individuals together in a jury wrote it is secular sent an echo let their collective recollections their corrupt collective wisdom after hearing the folk evidence is what our justice system is about in this is the precise type of case as so many cases of how before one is a police force case that should be decided by a jury of our peers because any one of us any single one of us could have been in