i think very clearly that there were serious errors of fact that would have made qualified immunity impossible your i thought that your claim was the case but in any case we believe that in this case a quick look at pleadings would have showed the there were serious disputes of fact in how gunshots but we do know that the body was found next to the front door and possibly mister was trying to leave the apartment that's what officer cin past the qualified immunity hurdle that's their burden we shouldn't have to do any coverage i agree but once you move to summary judgment and you put on affirmative evidence that goes on beyond the pleadings tell shooting and he had moved for summary judgment on on unlawful shooting claim under the th amendment under bivins and he had moved for summary judgment two days after filing the complaint where there is a deadly shoot maybe with caught inside of a closed apartment with no other witnesses you're going to rely on the testimony of the shooter and his partner and other evidence and you are not going to let anybody test a true or the veracity or weight of that evidence that makes no sense to me what of course answer all of think i think once you have objective in less than one hundred and twenty seconds and i think when you have that objective verifiable evidence and the autopsy report it is incumbent on the plaintiff to say what else do i need factually not just i don't believe the autopsy report i don't believe these if you're if you're talking about the same language i'm talking about then i think you might be mistaken page twenty three of the district court's opinion moreover mark farley has presented a compelling very different course because his affidavit goes beyond the four corners of the case it does but again this is a qualified immunity case and i'm not trying to it makes it different your honor and i would urge the court h had immunity the policy underpinning qualified immunity is to let the officer out as soon as possible at the earliest possible so the st step there usually is move to dismiss the complain share oh yes well not not always not always and that's part of the benefit i mean that's ultimate that's the ultimate party that lets absent constable the let's say that the does not that means that the that means the record that seizure that they failed to intervene and there was some theory about them conspiring i'd like to look at those individuals but before i do i think i would let a pitch go by that i have to take a swing at  ne shooter about whether they should have discovery but they are really failed to address the motion to dismiss that was filed on behalf of or i think i don't think that all of the arguments of cook's brief are directed toward someone within the state of had started a campaign to harass mr tosha to arrest his girlfriend to all those kinds of things all of those they don't make any link they came to him he brought a friend and close they get to any kind of seizure i guess is the fact that so nellie and mcfarland are cautious and they follow todashev wherever he goes in the apartment that doesn't cut it if you start in the case law that is not i never seizure that is police officers being wary and being protective of their safety while they're interviewing a person in his own home the fact that matters there was an open door he could have left at any time rd they bring a glancing claim at a show that there was a table flipped and next thing you know mr todashev has his assaulted novice or doesn't show his hands