i've confused myself a little bit about the undisputed facts can you tell me when the sheriff's deputy or kline showed up on the scene in relation to the other two officers being in the house and how this court should view the facts deputy managing and his fellow officers gave a come a hand to steve in to drop the gun he was never given a warning that if he didn't drop the gun force of some degree would be employed against him we disagree that steven followed the circuit we believe the video shows that stephen with unaware of disagree about whether there was an actual warning statement about consequences that might follow from the failure to disarm moments before seconds before the fatal shot was fired everyone is in agreement that these are facts that are important to the analysis clearly established law sad is that whether a warning was given is something that a court has to take into consideration when considering the objective reasonable  and without and green bit about how this court is supposed to view those facts it's very difficult to engage in a legal analysis with a defendant has down and is tempted to cleanse the record and program on the possibility of a trial to the point where it becomes indistinguishable with what actually happened on the ground what actually happened what the video portrays is that moments well and  unfortunately this part is not on the video but the parties are in agreement that moments before he was killed stephen was walking nonchalantly down the driveway with the gun dangling at his side and when steven was shot the gun his compliance they just want him walking in and out of his house ste officers ever gave a command for steven to drop the gun moments i'm talking tenths of a second before the fatal shot was fired me and you know contends that such a command was given but no such command is audible on the recording and we had to submit that this will be a very hotly contested issue at trial which will involve expert testimony whether such a command were given would have been captured on the audio as garner makes clear whether a warning was given and whether there was an opportunity to give warning interest to the reasonable in this county list and so this is yet another fact where there is a dispute now it was removed from the analysis the defendant agreed that we would assume that fact in the plaintiff's so that is one instance that is the only instance in this record where we are viewing the record in the proper light but our position is that nevertheless that is an important fact that fact is crucial to the legal analysis and therefore it can be done  yes i would disagree with the defendant the extent that he need teens that just a quick media finding in that regard the way i read the order is that the district court was willing to assume for the sake of argument that me as you know reasonably believed the gun was pointed point he's the deputy has been notified that he's walking toward the car that he's coming toward him and he's he's roughly twenty yards away is seventy feet correct  is that the six minute interval we are no better no other attempt with me to even communicate with steven is evidence that this was not in immediate fast threatening under the circumstances and then of course we would add to the analysis all of these other to speed things which is the fact that he failed to disarm is not evidence of willful disobedience on his part but is evidence of his disturbed mental state and then we have to consider whether he disobeyed one final warning whether that we were in was given in we would concede that if there was a warning that was given in seconds before the fatal shot was fired this would closer case but this is exactly the point this is proving our fundamental point which is that these are questions for the jury defendant's argument is that the district court did appreciate the immediacy of the threat the threatening nature of the encounter but then he pulls out from this court's consideration even that he puts in but not in a way that faithful to the standard of review all of these contested of course  before the deadly shot is fired which betrays the notion that this was a truly fast paced genuinely threatening situation th