on the basis of qualified immunity and the substantive basis of whether or not the officers actions were objectively reasonable under the fourth amendment that motion was the nine by the trial court the government filed a motion to reconsider again alleging that the judge should reconsider his decision on both counts that motionless tonight several months later in fact almost a year later the government filed a second motion to reconsider based on the same article actually  tatts it's been decided and the supreme court has decided that there has to be a clear distinction between the decision on the reasonableness of the merits on the merits of the decision of the reason the list and the decision on the whether or not qualified immunity should bar that even even the reasonable person do reasonableness inquiry did not change and cannot change the fact that in this case when the summary and the key issue that was hotly contested is why there was danny mason when he was shot where was age and her ran when the shot was fired and most importantly whether or not it could be determined that danny mason wasn't a threat to the officers or the safety of others when that last bullet that went through his back is a peace officer have the right  to use lethal force in apprehending a suspect who the police officer reasonably believed attempted to use lethal force against another police officer does he have that right well i believe that under whether the police officer had a reasonable view that the person had used force didn't your client on two occasions under oath that in fact that in fact the peace officer was reasonable in believing justification to ask mr mason to stop in the first place but assuming that then when those actions happened i can see where a reasonable officer might believe that he should use deadly force but at what point does that end so he still gets be limited to the situations in which the officer actually believes that there is a threat to the officer safety or the safety of others and once the threat is just dealt just like self defense your use of deadly force is also gone once that person is no longer a threat to the officer daniels in this case is in the bushes or to the surrounding public i think that then the threat once the threat goes so i know that the events happened rather quickly but that is not the fact just the fact that the events happened really quickly is no reason for nasser should not be aware of when he  there there was a diagram attached and i would direct your attention i think my brief pointed out to the dry ground that was used in the deposition of this case and i think it was attached to the state's brief summary judgment that's fairly similar and i could up once tried to get out the gate couldn't make it pulled forward backed up again managed to back out of the gate now we know that a couple of three shots based upon the ballistics and otherwise were fired at the car backing out of the yard towards daniels there were a couple of bullets that went to the front of the vehicle mr mason makes it through the gate and he pulls in an arc like this in order to turn and go forward when he pulls in that many backs up out of the gate like this he's exactly parallel to sergeant daniels who's on the other side of the things sergeant daniel says i saw danny mason looking at me right out of the driver door which indicates he was parallel with the driver's door and that's consistent with all the testimony there wasn't much dispute about that and at this time there is no threat to daniels because the car cannot magically jump sideways and hit upon the idea that well if he was he might have been going to do something other than drive and the wounding shock takes place till later much later the car goes into forward mr mason is attempting to get to the highway and at fans it appears that some time right now as he was going forward the agent her and ran towards the gate and was outside the fence when some of the last shots were fired i think at least two maybe three but th truck was well in advance heading away from the officers that went nowhere in what factual shot ok i think that's an undisputed version i think we're going to get you one minute not a minute in four seconds but one minute republican understand serious unprotected not in such a vehicle that you know i mean sure enough one officer is firing a gun but this man is in pig chevy or port pickup truck that he has there to protect  first shots were fired from the so he could have been hit by one of those initial shots is what i'm saying and following up on that let me ask this question if if it were clear and undisputed from the record that when the wounding shot was fired mason was in the act of backing his truck at the other officer this would be a clear case for summary judgment right if the wounding shot charged but there are different sides of the family you know they're on the same side of the fence and that's where he misled you and if you look at the at the record it's clear that he was on the cactus look at his own  isn't he going he's going to go and do it again because he was a phrase can be shot so you're argument designed or standard is there at the point in time the wounding shot was fired  agent her a reasonably believed there and wore his fellow law enforcement officer were still in danger that's your argument ye year if that's a reasonable well belief based upon the objective facts that's the end of the and or right it doesn't make any difference what acted just prior to that last shot a press of lee and unpredictably and daniels made the mistake of thinking he was going to stop when he went to the opposite end of the fence and he approached him and was walking up to him when where there is though the line between what is acceptable and what is unacceptable and moral for it there was no law in this circuit that would tell this man or nationally that would tell her man that what he was doing was illegal here so i may have noticed that your time is running and i'd like to ask you a question mr mason little diagram i'm now looking at this diagram three says it was the last shot that hit me that may or may not be true the last shot hit me just as i was about to get to stanch eleven now that may or may not be true but if it is true that it was the last shot and that that last shot hit him just as  as he was about to get essential and i know who gets to decide whether at that point it was reasonable for the officer after her and was doing the shooting to think that he or another officer was honor i must apologize i'm certainly not trying to play fast and loose with any facts i may have mistakenly misunderstood where the fence was but it's not critical in any case the critical inquiry is whether or not there was a genuine issue of fact which truck not on the side of the truck the fact of the matter is it's obvious that there was a constitutional a right involved here at the right to be free from deadly force there's no greater right no bigger fear that insisted in this country should have the next question is whether or not that right was clearly established as far as thoughts your goes graham versus o'connor clearly sets forth and should clearly set forth when officers can use deadly force and it is only a thank you for your argument think both sides with the argument can use just argued will be submitted per decision