counsel and please the court hoffman appearing for the plaintiff no in the us i'd like to go directly to address the three questions that the court has raised the st one had to do with whether the district co abused its discretion by not granting us leave to amend our negligence claim and procedurally what happened as we filed the original complaint asserting devin's actions against the individual defendants and the amended complaint was only to add the united states and adding the negligence claim in the st instance and so and we incorporated by reference the facts in the complaint and stated in the negligence cause of action that separate but we could have laid out reasons why the flag and the policies relating to the flag should have created would would have led anybody time to stand that if there's a false flag in the system that it could create exactly the kind of harm that happened here but in addition to that we could have this aggregated the negligence claims because there were negligence claims apart from the flag that could have been played separately had we been given the opportunity claims against the united states which included the negligence claim the motion to dismiss the only motion to dismiss that was heard was about the st amendment complaint we were denied any ability to a an explanation of what additional facts you are going to allege to support the negligence claim based on the flag or any other negligence claim well your honor we the negligence claim in the motion to dismiss order was denied without we've your response the motion to dismiss as far as i can tell did not contain any argument about additional facts and so the district court would have been would not have been considering that ruling on that motion so when you received the order you didn't  consider filing any sort of motion seeking leave motion reconsider anything that would lay out the additional facts of the district court could know because you didn't at this point have never told the district court what additional facts you're going to allege as far as i can tell you never told the district court that at any point in generally well ok that the claim from our standpoint is based on what we think is the extreme and outrageous behavior of these officers with respect to a decorated  terms and defended joy who was the lead detective of the two of them where they talked to each other and they came to the they did everything together he acknowledges that he was told that he had knew about his disability and that there were reasonable accommodations available what what supports your argument that there was extreme and outrageous conduct well i think the st one is that coming into a one hundred percent disabled vietnam wars home and behaving the way they did in calling him a baby killer the things that people called him when he came back from his service to this country where he was they could have made sure he had his meds for example well you know that's we're relying on reviewing the facts in the light most favorable to your client and his testimony his declaration is that they wouldn't let me take my testimony that he would not have been a lot to take medications into a facility that they took a written list of medications with him so that he could obtain medications and reading all of that needs to talent he doesn't seem to be egre basis to say whether that's true or not he's just speculating that he has no foundation to say that's not really day they know he's he's one hundred percent disabled that he that's not the issue what does he know how does he have any basis other than outrageous because they didn't allow him to take his medications with him when they go the rest i mean is that the i mean it's part of argument but part of the argument is that they orchestrated this so that he was put in detention twice without his meds when they could easily have accommodated and certainly on the examples number nineteen is a case where the the detective arrests a suspect tells the suspect their order to get them to confess that their child is dying in the hospital unless they confess they won't be allowed to go to the hospital that's found to the example of intentional infliction of emotional stress absolutely no excessive force claim i think viewing tech well though there is some excessive force in fact the court doesn't talk about the fact that you need excessive force and it's clear that in tecla throwing some shoes at an eleven year old boy and spitting on them making derogatory comments about his home country ethiopia in the context of  guns and they said they would shoot him if he didn't open the door immediately he said i'm getting my pants on and then they come in and they throw him down to the ground where they were they do in fact from our standpoint and engage in excessive force and for completely unnecessary reason knowing that the guy has these kinds of problems and i think the point is that there's enough in the record for for a trier of fact to decide if this is extreme and outrageous i mean there's a whole series of indifference by these defendants at any point in time and i think our position is that these facts so that instead of a permit him instead of affirmatively making sure ready that whatever they were doing from their law enforcement standpoint did not cause him additional emotional distress because of his known disability  approach is very it's very difficult to apply in the context of an arrest right because arrests you do make people very unhappy and do create a lot of stress matto you are and so there has to be some line between what you would what you can legitimately do in general and what you can and how you have to do it differently if you know that somebody has p t s d that's really a problem right i agree with that i mean there's no question that there can be a difficult one i think the reason why we say this isn't difficult or at least for summary judgment personal purposes should be viewed that way is that you don't have to call somebody because in the context of facts i think there's a tribal issue about whether there was reasonable accommodation that could be given we would have there would be experts on both sides presumably about the law enforcement techniques to say that these are beyond the pale for any normal law enforcement which i think we would be able to find in this context in particular in particular given v a officers who are trained about p t s d they're trained about how did the all with this and how not to exacerbate that he said those words that was it from their standpoint right that they consistently said that's all they needed they trusted or they were they were going through any additional investigation he was he was going to be charged right prophesied that act claim that as a threshold matter there is nothing in the record to suggest that mr lewis either requested an accommodation for his disability or that the need for any such accommodation was otherwise obvious under the circumstances nd although it least some of the conduct alleged by mr lewis is unquestionably offensive it was not so extreme and outrageous as to rise to the level of conduct that exceeds all bounds of that which would be tolerated in the civilized community so  insulted lewis called him a baby killer lunged at him threatened to kidnap and beat him well lewis was voluntarily being interviewed that that is not extreme and outrageous as a matter of law that it doesn't have to go to a jury to decide that as a matter of law this district court judge sitting in his chambers with no oral argument could just decide as a matter of law that conduct was not extreme and the entire universe of what they knew about his p t s d was that he said that he had it and that we also knew he was a vietnam veteran yes they did john because otherwise they wouldn't have been able to call a baby killer but your honor in the context of what they knew that information was communicated to them in the context of the words of the threat that misty you know reported to her supervisor or that mr lewis said to her i have p t s d and anger issues this is what makes me mad i'm going to go shoot dr lee never everybody says that and as i understand it that's the genesis of this whole thing and that to me is whether or not he said that also seems to be a question of fact for the jury well was recorded right it is not recorded her word versus heads but it is undisputed that that is what was reported to the officers and the officers also recorded it in their report of investigation that they submitted to the d a s office mr lewis's side of the story where he said i may have said that i wanted to slap someone i'm sorry for threatening the pharmacist supervisor i don't mean to hurt anybody all of those comments were summarized in the report of investigation along with misty and statement them up is that appropriate we are not we are not what we think is the senior briefs and i found it quite disturbing actually you said that this was legitimate that they had to change the the interrogation techniques  would have been legitimate russian activity and i apologize if there's any confusion your honor as to our briefs but aggressive confrontational adversarial interrogation techniques are used routinely and for purposes of the rehab back to claim there was no indication that either of the officers knew that in any accommodation was necessary there's nothing in the record that suggests that mr lewis has asked them for an accommodation before for his p t s d and mr lewis is absolutely correct that he was not required to sack t rehab act and making that request you know what the situation had to be in the absence of a request for an accommodation the situation had to be so obvious that an accommodation was clearly necessary as was the case and she hand both of which to involved individuals who were clearly mentally disabled mr lewis by his own account was calm and collected throughout the interview so there is nothing that the record reflects that other than him asking me officers at one point to stop it that is not an uncommon result from an investigation all interviews such as this one and lastly just as the negligence claim your honor i agree with you completely that the record does not reflect that mister lewis ever filed a motion for leave to amend his complaint whether or not it was an abuse of discretion for the district court to deny leave to amend based on the generic request for amendment should the court be inclined to grant any part of the motion to dismiss is a separate issue the district court could not have been on notice based on mr lewis that in the absence of new facts particularly where as here the party has already amended their complaint once that it is not an abuse of discretion even if amendment would not be futile for the district district court to deny that where the party has not presented new facts but and has offered no reasonable explanation for why those contentions were not developed in the st instance none of these are new facts that mr lewis is seeking introduce he is simply seeking to add new claims of negligence based on facts that were known known to him from the outs even assuming mr mr lewis's version of the events is true it is not so extreme and outrageous as it must be that what the standard that this court has required is that it must be conduct that literally shocks the conscious and that we not what happened here especially in the context of an inherently adversarial confrontational you know you process always when the st one was supposed to be not confrontation is a voluntary interview right it wasn't voluntary ended up turning into an arrest right now not that day your honor the officers left that day and they can said that was the st when they came back in but they arrested him based on that burst interview right they arrested him based on all the information they had up until that point pursuant to a warrant ok so the st interview for where he contends that they were you know made all these statements and threats you're saying that's not extremely outrageous as america no i don't think that that that behavior rises to the level of extreme an outrageous conduct even in the context of a voluntary interview even in that context you know the cases that this court and california courts have considered and have found a question as to whether or not certain conduct was extremely outrageous are very different than what happened here namecalling threats it is simply not sufficient absent some aggravating circumstance and there was none here so essentially the g complaint is whether a pharmacist report to her supervisor warranted an investigation and arrest and prosecution and the answer to that question is yes and just unless the court has any other questions as to any of the other claims i will just refer to the superior court judge who acknowledged the lawfulness of his investigation even as he dismissed mr lewis's st criminal complaint and he said the veterans administration did right in calling the veterans police did right to be concerned and they did right to begin no reason to think you knew anything about what they did you know to these specific claims that the court has highlighted but there are also false arrest claims there are malicious prosecution claims there are use of process claims that challenge the family duty of the investigation and the rest of prosecution  month period and continue his counseling and that was cited as an agreement that the people made with mr lewis that was accepted so we do not take that we don't believe that that would constitute a favorable terminations in that the charges were dismissed without any action by mr lewis he had to take some action in that he had to maintain a clear record for six months and continue with his counselling well the nd time they national threat and then they went and then they said i'm going to get you and then they went and they got another arrest warrant is that what they did they the decision was made to recharge the case that kind of a nd restaurant made within mere hours of the event happening she was not allowed she did not hurt and she was not given the opportunity i should say she did not ask to be fair but she was not given the opportunity to review the report of contact but she wrote  i believe it was four hours after that telephone conversation nor was she allowed to read the e mail that she sent to her supervisors that day so the fact that she the guy who was representing her who was representing me she wasn't allowed he was going to shoot somebody why the discrepancy was i want to go shoot dr merchant vs i am going to go shoot dr merchant and the prosecutor who ultimately took on the nd criminal case said it didn't matter to him it did not foreclose the ability of refiling the charges i took and we filed the charges but how can they refile and charges with a statement different from what she's said under oath in phatic set because that was different than what she recorded initially which was not under oath but this wasn't around the wrecked your honor and i think that the theory was she would be given the opportunity to refresh your recollection as to with her contemporaneous statement in terms of the sequence of events i think it's clear from the testimony that they base the charge and what is the is said right and that there wasn't anything in the interview with mr lewis a couple days later that was relevant to getting the arrest warrant or anything so in terms of law enforcement objective or why they had to increase the pressure and do the things they did they had enough to get the arrest warrant were proceeding based on what their witness was saying now our position is she lied about it and that she got confused she basically took the erroneous information from a prior flag and did that that would be that's a disputed  disabled and the symptoms are very bad when he doesn't have his drugs so he was trying to do that in fact he thought ms this was his godsend she actually arranged to get him the b t s the drugs at the end of that conversation and asked them to come in the next day to the pharmacy where he picked them up without any officers surrounding him or any concern at all he got the drugs and so they come to his his house and in fact he did tell him to stop he tiered up he's confronted by these two guys one of whom is running around lunching at them threatening him calling him a baby killer questioning his sexuality then that's not it seems to us at least and based on the case law and that we've cited that you can't officers can cross the line into extreme and outrageous behavior this is not an ordinary foresman case we're not talking about some the fact that when people are arrested sometimes that causes the stress of course it causes distress police citizen interactions often cause stress and we're not talking about that kind of case it's not ordinary behavior to threaten to take people out and beat them it's not ordinary behavioral to call a vietnam vet a baby killer and all the other things that he called them lunge at him and physically threaten them and then come back and threaten to shoot him if he doesn't open the door quickly enough he had and the nd time around why go through what they went through in terms of even when they got the us where they were using the same arguments that had just been rejected by a spirit court judge and adding a witness intimidation lived he was he had never had promote charges against them before right so he just left this life and then six months later they dismissed the case and there are from our standpoint there's a there's a question of fact as to whether his attorney and the da discuss that and i don't know if it is not clear that mr lewis was and it was even in court at that but then on the one hundred percent sure but i don't believe he was asked whether he was wanted to be part of the scheme his position is i didn't do anything wrong and i want my name cleared that's was his position from the beginning to the end i did not do what they said  take a five minute