came and this for us obviously is st and foremost a case about grieving parents who lost a son that secondarily as we said we're going to grief it's a case about the summary judgment standard and i think it's useful if you'll indulge me to d break down a little bit about where we are in the summary judgment universe so i can illustrate hopefully and respectfully just how wrong the district court opinion is here it's undisputed that in response to a mental health distress call by bradley king deputy hayes showed up and within two minutes of showing up at bradley's house killed him bradley was dead it's also one disputed that if that killing was unjustified it was clearly unconstitutional the defendants of course say that it was justified and why because bradley and therefore you can't say it's undisputed that it was on tunstall to show it is disputed by the defense you may disagree with it but it is just below certainly by the way in which that they say that it's constitution all the way in which that they say that it's a justified killing are obviously not justified killing would be unconstitutional as my point they're saying it was justified  armed and because he posed an immediate threat to officers tells you to back up maybe or or turn sideways your claim in so far as it's against kendrick's county  appears to be a claim that there is insufficient training for dealing with people suffering from mental illness that you don't go to a mental illness welfare check which the record shows they knew they were doing the county should have provided specific training and maybe you don't go with your service revolver out and ready to fire if it's a mentally ill person maybe of a taser maybe of baton maybe you argument what did you use to support you know that argument into in terms of how much training about mental illness does happen for hendricks county reserve officers or even hendricks county regular office his deputies are going to be st responders to mental health crisis to suicide cole so on and so even though he knows that he's got situations in which only volunteer reserve deputies are going to be responding to those kinds  think i'm concerned because the time is ticking and i think whether you're framing it this way the policy or in response to judge was question about failure to train one problem that i have with your case and it relates to your eighty eight claim as well as your mo now claim you haven't really said what you want he wanted marriage deputies you you want to policy wanted more training but you haven't really said how that would have changed it what should these officers have done that would have defused the situation it's not like the cases where somebody kicks in the door when there's a schizo fenech individual threatening self harm inside and that exacerbates the situ what when the officers show up and he's charging with a knife should they have done that would have defused it protocol for mental illness calls and you shouldn't use the same weapons or the same devices on mental illness calls as you use on you know drug fight broke out you know calls or whatever other kinds of calls that would have a point of reference sometimes you see this in you know jail cases and you might say don't have your service revolver out that's going to terrify somebody who's already mentally unstable or don't do this or don't do that but that there needs to be some point of reference because you can't just sort of say to hendricks county or anybody else go forth and don't make the same mistake again without what they need to do and i know you're trying to challenge the charging and all of that and i recognize that for that it's i i'll just tell you frankly my concern is and i know it's a problem in these cases where the victim is dead but i i had trouble finding affirmative evidence that he the police ought to be following when they show up and that they're violating the constitution if they don't follow the standards in this article he was that's a big thing to say that would depend on the circumstances it's certainly under circumstances where they know that they're going to have unqualified volunteer reserve deputies that are st responders to mental health crises and they know that there's a prevalence of mental health and that's the test me now there's a lot you got that in the record for that we have the testimony from shepler right so so they ought to presented evidence in support of two major inference that if those inferences are drawn in their favor as they should be on summary judgment negate their defense that the killing was justified which is where i was going at the beginning my argument st is that bradley was unarmed and the nd one is that he was non threatening i see i'm getting close to the time that i'd like to marry sharon for rebuttal i'll remind you but but but just to finish that thought particularly on the nd point the idea that bradley was not on threat we have not only indian consistencies in the deputy's test which is what most of the prior case law is about where summary judgment was  but we've also got physical and that's in the form of that autopsies that even though officer hayes says he shot bradley straight on as he was coming trajectory right off so he says that he shoots him straight on the center mass what you have here is what the autopsy report says is that the bullet enters the left side goes from top to bottom all the way across his body and only slightly front to back you know off if things happen the way that officer haye said that they had and he shot him straight on center mass the bullets not going to go just slightly front so we have not only the inconsistency in the officer statements but physical evidence along with the character evidence that we've presented here and if this court says that that's not enough for us to get past summary judgment on a case with a deceased plaintive then i think that we're going to that this would be the only case in any circuit that i'm aware of to make that kind of rule and so your character a reasonable jury to conclude that he wasn't tried them with a knife i think if you if you pick apart each individual tree your honor i think that anything can be you know if you look at it and say all right well the lack of fingerprint evidence  doesn't by itself keep you past summary judgment or the inconsistent statements don't buy it by themselves get you past summary but looking at the forest where you have all these different conclusions of factors you've got physical evidence you've got the fingerprint evidence you've got the autopsy report you've got the inconsistent statements by the officers that is more evidence than has ever been considered by any court to my knowledge that in which summary ended in determining the adequacy of training the focus must be on the program not whether the particular officers were adequately trained the state's argument boils down to no special training equals deficient training we cannot accept this equation to do so would ignore the training the officers did receive so that so you think one shouldn't even consider the question whether to have a constitutionally adequate program counties should include a unit about mental illness calls the program at the program matic level you know i'm not i don't have any problem with that but the thought that you should treat a mentally ill person the same way you should treat somebody who's in the middle of robbing a bank it's a little startling i think your honor and it's not that he was a mentally ill person being treated the same as someone who was robbing a bank well but he was saying you know they went with the service revolvers drawn that i figure out a i respectfully disagree they did not draw their weapons until they 's the scope of this training and to the volunteers receiving as they develop here do i see it yes the reserves receive the same training as adept use that has been established so set about use of deadly force alternative weapons to ways to take people down what there's crisis intervention training your honor but again when someone has a knife a knife a five inch knife is no less sharp when it is wielded by someone who is mentally ill a knife is a knife is a knife and when someone is coming at you with a knife i don't think a psychological assessment is appropriate and so whether did i wasn't saying that but maybe a taser or a baton or something else is appropriate well then you're out and then you're there unless your presumption is let's just kill everybody you know let's use deadly force as our weapon of st resort but i think then you're getting inconsistent with the standard of the th amendment which is you have the right to use deadly force when you are being confronted with deadly force and their health or someone or your life or someone else is in danger so when someone lunges at you with a knife irrespective of their mental status council i understand this to hash to happen for the training of public employees to accommodate other people with mental illness and answering the constitution or giving immunity doesn't necessarily answer the reel off names on which should address my question i want to distinguish the constitution in the immunity problem that applies to the personal individual event from the statutory question that applies to the arrest or a wellness check well it end up being a seizure obviously of course but they know they stay comment to one another in the way over there or something along the lines of this is a mental shorthand that they know they're there not because somebody is robbing the house or burning the fields or anything they know they're there to check on the wellbeing of of a person who can't fend for himself correct a certain course don't know the nature of his disability at that point of course but that but this bit they know that he's a person presumptively with a disability some kind of disability and he's called nine  had the supreme court declined to discuss that issue i think that she and was from sol on the basis of qualifying grounding for the officer correct and that may be completely dispositive about the claim against the officers here but it result was the discrimination or the injury was because of the disability and that certainly was not the case here why well what happened did not happen because of mr king's disability they haven't because you're going to have to write a story i mean he if in fact and i have say i was disturbed by the just records of adoption of the notion that this somehow all people with this disability have a fetish for knives i know of no social science research that would support such a broad statement maybe he did or maybe i don't know but the fact that he was relying on mr king him the father's tells you rely on whatever he wants a bit if you're going to make a statement all people do x i would like some support for that because i can think of all sorts of assumptions about all people in certain categories that have proven to be wrong over there and so the question is if the  problem is how do you deal with citizens who have mental health problems and you need to give them the benefits of police protection or social welfare worker protection doesn't even have to be judge freeman addressed this in the hamilton case which we cited in our underlying brief a motion for summary judgment in a very similar facts where a child with a disability but yet a large child who could he might have had the mental abilities of five year old but he was a fifty year old who was very actively fighting with his family members when we were call police were called and when it ended up being that there was a struggle and he was injured his parents sued and the judge springman found that the actions taken by the police officer had nothing to do with his disability were not caused by his disability and there we need to think through these things for ourselves we have great respect for other colleagues around dismissed record but what we're looking at no qualified person with a disability qualified means basically being a citizen here should be excluded or denied the benefits of the activities of the public entity including perhaps he's reached out for help tragically help turns  out well you want to help help is there and help has been there in the past for help turned out to be lethal well that doesn't seem help he had the same help in the past it didn't turn out to be lethal because he didn't attack him with this night he gave it up on this occasion he didn't give it didn't work with him the way the other officers did there was no opportunity around him well there was no opportunity he pulled the knife out of his pockets was told to drop it and then he checked and then he lunged at the deputy hayes there was no opportunity for reflection or contemplation not sure that answers judge easterbrook question yet i mean it still takes suspect the officer to suspect with a claim against the officers and we need to distinguish a claim against the officers from the statutory claim against the  i'm sorry i thought i did address it your honor the statutory claim against the county i think we prevail because we did not that what happened to mr king did not happen because of his disability well and that's what the standard is your right discriminate against them because of their disability that if they met you don't know it maybe you think there's a failure of proof we were exploring that in discussing this with mr can but what the legal standards are about that use if we think there is not been a failure something we need to address well i certainly think there's been a complete failure proof i think that i think your state is confusing conflicting account with a theory and so what they have is certainly they have several theories but they have no evidence to support it if as as they argue debbie hayes after shooting bradley king actually went i so thank you very much i will give you a full minute if you need it you have thirty seconds i think mr cannon hit the help that showed up for deputies showed up previously they recognized the need that the two times previously they recognized me that bradley had to get specialized services and they called an ambulance and they were able to talk him down in the other situation how are they supposed to do that if he's made charge we dispute that he's made i know i mean suppose you're suppose we don't think you have enough of that i mean if you want to put all your eggs that basket that's your be able to spot mental health respond accordingly and we know they can do that a show about the biggest thing you could possibly say you might as well say they should be giving them adequate training but you would expect in litigation that you would produce some training protocol produced when this was the chief judge would question you produce some training protocol produced by some expert group and then make an argument that perhaps a federal agency with  authority over the americans with disability act has said you need to use that kind of and then you'd make the causal argument that the lack of that led to this death i don't see any of those arguments in your brief i think the causal argument is made by the simple fact that we know that there are protocols that this county can use to show up on you but we don't know that they would have made any difference in this case to begin it's hard to know how do we know that they have made would have made a difference when we don't even know what they are we do because they haven't told us concretely what they had to do at least sending an ambulance or at least being able to talk somebody down we're trying to talk somebody down rather than just showing up on the not reasonably accommodate people with mental illness and there's nothing in the law that i'm aware of that requires us to set forth what they're programmed to accommodate those people ought to be it just they we know for sure because the show that there is something they are required to do that they haven't done we know that the county has in past years shut out all that indicated sent out this time because we know that in past years the help has been well reasonably successful at least not deadly we know that something went wrong this time it would surely help if there's a contention that the county is systematically off track to know what it was that distinguished those or what kind of program would have prevented the distinction between the earlier incidents and this one it's not as if the county is saying i'm sorry brad is mentally disturbed we're not responding to  so seem to me to be part of the plaintiff's burden i understand that and candidly to it to the extent that we are deficient in some area on this i think it is in articulating specifically what the criteria ought to be well you don't mention to just for example something maybe expert group that's concluded that that's what i'm you know sapelo he needs to do when a mentally disturbed person calls nine hundred and eleven send an ambulance don't send a cop is there is that a standard other than the journal  we've presented here your honor we haven't gotten in much into the specifics on that but i will point the court to the deposition testimony of both jason hayes and brett clark in this case and we asked him specifically do you know how the decision is made to thank you we'll take it but down thank you very much thanks to both counsel i'll take the case and