both true accurate and the best evidence of what happened at the moment of the shooting and it is that evidence that video that shows that john raines took not one but two steps towards officer hansen w well that's your interpretation that would take a different they do and if i may i have i have i have the video when i know you have it i try to explain how to look at it myself but my point is the dispute that you're talking about is a fact  fact finder can decide the implication of whether the person was taking a step toward the officer or whether the would look like this wasn't actually a step that those were not legal definition if you have to slow a video down to half speed to make a factual determination isn't that a fact finder of fact question i mean if you think about it nobody was standing there was a police officer was able to slow things down to half speed of course nomination was made at full of course of course and i think down is to make it clear what happened if you or if you see a full speed you can tell that he takes a second step before the shots are fired only do it at half speed to make sure that we see it as accurately as we can you're right full speed it shows this do we worry at all about the fact that it's a taser camera you know cameras record sound and vision and they don't necessarily always match up at least that's been my experience with recordings fair enough if we want if we're a discount of video then we have to rely on the witness statements for three officers who said they believe that rachel hanson is life was endanger the firefighters who said that raines was going towards the officer before the shots were fired and the third party witness marjorie hades who said he was going towards the officer and then more importantly than that officer rachel hanson who say came before he moved again well i mean i don't know the answer that question here and i don't either and that's kind of the point i guess is that if the lack of memory to me is not necessarily dispositive i'm not arguing that it is my only point is that there's nothing to dispute the fact that john raines took those steps towards officer hanson and if you look at there you're saying that when the aptly comes before snappily is going to say they don't dispute that mr raines took a step toward the well actually what they're going to say is that and they put this in their briefs that the reason he takes that makes those movements is because he was shot in the back and then he makes the movements but first of all was no evidence of that second of all he was paralyzed by the shot back so there their argument is that he's just standing there he gets shot and then he moves but that shot in the back is what paralyzed  there's no basis in fact for that that the video shows that he took a step before the shots were fired and yes i have to slow it down to make it clear but that doesn't mean that it's still not clear it towards her well again the video shows that he was he takes this that was left right and then he goes after the shots were fired he lunges after her even after the shots were fired  and the biggest problem i had with the district court's holding or was it never addressed the state of morgan versus cook which to me is the most important case that this circuit has in this kind of case and in a state of morgan versus cook the undisputed facts are present they are that as they are here we have a call out for a i think in the state of morgan it was a domestic situation with a call out here we have a stabbing victim calling for help officer made it clear there was just one shot it to him and this one we have twenty one shots and i know the district court i don't think the district court addressed that is that of a part of this analysis in your view well in the sense that the appellee say that after the shots happened that's when it came after so if we agree that he then came after if we set aside the rest of it but the video shows that he came after her before the shots began but it's clear from the video he comes her after the shots even more aggressively i mean he's lines and you see is his right leg or his left leg he's coming after her that that's further justification for the shooting so in morgan which you know i wasn't there obviously and it wasn't exactly clear but that one shot failed mr morgan here that first shot didn't fail mr ryan's he in fact was more aggressive and it wasn't until i guess that his legs got taken out from under him by the shot in the back that he finally hall but even then the officers didn't know what was going on because he still had the knife and was still rolling around so the continuing the the law is that the police are supposed to shoot until the threat is over and he it's not like in morgan where one shot failed missed is one shot in the chest of i remember right phil mr morton but the important thing about a state of morgan versus cook is the language that the eighth circuit this court uses when mr morgan raises his right leg a to take a step towards the officer and in fact in the discussion in the order it goes on to say general direction as if to take a step in the general direction of the officer a stablished the shooting was justified that mr raines took a step at the very least in the general direction of officer hanson and so and this is my fundamental problem of the district court's order it never addressed the qualified immunity argument and in fact what it did when talking about it took a very broad view of it ends and the court said the use of deadly force during a seizure by police was clearly established clearly established right in the fourth minute that's a broad define it here how would you describe it what this clearly established right is did in one sentence if an individual takes a step or not clearly established if an individual with a knife his side takes a step in the general direction of an officer is just is not that is a justified shooting and is not clearly established otherwise if you look at morgan there's no way that a police officer in this situation can know morgan and say ok well he's going to take a step order to reach the question of clearly well i don't think there's a straight about the shot steps being taken before the shot and so i don't there's going to resolve because the video shows and the testimony of everybody involved says he was going towards her before the shot so there's nothing to resolve because that's undisputed the only discrete would be as to why he was going forward and to saying that's the that's the dispute as to whether he was going of his own choice who're in voluntarily due to gunshot well again if the gunshots happen after he began moving forward that's not an issue roger there's no issue if he takes a step towards her before the shots are fired it's a justified shooting it certainly was a qualified immunity so whether he did it because he wanted to kill or whether he did it because he thought she was a eunuch or whatever it was it doesn't matter the fact is he took steps towards her and then the shots were fired that's undisputed by the video and by the testimony of the witnesses i have three minutes a little bit over here i'm going to reserve the rest of that's all right thank you my place this honorable court my name's dan carter and i was a pleasure representing john arrange we have two points would mainly like to concentrate on and the first is whether there's appellate jurisdiction for this appeal as this court is well aware appellate jurisdiction exists on the issue of qualified immunity only if there's a pure legal issue this is not a pure legal issue we spent about over ten minutes arguing about the facts that the district court found and the facts of the district court this court needs to consider those factual findings as true  mr ryan was on the sidewalk ok he was if if i can back up a minute this all happened in the span of about one minute the officers arrived on the sa waving it's not in the air going fine fine fine he was rocking back and forth he wasn't approaching anybody mr officer hanson approach mr raines who was waving is n rocking back and forth she stated that he took a step back and then that he appeared to take a step forward and that's when the shots rang out so we do dispute it and if you also look at the video the video was taken from an angle it is it is not directly looking mr raines in the face so he did not take a step toward her he was he was at the most exhibiting the same movement he had just kind of rocking back and forth even the the one of the defense experts a thomas march  and stated that that in frame twenty three there was not a law and there was not a large step there may have been some movement that's all he concedes and that's in the plaintiff's disputed response disputed the facts morgan case because as a general matter it does look pretty close to factually i think how i would distinguish the morgan case your honor is i believe how the morgan came came down is that initially the qualified immunity was denied by the district court then they filed a motion for reconsideration because there a an admission in the record that again mr morgan had in fact taking a taking a step toward the officer so it's undisputed whether a step was taken toward a deadly weapon towards an officer that deadly force would have been not volleys of constitutional rights of well i think the law is i give an aggressive step was taken but that's not what we have here your honor i think that would be a  state of more i mean i'm giving the hypothetical the right side if that fact became determined as opposed to as it seems now in dispute that that would be enough to trigger  if i did munity if there was an aggressive step taken that would be a state of morgan but i would say we don't have that here and i would say a jury would have to determine whether there was an aggressive step taken toward the officer because that's industry i mean i mean we we've been arguing or sense they are going facts here not not not not not and that's why i keep going back to the to the argument in question because there's not a pure legal issue including officer hanson and twenty one shots rang out you can tell in a videotape when the shots rang out just by his movements that's when he really move toward her hands and again his movement down the sidewalk you fell on the sidewalk he didn't fall where officer hanson was approaching i'm running out of facts talk about ya'll have any questions rod the fact of the officers statements i think they can somewhat be attacked as to their credibility a day or two after the shooting the officers get all the officers gather together in the presence of their attorney and came up with the statements and they're remarkably similar some are overboard one of the officers i can't remember which one and i apologize for that there their credibility can be attacked also and in the this is not exactly on point but i think that kind of goes to the circumstances surrounding the shooting where on the cross examination i think it was garner the burger if that's how you pronounce it the jury kit was allowed to draw inferences just from the cross examination of the deputy on his testimony in a deposition and summary shots are all over the place or i have just one question for this thing that happened two days after the shooting are you telling me that they took statements of an officer in the presence of other officers with officers all can that was they were making the statement someone must have asked some questions i don't know i was a recorded is there any we don't have recordings of it we just have the written statement shonar and and it was not mr wilkinson so there anything else again and some asian i mean and this is a very sad situation and a surprise sad for the officers involved here but we have somebody who is paralyzed his constitutional rights were violated when the judge was correct in finding that a factual dispute exists and a jury should be allowed to determine just because this case is a farm doesn't mean the officers on have their day in court  are going to get to tell the jury their side of the story we're going to tell a jury our side of the story and then the jury can answer whether mr ryan's constitutional rights are violated obviously we think they were and well argued strong for that i'm sure first of all and just off your statements really quickly what what i understand to have happened is they wrote the narrative the three officers shot not officer hansen not the firefighter and certainly not the third party witness but the three officers were together is my understanding i wasn't there of course that we are he i think mr raines clearly takes two steps towards at least in the general direction he at least raises his leg as if to take a step and her gender action but even saying the video isn't clear you've got the three officers let's even set them aside let's say they're  discredit simply because they wrote a narrative together you have the firefighters you have a third party witness saying exactly the same thing that he did mr raines came with the officers and you had rachel hanson saying ah you're from a life in fact  deposition she thanked the officers for saving her life that day there's no dispute as to what happened to john raines doesn't dispute what happened and why he walk he doesn't dispute i don't know why he doesn't remember but the fact is he can't dispute what happened and  what was interesting about mr carter's arguments is he admitted that raines moved towards hanson now granted it was after the first shots you can see but he concedes that she moved towards hanson so the if he's coming at her charging those shots are certainly justified because he's just admitted that that was definitely when john raines when it went racial here is it undisputed that the first whether the first shot hit him or not well the one in the back certainly didn't and the video i should have clarified that i meant the one of the back i'm sorry the one the back certainly didn't hit him he i don't i can't tell from the video of course whether he was shot or not but the fact is he does go towards or after the shots were fired he's not dissuaded by the shots being fired is there any testimony or evidence about the effect of being shot on the body that would cause it to topple one way or the other not on is simply no dispute if the taser video is two dimensional doesn't have the great sound has a bad angle all that fine let's set it aside but that doesn't change the fact that all of the officers all the firefighters and the third party witness all saw the same thing and that's a justified shooting and certain or more versus cook the officers are entitled to qualified immunity thank you very much and thank you also mr carter for your presence here this morning in the arguments you provided to the court to help with the difficult case the briefing that you submitted will take it under advisement may be excuse