good morning on our good morning my name's richard why represent mr killers and police court counsel you maybe raise that microphone a little bit so ok in here you and your fans out in the ether can hear you as well since this is being recorded ok is that better good for you thank you this case is really about  officers who are you use force to try to resolve a situation quickly rather than waiting to get full information and seeing what develops and that use of force to resolve a situation quickly has been well established in this circuit at least that it's not a justification for the use of force counsel it's aversive i have a deep sympathy for your client both for his medical condition and for what happened here i'm just grateful that only at the taser was involved in not a firearm but i know you'd said tasers firearm but the the reality is is free in court recently white versus poly reminded us that what we're looking at here is the reaction of the reasonable lobster on the scene entitled to protect his or her life admittedly your client may not have had full control but when the call came in earlier there was an indication he was armed he was you know not rational and he was doing things i know he was had a problem the army he was trying to reach down to his waist in the officers bought presumably that there they were had some risk and then when he was down the second time he would not submit so they use the taser a second time whether we would have done the same thing is the issue but aren't we struck by supreme court precedent that says that if the officers had a reasonable belief that they were in fear of harm that they could act if they had a reasonable belief but if you look at the facts as you must in the light most favorable sympathize with you and that kind of in certain situations but this is quite different is it not i honestly don't believe so for the other thing that i think is there where the district court went wrong here is that the supreme court still says you have to make that decision to officers have to have a objective belief that they're an imminent risk that it a risk of harm and it has to be that objective believe has to be based on the totality of the circumstances they cannot pick and choose oh i know this information i'm going to ignore this information in making my decision they have to factor in all the information that's available to them let's talk about the information that was available to him because it's not clear that the deputies read the text information that was relayed by the by the cat county dispatcher so maybe you can you know outline for me the other evidence in the record that you think supports why the deputy should have knew about cancer since medical condition first of all the that was that information was that he was extra that he had a special medical condition was extremely sensitive to touch was given to them by the sister who made the report in the first place it was given to the dispatcher yes all right but the police officers on the scene did know well your honor there's no way that that i can or any of the plaintiff in this circumstance can prove what if an officer says i didn't hear that i didn't read that but that's why you have juries decide these cases they decide whether that's reasonable whether that actually happened or not the fact is they have the information was readily available to them and now they claim they didn't know or they chose to ignore it they're not allowed to do that objectively they have to consider all the the information that's available to them and here's the most important part of this case when they arrived at that parking lot first of all they only had a report they knew nothing about the person reporting this they had no reason to to judge whether it was true or not they were simply investigating because it was a report there was no but they did hear they did acknowledge that they had heard over the radio this but they don't know who's doing the reporting they don't know what that person's biases may be or what their intent is so it's simply a report it's not an established fact counsel with respect i'm sure you're a very fine lawyer but i think you deeply misunderstand the supreme court's teachings of our qualified immunity is this is just not accurate what you're telling us an officer on the scene has no obligation to investigate the biases of somebody making a report they're the they come across this gentleman they don't know about the necessary medical issues and even if they did even if they did if they had to believe that they were in serious danger of harm they have a right to act now do i agree with frame court probably not in a lot of cases but the reality is they're the supreme court they give us the law they give us the instructions and we have to follow them and we don't get to a i'm trying to make here and i'm running out of time is that no reasonable person would act off as if something is a fact when all they have is an unconfirmed report that rules if that was if they could if they could act in that manner just on an unconfirmed report they could simply have shot mr kennison on the spot because they believed everything they heard on the on the dispatch report and what do you think you're suggesting that the officers have to say wait a minute mr kynaston we need to go investigate that last is of the person making the report see whether it's accurate that's absurd no i'm not suggesting that at all but i'm saying they have incomplete information when  park course they do ok of course they do that's everyone only sophos or has that you don't have the full information but when they come to investigate they are there they're trying to carry out their duty and if they feel like they are in danger of imminent physical harm they have a right under the supreme court's rules to act now you might not do it that way i might not do it that way there are some really sad situations like we had in the lopez case thirteen year old boy gets killed for seemingly no particular reason and that one did go to the jury at least so far that i maybe appealed the supreme court but this is not that this is not that case well it  may not be lopez but what i'm trying to express here is that when the all cers arrived on that scene they knew there was a report and what was reported and they knew that mr kynaston was on the phone to dispatch  what was reported in your view or what did they know they knew there'd been reported that he was armed and potentially suicidal and had made statements in the past something about taking someone down with him but again they knew very little at that point he was in mr curtis was it is car he had not broken any laws they had every right to investigate but he was on the phone trying to communicate with them and he was telling us that i'm not suicidal i'm not going to hurt anybody i just want to go rest somewhere and what the what's the first thing the officers do they get other cars and draw their guns and put him in fear of his life that  is self is unreasonable under those circumstances so is your position that was excessive force from the very beginning or is at some point across the line i think this court could actually say yes because again when you pull a weapon out of point a weapon at someone that's a use of force right there but is it excessive given the facts that the officers knew yes why would they point a gun at this person based on the limited information that they had knowing he was on the phone they were informed excuse me they were deputies were that mr kynaston was potentially suicidal and had made statements that he might take others down with him he exit of the be able without being told to exit the vehicle and at one point he reached for his waistband they're clearly had some black objects on his waist are a belt containing objects on his on his waist and they had to had to react with all only true if you take all the facts in the light most favorable to the defense in this case mr kinnison said he was ordered to get out of the car and they the officers didn't describe objects on his waist until they had already tasered him that's my i believe that's what the the record indicates and that's not why they tasered him they the officer who tasered him said he tasered him after he saw him pull up the shirt not reach for that the court was posing to mr wall i would like to just start with providing some citations to the record you can stop me to any time because it does appear that you are well informed but that record  wells argument is a typical qualified immunity argument there's no dispute about that so what i'd like to do is point out the facts that we are accepting in light of mr so we are accepting that there was a medical condition and that you can find that very clearly in in the cad if you look at the three officers declarations which obviously were done some time after their reports were written one of the three remembers additional information from dispatch that wasn't in the cat and that's that's actually fairly good two years later to remember you know additional information and that's that's the time he was a corporal justin elliott and he specifically did provide for the record that he was aware supplemental one fifty seven s e r one five seven thank you but then we also have the cat in the cat is the information that they did know the officers did no prior to arriving on scene and you can you can look at the cad which is at page e r one seventeen and it'll it'll tell you the information that they most likely heard or knew before arriving on scene and those are that the brother made a suicidal statement left at twenty two hundred possibly has a handgun he made a statement of taking people down and it does say medical problems but there isn't any indication as to what that medical problem is but nonetheless again accepting the facts in light of mr kinner hsan two of the deputies recognized that there was something wrong with his right arm that's not disputed and they close enough to see anything so anyway mr kynaston also states that he wasn't yelling or swearing and mr jenner since submitted that that also creates a question of fact it may create a question of fact as to whether or not he was yelling and swearing but that doesn't change the material facts which entitle the officers to qualified immunity which is you were just referring to the officers and what you acknowledge because it's one make sure i understand after the first tasing i think it's officer elliott testified that he became aware mr conditions are condition and i think it was officer charles test testified he became aware of that after the second had a bad are it is your honor and unfortunately in these types of situations for you know unfortunately for generally the plaintiffs or the suspects that's a subjective statement i  recognize that we all assume that somebody is is telling the truth but that's not objective in other words the officers are faced with the objective  they're visual so what they can see with respect to what's on the waistband with what they can see in his arm you know one goes up one goes down i guess tell me why you think the second tasing was necessary i believe it was necessary  those deputies testify that even though they may have some awareness of a condition they can't provide aid until that person is under control using the taser was the better option at that point in time because justin elliott had been trying to get his arm behind his back that was obviously causing him more pain using the taser i recognize that many people have differing opinions on the use of a but in reality it was a one to two second drive stun which is not using the probes it is a pain compliance technique but pain compliance techniques are also body strikes that they're well accepted by courts when they're objective lee reasonable so in this case the use of the taser on that one to two second burst immediately gained mr conditions compliance mr conditions conditioned by his own his own testimony will be better served by hands off which is exactly what happened as soon as mr kinnison calmed down any they felt like he was no longer a threat in other words they could check his waistband to make sure it wasn't a  he did have a knife but to make sure that there were no weapons and that he was calming down they were able to actually take that other handcuffs off so they never handcuffed him as soon as he became compliant all force backed off so from that the reality perhaps a very sad reality that given the current state of the supreme court's view of qualified immunity if the officers hadn't tasers on their person but did have firearms and felt threatened they would have been entitled to shoot mr kennedy yes or i mean one of the circumstances tragic though they are they applied  force thinking that they would be safe still and yet bring the in this case the powell and into compliance is that a fair statement that that is your honor and that's this was i mean they were fortunate that they had three officers there that mr kingston was fortunate they were all actually very experienced because yes one of them and i recognize it was an issue raised by mr wall did raise his gun when he saw mr killers and reaching down the gentleman who deployed the taser was i have been on the swat team and he had one hundred forty hours a year including that additional training it was a very very good use of force that went quite frankly as well as possible given the sick the situation and the information the objective information that they were given at the time you please address for just a moment again how dark it was when this incident occurred it was midnight your honor it was in a churchman parking lot but you know so there may have been some ambient light there was a portico i believe that they actually took m to after he was compliant so there may have been some ambient light but that didn't change the fact that they were unable to effectively establish what he did or did not have on his person any other questions or owners there was some question about the judicial admission or do you want to comment on that and i'll just say that that was probably was not one of my better moves but the reality of was it with my experience with judge quackenbush you were better off to simply state from the very beginning where you recognize your problems are and the argument and you may or may not have agreed with that was that there can be questions of fact but they have to be material and that was one of the things that i was pointing out when i said look here's here's what we accept  but it doesn't change the undisputed facts that are material so in other words it's not necessarily material whether they were yelling it's not necessarily material whether or not mr quinn or sin was trying to show them their shirt because that's that's the subjective component of it so from your perspective the facts that you admitted were not material and would not bear on the qualified immunity issue yes your honor i believe that the biggest issue on that was mr  for the first time or is that they had been they had kicked him and there's no indication of that in in the record my submission is and we talked about that very briefly with respect to a taser versus a body strike you know obviously i submit that it's not in the deputy's reports they are obligated to say if there's a strike use those reports are very detailed and they do say yep we used to taser this is exactly what we did this is how we did it so i think from my perspective i was simply raising the issue that yes there's