issue what page page story on the facts of this case would permitted jury to find that defendant parker violated the state its constitutional rights there was a need for the application of force as to say don't disobey commands to show his hands and was advancing toward defendant thompson in an aggressive manner however the amount of force she is was disproportionate to the threat to say that was only clothing underwear and was only armed with a five and a half foot long stick it is for the finder of fact to determine whether the stick constituted a deadly weapon although the scene it ran it does offend thompson to say that never raise a stick in an office that manner instead of keeping it cos ways across his body quite similar to imagine tasers manual indicating how to use a taser in such a situation judge also said on fifty two fifty three georgia constitution article once section fourteen basically the fourth amendment claim rises and falls with the federal fourth amendment kline for this reason defendants are entitled to summary judgment on this client why rises and falls with the fourth amendment their fourth the federal fourth amendment claims valid their georgia state constitutional is valid if not not and he found not well no actually he found that the evidence stated a fourth amendment violation now what he failed was that the wall is not clearly established no that's not  georgia constitutional bracket fourth amendment close bracket claim rises and falls with their federal fourth amendment klein not not the qualified immunity defense their federal fourth amendment crime that's his phrase federal fourth amendment climb for this reason defendants are entitled to summary judgment on this date for the memo climb right in that parent statical is the only place in the decision where he says that there's a fourth a places but here's the deal on this one i'd suggest to you and decisional path that at least i intend to follow we have been out of a review anyway yes so trying to reconcile our sort out the conflict in parts of the district co jury could find that the use of force was excessive in this case and i understand but that doesn't mean we should find a jury could find that that it was clearly established if you're talking about individual defendant liability right well no war and that the officers agreed this man was holding a stick but he was not holding it of using it off as that manner they were you can't shoot until the stick is uplifted that and his hand you don't have to wait until it's uplifted well that's an edge to a weapon that's well i mean of course the difference the difference is that if the object in the and can do harm and we've held you don't have to wait until it's drawn back to do harm why doesn't that apply to a different object you know have to wait till he's about to hit you with well first of all it's a joy question as to whether the object if it existed at all could do harm have to show what i understand of the actual malice in georgia on the federal crime that's correct but let me show you what judge murphy said about that we should have already decided we're going to review that de novo well i think it's a fair point that i can official merely acting to say that somebody fired a weapon and somebody five times and didn't lie and didn't have an actual intent to cause injury i go any now you don't agree cuz the judge said that's a jury issue as to why they had actual intent to cause injury you can't agree that if you fire a weapon at somebody five times it's a jury question about actual intent to cause and while under georgia georgia statute has to mean something other than that if it didn't when somebody was firing shots at a police officer started firing shots at a police officer a police officer would lack official munity if he fired back the jury finds that it's not justified then they are there is official munity so here's the problem it trying to reconcile the inconsistent language in the opinion and that and i believe read as showing that there is a fourth amendment violation and that one parent set a goal when he's talking about the state excessive force quine that's inconsistent with everything else that opinion should if you recall the the audio recording nobody says anything about a stick until the sixty seconds of dead silence after the shooting when one of the ops this is a yeah he was up he was trying to hit me with that stick and  the commands you hear on the audio recording are show your hands show me your hands show me your hands and if somebody is holding a stick you don't say show me your hands because you can see they've got a stick in there and you say drop the weapon drop unless unless it happens quickly and you're afraid he's about to hit you with it and you're excited in your not thinking now i can i best articulate this thought that's good that's why we have juries and the jury a jury that's why we have deference to law enforcement's and those kind of situations subject to certain limitations why but what we've got here is we've got testimony about officers with the credibility to whether there may or may not be a stick is the fact that in the heat of the moment the when he was charged in the deputies the deputies did not mention stick that's not the only thing or hang your hat what else  else supports a justifiable inference that he never happened the fact that they said the state was two feet long in the state that was recovered after the fact was in fact five and a half feet long the fact that a stick is that they didn't mention heat of the moment on the tape during the incident when they're being charged and that their description of the stick on a stick was found didn't match exactly the stick that was found that those would support him pretty and have a stick however one else is there if there is no anything else however even if he had a stick that doesn't in the inquiry the laws clearly established by recent decision to this court i mean you've got cases where somebody is holding a gun in their lap and they're not making any threatening move with the gun you've got but not making any threatening movement with a gun this man was charging while holding a stick well how is that not a threatening manner well how did he get  that was where parker was at the far off fired the weapon was in relation to the events that took place well that could be a jury could i did not know them i didn't think there was any dispute five officers on the same are all testified that the man had the knife and was charging them but he's not there to contradict them therefore there's a jury issue we've never had all that well there's a there's a really going coring decision but is the point that the whole summary judgment regime depends upon well i did cite cases from other certain circuits say that when when there is a witness who is dead he might have a different point that needs to be taken a consideration as part of is that his faith ale to find that that violated clearly established law as presently constituted in the circuit that the turke case which was not signed in grief which came out later that involved a methamphetamine and was armed with a five and a half and stick charge at deputy thompson and was within eight to ten feet of that the thompson went up the park or fired his gun under the circumstances that the parker's use of deadly force was objective lee reasonable sam's crime scene specialist i guess he was testified the state could have caused serious bodily injury or death to and he did in the also testified that when you picked it up it fell in four serious bodily injury or death if it breaks and forward pieces when you follow him well that that would not even notice until after the shooting now went that's your better argument but is remained in the custody times they always knew of the bartow county sheriff it's been in evidence room but sheriff's department for two years first of two and a half years now actually almost three years know the judge said there was a need to use force but here considerations that a jury and i could use to find the force used was disproportionate plaintiffs are going even farther back in saying wilson wasn't even the threat thompson at all and so we're dealing with with two very different analyses of the facts of this case when frankly as we argued in our brief the facts this case support only support a finding that there was no constitutional violation of any reasonable officer and deputy barker's position could have believed that wilson had an object that caused harm he was charging at another officer he was close in proximity to that officer so reasonable officer in that park position could reasonably conclude he's attacking the other officer i need to use for stopping and that's exactly what he did  he didn't have time to transition from the taser to firearm but he also said i believe on the type afterwards when he and parker were discussing it that the reason he didn't far his taser was it happened too whatever is the less favorable to him about that right to correct couldn't they find also that both are more fault because they contradicted each other on which point well they can say look he said in one place that the reason he didn't do it easy for those he said in another place of pam too quickly said the third place that he was concerned that only one problem would go when they came home be true and therefore none of them are true well the regardless of why thompson didn't do it parker was still confronted with the same situation correct and so you know trying to pass blame on to thompson's i mean that's inconsistent with supreme court's mendez decision and i believe and so again that doesn't change the calculus that that the parker has to  run through his mind in in the heat of the moment on the clearly established issue your honor correctly mentioned that in cases like her that  that the suspects had not made any offensive movements towards the officers and in this case there is no reasonable view of the facts where it could be said that mr wilson did not make an offensive move towards her deputy thompson the wyland case was also right here in this court on an appeal from a order granting a rule twelve b six motions that just dealt with the adequacy of the complaints allegations and not deal with the substance of of the claims that were  not an objective standard and so the courts are going to have to find that deputy parker shot mr wilson knowing he was unjustified in doing so as opposed to with the intent to cause injury which some of the decision cite but it can't be correct right i agree but i agree that can't that can't be that correct and there's no evidence in this case that deputy parker had that intention when he fired because parker for example never made any inconsistent statements at least none that are pointed out b inconsistent statements were his partner as opposed to bob parker correct i think so if there were an inconsistent statements may have been to the length of stay well i thought we had just talked about inconsistent statements that were made concerning one of the taser wasn't fired correct he didn't he has no and he had no idea what a taser was fired i am not i have not found one i mean the language of the text says excluded from participation in or denied the benefit of the services programs or activities that just doesn't seem to fit  rehab clime against these individual defendants who clearly how qualified immunity goes nobody has ever held that applies but you can't have those two statute claims against an individual because they talk about the liable in this situation i mean it just hasn't shown deliberate indifference or intentional discrimination necessary to do that if the court  the trial court says this and i'm using this to support a point i'm about to make he says a jury could find that deadly force should not be used against a nearly naked person only armed with  see the need to use his taser let alone the drawl far and another officer who said makes the decision to use deadly force semi didn't see the need as opposed to produce or didn't think the taser would work or what not correct i believe that's that's a credibility determination that so it is to make if the first officer doesn't defend himself the second officer can use deadly force to defend the first officer no matter what they both ha question a jury could question whether the other officer reasonably perceived you need to use deadly force to cause whether he actually made a mistake and that is just an depend of the fact that the second officer song i mean the guy's coming towards first officer with a knife in the first officer doesn't do anything that's a different case this is we do have a case where subject had a nice didn't attempt to threaten he wanted that with it and was considered a and the reason i suggested that is that explains those other decisions that you're signing and each of those cases the suspect sometimes had been noncompliant before but at the time of the infliction of deadly force was compliant is not advancing our law enforcement officer with a weapon are not threatening an officer with a weapon and i would say i would respectfully submit that the salient factor in those cases is the fact that the weapon is not being