first was gary roll a threat an immediate threat to the officers who confronted him second was there an opportunity to reasonably accommodate his mental illness by deescalating by verbal deescalating with him before they went hands on with tasers and wrestling with them for four and a half minutes and third was the court right to decide the cause of death when there was a contested issue of fact as to whether this extreme use of force by the officers contributed to his cause of death and what's the context or at least the first two of these issues the context is a very familiar formula that this court has used repeatedly that is graham versus conner and remember even though we talk about graham and every use of force case graham itself involved a plaintiff who is having a hypoglycemic episode so when we look at the formula for determining if use of force creates a constitutional violation we always say it's the interest of the government in its composition the arrest balanced against the intrusion on the personal interests of the suspect and we look at the totality of the circumstances and particularly at whether the seriousness of the crime whether there is a media threat to the officers of the public or whether the suspect poses  acting to actively resist or is fleeing and when we look at that council undisputed i thought in my reading of the record it was undisputed that this individual went aggressively at the officers and that's a great question because that's a loaded word that officers use all the time when they want to justify their force when they first confronted gary roll he didn't do anything he was standing there there was a window four feet up off the ground he was surrounded by a killer footprints later though when they first confronted him they were aware that he had that they were called by the neighbor right wrecked and when the neighbor  call from the neighbor let them know that that mr rolle had thrown a pot of flowers or something through her window that's how she knew he was around right well they didn't actually know about that yet so at some point they did see a baby any of their commands yes he did and before they started giving commands they had an opportunity to deescalate and they didn't do it and we should  obliged to take the the course of action that in hindsight one would view as preferred are they oh blige to do that by the law we don't use hide say we use the facts the officers knew at the time and at the time they knew that all he was doing was standing there babbling so they had an opportunity to verbally deescalate question they had an opportunity does the law oblige them to take that opportunity absolutely he's a mentally ill person they have a reasonably accommodate is going to tell him no his psychiatrist today or any of his doctors you're saying he's a mentally ill person martin versus broadview heights says they have an op they have a duty to do some verbal deescalation obviously it's only when they kind of that was done no effort to say calm down right now and nothing absolutely all they said was show me your hands come over here get down there's and they're all yelling at me one did he comply with those orders yes he started coming toward them in response to a mirror that was not that that was not aggressively they knew that that they knew that his coming toward them with the hose with the metal and was compliant and officer alexander knew that it for sure because they all saw him drop the hose before he ever got to them  and he's coming at them and they had an opportunity to deescalate they didn't do it as he's coming at them they're all barking at once with these loud orders the absolute opposite of what they ought to be doing and then you know they tase him from the other side is going to stand up and say that's not quite the way he read it and and i'm saying that that's what a jury should decide because we have a witness in the record which is what the district court looked at right and the district court erred by failing to take into consideration the order to gary role to come to them his compliance and then most importantly as he's moving toward them he says i don't have a weapon so even though he is delusional about the water he's anchored enough in reality that he knew i better sell them i don't have a weapon there's something there to reach if you want to talk to him just as nancy roll had done through the eighteen years of their marriage and there's something there to reach if you want to just give it a try seven to ten percent of you don't want to give it a try that's i keep going back to that question they gave qualified immunity to and totally different facts that mentally ill person had a knife and she was saying i'm going to kill myself and i'm going to kill you to her caregiver distinguish it really different set of fa martin explains the test which was drawn from camp that the officers are required to deescalate the situation and just the application of force downward when confronted with a mentally unstable person correct and martin was actually a person suffering from excited delirium just like gary role was so it's very relevant use excessive force and martin and they they were suppressive twice once to the chest they use dr stone's repeatedly either worked and they wrestled with him that's correct and they wrestled with him for four and a half minutes all of which is forseeable with excited delirium if you have not succeeded in verbal deescalation they were even taught to it was a roll call training they were taught that they should get six officers present so that they could quickly subdue him and have smith who trains officers in dealing with mentally ill people said that the that those contributed to the death and the coroner's report itself is argued is argument that it contributes to the death but to just caution when we disagree with the with the court making a finding on cause of death but as this court said in champion the end it was judge moore writing for the panel even if champion had not died but it only been injured his clearly established rights were no less violated reminding us that you can have excessive force even if it doesn't kill the person and that's important but here obviously the cause of death is going to be important in this case and it should have been decided by the judge there with our this two thousand and fourteen decision of the sex or call cook the bastien no and i'm sorry it was there was it's an excited delirium case with deputies and fourth amendment rights and the court held that there was no clearly established right well if you just look at martin which is twenty fifteen and martin was that two  twenty thirteen later later in two thousand and thirteen and but the encounter was twenty two thousand and seven and they deny qualified immunity to the officers for failing to verbal the deescalate for failing to deescalate the  force on a person suffering from excited delirium facts matter in these cases and there are cases where you can't do it i mean the like sheen where the suspects come at you with a knife there's not much you can do or the suspect has a gun but even in gun cases this court in this and the supreme court will look at whether the guns pointing at the person think about all the swat cases we've had where that isn't the law that it's object as long as object is objection objectively reasonable to try to subdue versus try to do deescalate both are eggs objective lee reasonable actions by police officers confronted by a disturbance in a neighborhood the issue is whether it's objectively reasonable i totally agree who decides that you know i think it's a nice question if i had you to look at the counter it's subjectively reasonable to try to subdue which doesn't mean try to kill and it's also objective lee reasonable to try to deescalate each comply comports with the law no you cannot just go hands on and skip an opportunity to verbal e d s co pay i think that's where and that's where i think we have the the most distinct disagreement and that's where i think we should be guided by just our disagreement it's the reading of the law i understand and i think that champion and martin direct us to a duty to verbal to deescalate where possible before there is this hands on encounter and i would simply say that that's also a function of the eighty eight claim which the court improperly dismissed there should be a reasonable accommodation to mentally ill suspects and ask to say that that duty to accommodate applies an arrest situation well we'd have to go to other circuits which are in the brief in this case you've recognized the reasonable accommodation claim in anderson and the inability center of greater toledo the reasonable accommodation argument and that in this instance the reasonable accommodation is simply a policy that should be in place when you can safely use it to  affects seven to ten percent of every police encounter that's exactly what what the law requires under the eighty eight i'd ask that you reverse the summary judgment as defendants and remained the case for trial thank you to speak to the two questions of fact that mr gary hartstein has identified in his briefing as well as in his reply below to the court namely that the there is some issue as to whether or not the officers  had observations of mr rule from which a reasonable police officer could perceive a threat of harm and then secondarily whether or not there is testimony evidence testimonial evidence in this case that suggests that  right i beg your pardon ma'am this case is here i'm qualified immunity grown yes ma'am it is so don't you have to accept the facts as alleged by your opponent yes ma'am i do ok and that's my point the record evidence in this case with regard to what actually occurred is that so hamas and iraq now are while his mother who's the person who dial one nine one because her neighbor was in her patio at two thirty in the morning waking them when he  threw a pot through the window who she confronted who threatened her and she was afraid of him so she ran into the house and called nine one one and her her eighteen year old son they testified in this record your honor not only did they testify and up positions but they gave statements immediately after the occurrence as to what they recall so how the civically at our ease ninety one page i d three eight six one testified in his deposition upon my inquiry i think perhaps i can't remember now what else do you recall the officer saying i don't recall this this this court has a strong case law suggesting that the lack of record evidence cannot be the basis for a denial of qualified immunity or summary judgment so in this case you had three officers in two eye witnesses testifying as to what they recall being said and having heard the officers don't dispute that they said come here so we're not here arguing that the court should disregard mr og walls testimony that he heard that what i'm suggesting is the fact that some people remember certain things being screamed and said in a rapidly evolving encounter and some people remember other things doesn't mean that the things that i don't recall being said weren't said and there's case law in the circuit on point for that it was plain to the officers was it not that they were confronting a person with some mental difficulties at the you know at the very least it's was clear to them that this gentleman was i mean out of control and babbling i gathered from the record that he was have to particularly i so if i could respond in fact what the record evidence is is that these two officers came around the corner they saw mr roll they said hey what are you doing within two seconds of  viewing him to five seconds he started coming at them now like any good trial of attorney i didn't just rely on the officer saying he was aggressive he was combative rather like any good trial attorney what i asked him was what was it about mr rules af ect that caused you to perceive him as aggressive and combative with the judge cook's question which is a question that i share is yes isn't it obvious to the officers that mr roll was mentally unstable at the time and one fact that hasn't been mentioned he was naked from the waist down he was waving a hose babbling about water this is not the action of someone who is mentally with it so don't you have to answer that question yes it was obvious to the officers that there was some mental health issue for mr roll at that point in time well you see your honor that's the rub at what point in time so perhaps i should have been more clear no yes i know when they came around the corner and said hey what are you doing and it comes at them yes when they got him under control by that time they had had an opportunity to observe him to hear him but when they first around that corner and the record evidence is clear please don't don't rely on me there is record evidence in this case by the officers that they had they didn't have an opportunity to observe his mental health status prior to his coming at them and it was only over the course of the incident that they came to the conclusion that i would agree with you that there was something wrong but i would point you to their exhibit their experts deposition exhibit six to dr smith's exhibit to dr smith's deposition where dr smith details thirty medical conditions that can mimic excited delirium and details in a colic way with me hydration and dehydration event as a result of alcohol withdrawal which entirely mimics excited delirium or does that make a difference if somebody is suffering from something other than excited delirium but is causing these kinds of symptoms that make them act irrationally well it was in response to plaintiff's theory that the officer should have known he was having an excited delirium and because they should have known they summing him down would work yes collation yes now what's intriguing about this record is he actually wasn't having a mental health crisis  all he was having a medical episode of excited delirium which is a physiologically caused induced situation this would be like you could call down someone who's in diabetic shock because they could cognitively overwhelm their physical condition by just some nice talking to them so i asked their expert so why are you telling me dr smith when you can when they came around the corner they should've said gary how can we help you well yeah that's what they should have done i said are you telling me that everything about this incident would have been different as a result of that won't well no that's not what i'm saying so when these officers first observed gary role they had no idea what exactly was going on he determine the level of force here and can we can we just admit that the level of force here was minimal the district court did not find this was a serious threat a severe threat an extreme threat there are a lot of cases with that kind of conduct i mean i corrected cook and correct i can't help but have wonderment at the marcel  plaintiff's brief where from oregon where the subject fell out of a two story window was severely injured and the officers responded by shooting him seven times with a shotgun less lethal whatever that means using six cans of pepper spray sitting on top of him in a maximum restraint position and he died of it succeed asian in the context of white and she hands the challenge for the district court which she met and the challenge for this court to novo is to particularize this situation in the in the scheme of context and with all due respect i have to at least quibble with one aspect of the of the now the characterization of the martin case in that case if you read the if you read the opinion carefully the plaintiff offered an expert that said you know what you should have virtually intervened and the judge grants writing for that court did not adopt that position what she said was when someone is obviously mentally ill you have a duty to deescalate the force in commensurate with the threat that that person poses were still operating under to tally of the circumstances scenario and there i'm not aware of any case in the circuit or in the united states supreme court that suggests that because someone's mentally ill or because they are having a medical condition that the officer is to disregard his perception of force now i would also say that i think it's a gross mischaracterization of the district court's analysis in this case to characterize it as improper fact finding what he took testifies is that when mr roll got to them he was swinging that planter as if to hit him in the head so that that kind of begs the question as to whether or not there was enough prior to dropping the hose that would allow a reasonable police officer to perceive a threat of harm of as the district court said more than minimum but less than extreme i would argue to your honor that even if you drop the hose there was enough in this is there's enough record evidence to support a reasonable officer having  yes but i mean i'm a gardener i mean you have to have something to keep that moss in that planter you can't you know i don't know you're right your honor it was described as that so i'm not here to say that it was a dead that it was a gun or a knife but i'm also not here defending a deadly force case i thought there was a concession in the record that a bit it was undisputed that mr roll was going after the officers aggressively  now i thought it was under speed it that there was a concession about that and that he did not a baby commands to drop the weapons either the host or the plant he did not obey the commands to drop is that on undisputed in testified not that it was dropped ma'am but that by the time mr old traversed the patio and got to where they were he was no longer holding the hose there is no testimony that carefully placed the hose down on the ground instead of dropping it i don't know there's no this was this approach by mr roll happened in a matter of seconds so there are certain finite features that i can't say are present in the record and that may be one of them exactly how the hose left his hand i don't think there's any record evidence that can help the court with that what you're saying is that when mr roll got close to the officers he no longer had the hose in his hand according to off according to deputy alexander's testimony that is in fact correct  that is a fact that's in favor of mr roll so we have to take that as as i'm not disputing it i mean if that's what you're asking me i'm trying not to see where the difference of opinion is between you and your opponent and try to figure out where actually the law should go in this case i mean factually ma'am is not i mean in its entirety so your argument is one factor that we take into account but we also take into account your opponent's argument and the briefs and so on so what i'm trying to figure out then is looking at the facts in the light most favorable to mr roll which we're doing on this yes case at this stage yes mr roll has no longer possession of the hose he's either dropped to or he has placed it carefully on the ground he has in his hand i believe please correct me if i'm wrong he has in his hand a moss covered plant yes and at that point why did the officers not have the opportunity to talk to him and to try to defuse him because the record evidence will in will indicate to the court at that point mr the duty to subdue to protect everybody around so there's the neighbors i mean initially you want to subdue somebody who's apparently out of control for a lot of factual a lot of factual grounds exist to say that mr roll was not in control and this subduing him had to do with protecting not only the officers but that but the neighbors around i mean subduing doesn't mean hurting but in this case his resistance caused him i don't know it was his condition who knows what quite did it right with that that is also a problem in terms of causation when the the arguably the expert in the entire country and his declaration is in this record indicates to the court that that no one really knows why some people die in these scenarios and some people don't and  fact both of them plaintiffs experts admitted that some people die some people don't no one knows why some people struggle with police and live some people don't struggling with anyone and get the requisite degree of acidosis they think in their bodies to cause these three physiological concision conditions i kind of in my mind see it like a whirling dervish of respiration heart rate and core body temperature and there's frankly no one in this country that can opine to you exactly what happens i i probably out of time i always get so engaged with you guys that i don't pay any attention to these lights here i'll probably not play as a client is there a duty to accommodate in this situation of the law now and i this well your honor i believe that at this point there is law on either side of that issue i think the more compelling law is that law that would suggest that in an arrest situation there is no duty  accommodate because of the very nature of the will suppose someone is being arrested and they have clearly some shoulder elbow arm problem that makes it extremely hard for them to be handcuffed behind their backs wouldn't the title two of the require an accommodation to that physical disability that that person clearly has i would suggest that at the time someone is handcuffing either they have already been under control but are you suggesting a scenario where so much as i ding was some title to apply to that ever apply i was trying to come up with a pretty on area when it would i would you know i could see an argument for that your honor if for example we've we've controlled someone and now we're getting ready to put the handcuffs on that person or you're saying it really depends on the facts whether title t applies them in reading the cases it seems to me that the courts have have said in an arrest situation that's rapidly evolving that there's no application so now you're changing your answer and saying it's a legal matter that title two would never  you know i don't know i don't i don't think it's clear i think there's case on a case on either side i can see i really can't see what you're saying would be it would be bad for us to say as a matter of law our title to never applies in the rest  even you are conceding that it could apply in some arrests shueisha well i guess if you're saying that putting your waffling on it you have to be saying there's something that's bothering you about the blanket statement that title too doesn't apply sort of like teaching the class that i teach and adding facts in or taking facts out as lawyers we can add facts in or we can take facts out that make us uncomfortable with some bright line yes so that bright line your i feel like i'm in law school i'm not sure at this point judge you've kind of talked me into that into that gray area i can't help but think of the facts of this case when i mean answering that question i don't think the argument posed by the the plaintiff here asks for a today no i don't think so no they're asking for the application of that in this context in this factual context and there i'm more than confident telling the court that i believe that in this case the eighty eight application on a pre arrest is not appropriate could i just end by pointing out a couple  the good news is that we're talking facts and this is a summary judgment appeal and with so many contested facts it's clear that there ought to be an opera every summer a judgment case most many of which this court affirms facts are facts matter but if the jury may issue if they are material facts sure it's going to be a jury issue and the whole issue here is whether these are military of material facts right that's right and when they first saw gary roll and he was doing nothing other than standing there and they chose to initiate by yelling to him rather than speaking softly wait a minute nature doing nothing but standing there guess who holding the best having been called by the talking raveling right he's committed some kind of battery or hurt the house and just as you had adverse or upset posing council it's clear that something's off and so how are they so the question is to go after somebody like this you go hands under do you start talking first and that's issue number one that should be decided by a jury and then i pose in counsel said well he's ari suffering from excited delirium and therefore we know that what the outcome's going to be he's just going to die well we actually don't know that and that's a contested issue as well he had schizoaffective disorder he became delusional as a result of schizoaffective disorder he's suffering from that as he trashes his condo and trashes the mailboxes outside with litter and dirt and things and and as he's babbling about water at some point it becomes excited is that at the point after they've started wrestling with them or not i don't know but a jury could help decide that and then the court talked about the the basket the baskets pictured in the record  seventy seven dash one page number seven eighty five as a mosque covered basket and the the other thing that hasn't been mentioned yet is as he came toward the officers he said i don't have a weapon so again there's an opportunity and this reminds me of the landis case where we have a mentally ill person moving construction equipment around and then when the police try to apprehend him lantus for his baker they they grab them and he chokes an officer but he's clearly mentally ill and then he runs off again and then when they apprehended for final time and he's in the puddle and his face is in the water the court saying you know we knew that he was mentally ill the officer should have taken that into consideration as they continued to use force on him again these are all facts that that that we should consider this is a dynamic situation after he was first a scary role crawled back into this pen this patio that was surrounded by a six foot wood fence the officers had an opportunity right then to say this is not working very well maybe we should talk before we just go after him they chose not to do that that should be part of