down a case that has got so much briefing into a simple paragraph but it strikes me in looking at this again and reliving this again in preparation for today's argument the question is was this a appropriate dismissal on a motion for summary judgment making the finding that qualified immunity is here in the presence of not only a body can but actions such as the officer who did the shooting making a statement that he never saw the ear buds that were in the scenes years when in fact we have a that he not only saw them but removed them and tossed them aside we've got a deposition transcript where there was another officer present actually more than one who also was engaged with this young man and did not pull the trigger even though he had his gun that low ready and he testified under oath that he had the gun trained on this gentleman even after this supposedly movements by my clients  he did not fire himself the i guess the last year the in the th circuit there was a similar case except there was a gun a seventeen year old with a gun and  argument there was on the dismissal that is very similar to what we're seeing here the officers tell somebody to do something in this case show me your hands show me your hands show me your hand as soon as the person the gunshot had grazed through i believe both gunshots through the hands so he was actually showing his hands there was no gun the actions by the officer in trying to throw the bu he was shot mastery was approached they were removed by the officer who did the shooting and they were tossed to the side when he testified in the deposition the believe it's in the transcript of the deposition that we attached he said number of acts that were in the district court ordered by the district court alone and that can it really are not material i mean really doesn't matter i mean at the end of the day it does with the question is whether there are reasonable officer would have felt that either he not he was equivocal at best in his testimony and by the way i think that's exactly why there is a material dispute in this case you've got a situation by the way when they came there that it was not a situation that needed to be escalated to the spot point is well i i read your brief is conceding that that this was not a voluntary encounter i mean i i don't see anything in your brief where you're suggesting that we never even got to the level of reasonable suspicion and you know your client had the right to just walk away i didn't see that argument did you make it well i think  at the trial court level but clearly there was because all of the testimony as to whether or not they did use lights and sirens to approach the one officer m andrews i'll call him and you said no this is not a situation where he believes that he had to have it on because there was no issue there what they knew at the time and what and when you say whether it was a reasonable or approach or detention or anything else of the the body can tell that all this officer drove up jumped out of his car immediately escalated this from zero to one hundred in no time pulled the guy show me your hand as soon as he show the hands the execution and that i believe is a material dispute from a jury to decide that for the district court to take it away and one of the other you know the salt lake somebody posted this on you tube i think it's i don't close to a one million views you'd just fun ish that we're sitting here talking about it so antiseptically and clinically when virtually everyone who has viewed it views it and see an execution so i understand that we're talking about qualified immunity but that officer went out of that car we've got the body cam he went from zero to one hundred in a matter of a fraction of the  whether the weather this visit season had the right to walk away or not when the thing turned around and he was yelling at him to show his hand there was another officer there who was also a point in the gun at him i guess that with andrew off there andrew at that juncture yes yes one could say are you raise its hands and was executed but on the other hand he was talking to the officer we don't know what he was saying i really thought i couldn't you you alluded to the viking him early on i'm not sure of the body can help because the body cam supports the notion that he lifted his shirt in a in a quasi wave motion and so how does that help to show the what's good he didn't have a weapon  he's lifting his hands he didn't have more than by my calculation i tried it on my stopwatch you know it's not admissible evidence but i try to stop watch that on my phone i don't think that it was a fraction of the nd between the time when he turned around started to lift up his hands and he was shot in fact you can tell by virtue of the the corners report that where his hands were in relationship to the body and to the bullets entry wounds so the i've watched it as i'm sure you have more than once there's no way to make a determination as to what was happening there and it certainly didn't call for shooting or executing him when you jumped out of a car and you've been screaming at him to show your hands show your jeans there was a this if this is qualified immunity i don't understand then maybe maybe there is a nine hundred and eighty three doesn't mean anything anymore because there are literally you're screaming at somebody to try to to raise his hands or to show your hands and when asked in the deposition what he should have done the other officer officer andrew said something to the effect he should have yelled back i don't have a gun i'm reaching my hands out well i i've had cases where when somebody's tried to explain something  didn't ask you to talk so it becomes situational where anything goes i mean we can justify i suppose anything and make anybody have qualified immunity but the body can hear d contrary  respectfully to you're saying it doesn't help the case i don't have to show i don't think if this were in front of a jury much more than the body cam the officer's testimony to show that this kid was sensually executed clothing your client was wearing and the nine hundred and eleven dispatch reported a man wearing a white shirt red pants and red baseball cap you can see on the it at least there's a white short or what appears to be a light shirt i mentioned on me and i guess for the same reason that i feel that the facebook posts by my client are relevant fact that that call was and you met you're the one who asked the question about race it's clear that somebody was drinking some vodka saw some kids and made a call and was somewhat incoherent and the description on the nine hundred and eleven call i don't think that there's a question that there's a material dispute because when he gets out of the you know the description was the baseball cap the shorts and everything else when you take a look at video he's not wearing shorts he's got i wouldn't characterize what he's wearing as a shirt and even though the sun is very bright it does not look like there is a well it is not the only stripes or shirt that his brother was wearing and i believe there was a threat of pink tap but anyway i guess the question is you know all of that we reach the point where you have a report that there was a gun and the officers are investigating that to the three suspects are co operative and don't have a gun so the officer is concerned that the deceiving had a gun and unlike the other two  cooperative and i i listened i watched it repeatedly and i thought he said something like no fool or something like that to the officer when he's saying show your hands show your hands but  we have to look at it and blather a reasonable officer would have felt that he was justified in using deadly force because there was a risk that deadly fo was more than two people standing there well it seemed on the video that there were three people were coming out of it that an eleven or whatever it was a great their hands when he pulled up the rd starts walking and they dollars it looks like he drives in i do not believe there was anybody else in the car with him there is a red truck that on the side there are at least three people sorry there's another officer to the right and the other officer testified that in the video you can see the other officer that's the one labeled as officer andrew there was no communication between the two you very much i mean let me ask the question this way you have three you who are in the city of salt lake city acting lawfully there they done nothing of them stop one of them walk has ear buds in his ear obviously and in the light most favorable to him within seconds of the time that this gentleman is walking down the street is killed in cold blood i think if you look at the facts maybe i'm not a reasonable jurist but if i look at this case in the light most can make a lot of arguments one way but there are plenty of arguments to get be made on the other side looking at the very same facts you can look at the fact that this gentleman you could just as easily explain the fact that he had his hands in his pockets or whatever to diddle with the sound system as much as you can with that he was pulling gun dispute in the evidence in this case so that's all i got to say and i'm ready to hear your argument individuals and is that correct in the district court that issue was not brought up that's good ok well if it wasn't brought up then your argument now that there was a basis for them to detain fact or his line of questioning if in fact these are three individuals who are walking around in salt lake city usa not doing anything wrong it's far as we know and there  and he did exercise that right to walk away then help me to understand where the officer been at the right to shoot him and specifically i want to focus on the point that was raised by mr geragos what should he have done i mean if you had a right to walk away you know after the never right to detain him then then what should he have done in that situation to avoid getting  officers i guess you're relying then on the officers deposition that that's what he said because i can't pick that up on the tape he was adjusting his pants and and you dispute that that's what he was doing right well they all do that you should look at the video and see something and conclu