welfare check without probable cause to believe the subject was incapacitated or present a danger to himself or others in this case the defendant police officer gra took him to the dane county jail because he had lived up and taken a few steps and passively resist the police officers who were trying to get him to sit down again during a welfare check into is apparently tavern as far as i know they were at the cabin for several hours i believe they left the football game a little bit early went to an athlon within a few blocks of the game and of the stadium and then were there finally family keen to elect form and after several hours of getting help but they were on foot and they were about twelve blocks from where their car was in any event she finally called the police because she believed in her young mind that the police would give them a ride to the parents or to compel their parents her parents to  what the record but is about that but they were more than twelve blocks from the car and it was understood between all of them is that emily would be driving home and it's certainly the welfare checks and the circumstances of the police impound it really had nothing to do with it all what it had to do with i think was primarily some officers who kind of audience namely concern  and so so the police came and you know officer irwin sort of bantering with with todd primarily for about ten minutes talking about the game and talking about se location where the address but there's no reason to believe that they would want the car in the parking ramp and and after about ten minutes he eased up for whatever reason probably because he was at one sitting for ten minutes or more on a very hard cement retaining wall and in doing so he stood up rather quickly and you can see in the video he was a little bit off balance and he and it took two steps toward the center other of europe comes over and and the other officer and and they all get tangled up in either they fell to the ground or the action i think there is that the jury could lose the off season and to take them down to the ground and they a don't want to get the car you know up or down or anything else it said i'm fortunate the district court went through the whole thing and that's where we are that's correct your honor and it's  just a rusted roof what that emilie told the police officers at any point that she would be driving her parents home yes she went at what point at what point porter if that's about it or some dispute of whether or not emily would be the driver is there's some concern that they have reasonable concern on the him for the officers about who would be driving home and i'm speaking now as to the community you know the killer to us but yes i understand your question your just thank you your honor good morning and make it please the court i am wisconsin assistant attorney general hanna jurist and it is my great privilege to appear before the court this morning on behalf of the university of wisconsin police officers there are two paths this court could take to resolve this case both lead to affirming the district court's decision this morning i'll st address the simpler path and then address why this look at suggest today that they had only consumed a few drinks and that this was sort of a it relaxed encounter and i think that is just contrary to the record that's before the court  undisputed fact the record below are reflect that the sobotka his mistress a book i had several drinks at the bar over the period of the hours when they were there as to the keys it is in the record that told the police that her father had refused to give her the keys to the car that is you can listen to that on the audio it is docket forty eight exhibit five o one  to the officers and that's officer johnson at the time that her father would not give her the keys to the truck and so returning to the past this court could tape the easiest path would be for this court to do as the district court did and recognize that qualified immunity shields the defendants here from the claims that the  nude on appeal before this court this a book is really haven't even attempted to meet their burden to show that any reasonable officer in the state of wisconsin in october of two thousand and fifteen would have known that the actions here were on lawful and they can't meet this burden and while there are many ways for this court to see that perhaps the easiest is for this court to consider it was constant supreme court's two thousand and one decision r case where the wisconsin supreme court held that the community caretaker doctrine permitted police to order a young lady to stay put when she was on the street and they were concerned about her safety for the police to then chase that young lady when she did not stay put and for the police to then physically seize her when they caught her so i think when you look at that case in addition to many other cases from wisconsin where our courts have interpreted the community caretaker doctrine broadly there is simply no way for this a book is to show that any reasonable officer would have known his actions were unlawful i think the case  reflects quite the opposite as to amount of force as it relates to qualified immunity the sobota seem to argue that because there is not a previous wisconsin case with precisely these types of restraints in precisely these circumstances that that means that qualified immunity should not apply but that flips the standard they have the burden to show that it was essentially settled law that this type of action  and these types of restraints were unlawful and here i would encourage the court to consider its twenty four team decision in the sutter field case there this court recognized that qualified immunity shielded milwaukee police officers who after entering the home of a suicidal woman without a warrant then proceeded to search a closed container in her home and this court noted that it could not find any previous wisconsin cases where the wisconsin courts had applied the community caretaker doctrine to allow the search of a container but this court nevertheless recognized that given the breadth of wisconsin's community caretaker doctrine a reasonable officer could have believed that that action excuse me was lawful this court the same should be true here particularly given that officer irwin was concerned he might fall into the street and from that point forward the police didn't only reacted to mr soboth refusal to listen to their instructions and only imposed additional restraints in response to mr sobotka himself essentially turning up the volume so the district court here provided a detailed thorough for yes your honor so this court could easily resolve of the case of qualified immunity grounds but it should also consider going that next step forward and as we've argued affirmative recognizing that the th amendment permits police to permits application of the communicator community caretaker doctrine in circumstances like these where a person's intoxication in public has rendered them in the need of assistance and i think perhaps the best way to see why the community caretaker doctrine should apply in such circumstances is to pose the question that both the  circuit and the wisconsin supreme court have posed in in community caretaker analyses and that's to ask would we as a society view it as reasonable if the police did not act in these circumstances or view police as being derelict in their duty or not acting so if police see someone apparently intoxicated stumbling and at risk of falling into traffic and they do nothing when we consider that reasonable if police see someone who is slumped over on a public street apparently passed out from intoxication and police do nothing would we view that as reasonable of course not we expect police to help to protect and to engage in a community caretaker function and if we all agree that police we expect police to act in these circumstances then they must be able to actually act and of course intoxicated individuals are not necessarily going to be the most logical or accommodating or appreciative even when police are trying to help and i think importantly here recognizing that the community caretaker doctrine apply in such circumstances doesn't mean it always will and it's not some sort of green light for police to see is any person who might be intoxicated on a public street rather we're talking about circumstances like this where are a person's intoxication how is to a point that it is rendered them in need of assistance and i think when we also look to just  circuits where our courts have recognized the application of the community caretaker doctrine to public intoxication circumstances the th circuit in the garner case for example we see that those courts have articulated tests that help ensure the reasonable miss balancing of the th amendment always requires to make sure that this is not abused as sensually by police and i think this case in particular shows why it's very important for this court to consider taking that longer pan out and affirmatively recognizing the community caretakers doctor their doctrines application here where the care which is the vehicles versus home and the reason why this court would say it is a political in the vehicle context but not a home i think we can see that public intoxication much more closely aligned with the vehicle cont and that's because we expect police to be keeping our highways safe by the same token we expect police to be keeping our streets safe individuals have reduced privacy expectations on highways because they're public the and there are obviously concerns about how broad opening this would be to possible police abuse do we have a situation here where the police officers developed in their mind a reasonable suspicion during the pushback let me describe that encounter initially as mr porter presented  of a possibility of disorderly conduct rather than community moving from community care if we do enter that it arena does that preclude going any further if they had that reasonable suspicion i'm not concluding from these facts they did but is that a possibility that we're in disorderly conduct land and then the officers actions are more justified your honor i see that my time has begins to physically resist as the officers are attempting to help him and that occurs right after officer irwin has grabbed him asked him to sit down he's not sitting down instead he's refusing and he starts pushing away from the officer that at that point the police have reasonable suspicion to believe he's engaged in disorderly conduct so yes that would provide from that point forward an alternate court i have the privilege of representing city of madison police officer hector a very active the entirety of hector rivera's conduct for purposes of appeal occurred after officer of there is interview with emily civil who was interrupted and he observed other officers going hands on giving burble commands to tazza bill is intoxicated demeanor an act of resistance let officer of there and to believe that there was an immediate risk to officer safety  officer of there is minimal use of force in joining other officers and placing hands on mr sibal because torso back in upper legs was an object of lee reasonable response to an officer of air perceived to be an escalating and immediate risk to the voice isn't loud enough for me i've apologized you know if you hear me ok now well maybe it's more distance from a microphone or something sure everything else i've heard very well for some reason your voice was and have enough was based on his sudden observation of mr sibal because noncompliance with verbal commands an officer going hands on mr civil because body language and the other officers reactions to his body language nd after officers justified his use of force when he got out from under mr civil and secured his legs officer rivera was not required to wait for a full on alter cation before using these two measured reactionary force technique techniques which are for a blow to render a victim unconscious or rather they step in to prevent serious injury and restore order the only other challenge conduct challenge act of officer of air on appeal is his decision to arrest mr conduct and resisting an officer which probable cause arose at the moment officer of vera received the encounter is escalating from a pure welfare check into an altercation between a heavily intoxicated subject and other officers civil began physically struggling and not complying with officer irwin on a busy public sidewalk in front of his daughter who had already expressed nervousness and ups and being upset about his conduct officer of eric could have believed the probable conduct as more officers necessarily became involved and mr sibal as active resistance continued officer rivera again couldn't believe that there was probable cause to arrest for disorder conduct when mr sibal continued to resist after he was decentralized then officer of error could have believed there was probable cause to arrest or resisting certainly by the time mr civil could was informed that he was under arrest while standing outside of a squad car that he refused to enter officer of error could have believed that there was probable cause to arrest for disorderly conduct and resisting arrest as the night went on will cause for both crimes continued even if officer of error was mistaken in his initial analysis mr sibal because physical encounter with officer irwin that mistake was really isn't in light of the total ality of the circumstances known to officer of air such that he's entitled to was not helping officers locate his vehicle mr sibal get actively resisted and refused to comply with the officers from the moment he stood up and hands were placed on qualified immunity is designed to protect officers like officer  reasonable mistakes they make in evaluating dynamic situations like this where officer safety quickly becomes the paramount consideration of an investigation there is one note on the record that i'd also like to just  number ninety six and paragraph forty eight so on behalf of hector rivera i think the court for its time in consideration and i respectfully ask that the court affirm the district court's decision granting summary judgment dismissing this action  of course i'm happy to answer any questions the court may have but i'll leave the rest of my time for the court thank you if the time when i'm in the process was there a point in the encounter were rose to a higher level vera became aware of the physical encounter while he was talking to emily simple so the potential for a reasonable mistake about the circumstances could have started right then and there simply because law community caretaker exception the probable cause requirement permits the forcible the tension of an adult and less there's probable cause to believe that the subject is incapacitated represents a danger to himself or others that's in the that's and that that's as recognized in all of the cases you track here on the only exception is the kelsey see have the right to determine for themselves their own welfare and i think i would just leave with a parting comment that if the district court's logic is accepted the combination of the community and take your function as explained as as applied in this case combined with qualities that the immunity effectively swallows the th amendment if you can say that police officers might have violence and the court will be in recess for ten minutes