court below i believe used the wrong standard i think they were looking at whether in fact there was evidence of whether these things that actually occurred not whether a reasonable officer could believe that these standards are met and that's where the big problem with the judge below was ladies and gentlemen get to look at these facts yourselves and i think the briefs put them out very well but are just a couple of points that i'd like to emphasize ideally what would have happened ahead of time as the officers would have done a better job of boxing a man but the fact is that they didn't and it was clearly apparent to the officers who fired that he hadn't been box so yes there was a definite risk of getting outside this area containment plus the history of what had happened before once he's outside that area of containment this person has already demonstrated his capacity and  intent to take people down with you know first in backing up with an officer right behind him second you know the whole history leading up to it and now you're at rush hour with a lie curious people outside their vehicles and you've got a very dangerous situation the pit stop itself had demonstrated how dangerous that was and if he's out you know once he has been able to pull forward the opportunity is gone and now we can say you know maybe we should retrospect but we're talking about an officer on the scene making a snap judgment when he's got to decide these issues and this person once he is outside of containment there you can shoot at him but there have been already what twenty four rounds at this vehicle none of them at stop the vehicle one of them directed right at him and it ricocheted off so then you also with all these people around now are creating a huge risk if you're going to be using a weapon with this person like in the cole case the officers waited until there was nobody around well at that moment he's not a person enough threat to anybody but these cases look at the history and the impression because shots were fired that he was armed with a weapon the case is point out the fact that they were  yes they had the shots fired on multiple occasions that was the evidence they had from that they have the assumption that there were there was a real possibility this person was armed and had actually been shooting at officers again the possibility of him leaving the vehicle even with a knife in his there to take hostages the tension was there with people out in the streets but again the vehicle itself had been clearly indicated or used as a deadly purse and then we had no other history then that we might have a different situation but the cases clearly make that distinction co pays freelon when you've got a history of somebody who's shown their capacity th it isn't just the is this person i mean split second away i mean virtually dead before you're allowed to shoot no this person has shown that he is going to continue his attempt escapes he is going to continue to jeopardize people so that's the both officers testified by the time they made the decision to shoot they knew that he was unarmed they knew that and i mean meaning not a pistol not a gun right and i don't consider that the knife to be a weapon under the circumstances i mean he'd come out of the car before but these officers were not involved in that situation where they could have gone hand to hand with in fact they're at a distance away and self course tygart came up and shot him in the chest at point blank range so what we have is a situation these two officers had been there for a while and they'd observed tygart from two different positions and robinson from another position in the front had observed the negotiators working with josh and it was a observe that the taser guys come in and  shoot their tasers at josh and so they knew this was going on they knew that these people over there had control of the situation they knew that the officers in command were over there the negotiators were the officers in command the negotiators are making the decisions and the calls on what to do they're the ones who called in the tasers these are you know police officers who were arrive later on to this scene and the council supplemented the record with adams versus spears the ninth circuit case i'm sure you're aware of  that and it's a recent case and actually supports our position because there the officer engaged him there was a pursuit going on that officers already had control of and we're already in doing what executing the plan that they had developed and this other renegade officer intervened into the pursuit and that's what these officers did on the scene they came onto the scene and barged in with their long rifles there the swat guys from reno and they wanted to be cowboys you're you're drawing a lot of them from scenes from someplace and i didn't read in the record a there cowboy used to be there swat guys from reno see they were not involved with us the police officers i've read the record have looked at the video is there something that you know i don't know well maybe i i do know those things your honor but they're not in their record you're correct let me talk about things that are in the record then let's do this all right the as i say that there's just the situation is contained the officers know that there is a negotiation going on the tasers are applied and they know that there's a reaction of a reversal of the truck into a few so property robinson cannot identify anybody who's behind the vehicle in danger that's accepting the facts in the light most favorable to the to the appellee in this case which this court should do that fact is that there was nobody in robinson's mind in danger behind that the best thing he gets is that he saw somebody jump out from behind the truck which indicates that there's nobody behind the truck anymore at the time he decides to shoot tygart situation is he has a point of vantage at the back of the truck he sees the truck back up it's right next to him and  the end h p vehicle so he knows there's nobody there he proceeds forward to make his move at that point i heard the shots and it appeared to me that they took place before the vehicle behind was struck and it was the tape and it was amazing how quick that car shot back i'm deserved what it did to a very large vehicle behind eventually turning it around and so it seems to me that something happened very rapidly car back quickly shots fired before it even hits the car behind and then you also indicates that there was a way out is as i looked at the video there was a place where there were not vehicle so maybe you can help me what is this that the car was completely contained there's able to knock around a very large vehicle there was an area it could get away but the district court found that it was completely understand what he meant by contained he said there was a car behind a car in the side and a motorcycle to the south and the motorcycles up near the front of the truck so it would have been out of the containment once it hit the  and the firing takes place before it hits the car in that little window of time did these officers act reasonably that's what we have before saying well you've got you've got some conflicting evidence maneuver who was one of the negotiators he standing right there he testified that there was no way out now granted the video shows what it shows but that's testimony and slow who was the second officer on the scene he was rammed down the road and he came up and he was the second responder along the stall who was the motorcycle guy and clyro who was in another car the n h b giggles behind fires cars right to the left of josh's vehicle the motorcycle is over here and backers are so if there's a pass it's going to be up to the north as you can see on the videotape in other words the cameras north of the scene so it's going to come this way right and so we get testimony that back here there are two sheriff's rigs parked on the shoulder over there that all the people up by cheyenne the next street had been moved out by matt millen and that tiger had advantage of that to see those people were being evacuated from his vantage so we have this area over here being taken care of in addition we know that robinson was right in the path of that vehicle to go that way when he shot in the v it was not coming towards him it was going away from him so in terms of your question is about containment and that answers the question as to my understanding of the vehicles caroline is testimony that the vehicle vehicle could not go forward with any success because of the the way the shoulder was designed right in front of the car or the truck that there was a mcgee is the guy who applied the taser is he standing right there at the door and he was asked what he saw in terms of josh doing anything and josh was convulsing and the other officer who was burt rutan he testified to the same thing fifty thousand a conscious thought process of you know survival evasion and escape i put it in reverse and i go back but all this is not for us to determine the question is what was in tiger woods mind he said he saw in reverse but how could that be if the two his view of what was behind his view is we have different stories about what his view as he tries to justify the litigation that he thought people were back there but his contemporaneous statement was e county sheriff's deputy who had the motorcycle and was in command of the scene because he was the chief negotiator and cheer loni was the one who did the maneuver he's an h p trooper both great officers and they were a council successful in this negotiation process and both of those officers testified that they would not have taken a shot in fact stall testified that what he was in the process of doing was moving forward to try to assess the situation  what what's josh doing here i thought i had control of josh moving forward to assess the situation and and he had his gun at the ready but he had no intent to use it at that point in time the same point in time when when tiger  comes up and moves in front of him to take the shot one of the things that we're looking at is a couple of justifications one is the things you're looking at right now what was that going on immediately behind tigard was in a position to be aware that there were officers behind because he was moving from to the side so that he wouldn't when he shot hit anybody else the other officer was in front robinson was in front and one of the vehicles going back he saw an officer die that he didn't know if any there were others that thought there might be others back there as you've correctly pointed out it was virtually instantaneous by the time he makes his decision he needs to fire and brings up his weapon there's this split second but that's all that exists on that tape the still there is that immediacy to the threat there is also the immediacy in the sense of here is an officer with that i talked about before with a number of things going on and what these officers both see these defend this officer the taser taser shoot circulates for five seconds or so yes he is going like this then he makes volitional movements and these officers have seen him looking around and you can see the officers behind him he knows that there's on the video you and unfortunately thinking he's doing a good job the focus is real real tight but the officers say they have seen him lehmann looking around behind him officer that he is trying to hit those officers back there again confirming whether that officer as dived out again one of the cases that points out that i've decided that there was no cooling off period no time for reflection here too an instant reflex but that just further points out that this person is in the act of attempting to escape and if he does this gate you have so many targets out there here's where brousseau versus how can israel important because yes there were only two vehicles one this for four feet away with people inside one is thirty feet away twenty thirty feet a pit way with people inside officers not even you just the idea that they might be out there on the court felt that that was sufficient threat to