qualified immunity to this court because there are no other reported cases whatsoever that we could find in the united states federal system including the united states supreme court where an officer is attempting to an individual and ends up in a body of water a pond in this case with that individual at least sitting somewhat on his chest with the game words head underwater  reasonable officer would not have perceived a serious threat of death or bodily injury you know an art finding the case you don't find in the case that clearly establishes the lots you it's it's not a scavenger hunt i mean you do have to have reasonable actual similarity bit here the allegation is that a reasonable officer would not have perceived himself to be in risk of death or serious bodily injury or at least there's the facts in there and i guess when you make maybe since you want to get into the facts why why why wasn't the district court correct that there's a fact question there because we don't at their perspective of the officer on the legislation during the circumstances you don't go but look at twenty twenty hindsight and what he may or may not have done with you so far so good decision but the bottom line is ultimately is that the united states supreme court has said if the court is presented with a unique set of facts and circumstances and then that's why we ask this court to take the place version of this is true that it is a qualified immunity out individual and in that case we looked at the weather warning had been given whether or how close they were or the nature of the underlying the sounds you know contractual and i know you want to get into the specific acts but do we know how close the two were were from each other before the shots were fired or do we know whether mr easter was attempting to  i think you look at the relative threat by what happened when the officer first tried to handcuff mr patrick he ran and the officer tackled him and ended up in the park with mr east are few people like patrick billie patrick is trying to get away from him then this i think is answer your question about how closely they work and that he is either pushed away or is falling away when the officer shoots him two times so it's a matter of i think even under their best version it's a matter of feet at most certainly just two to three feet several several feet the what was the distance of the forensic evidence showed that he was shot  don't think it was the armpit as my recollection i think he's getting it how far apart were the mr patrick and the officer again i don't think it's more than their version is would not be more than a couple of feet one of their standing literally just there a right at the end of the struck watching this happen right in front of me so early evidence that he had the capacity to do the only harm with anything other than his  about the danger to others as opposed to the off truth there is there is information in the record that mr patrick was not going to go willingly that is not what you think option at that point concept there is no evidence is either well then doesn't that just put us back where the only real issue in this case is the danger to the shooting officer not the danger to the other people who were i don't i don't  is not outcome determinative of whether an officer reasonably believed that there was a threat to himself or others and i believe in that case the individual was had fled the officer and did not have a weapon would there still be a threat yeah i think there might even be a better argument there's a more of a threat because he is would be approaching where the other game warden is at and when he came so i think one of the things courts can take into consideration a qualified immunity case pursue them in the first place is so they can't go take hostages and so they can't go get weapons so yes i think it's i don't think it lowers the risk got in my didn't do anything enhanced the risk of continuing danger to individuals well is that what was the underlying for and that of the radio traffic and that's undisputed that the state of arkansas had told them that they would extradite on patrick but then there was also more when it came but they would not extradite him her  d in the record either i think that's one question what he was least in the water for some period i think they'll say it was actually shot in the water no your honor he was not shot in the water there's there's question i think that is a disputed area that we're getting into is that he is what kind of struggles in the water and if they're separated and he's on land there had been a struggle in water that's not disputed i think i think there is a struggle in the purposes of your argument whether he's on the on the shore of the water still only if they if he gets into the blood on crime or uniform then yes it would make a difference and he says no it's not it's not my blood the bottom line is kramer and they're not going to say this happened but the dispute is that kramer shooting he's in the water he falls over into the water karma pulls him out of a water and may please the court and i'm a spencer bryan and i here representing the estate of billy patrick the question in this case concerns a variety of disputed facts but ultimately turned on whether jared kramer was presented with a substantial or serious threat of imminent by imminent death or serious bodily injury at the time he fired on mr patrick the district court in reviewing the various factual evidence or information on that question determined the the facts were in inexorable dispute the two primary indisputed in this case concern proximity and threat and i'm going to address both of those for the court first proximity how close was jared kramer and billy patrick at the time the shooting happened and of course the time the shooting happened just the dispositive moment abs thomas versus dura sonti we have to determine after a moment the shot was fired what was the threat that was present in this particular case you have three eye witnesses you have let me king you've got jared kramer and you've got our lock and none of them will tell you the same story all three of them come to trial or come to the court with a different version of the facts gerry kramer says that billy patrick was going to be you know instead of doing it compare and contrast give me the facts that are best for you because that's what i'm going to look out and trying to resolve or question presented here certainly you know given you know want to give me the facts that are good for him the best facts for us would be not only the testimony of when the king but also the forensic evidence from because when the king the evidence that's best for us says that jared kramer was standing up he was out of the water she was observing what was happening and billy packer it was not even in her line of sight he was off to the apologize i don't have it directly with me in the order i don't want to take up your time maybe you can give it to me as we're condition of your our response team to meet the group a question of her credibility of them at the time of the shooting she was unable to estimate the distance and so what you have that will tell us what the best evidence is for your case about the distance which would have to be what works best for you is the greatest gift or is that ever the best evidence is that he was in the water cramer was in the water patrick was not in the water slug somebody when you look at her what do we have persistence here unfortunately none of the witnesses give a good distance and when specifically asked of jerry kramer was that defense measure by  the investigating agency he said no it wasn't and so the best distance estimate that we have would come from lindy king in saying that i observed jared kramer in the water and then as you look to be to her right and as you panned the field of vision there is water there is grass and then there is a truck and behind that truck would be where billy patrick would have been on the ground you're talking the dozens of yards aren't you i don't know that it would be dozens in georgia but i would i would think a fair estimate would be somewhere between fifteen and twenty feet but you don't have any testimony to quantify that the only has your guess your estimate that would be my estimate and i know that my asking others is certainly not evidence the testimony of linda king and what she observed in where jerry kramer was located in the water then being able to see water in front of pickup truck his location was concealed by the pickup truck and she testified that had he been standing that she would have been able to see his head over the top of it and so she assumes that he was on the ground if there was a  there why was there any question about where the body was because always be i never did an investigation to determine what the distance was unfortunately sitting side with the distances where was the body the body was  discovered laying on the shore on the banks of the how did he get from behind the truck to on the shore well that was just the truck was between lindy caning and patrick so she can't see through y the officers in the water next to the back that is correct that's your best that's our best case and supporting that also would be the forensic evidence that shows that there was no stippling on the body and that the penetrating gunshot wounds entered from the side juror kramer testified that billy patrick was advancing towards him which would be forensically not possible given the entry wounds and the direction the bullet trajectory has on mr patrick's body in addition to the absence of any circling and there's no gunshot residue that was ever tested for on his shirt so it seems like mr locke may have been the only person who tried to describe the proximity of mr patrick in the officer when the shooting occurred and he said that billy was kind of grabbing at him or whatever or any pulled the pistol and shot him i mean that suggests really close and then there's another one says so how far was jared from killing when he shot and says oh inches they was together just two chaps i mean it seems to be the only evidence in the record of how close they were what that particular testimony would be directly refuted doesn't taking and what she testif she testified that billie patrick was nowhere near jerry kramer at the time he fired a shot and that's consistent with the forensic evidence from the medical examiner that showed there's no stippling on body which if you are within a matter of inches at the time you shoot somebody ologist who is the expert that said the trajectory and the way that the bullet entered the body is infested with somebody who is advancing on another person right and miss king also testified that her view at least to some degree was blocked that is i don't see were she saying that he was some distance away only that she couldn't see him and that the body was there on the bank after the shooting yes  also didn't describe it there was and the did in the space that she was able to see between where mr cramer was and where the pickup truck was there was a gap there where it was not filled by mr patrick it was filled by grass and water that's what she observed and so inferring from that mr patrick was not in the water it was not on that grassy part that she could see that he was in spirits somewhere behind why couldn't mr patrick still be perceived by a reasonable officer as a threat to his safety or to the other officer or witnesses mr patrick at that point had used allegedly according to mr cramer water as the deadly weapon he didn't have a gun and another knife and he was laying on a contract so before he could engage was was down closer and it was not on those high grassy knoll where they rolled down into it but even so and at that point they were both standing and at this point mr kramer  standing mr patrick is sitting and at that point if mr kramer pursues a threat he had time an opportunity to at the very least give a warning there was  is the operative moment that is the time of which you have to evaluate whether or not it was reasonable to use the force and in that particular moment not there not at that warnings not possible in every situation all of that to say that this case is a poor candidate for going to lock tory appeal because of the myriad back questions i believe that we've all identified here that you are you to the district court that there was time for a warning i case scenario as to the number of times that the officer was pushed got that the officer went underwater one time ok and that was when the knee was on the chest and he was pushed and or it would have been  based on when the king's observation they had rolled in and patrick had pushed on kramer to get off of him and get out of the water and that caused kramer to go under it was not a sustained i'm holding you under the water scenario ok but can we take her or her testimony as to i mean as definitive even even for you in light of her her comments that you know she wasn't sure she saw everything i believe that it is as good as all of the other testimony that's in the record ok if the panel has no further questions view my recollection is the record from miss king says she didn't see them in the water if you listen to that video reenactment that he's attached she says i think what happened was he pushed him but nevertheless giving and he doesn't get that shooting at a distance or there's no stippling on the body from the from the medical examiner's report or is that there's any distance engaged in the twelve to fifteen feet and i don't not approaching a minister for baptism it's not a done thing like at a beach party this is where he is pursuing a fleeing felon who in the on top of him in water it was reasonable for