out for an ambulance so that they could do an involuntary and he was you know he was fleeing we maybe not running but he was walking away he's going down the alley if not by seizing him a man and grabbing him by the shoulder you know you you suggest that they should have done nothing you know that he was he was harmless he wasn't a threat to anyone so they should have done nothing how were they supposed to immobilize him so that they could get the shoulder is probably what starts it but then it gets worse and so it's ok for them to call the ambulance that's not the issue and if i want to grab the shoulder probably yes however when it's not ok to do at that point in time officers search so putting it in the context of the fatality of circumstances this is a man who have mental health in mental health issues and they know that point if they have dealt with norm for a period of two years prior to this them going to the hospital yes and so and but that's of course our point if you learn and make the analysis in the context of what supports the mahmoudiya party over a period of two years twelve different times they took him to the hospital fake one they they managed to do it approximately twelve times over two year period which the district court never addresses as in this opinion the district court doesn't start a draft in its opinion until the day of the incident completely ignoring the fact that there was a mirror image incident six months earlier and completely ignoring the fact in this opinion that they took this man safely to the hospital over a period of twenty four months that's no weird discussed allies or considered in the just  the hospital and it was twenty six thing and there were no changes by mr turner the changes then followed because of the police to something different what the police the different or that day was there was a rookie officer involved that's undisputed there was a f training officer who was sitting in his car who really was kind of just some days that's been disputed there was a sergeant who was supposed to be there that particular day he wasn't there he was a ball that never did figure out where he was and then the sergeant who actually did show up  on the day of the incident there's no gun there's no knife he didn't threaten anybody he wasn't doing anything other than having a mental illness things that was why they called it so there was no compelling government interest on this particular day to as i understand the law carries with it a constitutional authorization to use force reasonable reasonably needed to effect that action yet and that includes overcoming force or resistance by the sub subject correct well what i would add to that is if you're dealing with somebody who's mentally ill versus dealing with somebody  if you know if you've interacted with this person over an extended period of time and you know them to be harmless know that you have no weapon in that particular situation the amount of force that was necessary is probably the same level of force that was necessary for twenty six things when they safely got into the hospital it was the same level of force that was not the seri in the other ten or eleven incidents when they got safely got into the hospital and are you are you telling us that if you have the fatal result had been what happened the st time the police encountered mr turner that would be constitutional your honor i don't know i don't have facts for the st time what happened what i know is that what the sergeant process was that it was overboard on that particular day they had safely gotten this man to the hospital twelve times previously so you have twelve incidents where he says and one incident was moved with his life if you if you analyze the most in that context clearly this is enough to get past the most of the summary judgment because at that point in time the officers credibility's on the line will come but not by definition you're emphasizing a lot that the police knew richie but by definition the rookie officer didn't have that long experience with richie correct but again this is not someone who's committing a crime this is somebody who's mentally ill probably doesn't know going to know what's going on at the time and so then he moves away and then from there you have three officers who wind up on top of him with his face to the ground stomach on  when you are looking at the incident on that particular day there is no compelling government interest to have three officers tackle him he didn't shoot them in biden didn't threaten anybody he didn't please the court and council my name is justin brinner on behalf of the city and individual defendant officers i think that appellant's argument comes down to the position that the officers should have used less force to get mr turner into an ambulance here because they were successful in doing so on prior occasions and the fact of the matter is that just because he did not struggle or react violently and prior circumstances six months a year a year and a half two years earlier does not dictate whether he struggled or reacted violently and this case and how officers could react this principles been recognized even recently in the king decision the record here undisputed that in a split nd or a matter of seconds after an officer touched mr turner's shoulder he shoved an officer flailed his arms knocked off a radio from his chest reached into the vicinity of another officers belt that held the firearm and was struggling against the officers to the point that two of them could not even control him enough to get him handcuffed now there's a bit of a mis apprehension in the record whenever the state says that this was a quote mere incident while that term was used in a deposition it was to describe mr turner's agitation basically at the beginning of the encounter whenever  made the point as reflected on page twenty six of our brief with citations that mr turner did react differently here he did not remain seated on a sidewalk as requested he did not run in the earlier quote mirror  and here in that earlier incident officers did not have to follow him into the alley as they had done here here an ambulance was staged nearby officers were trying to get him committed for his health his mental health and these their success on prior occasions does not create a jury issue on this particular occasion i want to jump to that issue of what the expert witness so i'll get back to it but the issue is they have not been able to produce a need to direct or circumstantial evidence of excessive force so the estate is relying heavily upon their expert witness  doesn't offer anything material rather than criticizing specific uses of force he claims that officers should have deescalated the situation via some mental health crisis intervention and really this amounts to a repackaging of the provocation role that the supreme court has unanimously rejected and there's other seven circuit case law noted on this issue in our brief but at the end of the day the question is not whether the officers should have done something better or employed some better technique prior to seizing mr turner in order to avoid his flight but whether once they whether once they made the decision to seize him that a basis to do so here i believe as a state has conceded an argument there was probable cause to seize mr turner for a mental health evaluation i'm not going to get into all the facts but he was flailing his arms speaking unintelligibly acting up normally it's apparent on the video and from the deposition testimony that came up just a bit i think that the state hasn't pointed to it as much today but they've argued in the past that they have not had the opportunity to challenge the officer testimony about mr turner's resistance or his behaviors and that's not really the case they had an opportunity to meet develop direct evidence if they were able to there were other people you can see in the video in the area this is not an isolated location where this occurred discovery revealed the names of other possible witnesses we don't know if the state tried to locate an interview them we do know that they did not present any deposition testimony or affidavits from anyone to directly contradict what the officers sworn testimony says about what occurred in that alley and even short of direct evidence if the officers if the state could not have come up with someone to counter the officers point for point they had an opportunity present circumstantial evidence and this is important here there's a potential that physical evidence could have disputed the officer's testimony that they used a minimal amount of force if there was excessive force that tends to leave behind some kind of trauma here it's absolutely undisputed that the officers left no trauma he was examine by paramedics on the way to the hospital emergency room doctor deputy coroner and a forensic pathologist none of those qualified individuals observed any circumstantial evidence that the officers use of force inflicted a crushing or beating injury to mr turner's head neck chest stor internal structures there's no broken neck cartilage no internal hemorrhaging no broken ribs no collapsed lung if the state wanted to dispute that evidence was in the record they certainly could have gotten an expert to present on the circumstantial evidence and come up with a contrary opinion and that could have through that circumstantial evidence or combination with direct evidence whatever they could have come up with some form of a dispute with the officer sworn testimony it's not enough to say that the testimony can just be rejected out of hand because the jurors should get to decide whether they believe the officers or not there has to be something to send this case to the jury in the st place and the there's an indication in the briefs that because the video doesn't care after every bit of the sequence somehow the sworn deposition testimony and affidavits are not enough to send this through summary judgment scores never held that excessive force was cases must always go to a jury unless the incident is wholly captured on video obviously that kind of rule would relieve the plaintiff of any burden to prove excessive force and cases have been decided for decades and longer than that on the basis of sworn deposition testimony and affidavits without the deal and it's not just you need to excessive force cases there's all kind of issues that come before your hon decided in that way without video so when we really get down to it that key issue is not what led up to the things leading up to the touch and in the walkway are part of the totality of circumstances at least according to some of the th circuit case law i think the supreme court has deferred deciding that issue until more squarely presented but once you get into the alley the question is is there probably cause to seize mr turner for mental health evaluation we would submit that there is the facts again were largely undisputed and that was a big part of the supreme or the district court's decision we presented a one hundred  numbered paragraphs of allegedly undisputed facts and the state did not count or almost any of them there were i think eight that were claimed that our characterizations were incorrect suggesting that maybe turner did not act intentionally at a particular point in the interaction but that's not material as your honour's know and i think is as repeated several times in the dockery case i believe it as this is about what officers could have reasonably perceived on the circumstance not whether mr turner intended to put them in some type of danger whenever he was flailing his arms knocking off the radio reaching in the vicinity of a weapon and refusing to comply so when you get past the the basis for the seizure the probable cause for mental health seizure then we look at each of the each of the parts of the encounter was the touch on the shoulder object of lee reasonable yes and i can spend more time on it because even plants expert concedes that it was exactly reasonable not to his testimony on that point as determinative but perhaps a sign of of where the the issues are here again was it objectively reasonable to put mr turner into a prone position we have to think about what was happening there you're the th circuit has laid out hallmarks of active resistance several of which were present here mr turner was flailing he was declining to follow instructions while acting in a belligerent matter manner he was swatting and arresting officers hands away while back pedaling these things even want to person is known to have mental illness permit the officers to review this as resistance and to react accordingly and their reaction is also important placing mr turner into a prone position so that he could be handcuffed whenever were unable to control him to handcuff them in an upright position is reasonable they did not bludgeon him over the head to make him collapse into a prone position no one tackled him i think sometimes in the heat of argument were his get used tackling and jumping on mr turner three officers jumping on this not what happened to officers had his arms they move him onto his stomach in a prone position once he's there the question is is it objectively reasonable to use a knee with just enough pressure to try to get him controlled and handcuffed really what you look at is again that circumstantial evidence there's no evidence of the internal bleeding hemorrhaging brakes collapsed lungs except for the kind of things that pushed the court in the abdulahi case to decide that there was at least an issue of fact for the jury to decide the final use of force was officer talbot joining the group and controlling mr turner's legs or attempting to do so so that in a hobble could be applied and even there it's telling that  the st attempt to put on the hobble was unsuccessful as mr turner continued to kick and kick his way out of it and officers had to do it two times i would note that there was there was in the briefing and today a mention of officer will send  i'm not sure exactly what the terms were but after wilson allegedly admitting that mr turner was unable to breathe and that's why he was struggling on the ground it's not what the record says it was a question to mr to officer wilson about when you were on the ground with mr turner could he have been struggling because he was having difficulty breathing was an objection on foundation an officer wilson said he could have i don't know that's not impressive testimony it's not enough to create a genuine dispute about whether mr turner was resisting as he was struggling on the ground particularly in light of all these hallmarks and the fact that this is an objective analysis anyways not a subjective analysis of whether officer wilson thought he could have been having trouble breathing at that point at the as my time is drawing short or i want to talk a little bit about qualified immunity and not just fight immunity but the repeated assessment that officers split  decisions in these tense rapidly evolving circumstances are not to be sorry i was trying to tell if there are cliques and in me a message about something these split nd decisions are not to be  nd guessed with the hindsight of two thousand and twenty vision sitting in a chambers detached from the scene and although there are some statements in the state's briefing about how we don't they don't need to present a case that's on all fours they do have to do better than they've submitted here the supreme court after some of those seven circuit pronouncements about not needing a case on all fours said that the question really needs to be quote beyond debate or an obvious case here given all that the cases cited in our briefing this is just not one of those situations is neither obvious nord beyond debate that any reasonable officer in this position would have understood that he was violating the th amendment by seizing mr turner with non crushing non beating force to effectuate a mental health involuntary commitment briefly the causation issue mr i'm sorry the estate argued today that the issue is i believe the state's words were that officers were suffocating him there's no evidence of that in the record the record indicates that mr turner had a cardiac arrhythmia that he had substantial preexisting condition ins and there was no expert evidence submitted by a state in order to rule out preexisting conditions and indicate that the force used here was what caused the injury and fact one of the bits taken from the deposition testimony and it was stated in  statement of facts was that the force did not cause mr turner's death and that was left undisputed by the estate and its response to our summary judgment in the district court below similarly there's there's comments about whether the stress of this interaction caused his death and again those were left undisputed that while in a textbook format the stress of this interaction could have caused his death the forensic pathologist was unable to say that in this case that was what happened the end of the day or honors  apologize at the end of the day we have a situation where an individual is in need of help as he had been many times before the champagne police department answered that non emergency call to attempt to provide community police protection services for him they tried to reason with him that was unsuccessful they tried to use minimal force to stop him that was unsuccessful and whenever he reacted in a struggle that could be characterized as violent they used a reasonable amount of force without crushing beating him or gratuitously gratuitously causing any injury thank you filled out after someone dies and police officers pester after someone dies and then the depression is not around to testify about what happened that the police always prevails that that is not the law and that cannot be the law that's what