used with doris protection and this is his statement of facts the deceased got out of the vehicle in point of what turned out to be a toy gun it in the officer thought it was a real gun ordered him to drop it he refused the officer fired and the individuals killed the passenger in the car although he gave some differing statements at one point in time or another said  did give a statement directly after the incident in which he admitted all of the facts that are consistent with observation his description of the incident after that it's some some point after that between that time and the time that his deposition was taken he recant of fact can we even have jurisdiction to revisit that question that specific issue that there is an issue of fact aren't we bound mind so you certainly have jurisdiction to determine whether the issue of fact just material to the officer bayless claim of qualified immunity out there all the presence or non presence of a gun point of what turned out of the earth will go on at the office or is there any more central fact well that is an important fact i can see that's an important fact your honor now how could the district court resolve that given the conflict in testimony understanding that there are inconsistent seasons statements and that sort of thing how could the district court resolve that in the secondary question i have the sync we understand we don't confer prior to argument i have the same question judge graber as if it's fact based if the reason the district court declined to give your client qualified immunity is based on a factual dispute how do we have jurisdiction in their joints and figure that i understand your honor  you would still have jurisdiction to determine whether the fact you could resolve the what the district court should have done is resolve the disputed fact in favor of the of the point if by determining i guess th more than that well i stood meant that it's a little more complicated than that your honor officer bailey at the time of the exercise deadly force and if you concede that whether or not billy ray thinks got out of the car with a gun or without a gun is a genuine achievement three can't conceive that for  parking lot that observation found the stolen car in the area where the report was given to him that that driver was nervous when he realized that anthony bailey driving a patrol car was behind him and tried to evade him by making a sudden right turn on a dead end road trying to create distance remember that that radio report that was given to officer bailey said that the occupants of the car were being pursued by by las vegas metropolitan police gang unit members because they believed that the occupants of the car were involved in a shooting that occurred the previous weekend and he bailey is trying to get back up he's alone on a dead end road when the car stops he's fearful enough for his own safety that he's standing in the door jam of his car these are undisputed facts when the kids get out of the car he tells them to stay in the car they won't he tells him to get back in the car at least two times and they won't and he shoots billy ray thanks in a reasonable fear for his own safety now if you look at that i provided the court with two cases that decided since the briefing in this case one case was decided by this court the ninth circuit last month called lanfear versus sacramento county and that is the case where  the police shot a man who had a civil war sword and he was waving it in the neighborhood and the police were called out and they were giving him direction and put the sort and he was like knowing them he was walking away and they were following it shocking three different times they shot him based upon his refusal to put the sort down they shot him based upon his refusal to stop when they told him to stop and then they shot him a third time when he was trying to get into the back door of the house those officers were granted qualified immunity even though it turned out in hindsight the kid had on a stocking cap and headphones never heard the facts that are less compelling than the even if the gun issue was resolved against us in that case the officer shot a person who was driving away from her shocking him in that she had been called out purposes of ensuring that those who are investigating this case can recreate it in an explicit fashion that was the statement but do you really have to take on this burden that we were required to assume i believe you are the fa know them and yes i do believe that i do believe that but i just want to make you know make the point that officer hoyt officer counsels reply brief he said that it was undisputed that all of the officers agree with their version of the case i think it bears mentioning that officer hoyt in his report omitted any reference to seeing a toy on the premises as well and he stated that he was there in the seconds following the shooting after billy ray things lay dying on the desert floor we questioned him about the absence of that entry in his report and in his deposition transcript the entire transcript of what was before the trial judge he stated that i didn't see it it's not in my report because it wasn't there not have used deadly force under these circumstances and i think that the law which was provides us the basis for that emanates from the illinois versus gates five cases officer who is no question but that officer hoyt has admitted that that armed and dangerous broadcast was a complete fabrication there's no question but that officer bailey has that he acted pursuant to that armed and dangerous broadcast for which there was no record tell us of whether mr thinks either advanced toward the officer irrespective of whether it there did not have an opportunity to make any advantages toward mr officer bailey the record tells us that billy ray thinks was shot from left right with the bullet entering his chest at a downward degree angle forty degree it is just just the right of the left nipple and exited his right arm so he was shot from left to right the evidence tells us that there is blood deposited right at the door where the weather where he attempted to alight from vehicle so and the the th medical examiner and our expert both agree that that's how the shooting occurred that he was shot as he was trying to get out of the car as a matter of fact the evidence is that he was not even allow stand as he was attempting to get out of the car he was shot as he was trying to say so officer the record is that he did not advance upon and that that's und that's undisputed and if i might address one other aspect of the record i missed the claims are that bailey always held this towards playing with that point in the so for the defendants engaged in an extensive effort to hide bailey excuse me mr master thinks to that toy by fingerprint evidence and they could do it they they went to the funeral home where the boy was lying in state so the strange fingerprints and palm prints didn't test them to the identifiable latents which were on the tour and there was no match so i think the record is pretty clear that not only did he advance toward that that he did not advance for officer vallely but that he did not even have that the weapon in the stand in this man i just want to say further that the defendants want the point wants to proceed in this case as though the the operative facts began with the alleged  point of the toy versus the gun we have a serious disagreement as i indicated i believe the facts began with officer hawt and because officer bailey has admitted bailey affected the arrest based on that false and fabricated probable cause broadcast that was made by officer it was made by officer hoyt officer bailey's conn then constitutes an independent and tensional violation of the fourth amendment if his condo constitutes an independent violation of the fourth amendment the subsequent use of deadly force is attributed to him from the proximate cause as a matter of law so we can not view the case as though officer white's conduct does not exist i think we officer after the stock and i suppose i disagree with counsel i think that the fact that the record will reflect that officer bailey told them to stay inside the car and they didn't want to get out of the car he told them to get back into the car at least two times and they didn't is evidence that they were either going to escape or they were going to advance on him two other things i disagree with council on and one thing i think that we can all agree on is that it isn't sufficient to measure officer bailey's conduct against the general principles of tennessee versus garner of the graham case the mandate is that it be compared to the actual factual scenario that he faced that's why the cases the new cases are talking about are so important and that's why  will be submitted for decision and the family will now proceed to the second case on the argument calendar which is earth island institute against come on national