we respectfully submit that the district court in this case erred in finding that officer horrible was entirely qualified immunity only with regard to the st shot and not the nd and rd shots fire case as clearly established law that the th amendment prohibited officer horribles conduct in that precise situation that he was dealing with on the date of this incident those cases or clearly he believed that the suspect was annoying the entire time and that's definitely in contrast with the situation here where just an instant before officer hurrell fired the nd shot the district court found that it was two seconds later as mr ok had directed the gun in the direction of the office and that's what caused the horrible to fire the st shot so that's in complete contrast with that since the vs garner case and as the court is aware the supreme court has on several occasions stated that courts should not use the general standard for the use of deadly force that the case the mason versus last few days in two thousand and fifteen and again that case is also clearly distinguishable from the facts of this case in mason  was that the officer initially fired five shots at the suspect and the suspect went all the way down to the ground and the court determined that there was a fact dispute between the officer testimony that the suspect while he was down on the ground attempted to reach for a gun around his i'm a believer in his belt the suspects girlfriend who was right there in was in the  room testified that the only action that the suspect took while he was face down on the ground was to lift his head see denied that he ever reached for his gun or made any move that would be any type of imminent threat to the officers or anyone else so in that case the suspect was clearly incapacitated face down on the ground as compared to here here we know from from the video that after the st shot jason roquet was not clearly incapacitated he certainly wasn't clearly incapacitated from the perspective of officer horr imminent threat of harm and here the only evidence that shows from the office for officers perspective is officer horribles testimony as well as the other officers the only other evidence that the plaintiffs and the district court relied on was the video evidence from there were three separate videos none of which show a really even close from officer horribles perspective they're much closer than he was there from a completely different angle than he was and and it clearly does not represent what he would have seen from his st so from his perspective you have an incident which happens in a matter of seconds just like involved there and what the fist circuit said there was the officer had just a matter of seconds to make a quick assessment of the danger presented to the confidential informant in the car in bel air as well as the other officers there and as the court is aware the supreme court has cautioned against nd guessing  and officers assessment reasonable assessment at the scene of whether or not there is an imminent threat of bodily harm or death and a valid various case is is very close to the facts in this case they're the suspect claimed that as the officers approached the car the suspect basically got rid of the gun that he had pulled with the officers and seen him p specifically says that the video evidence suggests that the gun could have been seen by the officers and i think that is that is clear speculation when there is no there is no video evidence even coming from the same direction from officer horrible as well as the closest video evidence that we have is from the dry season which is across the street  diagonal from where jason roquet was and again it's even closer than more of the officers were when you watch that video it's pretty clear or in fact it's not clear at all that the gun even fell from that video which is closer again from where the officers were and so it it really is you're out of the more i think about it it isn't a way nd guessing officer horribles decision because he has to agree to disagree that whether the officer saw him drop the gun and whether the officer should have known that he was incapacitated after the  shot you can't clear that those two questions are not material to the outcome of the case that's that's true your honor with with the caveat that the court various that if the officer reasonably believes that the suspect is either racing for a gun or about to use a gun or is is still using a gun as  us whether or not the suspect is actually still armed is not material and i think in this case spray court has clearly said that one of the purposes of qualified immunity is is to basically allow officers to to have a some reasonable leeway in making these split  has a real gun instead of a b b gun and the officer hesitates and waits until he has absolute confirmation that the suspect is still armed then the suspect could very well use the gun on an innocent rd party and then of course the officer is would be nd guessed as to well why didn't you use speculation because your honor i think because it was again even x for all the expert did was review the same video that the district court did as well as go to the scene upticks it at a later date a completely sterile scene when there's not when it's waved a gun around when there's no other way he's not listening to any radio it's not a hectic scene he knows it the expert knows exactly what has already happened and that if the expert is doing that nothing more than speculating as well in  circumstance again i think it would be different if it was a witness was close to the same perspective as officer horrible or there were some other video evidence in straighted from his viewpoint and from that distance that far away it saw either that the suspect was incapacitated or other way  than an officer is completely justified in continuing to use deadly force as long it were until the threat is in and i don't there is no evidence other than pure speculation from officer our horrible spree suspect if that threat  it's that some of your arguments really go into whether you know there is a genuine issue of material fact for the most part that would judge will have asked was material except as a said the the fact if an officer horrible reason to believe that there is still an imminent threat then whether or not it was clearly established that his conduct was a violation for the men and this isn't the same fact pattern as i said is tennessee going to divorce is going on and it's also not the same thing close to the same fact pattern isn't mace there is no evidence that he was clearly incapacitated as he shot in this is shown video he turns away from the officers and you can see on the video that his arms are actually blocked by his torso and he's a he's still standing he's not face down on the ground as in mason he's able to run him a little over ten yards after the st shot so he's still moving and he's in fact still moving in the general direction of his mother he's moving south along the sidewalk in the road after he was shot the st time and as he was staggering materially away from the suppose that person that the officer was trying to protect did he had the capacity to be a threat he did not as an objective factual matter what happened here was a despondent suicidal person you know engaged in a confrontation erupted with the police and officer harvill chose to fire st and with their three shots at issue here following a arguable command to show me your hands which see the young man  and then a command arguably from some other officer to put the gun down and then instantly after that officer harvill shoots jason roquet in the torso ok it doesn't kill him but it does debilitate him from that point on and what's significant about that is that this is not a split nd bang bang bang bang bang where officers continued firing until the threat has finished this is shot number one the gun drops and contrary to my actual good friend an opponent mr laird's arguments there is a fact issue as to whether or not the gun can be seen dropping it well it depends which depends which which verified statements you're talking about with the officers at st officer harvill said that he thought he was shooting jason roquet the because he was quaking the gun at k jason's mom and that he shot her in the back that proved false when we looked at the video it shows him turning and accordingly judge april said well that's a that's a close call it's turning in the general direction of the officers with a gun that admitted billy officer harbel did not know it was an unworkable b d gun so we take the position that that's that's not knowable to the officers and then from that point forward he stumbles into the street roughly ten to sixteen yards ok but the officers testified from different vantage points and officer harvill mind you that they didn't see a gun drop but officer con acknowledged that that he should have seen the gun drop and what's important about that is that an officer doesn't escape liability for excessive force by simply saying you know the as you are well aware this as the th circuit has repeatedly held them i think you and i'm a doer in particular once the threat ends you do not get to continue shooting so you judge excessive force at the moment of the threat and here well judge cable's opinion says that two seconds later shot it was fired and then approximately two seconds later if you actually look at the videos  elapsing between shots two and the rate and so often times i suppose attorneys can play gate word games with what the word split nd determination means but it doesn't mean that someone gets to train a rifle on someone who continue training it on them until they kill them when the when the warning so to speak was dropped the weapon and exactly one second after now there's a difference between he says he didn't see it any says he couldn't see it he makes both statements because he says because he said he couldn't see it we sent an expert to the scene from the exact same vantage point he not only saw the gun drop from the exact same vantage point he heard that alone creates a factual issue as to whether or not officer harbel could have seen it in addition we hired a visual perception expert  d trained in this he watched the video tapes he watched the video the best videotape that that be there palin said where it it's not it's crystal clear it shows a flicker he explains why that's significant in addition it's not just the video it's not just expert testimony misses roquet again just the deceit and smother saw the gun drop now again they're welcome to make the case at trial that he may reasonably misperceived what actually saw they can even make the case that he couldn't see it but they don't win on summary judgment at a qualified has been complying and has followed the commands of the police is moving away from the only thing that could possibly pose a threat albeit in reality didn't pose any threat at all but again we're not here suggesting that should you have seen it drop and he said sure i should have forwards to that effect i mean this is this is again taking mr that's that's there is there a violation of the th amendment  excessive force but is it clearly established again this is a more obvious case than tennessee be garnered because we have tennessee these are the only difference between tennessee to garner in this particular case is that from the start of the individual and garner was on ours here he's armed until shot number one but from that point forward he's he's every bit the same person again this isn't a seasoned criminal that the police were you in this is a suburban austin neighborhood where a mom called for help and admitted leave the police were confronted with a difficult situation but just because it's a difficult situation doesn't mean that there's a license to if an officer believes he's permitted to begin firing that he gets to continue firing even when a reasonable officer would know that the threat no no no we're not the only reason that i mentioned that is to the extent the court has any concerns about you know were warnings given again you know technically a warning was given before the st shot our position would be that it's meaningless because of how quickly officer harvill fired but that's not why we're here officer harbel deterred in the irony of this is that the lead the officer harvest in his counsel was t video to be just fossett if when it benefits them when he turns even though that's not what i have perceived it's not what anyone else perceived but in reality it shows what happens but when he's dropping the w to decide whether or not he did see it he could see it but obviously as as judge will it and yourself articulated these are material issues and as such you know it would be in a the chris court if all we had was the video that would be enough frankly ok i mean it's because we went above and beyond and got additional evidence doesn't make it any less the video i think what's key about the video is that the video obviously shows that he's no longer a threat as an objective matter and then from the video and the vantage points you can see now don't know if the gun drop it but you can also see the gun on the  sidewalk and so there were multiple opportunities over this five to six seconds and again at believe it's the amador case where it highlighted you know in litle the court court said three seconds later or be thirty three to ten seconds later the situation changes therefore the ability to use excessive force changes in on the do i think it was five seconds the situation changes therefore the ability to use excessive force changes that's the point of mace well i may not personally agree with the st five shot analysis the point of the matter is for shot six and seven the situation changed the threat was gone or at least there was a fact issue and so a jury gets to decide but again i don't want to belabor this i think that this is fairly straightforward but i'm happy to answer any of the questions that the court as a suicidal despondent person and i just want to reiterate just because a job is difficult doesn't mean that it shouldn't be done appropriately and in accordance with the law to suggest albeit through appellate counsel thank you very much thank you we have your argument  rebuttal the all of the other officers were consistent with officer horrible in their testimony every single one of them said that none of them saw the gun fall all of them saw or testified that they still believed that mr ok was in imminent threat of bodily harm to his mother so they were all consistent and that is the only evidence that eating where close to officer horribles perspective none of the videos are but the other officers testimony is what about the experts who went reenacting this yes your honor i mean that they they did do that from the same direction in the same distance but again that's not it's not under the anywhere close to the same conditions it's a kobold sterile environment where they know what  happened and they're not it's not anywhere close to what in basically what the all the experts are doing is speculating it's not were close to what officer horrible was dealing with which was a very tense fast situation and he had a matter of seconds to make an assessment and decide what to do and that your argument part of the jury argument no you that you know the officer has mere seconds to assess the danger and in those cases they are entitled to qualified immunity and less there is existing precedent which squarely governs the facts in