one four five one jason began versus laura drew  facts that are in dispute in this case we have an all audio recording and i would hope that the members of the court have a chance to listen to the recording that was made of this event because from the moment this man unexpectedly snapped a large knife out in a all these men are in the room and there's a entrance way and there are people in the entrance way members of the treatment team but there are three members of the team who are actually in the room in close proximity to him and then when she's motioned forward she steps into the hallway that's when people are beside her because they're in the entranceway it's those people who are beside her the three men are still in close proximity to begin but one step back so he's not in the way clearly when  sun i know that we in the record we had the participants say where they were and what they were doing and then when he's jumped up with the knife one person said he stepped back no one situations with a fairly wide zone of protection in close cases but in close cases a jury doesn't automatically get to second guess these officers life and death to decisions and the jury and ward there were facts there were there were factual disputes if that were the facts it would be a much closer case star and i think the core of the statement i believe that my point is proof that says that the sites to the record where it says people were beside the officer is talking about when she steps into the he was nonchalantly walking he was and going slowly there was clear visibility also had a rifles behind a car so it's it's a fairly different situation i think what you have to be twenty feet away from someone with a knife standing up to an officer  town you do have some time but in the timing issue your honor this is not a case of a call like like mccain was the officer didn't go there knowing she was going to be confronting an armed suspect she was told she was to transport someone who was being rude committed to a psychiatric ward and when she got there the only information she was given was she had a history of violence she knows she's told to stay out of the way there are people in talking she can hear the conversation that's going on and you'll hear it on stand up and pull out a nice that he said hidden in his clothes in a snap that blade open end and slash and solve the people who were in close proximity with him all of them by depose them they all testif that his actions were entirely unpredictable and they didn't know what was coming next kimball who was the guy closest to him who was given him who had been given him the warning or heard the telling him he was being committed campbell specifically said i believed if anybody you win your position that they have to be in a particular spot in the room for you to win i think the officer the officers actions would still be reasonable and perceiving that they were a threat because they were in a small room with a narrow way doubting that you understand the procedural calm but in the procedural setting we have now he's about as far as you are from the stench from her if we place them next to and behind her you've got one bondage that's a different statement than there in the room i believe in this statement very close proximity just doesn't tell me which of those two things we're talking a believe the record says that that kimball was where begin could reach him in a few number i believe i believe that people did but you know general things i mean this is this was a vent the you know forgetting just to get these people to describe what happened i mean everybody was clearly traumatized by it and i don't think we've got a specific i was two feet i was three person who was speaking to him originally so that he was within there he was he could be reached within  who was the one that brought mr big into the offices that day it stipulated that he was the person closest to mr began when he extracted the knife from his pocket and began slashing his arms the next paragraph that stipulated as mr hunt did not make any deposed officer drew and she said that everybody else was to her sides at the time that she shot him as outlined in our brief i do think there's a jurisdictional problem here because the essence of the district court's holding was that whether or not mr beg posed an immediate threat is a question of fact with the jury and the facts here when they're viewed in the light most favorable to mr b again they include things such as we have to look at the context here and you know it's clear on that the context  everything mr being was being recommitted to a psychiatric hospital that he spent almost ten years of his life that he had no choice he had sat night room for four hours he said i didn't do anything wrong i'm not going back there officer durance counsel would like to infer from that that he was going to take somebody out or be violent with other people but in the light most favorable in the rational that the logic here suggests that he would he might be suicidal he's not going back to a hospital where he spent ten years of his life will suppose kimball was three feet away when one step away he pulls out this night are you saying and under those facts that it's not clear that it clearly established the officer couldn't shoot and had to wait because i can't name a case for your honor but the fact that somebody is in a room with a knife i mean when you go to a deli there's a person making a sandwich with a knife really close to you they've got to do something more before you can the officer can and had it in his hand when at the time that he was shot so i don't i don't know that the record discloses that it was pointed in any particular direction he clearly inflict i think he's a piece p f c but dr kimball that at one point mr beaton raised the knife when he was about to cut his own arm in the direction of that knife was pointed towards mr kimball but then mr crimble testified in the district court analyzed this that it i agree that it's been a while since the depositions took place and i don't i don't know that we ever got down to two feet in inches i do remember officer drew and i believe it testified she was between fifteen and twenty feet away and said that the others were to her side so from those facts we argued that there was nobody any closer than twenty feet and so my point about the deli and it's probably a bad analogy but there's got to be something more there's got to be that step toward somebody this got to be that i'm going to do this to you some form of a verbal threat something more that didn't happen here we have a gentleman that cut his arm he never said a word to anybody he never moved towards anybody he was never warned to drop the weapon never given the consequences of what would happen officer truman was twenty feet away were in the context of a such psychiatric help patient clinical and he's going back to a psychiatric hospital if the thing is he's just use the money on himself sufficient there's no stipulation or you meant as to its the exact location of other people and how close they are i think that's a fair statement there are if there is no stipulation as to if you took the tape measure out who was exactly where i do think mr benjamin's accurate when he said was that why you didn't say that in so far as he's making an argument it depends on where they're placed in the room there is a jurisdictional bar to making that argue that that's of course he's just arguing a point about as long as they're in the people in the room coupled with all the other things about the no warning and the no step towards anybody else the context of where he was in saying that whether this guy was an immediate threat to others the others being the key he's clearly a threat to himself and  believe officer drew in testify that she believed he was suicidal at the time that she shot him which is i think it's very telling so the point is in the augusta police department standard operating procedure under the chair case i mean it's clear you've got to have an immediate threat to somebody else before you can use deadly force and this is not a case where there is an the other force this was not even a this was a hey hey hey three shots with a glock that client there was nothing else there and for that reason i'm in the district court said whether there is an immediate threat based on all of these fast to others that's a question of fact for the jury insofar as he found that to be a question of fact view psychiatric center before this was not an emergency call she could have stopped punched a couple buttons on a on a computer and learned that fact would that have made a difference it probably would have factored into something when that knife came out or might have factored into what she would have done prior to waiting in the hall this is also an officer on the crisis intervention team she's specially trained to deal with people that are in mental health crises and can't lose fact to the side of all those facts and that's why the district court said based on the totality here i find it's for the jury to decide whether or not there was an immediate threat to somebody else and in so far as that's a factual question there's no jurisdiction if there if the court does accept your station i think it must be from that decision i have any further questions thank you very much how's the truck so i can tell which is did you hear about that i at my car overheated on the tobin bridge three miles from here and i knife being pointed at him but otherwise admitted that and the following page appendix at thirty six are paragraph thirty six so mr kimball was close enough for plaintiff to reach with just a few steps and did not know what plaintiff was going to do in a few steps some distance something did you are you in your summary judgment papers to the district court this morning about how many feet away the person was i don't know if we if we i mean we have the  reasonable for the also to perceive a threat to this phrase what is close proximity mean now you're saying that you could make an argument that there is no basis for reaching any conclusion other than that there was a person five feet away to design an interlocutory appeal that you win because the person was only five feet away rather well i'm saying i'm saying that the distance to the people who were in a room in close proximity with him and that it was away at the time of the shooting and so i think baron's question is did you ever tell the district court that it needed to find its undisputed fact that he was just a i think it words were few steps away admitted by the plaintiff so there was the fact that he was five feet before and after the fact that he was a few steps from beginning was in the record for the co that the district court judge in its summary judgment ruling over looked the significance of the piece of evidence in the record said i think that the decision in roy says that the jury doesn't get to to second guess the officer in a close bring it down the line because if you bring this issue right now and i and we don't have a district court indication from the district court agrees with account of the record because all we have the district court saying the issue is whether given that they're in the room doesn't say anything more than that so i'm just trying to see what is your argument to us an int undisputed the under speed of facts before the court and there was a that was in a small room and these are the distances we laid out in the record that the court had in the court described it as being you know whether they were in the room this is probably not it's obviously not a specific as we laid it out in fact before the court feet the officer when the officer was summoned into the room he said he wasn't going and they said you have to go and there's some of the officer in there she steps in and the photographs on the record but there's an entrance way that's that's maybe ten feet into the small room and the three men and the plaintiff are in that small room the officer steps into the entrance way where it says there were other members of the acting were in that hallway so when she steps in there are other people around her kimball who's in the now she's looking into the small room simple steps out of the way as he pulls a knife and so there's no one between her and him she's a fifteen she estimated fifteen to twenty feet i forget your brief to