cases in reviewing those cases i've come to the determination that it looks like there's a split among the circuits and it appears that the ninth circuit has not square we address the issue rule fifty six he mandates that the district court only consider admissible evidence when ruling on a summary judgment motion and if the district court makes an error in considering indeed miscible evidence and as a result of considering inadmissible evidence denies the officer qualified immunity that strips the officer of the protection of qualified immunity and all of the cases tell us that the issue of qualified immunity should be decided up front as soon as possible at the summary judgment stage if possible and it is immunity that protects the government official from not just liability but from going to trial and if this  not undertake an analysis as was done in the mercian opinion in the fifth circuit the opinion in the eleven and the jones opinion in the eighth circuit to look at whether the evidence that was considered by the district court was admissible then then there's a potential as for what happened in this case for there to be inadmissible evidence to be considered that evidence then serves as a basis to deny qualified immunity and that the government official is then compelled to go to trial when they shouldn't have to and the public policy behind qualified immunity i can't i can't stress that enough this court is well aware of all of the effort that parties go to and all of the expense that parties go to to bring summary judgment motions to conduct discovery it's all it's a lot of work and we the parties particularly the officer  inadmissible evidence to deny the officer qualified immunity and wrongfully compel that officer to attend a trial in the purpose of qualified immunity is simply is this aerated so this court does have jurisdiction to address whether the evidence was erroneous le considered and it should be a comment on the johnson v jones united states supreme court case that is that is discussed in some of the circuit opinion take a look at the objections on the admissibility of evidence and once we rule on that though do we men gauge in the process of looking at the remaining factual disputes that's done at the trial court usually we're not equipped to assess the evidence to just say well i think there are sufficient factual disputes here such that the court was still right to deny qualified immunity with regard to the shooting there were various people who were in a position to see what happened and their declarations and testimony conflict i think that you have the capacity to perform that analysis because for instance in the jones case the eighth circuit case in looking at the due process analysis the circuit court there worked at whether after discussing johnson the jones looked at whether the evidence that served as the basis for the denial of qualified immunity they looked at that evidence determined that it was inadmissible and then looked at the remaining evidence and decided that there was no due process claim that could be made out and therefore the official was could be afforded qualified immunity you this panel and this court undertake that analysis and it mary and it may very well be that after you determine what evidence is admissible and what evidence is not admissible that you may determine that there are number that there are nonetheless if there's none none the less enough evidence to create a tribal issue on the facts that would give rise to qualified immunity plaintiffs upon which the court relied in assessing whether how well should be afforded qualified immunity with regard to the shooting obviously in this case the shooting is the the basis that with for instance with respect to mr florus on the basis that there is not an adequate showing that he has the requisite personal knowledge of what happened the one of the key aspects in in evaluating an affidavit is whether the whether the witness has personal knowledge of what he is attesting to and in this case they have presented an affidavit from i'll start with flora's flores is driving and and he is he's driving behind that officer helliwell and mr foster and he purports to say that when he saw consider his declaration is the fact that he does not say in his declaration that he saw the events that immediately preceded the shooting and that is key but there are but in less you establish that that witness is talking about the same events in the same point in time that admissible because the witness was there and actually saw what happened mr rasmussen the main problem i have with your argument is that it seems to me that in what foundation under rule fifty six it's not simply it's not simply use their one witness that that saw the same thing that the officer saw and the officer says one thing in the witness is another i understand that if they are if you have the proper foundation for the admissibility of the affidavit of the witness and it's simply a he said she said and the affidavit is competent it admissible then i understand you you don't reevaluated that in reviewing a denial of qualified immunity but you i think in order to do justice to the officer and decide whether qualifying really is applied if there is a genuine issue about whether that affidavit should have been considered in the first place to create a material fact then that's proper for you to review because that's all legal error regarding a piece of evidence that's key to the denial of qualified immunity create could easily have said that i understand it but i think it presupposes that the evidence is admissible and you have to start with well i think that i think that that that's assumed your honor i i if it's if you if you have it if you if you have a dispute over over that we could have said that and we did i understand that but i still think it's appropriate from a public policy standpoint to go ahead and perform that analysis for the reasons that underline qualified immunity and i understand that there is a tension between the public policy supporting qualified immunity and this court's rol vsa v the district court's role but if the if the officer is compelled to go to trial when he should be afforded qualified immunity and the matter is tried and those same errors are made at the trial level that that result in an adverse judgment to the officer or a declaration of qualified immunity then there will be an appeal from the judgment and you'll have to the panel will have to go back and parse through all those evidence sherry decisions anyway to my mind it just makes sense to rasmussen just discussed but also they concern some substantive issues just my comments today and those two groups in terms of the procedure it's important to know where we are running into a look at story a pill which is a snapshot judgment based on what the evidence if so we're only looking at the court's review of the motion for summary judgment and that evidence that was put forth in that case and we need you for looking at the evidence that would put forth on v jones the supreme court's case in ninety five tells us that qualified immunity you feel or an intra look at story basis are reserved for issues of law and when you apply that rule within the context of an into look at stor appeal the questions regarding the evidence go to the sufficiency of the evidence and whether or not parties can put forth that information in a manner that's admissible at trial but that goes to that's not judging the conclusions based on that evidence we're making factual determination it's not a question of law secondly the courts the mccain vs two planes six circuit a scheme in the seventh circuit analysis is really  full benefit of the full record as a district court might and so when it concerns a certain piece of evidence the district court will be in a position to understand what that understand what that piece of evidence is in a position that might differ from this panel but also that district court is more readily familiar with the ways in which a party either introducing or opposing a motion for opposing or requesting the motor for summary judgment would be able to put put forth that evidence and in fact if you look at page six ninety one of that opinion the court says quote into local tory appeal based on the insufficiency of evidence and makes an unwise use of an appellate court's time by making th inside look at story of this shooting that occurred in two thousand and eighteen the court issued its most order denying a motion for summary judgment exactly one year ago if this court were to allow these types of appeals that concern factual dispute because again johnson v jones tells us that when an order denying them all centers on factual issues the court of appeal cannot touch those issues and the only question on into look at tory appeal there are only two questions to be decided number one was there a violation of the plaintiff's right in that case and then secondly number two was that right clearly established issues of inadmissibility go to the sufficiency of the evidence that the plaintiff in this case table do you have or you have a case number for that case your honor as i mentioned before i don't i looked at the case stricken directly from you have a date i don't know it's two weeks ago but i don't have a specific to leave to go all right thank you so in applying that principle to this case your honour's again the question becomes whether or not i will one mr foster's rights were violated and number two whether those rights were clearly established when you review the district court's order denying the motion for family judgment it's important to note that the court did not deny qualified immunity out right the court only deny qualified immunity based on a court in coming to its order concluded on page eight number one that there was a factual dispute concerning the force used by mr hellawell on mr foster for the force usually on the investigatory stuff on in terms of the shooting the court concluded that it could not even reach the question of qualified immunity based on that bona fide vigorous factual dispute so for purposes again of this answer look at story appeal we don't even touch the force used on the investigatory stop and we don't touch the shooting if there is a pure question of law presented in this particular case i question only is whether or not mr hellawell had reasonable suspicion to approach m foster on july fourth two thousand and fourteen and season two thousand and thirteen and the answer respectfully to that question your honor is no he did not again when we review the record in this particular case mr hellawell responded to the ind for stopping mr foster in that particular instance were based on purely speculation mr hellawell himself offers conflicting accounts as to his reasons for stopping and i've already addressed the caller and what they told the indio police department when they approached not like to address three arguments that mr hellawell is making to justify his position that he had reasonable suspicion he first argues tha reasonable suspicion to conduct a search of mr person i'm speaking the first argues that he had reasonable suspicion based on the nine one one call the second argues that he had a reasonable suspicion based on a violation of penal code california penal code two five four zero zero and finally he argues that he had reasonable suspicion based on penal code two five eight five zero in making those arguments here are the lives free in our country each of those calls concerned and i just in the circumstance and navarette we tell a foreigner there was a complaint about a drunken driver and united states versus that works there was a call about a victim of th the person was actually shooting at the victim and that prompted the call to dispatch when you examine people be dolly that was an assault a name on a particular very in fact in that particular case the victim call twice to complain about the assaultive kind of conduct those cases sharply contrasts in this case mainly because the caller in this case and again i invite the court's attention to to seen in the record the caller never want to indicate that mr foster points a gun at him the caller never complains that his life is in danger the caller never once complained that any current crime was afoot and so based on that and what based on those two accounts and when you also consider mr heller was a cow mainly that he wanted to appear he thought that there was an armed robbery in the works when he arrived to the shopping plaza he observed peaceful contact there was nothing going on and so given that internally inconsistent account that only commands a need in this case for a jury trial so that the court that a jury could resolve those particular  hundred ninety six in washington the line lambert you wrote these words quote the security of one's privacy against arbitrary intrusion by the police which is at the core of fourth amendment is a big is basic to a free society that principle is at work in this particular case concerning the initial investigatory stop concerning the force used during that stop and also the shooting death of mr foster simply went when party offers a conflicting account that does not mean that this court on an interlocutory basis is entitled to redo that evidence and means that there's a troubling issue of fact and that a jury is better positioned to make that call to determine the credibility of with in fact the supreme court's case in anderson for seventy seven us that to seventy said sue seventy seven says credibility determinations in weighing evidence  functions for the juries not for the jetsons the district court's order denying motion for summary judgment was appropriate he spoke to the evidence jury concerned in a footnote on page two of that very same order and he centered his focus on whether or not the are properly opposed this motion based on information that could be admissible at trial the declaration of the eye witnesses were all made on personal knowledge they spoke to what they saw and they properly lay the foundation for those evidence code seven o two dr st could easily lay the foundation for those opinions he documents in the records that he relied on or reasonably relied on in a particular case in this particular case and moreover he his stop the district court didn't even address the issue of our claim of qualified immunity the district court simply decided based upon undisputed facts about what happened there really wasn't any dispute about what happened that led to this to change and simply decided based upon those facts that this that that the plaintiff could make out a case for  unlawful detention and that that really troubles me your honor that really troubles me we have we have a nine one one call that gives this an imprimatur of urgency and where this gentleman was in a crowded shopping mall on july fourth just hanging out in front of the subway near the smoke shop that is and based upon here there is a supreme court case pretty much says that a mere anonymous tip is not enough but here we have an anonymous tip of a man with a gun and the person that officer helliwell encounters meets the description of that person to  you might have a gun right now right and i have one but you know that's not reasonable suspicion but nobody has called nine one one and reported that i have a gun that's the whole thing it's not just having a gun alone is not a crime i mean in another words is there evidence that for instance if you had a gun that you don't have a concealed carry permit there's no evidence of that either way right so that  is not there's no evidence as to which tell me so there's no you know there's there's no a reasonable suspicion of criminal conduct is there just by that from that nine eleven call just well there's there's evidence in there about what this about what mr foster told this man and i can't quote it verbatim but it's in the record about i'm going to show him what i'm about or something to that effect there's an indication in there in the in the jury and script in that nine eleven call correct yeah go ahead that is a statement that mr foster made to the c relied upon the robinson vs solano case that was one of the cases that the court relied upon in robinson versus the law no the the gentleman there was had walked a number of feet away from his home he was completely cooperative he was known not to be armed and the officers surrounded him and even though he was completely cooperative one pointed a gun it is head from four to six feet away the other officer pointed a gun in his head from ten feet away in this case officer hell well saw a suspect that had been reported to have a gun that suspect that suspect met the description from the nine one one call exactly the fact that gun as a precautionary measure when you're in countering this type of an individual under these circumstances would be a constitutional violation