sets of competing facts so the st question that the court must answer is which set of facts apply those to which mr holloway agreed made up the factual basis of his criminal plea on his criminal conviction and or those which contradict the factual basis of that when a criminal conviction is based on a factual basis including preliminary hearing transcript all the facts are included him as at the time of the plea hearing the criminal defendant limits the basis so for instance in this case that there are competing facts and will be decided down the realm but i don't know why we're deciding it now just out of the reason we're talking about in our deciding it now is because they're what you'll hold what some of these  yes understood your honor what we're arguing is not that this case is hagbart but that these steps the set of facts that the court needs to use in order to analyze qualified immunity where they should apply the graham factors is to the police in every hearing transcripts because those are the facts that mr holloway has already agreed made up his criminal conviction and he can't now contradict that so we're not saying that hagbart him for bringing this suit we're saying that the facts that should be analyzed should be the facts from the preliminary hearing transcript and not the dismiss on the basis of mr holloway's criminal conviction the th circuit when determining qualified immunity held and i quote this case may be dismissed only if it is not possible to construe holloway's pre as consistent with the f and i again we're not introducing it to say that this is exactly what happened we're saying these are the facts that mr holloway agreed made up his criminal conviction and he can't contradict those now he's tied to those qualified and there is no qualified immunity here and just say well maybe it'll be this transcript and maybe it will be relevant but i didn't say that it would be a close well yes and there's a motion to dismiss states that the th circuit didn't have before and what the basis of holloway's criminal conviction was so as it must do it except in mr holloway's allegations that history only encompassed certain facts and using that they said well then you're entitled paula but you're not a child qualified immunity but what did he the nd of all he said that that was a factual basis which seems to be to say that somewhere in there there's a factual basis but not that everything that was said is  found yet john however you know that says that if you don't limit the factual basis at the pre hearing then you are tied to all of those facts and that's upheld again by weiner and torres would say the exact same thing and in torres they're not even this i don't understand why bars if it's not good bar that your honor is that it sets forth the fact that we need to use so there's one set of facts contained in the preliminary hearing transcript which mr holloway agreed made up the basis for his conviction there's another set of facts that you testified to at the deposition that contradiction and they're not very far off by parents the question of whether mr holloway whether mr holloway pointed a gun at officer horn so he pled that o n did point the gun and off the horn where as in his later deposition he contradicted himself saying at the end of the day while we argue that he should be tied to the policeman area hearing transcript and ultimately it doesn't matter because case law says don't need to rely on anymore he doesn't stick solely with those so once we get to the deposition transcripts we have testimony and we have understood the testimony that the entire incident lasted fifty seconds that mr holloway was shot four area it's understood that mr holloway turned toward him so if we ignore the fact that he is a god which is really the only difference between the preliminary transcript and the deposition transcript you still end up with qualified immunity because those facts alone facts i was there when still be entitled to qualified immunity that mr armstrong are that mr holloway tossed one gun in close proximity to officer horn and then turned around on him doesn't mean that officer hart has to trust that  someone of your reason with leaves arms and he turns towards you we have several cases that say under those circumstances it's not clearly established that that would be a violation because the officer doesn't know when that person is spinning around whether he's going to shoot him or what's going to happen we have several cases where there's no gun even present or there's no gun that gets pointed in the opposite direction but the court still holds that that furtive movement i've been around for the officer is enough to suggest that clinton good morning to all of you on behalf of the plaintiff and apparently i think what really drives the discussion today is the various material factual disputes for if i could the other a point i wanted to make is the memorandum which judge her song pointed out where you had judges reinhart to shima and when basically say assuming the facts alleged there is no qualified immunity and essentially those are the facts that came out in the evidence in the case so they really are the same facts this really is the same issue and i w some factual basis in the transcript for the plea and the court also address that on the prior memorandum regarding the plaintiff's facts and think it's very important because as the court is aware the court cannot wait the evidence or judge credibility on this motion they have to assume all plaintiffs facts and take all reasonable inferences from them and we've touched on most of them but this started as a consensual encounter there was a short pursuit mr holloway tossed the gun which the officer to the subject step was trained that people will run with guns and try to toss them and the gun before he was even searched and one officer glocks him dompig he told him where the gun was on the other side of the fence and importantly when that gun was tossed there was twenty to thirty feet between the officer and mr holloway so he sees him toss the gun and then importantly the shooting doesn't happen at that point based on plaintiff's facts the shooting happens ten seconds later approximately and during that time mr holloway although he tried to to move away from the gun and the officer he stumbled some went down partially got up and then slowed down and at this point he was about twenty feet away and what we think is the most important fact for the plaintiffs and i don't know if anyone can see me but he put his hands up to the side of his head to show the officer he was vis then and only after he put his hands up did he slowly turn to the to his left and start to get down and that's when the shots occurred without any warning and without any commands and there w shots as he was going down to the ground and also shots while he was on the ground mr holloway testified to that and so did independent percipient witnesses and as the court's aware at least one of the shots hit him in the for the question jack seiler and the answer to that is no the mr holloway's testimony is consistent with what i've just proffered that's what he testified to that's what's  mean yes judge busan and he did not testify in the criminal case judge seiler there was a preliminary hearing where the officer gave some self serving we believe self serving testimony and at the time of his plead and he didn't plead to assault with a deadly weapon which is what you would expect if someone was pointing a weapon at an officer he simply pled to resisting by our position judge seiler that is inconsistent or binds him to any of the self serving testimony given by the officer at the preliminary hearing very welcome  in any case right if someone has a weapon and is either told to drop it or just drops it voluntarily i guess it's always possible that someone could have a nd weapon what we think's important here judge lee as i demonstrated under our facts that after d the about ten nd period after he dropped the gun he raised his hands so that they were visible the officer and they were visibly empty and there's no further reaching movement at that time and based on our facts judge lee he did turn in till he raised his hands and started to go to the ground so from our perspective judge if you assume our facts for purposes of this hearing the officer shot a visibly unarmed man who was not did not appear to be reaching for a correct judge bara and when you look at the three factors under graham they really all weigh in favor of mr holloway the st one is the immediate threat which assuming are facts from our position there was no immediate threat certainly not an immediate threat of death or serious bodily injury which is required under the law to use deadly force in fact there are cases that we cited like occurring know and george were a person has a gun in their hand and that fact is not enough the other two factors would be the nature of the crime and in this case he will he wasn't committing any crime and started as a consensual encounter and although he ran he ran before the officer got out and he was obvious for obvious reasons trying to get rid of that gun not trying to attack the officer and then the rd one is whether he was evading or resisting and although there was resistance before he tossed the gun under our facts he essentially was surrendering or trying to surrender at the time of the shots and so the last point i wanted to make on the clearly established point i think you know when you talk about qualified immunity the question always comes up under what facts you know under what facts are we looking at this to decide if there was a constitutional violation or the law was clearly established and we would submit if you accept our facts which the lower court did the prior prior panel did we are hopeful that this panel will the law was clearly established it's not as if in the taser cases for example when the taser st came out it was unclear when you can use a taser for years it's been clear under the law that you can only shoot someone if there's an immediate threat of death or serious bodily injury and not certainly where someone surrendering and the colonel and george cases i currently i pointed out i thought were important perhaps because in those cases the person did have a gun in their hand but it was not pointed at the officer in teeing the person dropped the gun as we have here but are fast we believe are better and you know one could argue that shooting a visibly unarmed man who's trying to surrender may fall within the obvious as well so we think for all those reasons this appeal should be denied and if there's any other questions that anyone has for me on any of the issues i'd be happy to bound to all the facts and the policeman in every hearing where there's someone giving one sided self serving testimony and that's all that's important for purposes and as you pointed out in the case that says that someone is bound by every fact in a preliminary hearing no matter how inaccurate or i'm sure still that fact is the only thing that's important is that there is some factual basis in the hearing to support the plea which they're running and tossing out the gun in this case was so we respectfully disagree with their contention and i have never seen a case that specifically says that that there is no support the for the notion that a bar preventing collateral tax on a criminal conviction is in effect a hole in the plane of six the undermine a part of his criminal conviction the lying on that record and wind area hearing that's not the case and finding on it is a case that persuasive no your honor there is no case that says the opposite way then that's in line with what hex says it's in line with what you said but also to deliberate and investigate and and in this case and a stationary location here we have a nd rapid put foot pursuit where officer harms all by himself and which he had no time to the liberate or assess what was going on it was very obvious that he wasn't armed because he wasn't wearing any clothes and again there were five heavily armed officers surrounding him this is not the same case here we have a guy who's wearing clothes that concealed at least one weapon and so many turns on the officer for not that was the end result of that doesn't tell you why it would have bent us your honor if i could just the reason that we point to that is because if a nice circuit panel in two thousand and eighteen looked at that case and thought that it was constitutional then it cannot be clearly to you but i've been wrong and the court could have thought it was wrong and that was when they went back but the clearly established problem requires it to be beyond debate and if there's a nice circuit panel that doesn't see it as beyond debate it's hard to say that a reasonable officer and officer or an physician would have known that that was a constitutional violation as might you don't use a case of things again there are other cases that supported the stance of as the officers so what's the difference i don't believe the fact that was turning towards the officers in the arrest like i said he was surrendering and he vis a vis surrendering but he's been very consistent on how you the surrendering similar with the shots to the back when in downer well our position would be that mr holloway is bound by the fact that he pled to because to allow him to contradict it would undermine his criminal plea but in either case we find that when you're looking at the cases that i just cited in the cases that are cited in our brief cease and and the failure of plaintiffs to meet their burden of demonstrating cases that show otherwise there's no officer to rent their horns to is even under the facts that mr holloway wants to use that suggests that he should have known that it would have been a constitutional violation and to sue mr holloway at very rapid nd footprints do it in which he had no knowledge other than he thought that he was an armed gang member and that they were in a high crime residential area this is a  situation where you have a real threat coupled with a furtive movements and we also have mr holloway testimony that he flunked got across his body which again consistent with this answer is case that those are the kind that those are the