arises from the fatal police shooting of aaron seiler was on the opposite side of an s u v ten to twelve feet away from officer pablo torres when he was shot six times in his existed with respect to the use of this excessive force but to the question of qualified immunity and granted a motion for summary judgment that was brought by defendants prior to the motion for summary judgment and early in the proceedings shortly after the complaint was filed the defendants had also moved to bifurcate the trial to bifurcate the claims against police officer torres as well as those against the city of konoha so that also is an issue in this appeal let's go back to your st issue yes the case that you point to for the  qualified immunity issue appear to involve the use of force against a person who is standing still or fleeing but presents no danger r took a step away from the exit and towards towards what he you really think is the one case that you consider most analogous well judge with all due respect i don't believe that this court can get to the question of qualified immunity because the district court found that there was a genuine issue of material fact actually that's a mischaracterization of the court ruling the judge did not make that determination the judge said that a reasonable jury could find that this use of force was excessive an unreasonable as a matter of th amendment that's a legal c that's not a conclusion that there are material disputes of fact here are the facts are really not in dispute what's in dispute is whether they constitute unreasonable force we would have jurisdiction if the court said there was a dispute of material fact this case would have to be dismissed for lack of jurisdiction well what i believe what i believe is the court of appeals should not be looking at the facts that are in dispute because they're  clearly our if it's a trial court decided that a genuine issue of material fact and i say that because what they found what the court specifically found is that a reasonable jury could find that it was unreasonable for  legal determination that's not a judgment that there are are material facts in dispute but then should read disputes there is no evidentiary dispute here it's clear what happened and the question is whether what happened here was an excessive use of force that's a legal judgment the judge said a reasonable jury could answer that question yes that it was unreasonable and so the st question for us is is that one the case was ultimately decided on qualified immunity grounds right but i guess that's the nd question well it was but but but here's the thing i don't believe that the the district court specifically discussed the different factors that it considered and that's part of the legal analysis that's not factual well i believe that the court acknowledged that there was an issue of fact you know night the judge never said that otherwise we would not have jurisdiction to hear this appeal would be dismissed that the the strand case and of the weinmann case point just point to the the fact that the fact that this court should not be looking at the facts and making a decision about qualified immunity especially when the the district judge it analyzed the facts and found that there was a genuine issue the facts that would put that would that would qualify if i ask you better give up on that point because that isn't helping me well i'm qualified immunity i believe that the strand of case is helpful as well as the alice case because you need to look at the sequence and if you're going to take these facts and suggest that there's not a dispute and you're going to look at them in the light most favorable to the plaintiff aaron seiler was shot six times by officer taurus the three shots to his shoulder were at a level and officer tourist testified that he was standing but he was standing when the three shots to the shoulder were fired three more were then fired to his chest and those were the fatal shots and according to the medical examiner those shots came at an angle came in a downward trajectory so ellis holds that it police officer who is shooting is responsible for all of the shots he can't he can't fire six shots and when he sees that there is no longer imminent danger if there was any imminent danger from here in silent being ten to twelve feet away on the opposite side of a large s u v s that once he was falling back after being shot in the shoulder to be the trajectory is important the trajectory angle and those fatal shots coming after erin is falling back and certainly no longer a danger if that's what officer tourist was present would be unconstitutional be excessive and that's what ellis stands for we have other facts that the the district court pointed out in its decision and also need to be considered and that is the fact that there is an s u v separating here in siler from officer torres game of cat and mouse it stopped and you client reached now not once but twice and had moved toward the front to shoot so the situation had changed and he had been the one to change the situation we don't know that the cat and mouse game had stopped there the s u v is still between them and there is no the in fact the evidence is clear that  crossed the front of that as he never came farther than one side of the s u v that he was on he was shot on the complete opposite side and there's no evidence whatsoever that he ever came around to feel you'd better stay with the podium he did not he did not see mr siler zzz hands before shooting him that's undisputed i'd like to save some time for about a but  and indeed in this case the undisputed facts are that there was no excessive force at the moment of shooting as you just heard from counsel siler was ten to twelve feet away from from officer taurus closer than i am to you now he was less than two seconds away and if he would have been able to get to taurus it could have been very bad now the saw the same thing and that's absolutely not just at the moment of shooting in addition to being close enough plaintiffs own expert when i said if you can get to taurus and get his gun what's going to happen things so i was completely the fight he was swearing he was he was responding no to too porous his commands he was saying shoot me and and that repeated everybody agree the three people in the room agreed that at the moment before the shooting siler made a fast aggressive move to his right all three of the people in the room agree that immediately before the shooting siler was making a move toward towards now a reasonable offer and under those circumstances would conclude that he and the civilians that he was there to protect prevented summary judgment on excessive force and he said well he was trying to flee and so whether or not he was trying to flee is a question he wasn't trying to flee instead he was trying to arm himself and then he came at taurus and that is undisputed the other thing that the judge said is well it was unclear what exactly would side or was going to do well we don't need certainty but all three men in the room believe that seiler was moving  everybody believe that there is no other evidence so there really is no evidence to prevent a finding that there was no excessive force under your case law under under the under other case law in your circuit you may have and what we would ask you to do is firm that there was that this case should give instruction to this case should be dismissed because there was no excessive force as a matter of law the a few more points that are in dispute from the plaintiffs they claim that the the pipe that was being used as a handle for the jack was not a pipe if you look at the record it was a pipe that was attached to the chick is a steel pipe he wasn't trying to arm himself they argue well what was he trying to do when he kept reaching down to grab things if he wasn't trying to arm himself but we don't have to even infer that antonio james said that's exactly what he was trying to do and at the moment he did arm him self moment of shooting he was he had something to throw at the officer then they say this business about the order of about the shots most important  are shots received here and here those tell us and the experts agree that that means that size siler was on its feet up right at the time of the shot upright meaning on his feet business about the order of shots if there is no evidence there is no evidence that would shots came when there's no evidence of when torres might have realized that he had shot enough there's no evidence of it torres would have realized that somehow which we don't know that he'd have to think about it and he'd have to recalibrate there's case law cited in the brief about when when in a chaotic you ation like this an officer needs time to recalibrate but to make any of those points you need expert testimony you can't just speculate about these things speculating about what happened is not a siler to get the taurus and try to disarm him but yes everyone agrees that the shots were fired in rapid order just as the officer was trained because the officers are trained to continue to shoot until the threat is eliminated and our case law doesn't require the officer and this kind of instantaneous situation where a split nd decisions are made the officer isn't constitution of required to recalibrate no that's not beyond any doubt under all of these circumstances it reasonable officer would believe would believe that seiler was a serious immediate threat and was making a move toward him would an officer believe that with very little doubt and that basis the case should be dismissed because there was no excessive force here  completely different cases where people were shot in the back and so forth but on qualified immunity i'll move to that if if if for some reason there is a would be a need for a trial an excessive force there's no question as qualified immunity here under all the principles that you know that well known principles that  you move to a could stand there could a reasonable officer believe that siler was an immediate threat of course he could the doctrine is to provide breathing room and and and it's it even says course the that the doctrine protects all but the plainly incompetent or those who intentionally violate the law this is not a close call qualified immunity nor did the judge think it was the only thing that judge thought was close was whether this excessive force unfortunately there although this is the normal review so it but it is i think instructive to talk about what caused the judge who did the judge misconstrued a few things there's no reasonable there's no excessive force here if if if if somehow a trial is needed on that because of certainly no no question that qualified immunity  by the way bifurcation was a was it was a good decision by the court the plaintiffs is as you'll see in the record five a massive complaint i think there was something like one hundred and twenty pages with the attachments that the parties take a serious look at jurisdiction and point things out so we felt obligated to say that we also were surprised to hear the bifurcation as you come up because it was not discussed at all in front of the district court they didn't tell the district court they wanted to appeal his bifurcation or to they just said they wanted to appeal to qualified immunity but the final judgment here is for the city of can osha has obviously has an interest in what happens here but the final judgment is for tourists therefore we do not understand and have not found a not entirely clear how to proceed but that the point is that the only judgment in this case is in favor of public torahs another wrote those circumstances we look for case law to say well do you have jurisdiction and while it doesn't logically make sense to us that you would have jurisdiction over the bifurcation issue we did not find cases that were absolutely on point that could decide so our belief your honor is no with the qualification i just just me but this was a chaotic horrible situation with two civilians in grave danger if torahs hadn't acted and hadn't he protected them seiler could have gotten to forest this situation could have been much much worse in these horrible situations happen from happening in split seconds since graeme the supreme court has we're not here to look at things with two thousand and twenty hindsight and only with the most extreme hindsight and speculation could anyone conclude that officer tours didn't do the right didn't do the right thing certainly if i ever have a problem i hope he's the one that comes and  by raised by a defendant amply the i think the issue becomes pretty clear that there is a dispute and and these facts that the district court considered contradict what defendant epperly is even suggesting that the district court lays out its findings and along with some of that that i mentioned earlier is the fact that aaron seiler never threatened officer tourist officer torres never saw aaron seiler armed with a weapon erin seiler had not made any analysis that judge simply recounts what the evidence says when there's a summary judgment ocean and decides as a legal matter whether there's sufficient evidence to go to the jury on the ultimate legal questions such as don't make findings on summ very basic right but the issue is that the the defendant epperly is actually arguing the facts arguing what the right whether this evidence constitutes excessive force as a matter of law or not right and i don't believe that if we see this dispute about these facts if we see a dispute i don't believe you know there's no dispute about what the evidence is there is a dispute about whether the evidence constitutes excessive force or reasonable jury could so conclude right and the the issue obviously as we believe there is plenty of evidence not only to survive excessive force but also to survive an issue of qualified immunity i do want to touch just briefly on the jurisdiction for our bifurcation arguments i would just point the court to be asked in the pattern it doesn't bring up everything ok and if there's no jurisdiction to review the bifurcation of the cases you're citing pertain to a true final judgment that's global and in that case  claims are i'm sorry the qualified immunity and claims against off search for us are in fact just missed the bifurcation becomes because the claims against the city of can proceed but those issues are not bifurcate and i just that came up in the briefs and i want to be sure that that's new can make that argument to judge pepper if we affirm yes the the issues obviously are are are pretty clear and this is someone's life who was taken in a fatal shooting and obviously the gravity of of that type of constitutional right the right to live not be harmed is case will be taken under