knife i looked off to the record and no place to say how big that knife is right there's no place you've got one chart with some kind of marks but you get figure what the marks are is that a true story how many inches it is or you know whatever you're absolutely right  the that the perception are that the suspect was in the process of committing a violent felony i'm great at that said that that is a cynic why not have of no qualified immunity seemed to me the dispute was on the inferences that one might make from what you saw in the car so that if i'm reading the district court properly it viewed it saying well one inference to be made from this scenario that's going on in this car is that he was really having a mental health crisis that's backed up by the telephone call through nine  or thirty minutes in the car sort of all of those circumstances is that something then that if we view it as the reasonable inferences made from those facts is that then go to the jury  intended to do that now and i would shift you off of that because you're not necessarily convinced of that and you can make that argument but i'd like to focus more on not not trying to get into the mind to the mind of mr kong but what the officers would have seen in i answered your question but my our position is that whether or not he was having a mental episode or if you was high he was still a deadly threat once he to everyone in the vicinity and especially the people he was friendly towards further he got away from the police the further he got away from bystanders in our case mr kong the further he fled away from the opposite the closer he got to bystanders that's the moon factual difference he also big difference w is that it never found a th amendment violation the th circuit found that there was predicate fact issues and therefore remained it back to the district court under public view right the us supreme court decision they have to have a th amendment individual who is within ten yards or so and would have gotten to that individual within mere seconds this case is different because mr karr was running away he was running toward occupied vehicle four hundred and seventy five times by the district court's count and i think it still stands for the proposition that an individual fleeing the police with a knife who may be emotionally disturbed deadly force is not authorized unless there's something more going on and in this case there's a factual dispute as to whether there was more going on the video evidence i believe shows that mr condit did not in fact attempt to assault any officers i think on that point hopping back and forth with the knife before he fled and in ludwig the suspect fled twelve across the street towards an apartment building where he would have been in contact with citizens of the district court made the point in this case that the potential violation here the case is even stronger because mr khan was running towards individuals traveling at highway speeds in their in their vehicle after a couple of again i'm trying to measure the video there are a couple cars back in throughout this encounter it's a lot of traffic back there and a lot of traffic back there i was surprised at how many people came right back there during the middle of all this one of the state of that that's true and the mcdonald's parking lot certainly had people circulating in and out and send some stopped for sure i believe at the time that mr khan exited his vehicle that the undershirts vehicle was moving away and mr khan was moving away from the undershirts video not withstanding the defendant officers arguments factual disputes here are whether mr karr attempted to assault or committed any other violent crime while at the scene or whether a reasonable officer correct that and the video that th factual it is not in on that point the rains case provides i think good guidance because there is video in that case from i don't have a squad video or body camera video that was inconclusive as to whether i'm mr raines i  precedent but i think it provides guidance as towards the legal standard of viewing the evidence at this stage in the proceedings and as we know they get at summary judgment the evidence all inferences need to be drawn towards a point if and in that case the appeal was dismissed by the circuit given the disputes surrounding the video evidence so how would the testimony go then are you saying that that then at the trial the opposite would testify that yes i don't know the dagger did go through the window and now was in it an assault on me is there's no other testimony right it seems to me it's again i want to i guess parrot what i was talking about you're posing council it's more of an inference of what what actually was going on there as opposed to did someone stepped forward or step back i think that that's true although i think the district court did note in its opinion that none of the officers in their interviews with the b c h shortly after the incident none of the officers said that mr kahn attempted to assault officer gigo how did those interviews work is that a question that they're asked is that something that's normally a part of that interview would that be something that maybe you're not the one to ask but is that something that would naturally come up as an explanation of what happened it is something that should naturally come up because it's critical to the analysis of whether deadly fo is authorized and that's something that presumably the minnesota b ca should be asking every officer involved in a deadly force none of the officers here despite the fact they were represented by counsel at their p c a interviews made any reference to any attempted assault and that's consistent with the video evidence including the video evidence from a bystander who was inside the mcdonald's that doesn't show the officers react to this suppose it  as an assault they continue on as they had before in response to mr conway been the knife and in every direction while he was contained in his vehicle i think that's a matter that a jury is going to have to decide whether there was in i think the protracted conduct in the car leaving the car one day picking up the knife and running toward an occupied vehicles ignoring repeated commands to stop that's that's what that's the question of actively reasonable police officer using of death deadly force and i think before you can conduct that analysis the predicate facts do need to be determined by a jury whether mr khan did in fact run towards a vehicle that was in the parking lot and there's evidence that he was not in fact doing what we're going to have we're going to have interacted tori's now out of the jury i think it would be a matter of this is what harold these three fitzgerald wants this is what all of the qualified immunity decisions from casella back to white the poly act of the last five or six supreme court decisions in the last ten years all want to have happen and i think well that's what most asking us to ignore what the supreme court's been preaching i don't think they can sell a decision undermine the takeaways from don't know if he doesn't if he doesn't get up off the pavement with his knife and run toward other members of the public and then this then this is certainly but certainly would be a different deadly force case that's true i think a lot of things would make this its protection force for to it if it's in a split nd situation do they were the objectively reasonable thinking that other members of the public  at a mcdonald's parking lot of butting a crowded service road and early rush hour were it were in danger and i think whenever you have a deadly force case in a metropolitan area and i fall back on  think whenever you have somebody who's flaming with a knife that's always the argument that officers can make that this person was a threat to the public the question is was this person an imminent threat and i think  car that's tough to say i think he gets within two thousand and thirty feet but he's honest he's on a different vector he doesn't change direction which would have given the officers an idea that he was intending to go towards that vehicle because you're aware scot be here as were the business of looking at these videos and don't you think that judge kelly's asked it i'll ask it a different way don't you think at this at this stage of the litigation is to look at the video and decide and i video is not disputed in cases where the video is disputed then then the rain's line of reasoning applies and in range they'll ask whether the facts are blatantly contradicted i think i'm quoting it by the video  don't tell us about the situation to videos don't clearly show mr kong attempting to assault an officer it shows him swinging the knife around before the officers get there the officers perceive this as mr khan was in distress he needed help defend my deposition said mr conne needed help they then proceeded to break the windows out in contradiction to their she id policy and that that goes to the state law negligence going but i think that's one of the brief where we don't need to address it he frontage road between him and tell me if i don't understand the woods i looked at the diagram but there's a frontage road where the traffic basically stops right before you get to thirty there was a front road but there were no vehicles traveling on the front road at the time that he was he was attempting to flee ok if at that very moment he starts at that moment before he fled there were certainly vehicles parking lot on the front road but as district court found there were no pedestrians about and the only vehicles that he was running towards generally were the vehicles traveling at highway speeds on a highway thirteen with respect to the negligence claim under state law the district court found that there's a fact mental health crisis the specific any allergy that crisis whether it's induced or mental health based or a combination of both which was that's a relevant to the analysis of whether the policy applies and what you do once you know the policy applies and they knew the policy applied and what they did starkly contrasted to what they were supposed to do under the policy and based on that the district court held that it's a it's a fact issue and these fact issues are typically for the jury barring any further questions that i have nothing further thank you thank you the officers with a knife mr ludwig when he ran away from the officers with the further got away from the officers the further he got away from bystanders in in our case the further mr conk fled away from the officers the closer he got to the the video tape shows everything that's been needed the district court found the the undisputed facts based on the videotape and based on those undisputed facts would ask the court to reverse the district court's decision and grant that the officers qualified immunity