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Hell no. If still has his hands up, he's still a threat. The angle of the bullet wounds indicate that he was charging.
To use your 'logic' as long as a suspect draws breath he/she is a 'threat'... :roll:
Problem with eyewitnesses is they think they saw it all when most times they didn't. Doesn't make 'em liars as some others attempt to crackle. it merely means they missed the beginning. What caused me pause is the officer shot the suspect multiple times once the suspect was off of him. I doubt the officer is charged, but once a suspect who doesn't have a deadly weapon stops MOST LE training says the use of deadly force is over.
I'd say only on a TV show could someone say the angle means much more than standing, kneeling or laying down. It would be an opinion at best.