Except that there IS evidence that his hands were not up. Not only are there multiple eyewitnesses including the officer that testified under oath that his hands were not up, but the forensic evidence shows his hands were not up when he was hit with bullets.
I guess it is possible that at some point in his life, he had his hands up. But not during his assault on the officer, or his attempt to flee from his felony assault, or from his last act of defiance trying to get back to the officer to beat him up, take his gun, and probably kill him.
Like when he was arrested for three felonies (inc. 1st degree assault) last November.
Or when he was arrested for 2nd degree murder as a juvenile.