please the court my name is bryce brewer and i'm here today on behalf of the family actually it's the special ministre jimmy gladden on behalf individually on behalf of the family members of the late bradley scott glad and we're here significant least twenty fourth we started our brief at least twenty four material facts in dispute in this matter your honor and we asked that this case be remanded back down for a trial and to determine that matter your honor the first thing that we asked about is we go back to first was the part of what's custody and both the both parties here in this argument spend a significant amount of time determining what is and is not custody here and mr gladden ask to be transported in this police guard if he did how can he say how can it be argued that he was in custody if he voluntarily placed himself into the situation that he had requested another words are you arguing that that placed all police officers especially the did these officers know about it yes these officers knew about that they were under a continuing duty to once they took him into their well that we call it custody or there and and this is ease numerous public intoxication in fact this was while this was officer rich boards first encounter with with mr glenn this was not officer him off first encounter with mr glenn and we mr rich bored called in asking for a background on this young man and he found that obvious his driver's license been suspended there was name was public intox is but in the email seventy two hours prior to your honor which i think is important here the court says and if you'll give me a second to get to that and i'll come back to your answer there argument now that the constitutional right that was violation violated was the constitutional duty of these officers to take him to someplace other than where they left and they should not taking the where they left the mr on and i'm thinking at this point in time they had a duty to protect mr glenn for one part that e mail to these officers telling them that we're going to civilly commit him let them know that mr gladden was not competent to make decisions on his own and so when at that point in time at the waffle house when the phone call came in by mr snowden saying that we have an individual drunk has been in here for several hours making a saying these officers were dispatched after that call when they got there they asked mr glad to leave the well waffle house and join them outside the ritz boarded a pat down discovered an open bottle of whiskey and during the course of a conversation there mr gladden in fact say that he wanted to make a phone call but was not permitted to go back into the wall full house and he said he wanted to go home the state no say want to go into lonoke that's the testimony into the record here but his own sister wouldn't him come to get him he wanted to make a phone call to his sister is what monder standing at this testimony the testimony is that he wanted to make however you are he wasn't allowed to even make that phone call to get the determination of whether or not the sister was going to come get him or not he was never allowed to go back in the waffle house furthermore there are a constitutional right to make a phone call only if you're in criminal custody guess mr your honor the point that i'm making is mr gladden was in their custody that he was not allowed to go back in to make that decision he didn't have the opportunity to leave the premises own his own he had the option to go into that waffle house he was under there dominion and control when they took him from the waffle house did the pat down we have plenty of time to call while he was in the i view that video he came in when he talked to people he went on why could he not have called by coherent phone call i believe that mr gladden was incoherent to the point of the people who were there said he was drunk but not as drunk as you usually was they did say he was drugged drunk however there is no public there's no public phone in that while fast he had asked them for permission to use that for one but he didn't make that phone call then when he got outside he asked officers we could go in and make that phone call and then they never let him do that your honor they kept him in his custody and his control and the evidence is clear on that that the officer said you may not go back and make this one go officer rich board put him right in his car and took him out to lonoke ineffectively into the middle of the country late at night and let him out at a place where mr glanton was apparently pleased to be dropped off your honor i don't know that mr glad i should say please that was not correct statement but is willing to be dropped off your honor mr gladdened if when he wanted to go where did he want to go specifically what did he think these off that word were does he think the officer should have taken them after him half your honor has prior to this had taking bland home to his actual home with his sister before in lonoke county your honor and they had made that trip before the department of north little rock had by their chief bradley's test my they had an unwritten policy that they've had people travel transported back to conway before which is outside the jurisdiction in the fall or county before they transported people into lone accounting for about three months until that's all right i don't and i'm trying to get to specifically what was the constitutional right that was violated in this case mr glenn had a duty to be protected when he was placed into custody and not being placed in danger he was put in the back of a car officer rich board he couldn't get out of the car he was taken to where the officer rich board wanted to let him off these two testimonies of the officers neither one exactly where to let him off that whether it be corowa rimington road but he and they just chose he just chose a spot to leave him out basically saying here you are there's a place up there about a half a mile you can go to this man was impaired he was drunk he was known to this department and more importantly this department had to protect him because they had told all their officers were going to take him in custody and having civilly committed to poor help this man these officers chose not to fill out that form they chose not to take him in as we put in our first brief your honor the statute for public intoxication in arkansas mr glanton by the testimony of the waffle house personnel he said he was drunk he was causing a disturbance at the at the restaurant and they called in public and they called for police he met the definition to be charged with public intoxication it's a cold not these officers could have taken him like they done many times they could taking down to the drunk tank in north little rock  at twelve o'clock at night on a cold december night impaired under alcohol and gave him back his own open bottle alcohol and left him to his own devices at least fifteen miles from his home and a good twelve miles from the city of lonoke he was dressed in just shoes jeans and a long sleeved t shirt and a light jacket the weather that night your honor we take in north little rock our ratings from the airport and so i'm going to give a range we know the tipper was somewhere between twenty five and thirty five degrees that evening when he was let out his jurists their own expert if we take the defense's expert as being true there his own dress would allow him to be go maybe six miles before happed army sets in on a known alcoholic like himself who we know it had to be ac of at least point one nine five right there at the junction area it's a busy being busy intersection there's multiple restaurants hotels gas stations fast food restaurants that are open twenty four hours a day it remains in road where he was left at his own devices there's nothing but black but what it did they point out did the officer point out to mr gladden that he had he could walk down there he tell mr glad that he could walk up there you have to go up the exit ramp your honor and go around a corner and the riminton plant you're on if mr glad knew it or not we know what we know from the record is what rich board testified that he left he let him out of the car because mr glanton could not get himself out of the car let him out and said there may be a guard shack up here at rampton road that you can go to that's a good half a mile my question is if you germany and that twelve miles from why did he make that other half a mile drive to take him to that guard shack your honor he chose to let him out of there but let's get ultimately suppose police department when they transported him there that evening and left him in a deadly situation ok and then and the issue of law would be that that was what that violated the fourteenth and fourth and because of what a snap decision your honor they had time to deliberate and these officers deliberated to choose to take him out there and they left in this wasn't a quick decision and the fact that we took a human being and put him in the country it's not like we didn't stray animals to the point in time your honor shocks the conscience and that's what this jury will be charged with asking to find well your your numeration of the of the elements that you would have to prove at trial began with a finding or proof that mr gladden was intoxicated but you just said how would you how do you how would you prove that the officers say they didn't think he manner the officers themselves smelled alcohol on him your honor at their time they got there since he was driving a car your honor obviously i don't know why these officers chose not to do feel sobriety test but this is a known person to this department who is a known alcoholic who has an e mail to these officers says we know he's a known alcoholic he has a drinking problem we're going to civilly commit him the next time we pick him up whoever picks him up next fill out the night when he said something more than that didn't it it said the next time he is taken into custody republican talks occasion and they could have done that here judge shepherd he met the statute definitions for a chart but aren't you know i mean you're understand the dilemma that a plaintiff is in in this situation because the only witnesses are the officers really when you get around to the personal interaction here and it just seems to me that you've got a it's really a problem for the plaintiff in this situation where the officer state that they didn't believe the man was in was intoxicated in the only other proof that you have is a video tag we are we have there i want you know there are a lot of people out on the street that are erratic in their behavior they're not intoxicated you are i would in last thing for us a down here just shepherd i would argue that we have three people in that what was full house who gave statements that would testify that they built like that bradley scott gladden to a lay person was intoxicated that on that evening your honor furthermore we had the testimony of both officers that they indicates that he wasn't except his intoxication perhaps the fact that he had been beaten up and deprived of issues earlier in the evening the point that the point warden that mr brewer relies on is not a matter of drunk or intoxicated or the legal limit but for purposes of this yes you're on of it it's a question about whether he was intoxicated but the point of the expert made is that intoxicated does not equate necessarily to being over the legal limit he was over the legal limit that doesn't mean that you're toxic ated but even  had no awareness of what he was his game plan for surviving that night he was trying to take off his own shoes taken off his jacket mr goulden had shoes on was it trying to take them off at a jacket on had a plan to get back to his sister's house although a sister refused to help  him he was not a danger to himself or others for that matter he was able to make a decision he negotiated with the officers he said can you give me a ride alone no we can't take him alone no matter what the county line short all right grab your stuff you want to get in the car and he did voluntarily which sets a really should set aside the custody issue i grew the wrong in that it really puts it too far afield for me and that's really what this is it's a choice t officers made between leaving him there which was a dangerous situation mr snowden in fact agreed that she knew the neighborhood knew he was an alcoholic and knew the dangers that he was in if he stayed there imhoff said our goal was to get him off won sixty one so they were trying to get him off that area out of that area and it's important to note i understand the sister's house is fifteen more miles away from it remington road but mr brewer is incorrect mr never took mr gladden all the way to a sister's house mr mr imhoff or imhoff took him half a mile away from the remington road exit that's where he thought mr gladden lived off a street he said half a mile down rimington road so this isn't an issue in which officers left him out in the country fifty miles away they didn't know they thought he lived in that area and that means they're not deliberately indifferent that means it doesn't shock the conscience about their disregard of this leave that's all it said and this is a misdemeanor too so an officer would have to go in there take the word of the dispatcher which is second hand and then arrest somebody without even saying the crime he committed in front of them that's a fundamental element ele at that point i would not want to defend the officer that made that decision because the crime the not having in his and his presence on him what crime what crime has to be did he have to go commit a misdemeanor or a felony before they could take him into custody under this big arkansas law to rest somebody for a misdemeanor the crime has to occur in your presence and public intoxication as a class a misdemeanor and plus the officers  say well they're human these officers maybe their perceptions changed after they found out they were being sued but there's no evidence that their stance has changed the day after they met they made those people don't admit that i've changed my testimony well i understand that your hon which for me would be more than a buzz but he said he was fine he was drunk but he wasn't incapacitated was he a danger to himself snowdon mr poe troy were all asked was he a danger to himself no no no he was not and that's the issue now whether he was drunk whether he could have said that were these were the medical people who testified that when either of the officers they're all making gut reactions and that's the same reaction who said did the employees at the waffle house said this fellow's not in any danger they were asked the next day by that by the number of our police department was he danger to himself and they all said no and the jury's not there and the jury's going to have to make the same gut reaction and may not have walk six miles sixty to ninety minutes that was where gus i'm sitting in his office in berkeley california when he's talking about this and i agree in the jury's going to be sitting in a box and having the same information he did and the point is that the jury might know a little bit more about weather conditions in arkansas than dr guston who's gone for higher he want to call him perhaps you are but he knows the temperature and it takes to die of hypothermia the jury does not and that's who they be listening to and the point is very some have times have more common sense than these  line the answer that question has to be no it's much that the way to phrase this constitutional question and if it's not our opinions have said you know talking about and with all due respect to judge miller's order and memorandum analysis did it really provided third determination of the claim of qualified immunity as our cases say we don't like truncated orders now and i don't know that i would have put it a rights to be placed where he was placed that dark windy ni that if we if we decide based upon what we have before us including that video that this man a reasonable officer officer should have known that this man was in no position to be dropped off at night at least a half mile from security house that the man had no knowledge of or that was invisible to well i believe if i may if if the question is whether or not you can if somebody asked to be dropped off a certain location that you understand to be close to where he lives and that river but still it's a decent case says you can't the police can't just say well we gave him options if he was too incapacitated due to to recognize that he had those options this is not written this is not anywhere near incapacitation that the people fallen down where he should have had to held on to something that would have been the point and it's not they are he simply not incapacitated and there's nothing in the record to indicate that now the them had these his home than he had that than this officer had previously i think in him it was a bit of a we're not really sure officer imhoff wasn't sure if we took him to corrode and then joe half mile away or took him to who said that he dropped them off at remington or curb before and that's were officer rich per took him which was ten miles closer and what was the original destination this evening this particular county line which the next exit over the county line is corrode and can't testify to that but you can see it it was what it was better late on the scene as well it was better lit there and that guard shack had coffee heating and air had a phone that he could have used if he chose to and this is a man  who goes the neighbors to strangers houses and asked for a ride asked to use the phone that's his m o he chose not to do that today or that not all maybe he was  to when i'll agree with you for purposes of discussion that the facts in this case in terms of intoxication are not like roared where new was anyway yet in there the visible i mean the evidence in any way i don't doubt that or saw it in other words if this is summary judgment would take all the facts in the light most favorable to the nonmoving party and there's a level of into question there's testimony about intoxication so i'm driven back to my own question could a reasonable jury based upon the evidence that we have seen thus far could have found that he was intact this man was intoxicated to the point that it was constitute a deliberate indifference to his safety  constitutional right to safety if we want to put it that way to be dropped off in a dark area at night in a cold windy more night you know you're on i guess there's going to be the question before us perhaps but there when you look back at lord and canape and monger these are fall down drunks i mean this guy was not falling down he was articulating he didn't get taken from his friends and in a state of a state of siege stevens says it was a red herring the intoxication was a red herring it's not intoxication it's incapacitation and to put the put to put the burden on the officers in this gray area i don't think it's great honestly but at the worst it's a gray area to put this this burden on the officers that you can't driven another how far could they have driven to get into the good officer him how far would officer emberg have had to drive to get gladden to the security house half a point four miles i believe pedro crow flies probably to know in retrospect it's are you saying in effect to mr grant was better off by himself in the dark than had even remain allowed to read had he stayed at the waffle house in the question is was he better off half a mile from his sister's house which is where the police thought they put him or half and a half mile off from where he had been dropped off before that's the question they didn't know he said it i guess i didn't realize that they thought he was within a half mile of his sister's sons but half a mile half a mile of where he'd been dropped off before which imhoff understood to be a sister's house so he lonok door was unlocked that person could come and go out of the back of that car mr glad once he was put in the officer she car he couldn't get out and i'm not saying that they had a date where i'm at in this case  binns e mail put those officers on notice mr gladden was competent to make decisions and that the department themselves was going to take the steps to civilly commit him when they got there that evening he a public in top someone intoxicated in a business that needed to leave they could have left him there that counsel wants to say oh we did a good thing because we took him out of this populated area where he may or may not have gotten beat up because if you were calling their glances i got beat up and they took my shoes to get he's got his shoes on to even know of glenn's coherent enough to tell the officers what really happened beforehand but they want to basically say hey we took him from the crocodile five give explicit see you know a detailed events chronological of what it was how he was intoxicated what he had been doing so they could go to show a judge that this man was incompetent was a danger to himself and others and they needed him to be civilly committed and i want to thank you on all we thank both sides of the argument as judge chief judge miller said it is a  sad case a tragic case and it's now submitted and we will take it under consideration