our th case for this morning is rebecca guy sin individually and as executor of the state of shame catalog against stephen francisco and others was shot and killed after eight traffic stop occurred of mr kennelly we filed an action on behalf of the state for a wrongful seizure and some questions about the stuff that's not the st step to the nd step that's gonna kill so justification i let let's assume that we agree with you that there is no reasonable suspicion or probable cause on the drug stuff that this is an emergency aid stop so that a subset of existence circumstances and the question is whether there is an objectively reasonable basis to think that you know mr kelly might need aid this is what i'm struggling with so mean so he has represented to the nine hundred and eleven dispatcher and i've listened to the calls you know that he's in trouble he might be disappearing soon etc can you articulate for me why that would not fall within the emergency aid exception i mean what's a little bit troubling in the automobile context is that if someone makes and i'm on one call seeking assistance and they're in a home the police can knock on the door and you can say you know if you mr catalina actually know i'm fine now and then that's that in a car you know it's a bit more of a dramatic step but in a situation where you have a reduced expectation of privacy so can you articulate for me why that would not have fit within the emergency rooms and looking at the record it was illness or anything like that other than this quote cryptic call that was made to nine hundred and eleven but then there after if you listen to the tapes the officers discussed how we have no reason to stop and there is no i can't think i agree with you i agree with you but even if it was pret extual right that's not the question the question is was there would and what another officer would a reasonable officer wouldn't object of a reasonable officer have thought that someone who made a nine  agitated saying he might be disappearing sound is it technically unreasonable under the th amendment to stop that person to see if the ok i think it is and again when you look at the record in the conversations that took place when they did stop they didn't stop them and let's just yes unless otherwise indicated we're talking about the nd stop the st i have i agree the st word out of their mouths doesn't seem to be are you ok but they're just starting the conversation before these abrupt events of the u turn and all the rest of it unfold and it's very difficult in a situation like this where completely beyond the boundaries for the operator think you know this guy this guy isn't you know hey you're holding up my trip out to california or i don't have anything to say and number of things he might know he calls nine hundred and eleven maybe because he's nervous around police officers for all i know but all they have is the objective facts to go on and then they try to make the call maybe because he's on the line his mother i don't know that they don't get through to him and that's when the dispatch operator said well you could do wellness check and i think good you know because he's not violating the traffic laws put the fog line of to one side because it's manufactured but but that's but when they actually stop the suggestion is wellness check and we don't get too far in the conversation before things go badly we don't get too far in a conversation because they medio put up his door in trying to gain entry into the car right they open up the door and they're talking to and then they tell him turn your car turn your car off turn over the keys get out of the car right that's a seizure you are at that if if you're entitle to make a stop on the road you're in total the supreme the state claiming that the nd stop is an independent source of damages that is independent of what happens later is the state i'm not sure i'm using the a state of the is this state i'm sorry contending that the nd stop is a source of damages independent of what happens later well any any seizure again because the ultimate trier of fact whether it be a jury or a judge well you can answer my question yes or no and then you can explain why and can i just say i think you're asking are you looking for some kind of damages just from the indignity of being stuck on a nd time as opposed to damages for the once concluded that if the police by doing something wrong set up a situation that then leads to a violent encounter they can be liable even if they behave properly during the violen mendez rejects that rule and says that even if police misconduct weeds later to a violent encounter the police are entitled to behave just as if there had been no mis of the argument that i see from you seems to be the nd stop was in the chain of causation and if you knock it out therefore there is liability for the later shooting that line of argument would be right if we were in an exclusionary rule ok but under mendez it's not right in a damages case and so i'm trying to figure out whether there are whether you are seeking damages just for the stop independent of the shooting we are i believe what is what are those damn i believe there's an independent what are those damages it honored by the speedy and dignity of being stopped being ordered out of your vehicle being in fearful of your is this a survivable claim suing as a relative for loss of companionship that doesn't come from the stop that comes from the shooting trying to figure out what loss is attributable to the stop given the fact that cattle and he's not here to say i out of the car he's insulted he's frightened he's whatever but instead of backing up you know it just ends then i suppose he would have had a cause of action a claim against the officers for all i know would have been nominal damages a dollar but he would have had some kind of claims of the state would have been enriched to the extent of whatever those damages were now if it turned out that he was unusually vulnerable person and he suffering from psychological illnesses and it pushed him over the line into a life long of psychological care maybe the state would have had more that's all strikes me as quite speculative but i'm just trying to say suppose this it all ended the way i'm sure the police well i to be honest with you i have not thought that all the way through sure i believe that the independent stop is an independent cause of action that the state would have on behalf of carol because as a result of what  the lower courts determine the death that this was a wellness check and could return it was a woman's check and we do not believe that that it is a woman's joe you have to argue that there was really not even enough from still imagine you had you know two officers who acting in good faith in really concerned about his health would they have had you know objectively and objectively reasonable basis for stopping him to check on his help i don't believe a safe place to sleep i mean there's some interchange about that and then you've got the killer statements in the nine hundred and eleven call so is that enough to support a wellness you know i think the lower court took a bunch of  fact there was no reason there's a question of fact whether secure was actually even in the zone of danger and when you look at the pictures that are submitted in briefs there's a i can't even imagine where he might have ben there's a witness who said it was  uncontested cattle on had just physically attacked the police with an object weighing four thousand that's pretty dangerous conduct i contend it was not attack but it was a cool it was a collision that occurred as he was driving off the road to jump out of the way because the door was open and then he started reversing and i've watched the video you know all you can hear is calls dreaming like i'm i'm hurt i'm hurt and we have to whether or not he was in fact and we are judging it based on what francisco could have reasonably perceived in that moment right not twenty twentieth's you hear him screaming he has taken his foot off the pedal and the question is call was not even in the zone of danger if you want to call it the zone of danger and your sister video too i mean not every people over you scott versus harris in my opinion but on in this instance this video shows officer cool limping away i mean he's you would have to be a very good actor to to be faking that's after the factual and there's no evidence that he was injured at all when the there was really there's no real evidence of any of law so can we just focus is far away i try to going to create a a list of what would have supported a finding of a need for a wellness check based on the evidence here so it can't just be called nine hundred and eleven maybe you call nine hundred and eleven because you're fine but you see somebody robbing a house down the street i mean all kinds of reasons but then he tells the operator i am in a lot of trouble right now he says i think i'm going to be disappearing and then francisco hears him this is all the st job say for reasons of francisco would have no idea and i certainly don't either this isn't going to end well and then francisco does seem to think he's tired now i would place no wage on catalans refusal of permission to search the car people are entirely entitled to do that if that's what they want your honor the state agrees that their refusal to consent to search of the car is not factored into the totality of the circumstances that warrant the stuff for emergency purposes in addition to the fact that you mentioned the nine hundred and eleven call and the troubling statements in that call the operator to see the dispatcher tried to call caroline again and thus avoid having a seizure at all if he had pulled over voluntarily to answer the call but the but he may have been on the phone i mean you know i'm sure you've experienced you know some little beep you know because somebody else is trying to call through because you're on the phone with somebody else i typically nor them and i have been you know man and hasn't tried to calm me but i assume it doesn't show the number and i don't answer the phone if it's an undisclosed number number i don't reckon it's right in the state is arguing that killing should have picked up the call but the circumstances are that there is no rea no answers so there's no expounding upon the statements in the call so they're still in whatever state of uncertainty that they're in so i'm they drive on they drive for some time i don't know whether it's ten minutes i don't i'm not sure i know where that estimate comes from but they certainly drive for quite a while and and your opponent makes the point which seems to me common sensical that if they really were all that worried about his wellness why do you do you wait and wait and wait to see if he's committing a traffic offense at that seems to undermine any finding of an objective reason to think that there's something wrong with him he's driving for some number of minutes you're one of the officers waiting and attempting to find legal justification for the stop looking for probably cause st and then deciding on they could have stopped him right away  knows if they really thought that that the combination of things they learned from the st stop amounts to an object of concern for his wellness yet the emergency doctrine doesn't depend upon the passage of time but whether the emergency is still existing at the time that the officer stopped him and there is no clarification of his statements that i'm in a lot of trouble and i might be disappearing soon over the course of the minutes that the officers followed him observed mr catalan after the call was made so he'd already had an opportunity to see now and he said he was tired but if he had an opportunity to see him and it didn't seem like he was in great distress that's not a situation where police find that about a nine hundred and eleven call and they have had no opportunity yet to check the person out so he had the opportunity to check the person out and and as judge what is saying while the subject of intentions don't matter i think the fact that they didn't act on this well in this concern right away is certainly some evidence that an objective officer may have perceived and need for urgent well that's right that the focus on the exits and c aspect of the wellness checks you don't just sort of randomly pull people over on interstate eighty eight to make sure they're feeling well you know we we need some evidence that there's a real problem before you do that right and the answer is no that ten minutes or less is not anywhere it's a very small amount of time that mr kelly would be on the road that day he was by the time the officers caught up to him driving back to ohio which would be hours away and so they had time to observe him as he drove back that are actually well below the radioed and asked about that and then the dispatcher i didn't even think that's what happened i thought that what happens is in response to the nine hundred and eleven call the dispatcher gets in touch with local officers kewl in this instance and as luck would have it you know they're the same people who had just seen it but that struck me as almost accidental and then it's the dispatcher you know he says oh we're trying to get probable cause but we right right but that at that time the dispatcher doesn't suggest a basis for the stop the officers suggest that the look for probable cause and it's all the st time a wallace check is brought up is trooper cule radioing the emergency call troubling statements and even if those don't amount to a violation which the state does argue that they do it's not clearly established that this isn't a violation of the th amendment because the the opponents provided no  i didn't take medication a blood pressure medication you know that i needed today i'm not feeling well and then hang up i don't respond to a call back because i don't want to stop my car and i don't want to answer the phone while driving then did the police could they under the emergency aid exception pulled me over you know that's a very different circumstance saying i'm not feeling well is different from saying i'm in a lot of trouble might be disciplined i would have thought your answer would have been yes think that it would at least be debatable whether or not officers could stop that person asking if you follow up questions to make sure that they weren't just overreacting on the phone call and that's essentially what the officers were trying to do here so i'm going to go back to the sequence it's on page nine of your brief where it's recounting the conversation between the dispatcher they're worried about the dog and so on and francisco is saying  he's not going to be speeding or doing anything wrong blah blah blah will stay with him then cool asks the dispatcher about performing a stop based on the nine hundred and eleven call saying to get my message and then it's the dispatcher i really it's not cool the dispatcher says yes due to the fact that he did call nine hundred and eleven to check on a welfare check and cool says fourteen will be making a stop this i mean that sounds to me like the state is arguing for a flat rule that anyone who calls nine hundred and eleven can be stopped on a welfare check no your honor that's not the state's argument the state is arguing that because the officers also observed that he was he appeared to be fatigued officer francisco even suggested that he get some sleep and knew that the circumstances were unusual he said he was driving a long distance had only read bad it's unusual on i know your honor but that he only had a red bag but also the nine hundred and eleven call is very important factor in this but it's not the only factor i do see that my time is running short i do want to make sure that i answering you your questions that pertain to the excessive force claim  states just to begin the poet said that there's no evidence of other drivers on the road and there's no evidence that trooper cule was injured it's undisputed that trooper cool had hip injuries mile marker or rough position on the highway where this happened your honor them we might i think we know that it was near mile marker thirty five i believe i apologize and remember the exact number but i did try to figure out based on the who's coming beyond a certain distance and so i was just thinking that even though the record seems to show that there were no cars right at that instant that would have encountered this reckless move that he makes if people are driving seventy five or eighty miles an hour they could come around the curve pretty quickly i mean so i don't i just don't know what the layout of the road is at the place it's happened  haven't been able to ascertain whether there's any curbs but i can say that the video shows as the traffic stop is occurring other cars driving past and then immediately after the incident the trucker drives by this court held this this early in this fear that drivers and pedestrians and cyclists within twenty minutes of an area are endangered by a driver who is driving erratically and essentially posing a danger to others so so how close are the other drivers that hasn't been briefed but at the very least there are the drivers who are just down the perception that there's a risk that even though i can see somebody right now they can come around you know a curve and there they'll be and yes that's what i was from the police officers point of view i was thinking a rational police officer might have that concern unless the road is is straight for the you know the next sixty miles and sometimes you have a lot of visibility on these  it is the truckers testimony that st of all officer francisco did see the semi truck and it is the truckers testimony that he had stopped traffic behind him so there isn't any evidence that francisco choir around and hit the police car you know did francisco i gather didn't give him a warning no right just shot and you know there's some dispute about this autopsy report and the possibility that he may have had his arms up in surrender going to talk about the autopsy report yes your honor st the people relied on the autopsy report even though it was excluded from evidence and summary judgment so you know i think that's wrong actually because that summary judgment it's very common for example to have deposition testimony things that if you reached a trial then you would get the right authentication and you would overcome the hearsay problem would for the deposition maybe just call the person for an autopsy report you called person shared the report so it seemed to me that it was a little precipitous to say i mean certainly it is hearsay but a lot of hearsay is curable at the trial yet again the court even talks to him in suppose for example i don't know what happened suppose mr caroline after these maneuvers had a broken spine you know and wasn't going to go anywhere you know because he's going to be a quadriplegic the rest of his citing cases in discussing that issue at developing argument on that that a warning here would have been feasible because the window was up the vent the van's engine was revving very loud and i mean the timing was six seconds between impact and st shot that's just irving that means if you know in our society means you're going to be shot st before anybody bothers to find out what's happening i realize the airbags had deployed two it's not clear to me what line of si spinning and so time is of the essence here and cords are give leeway to officers in these circumstances you know even if this wasn't the perfect decision the question is whether it was reasonable to conclude that there was a serious danger to troop