good morning in may it please the court my name is stephen bragg and i'm pleased to be here today representing marcella holman in this case out of the united states district court for the district of maryland sitting in baltimore this case is a tragedy on all sides  honour's a mother cos i'm one one in baltimore seeking assistance transporter mentally ill son to a hospital for medication to fully armed uniformed baltimore police officers respond to that call and within a minute there after a struggle ensued and the mother's son is shot fatally within a minute roughly the time that i've been at this podium so far this entire chain of events traveled around ravelled what at issue in this case your honor is the slog through the morass of factual reasonableness that this court has recognized repeatedly the supreme court has recognized repeatedly in an excessive force case object to breeze doubleness is the test and it's a particularly fact bound inquiry a judge will can send your separate opinion and a stake a state of armstrong makes that very very clear a judgment as opinion  i haven't found an opinion that by judge harris of the subject matter or but i'm sure it would be detailed as well the facts matter here and the difficulty with our primary difficulty on appeal is that the facts were not developed enough to warrant summary judgment for the defendant officers questionnaire of course agree with the facts matter what we do have to take the record as it was before the district court and the district the statement and the other is the amended complaint and then when you read through her opinion all the citations seem to be either to the  motion creates an issue of tribal fact and doesn't seem to be much discrepancy discrepancy here but in other words i'm just not sure it's all that easy to draw an issue of tribal fact when you have a district judge that is predicated her ruling on the plaintiff's own documents interpretation of course under this court's precedents and the transcript of her interview now the transcript of her interview your honor suggested in your question judge wilkinson that it would be a rare case where the parties pleading going to parties statements might be at v they are at variance here you can't create an issue of material fact by arguing with yourself that there's one book law that no understood but but what i'm what i'm trying to suggest is our point in the brief is that her transcribed interview shouldn't have been relied upon as true by the district court and when you look at the district court's two opinions on the motion to dismiss the factual portion of the joint appendix is plain vanilla it relies on the amended complaint allegations only when you look at the decision on the motion for summary judgment the factual allegations are much more detailed because it relies on the transcribed statement in addition and we've cited in our briefs the court's decision in going to vs valley would judge wilkinson was on the panel where judge tracks or rather an opinion talking about when you're trying to use a party statement against them in this kind of setting a motion to dismiss or in this case a motion for summary judgment with one document you have to look at where that statement comes from and this transcribe statement was given less than an hour after it was recorded given less than an hour after her son's death she was taken down to the police station without a lawyer and if you read the transcript and it's in the joint appendix of course i think pages two sixty three on you can see it's almost a rambling recitation of everything that's running through her mind of the transcript is it auditory transcripts of this nature of what was i don't understand what the district court was supposed to do when there was no opposition filed to the motion for summary judgment and when they said ok there's no opposition to that motion and so the transcript is here and it was given an hour after the interview and it's probably the most immediate recollection of mediately it was given under conditions of stress i'm sure but it's the best she had to go on and i don't you know i guess i'm just in a situation trying to place myself in the much said she can't create a terrible issue by disputing herself but there were there are different things in the amended complaint and the transcript they're not always in conflict and the district court noted that in her photo two and some of the allegations in the amended complaint are helpful to the finding that this was not an objectively reasonable use of excessive force that's the second point that's the ultimate question the district court had to decide i'm stuck with this week record i admit in footnote one of my opinion  i've got what i've got but can i tell from even this week record that it's so clear on the peculiar facts and circumstances this you know granular inquiry we've got to make under objective reasonable is to determine an excessive force can i tell even with this record that this is summary judgment the use of excessive force was reasonable you know to get to trial you've got to have material fa imminent threat of serious danger and those are the material facts i mean you can you can quibble with one of those but that's  sequence isn't the that's the sequence and those those are some of the material from facts related to the graham versus conner factors the factor that's not been analyzed properly here two factors one is the proportionality in a state of armstrong this court recognized that the proportionality of the use of force has to be dealt with to this man was on armed this man was five foot eleven one hundred sixty five pounds there were two fully armed baltimore police officers it is true that when he entered the house the police officers grabbed him first he didn't initiate the contact they each tried to grab an arm and hold them and he broke free it is true then a struggle broke out next and there was a punch thrown unclear in the record who threw what punch to who and it is clear as your honor pointed out that officer mark koski then ended up pinned on the floor what happens there after is entirely unclear because the officers have never given any testimony they've been handled very well by their defense counsel they've tried to avoid discovery and they've avoided it but what happens next is is huge in terms of proportionality of the pores used it can't be that every time somebody punches a police officer a police officer can pull his gun out and shoot them it can't be that every time a police officer is pin with it with a helpful officer next next door or nearby that a police officer complot his gun and shoot them i  understand that we're not to engage in twenty twenty hindsight and these are split second judgments at the split second judgments rule works both ways and so while you might say in a split second judgment officer mark koski decided to fire his gun because he feared for his life and mark koski fired first runner not officer bragg according to the facts as we know it then when this officer bragg file fire has shot two shots from our koski into the chest a shot by bragg into the fire second why what happened we don't know this court's precedents trina versus wilson talks about if there's a pause of two to three seconds between shots then the officer has to evaluate again in a split second is my shot necessary and what the district court never did here was analyze the different shots and that has to be done as well if you have a question from i was trying to express a question but i do have a question  i understand what you're saying to be in part at least it can't be the case that every time an officer is sort of on the losing end of a kind of physical altercation you can use the officer it's reasonable to use deadly force but i did understand the district court as issuing its confining its holding more narrowly that it wasn't just the fact of the physical altercation was all those back on facts that my colleague just sort of listed out that there was a very recent history of kind of violent misconduct in the home that there were other people on the premises who safety was at risk that there was a lot going on here beyond just the one physical altercation well that this is so this this gets into a little bit of an issue in the circuit in a case called greenidge versus roughen where the question was whether you can how far back in the in time do you go to evaluate the reasonableness of the officers position and roughen prostitution arrest officer opens the car door tells that they're john in the prostitute to put up their hands the john refuses to riches behind the seat the officer shoots him the officer shoots him because he thinks he's reaching for a weapon in fact he's reaching for a billy club this court said we're not going to go way back into the officers pre opening that door activities but we are going to start the analysis when the door opened so i think that's a slightly different kind of a context is the question here is at the moment deadly force was used i'm agreeing with your friend with you look at that moment could a reasonable officer given what that officer knows have believe that there was a real threat of physical injury here and i think some of these things from mr holman on his way into the house for sure and he's allowed to take those into account i think that makes sense but he didn't hear that anybody was hurt the most he heard that they sister and maurice had a scuffle upstairs in the sister came down uninjured neither of these officers at least as far as the record can tell sustain any injuries we don't have any record of any injuries they have a they're hearing that a person has gone off his medication a person with bipolar has gone off his medication and he's doing some wacky things he's busting televisions he's trying to rip off doors he is acting out violently but is he acting out violently in a way that threatens such a serious risk of harm to the officer that he can shoot him i mean he doesn't have a weapon he's unarmed and i'll tell you in all my research and i and the law students ditch the research on this case i would strike mr johnson  and if we're going to go if we're going to go that far down the line then any time there's a physical encounter between a suspect and an officer then that lethal force would be justified because he could have reached out and choked him he could have done this he could have done that any time the option was to say i can't grant summary judgment on the facts aren't developed enough i want these facts more developed i want to know from the officers what their positions were i want to hear their testimony of course of mr holman had a lawyer she would have taken their depositions i holman to be deposed the district court could have said and compare her transcript to her amended complaint allegations we don't even know on this record what the size of the officers were would it make a difference if they were six foot eight the size of professional linebackers and and mr that is in the record if we know that that he wasn't big enough to get him off doesn't really matter what we again we don't know why you couldn't get him off we don't know how he tried i don't know that it wasn't big enough johnson wouldn't stop your client armed suspect you can't be messing around but but i mean this is an unarmed suspect is it your position that any time an armed suspect resists arrest in a physical way the police are free to use deadly force that's not our position at all your honor your our position is that when by the officers i feel like this case is so much harder than it has to be because we don't have the officers affidavits and officer affidavit saying look we tried to get him off and we could be an enormously helpful why do we not have that in the record but your honor the the trial counsel one to avoid the kind of attracted discovery dispute that often occurs in these cases they looked at the factual allegations in the pleading they looked at the testimony apologized the statement column and gave to police officers contemporaneously with the event it was not interrogation it was her own statement recorded and transcribed contemporaneously she had every chance to rebut that nothing that is a material fact is rebutted in the record was rebutted during trial and serial facts are that the officers arrived at the scene they saw a mattress that have been destroyed in the process of a violent outburst they came in they found this holman locked inside of her own home in order to protect herself and her daughter they saw mr johnson  outside kicking on the door i would i would admit that the one piece of evidence that seems to be somewhat disputed and i would call it artfully pleaded is that kicking and the words kicking the hell out of the door were used in her statements police that becomes unstable and violent situation that he was not going to stop now the urging at the scene was to tase the taser mr johnson our officers decided that was not the proper course of action at beginning they attempt to control the situation using manual restraint mr johnson broke free immediately from that manual restraint and turned the tables on the officers putting them in a terrible situation where also mark halsey was pinned to the ground and johnson was still continuing to punch and lunge at them and fight them off that's another point that's not if you didn't record that he was lunging and punching them and was able to resist their attempts to control the situation that leads to a situation that is very similar to we had in jackson jackson the facts developed further the the officer was not able control the situation as well as our officers were in jackson it led to actual punching actual strangulation an actual reach for the gun but in this case again our officers were justified not by the actual use of force against them but by the serious and imminent threat of serious bodily injury and there's no question about the case sort of putting to ones that he did to the law is uncertain about this if there's a gap in the case and i totally understand that as far as qualified immunity goes on that's not really a problem for you but on the merits i mean i looked were you able to find a case that approves on the merits the use of deadly force when there is not you know when the suspect is on armed and there is no officers have not put in an affidavit saying he was reaching for my weapon he had his hands on my throat you know where all we know is there was a physical altercation and for sure the officer is on the losing end of it at least momentarily but is there a case like that where on the merits a court has said deadly force is an objectively reasonable response because i couldn't find one your only answer is no we have not found one the closest we have is jackson again the confluence don't really i totally understand i i want to be clear about this if the case law is on the certain qualified immunity that's a win for you but i really am trying to figure out on the merits if you've got anything quite like this your honor not exactly on point on the on the question of whether it's objectively reasonable have been a serious bodily injury to our officer that is clear from the record if it's not clear from the record at least a threat of that was clear from the record the threat is what is justifying the use of deadly force  got the blessing i wanted second to take a note of was that i just i guess going back to one of my colleagues original questions to you even if we had the affidavit from the officers that can't they're not going to be able to manufacture a gun in have possibly open door to discovery disputes and protracted and least the summary judgment of course if you could if we actually thought that there they would disagree with what she said then that suggests that maybe there is dispute material fact here and i would think that your position would be they would they would have absolutely agree with everything she said they would have agreed to the extent that the facts were there and needed to be developed to dispose of this issue on summ judgment was a judgment it's much more persuasive coming from her than it is from us that is what i believe the trial counsel i would have thought and rather than put themselves out there put a client statement out there to be attacked or assailed or second guessed they relied on the players own statements of fact the plaintiff's own leading us to draw down the facts of the situation to just those that were necessary for the court to make a determination on summary judgment to see that the officers had objective lee reasonable grounds and information believed to know that mr johnson presented a credible threat serious serious bodily injury at the moment when they acted and it all points up so that they had acted reportedly on the attempted to control situation using manual restraint that unfortunately failed and its tables were instantly turned there was no time to second guess and no time to think or react he was immediately on the ground and prone and subject to this question of policy making who controls whom is to be answered by looking at state law and determining what the allocations of authority are between the so i can supply i ask you to address this consent decree issue i mean i'm looking at a consent decree where the city of baltimore guarantees that it will change police procedures in baltimore how can they do that if they don't make policy that relates to the baltimore police department consent decree is harmony of justice no what's going right is the in i i know at the top it says  there that parties are going to do things almost all of those things are to be done by the police commissioner and police department i think the city commits to continue improving its policies training data collection an the officer activity and ensure that officers actions conform to the legal and constitutional requirements of the city commits to ensuring that input from community members and officers is considered in revising or implementing its policies and its training and well i think the only well from my point of view the only interpretation of the best interpretation of that is that the city will do whatever it can do to make these things happen but i mean i know the answer to this question but is it your last page the police commissioners want to has the power to make that happen really i mean the the city cooperates to the mayor and the city solicitor i think i've seen here in baltimore and the city solicitor signed it for the city of baltimore the baltimore police department also signed it right right why aren't the references in this agreement to what the city will do about what the city will do well i don't know because i wasn't part of that negotiation and you represent the city in front of us so you're supposed to know who what the city is about we you know we're climbing in the darkness down here in richmond we don't know what the baltimore city government is ab there that if there's righty but then we'd have to resolve the issue that you're arguing correct that we would have to know what what what's what about this consent well what's what i think is state law if the supreme court is saying look at state law and state law says that the the state general assembly created the police department as the state agency and a lot of certain powers to the police commissioner power to hire fire train discipline all the things that the city is an excuse they're not doing in the complaint and this is a motion to dismiss case so i think the focus should be on the complaint and what the allegations are there it was  judgment it was dismissal the mayor ok right and so the state gives all those powers to the police commissioner and then at the same time in article two of the city's charter which is actually created by the general that's the grants of powers to the city it not only doesn't grant those powers to the city but says to the city's officials you can't you can't do these things you can't train police you can't interfere with the powers that we have given to the police commissioner and that's the state of the law in maryland and and if that agreement disagrees with that i know that i think the law wins and certainly if certainly i'd like a lot better if i had been the police command your partner and the united states or police commissioner in the united states but but the fact is procedurally speaking so if we were to rule for you on this point it does seem that it would throw the consent agreement and so the person the official with the power to make these things happen is is part of the agreement as part of the consent decree and so there's there's not really a problem with the the  the entity with the power to make this happen is not involved in the agreements about the agreement that talk about what the police department will do i agree with you that's all still perfectly fine but the parts that talk about what the city will do will be you know stricken if we rule the way you want us to rule and i just think before we did that we would want maybe to hear what do you jay thought about what they deem it would be worth without the city well your honor i i have not considered that if the court rules in favor of us in this case on this motion to dismiss that that changes the agreement that's been made among the sunni and the united states and the police department i think because the police commissioner is a signatory and has the power to do the things that need to be done regardless of how the relationship among the different entities shakes out there's still a question of how did any policy the city of this police department or whatever cause the police commissioner was that there was no there was no connection causal connection between the things that were alleged and what ultimately happened so that's that's a problem too and and that may be a problem that to come in and reform the the police department he was sworn in confirmed by the city council and sworn in in the rambler so that's that's the gap he was actually on the job as of august  well i mean our position and my position is the police commissioner is the one with the power all the allegations in the complaint are the c failed to train c failed and disciplined city failed to fire people all things that the city has no authority to do and therefore the city should not be able to be held liable for failing to do things that has no power to do and and if there's a conflict with the i don't think there is a conflict with  the the late relations between the city in the united states and the police department because the police commissioner and police department are are signatories to that agreement and so the entity with the power to make things happen  is is in the agreement and will have to make those things happen or or there will be problems and the city is the city is in for funding you know the city does fund the police department but but the actual things that are being alleged in this case are not lack of funding or something like that they're they're training things are specifically given to the police commissioner and i see i pass the time so there are not any other questions you your honor let me start with the state law question that just just was dealt with by mr failon question whether the city is a suitable entity under one thousand nine hundred three the issue just addressed by mr i'm so you cannot read the department of justice agreement and the department of justice report that we submitted as a supplemental authority without concluding that the city is the opposite party to that transaction to those events know i don't see that i don't see that here i don't understand how the policy affected anything sure your honor so it was not ruled on below at by the district court but now was not ruled on below the district court coverage of the city on this ground the mr family just argued but the liability was played on failure to train failure to discipline failure to supervise in effect deliberate indifference which is a standard m objectively reasonable the city's out not not a few fine it's the officers are free because of qualified immunity you just talk about that little bit more that's why is that because we'd be saying look there was no law on point one way or the other so they're fine so the officers you know are entitled to their own immunity for all the reasons that we have immunity but monella is different and it goes to judge wilkinsons causation point and again if you look at the department of justice report it finds a pattern of practice of excessive force it finds a pattern in practice of use of excessive force against individuals with mental disabilities our case and it finds the officers are trained to aggressively escalate situations rather than deescalate them causation can be proven in this case under monella on the basis of what the department of justice has exhausted like concluded again in a report that would be admissible in court under three eight so someone ellen causation i think are still in play in this case the the big issue in this case and your honor judge harris you're exactly right your research fortunately confirms mine or my last two times that i have not found we have not found a case anywhere that sanctions the use of lethal force when these the person who is shot did not have a weapon or did not express a verbal threat or both to the police officers it's not out there this case is not covered i realize that may be a problem for qualified immunity it's kind of a wrink case and judge wilkinson i know would agree with that but this is not a proportional use of force in terms of menow yeah yeah the policies well there's there's as preference in the department of justice report there's apparently a policy of escalating aggressively encounters with citizens there's a policy of not proper training how to deal with mental disability well your honor if you look to the types of patterns and practices i've just itemized from the department of justice report it is this case these officers came in and they escalated the situation with maurice johnson in a way that was improper for dealing with the mentally ill that demand we see some of that in the case is this this court has had a state of armstrong just except for the fact that the department of justice report goes from twenty ten to twenty sixteen mr mr johnson is a victim right in the middle it's not hindsight your honor it's real world on the scene question if i may so it's your understanding that it doesn't really matter what the complaint says because we have this separate d o j report because just in looking at the complaint i don't really see an adequate allegation under mono either i mean it says it lists a couple it does it was i think ten cases where police officer shot people but there are no facts from which you can infer that any of those shootings were unconstitutional that they do you think it doesn't really matter what's in the complaint because the complaints are incorporates by reference t have shootings but no nothing in the complaint from which you can infer that any of them were unconstitutional well that all the facts are like if in owens they had just said there's lots of requests for information why i think when you when you look at  it really carefully it says there have been motions and there have been successful motions that didn't go into the particulars of all those brady violations and i wasn't underlying brady but yes no no absolutely and so we still have to get to the underlying violation in this case it all comes down to fear furious at the police for intervening in and you know domestic quarrel and these things are rife with with the danger and yet it's essential that people feel threatened by a spells be able to call on law enforcement and i wonder in this situation if you know we say oh well it's your only protected by qualified immunity but the next case you try to do this it's you know you go all bets are off the i think these are hard hard cases and i understand that this is a difficult situation for the plaintiffs but you don't want to disincentive as police officers from the situations in which the most vulnerable people need help and you know here mrs holman needed help because the birthday party had just gone completely around and even had put the children in the car because it and  and mr johnson needed help we need you know you need to get through a hospital and that's those are situations in which people need help and if if we say not what they necessarily want to do and it it is it's it's very volatile and i just here you know the saying are you because you're going to give us a lawsuit when we try to protect their own a terrible problem and i and i honest to gosh i worry about a case like this making it worse if it's understandable concern your honor it's why the doctrine of qualified immunity was invented of course again the law the case law builds incrementally on the facts the facts are so key here look at what's happened in this case on the facts the police rushed mr holman down of the station less than an hour after son's murder took her statement but yet they refused to give their own statements about what happened we're told today that they decided not to tase because they thought that would be ineffective we don't know that there's nothing in the record of that we're told that they might agree with everything miss hallam and said we don't know that we should know the