part of the city of new york i would ordinarily dispense with with calling the calendar in such circumstances but just to make sure we're all here judge parker you were on the line reynolds united states steve bryant and then yang the new york city fire department and we'll take all those cases on submission but it looks like we are all present in the argued case and as counsel knows we've set up a procedure where you will begin with three minutes of uninterrupted time so i believe we're ready to proceed counsel for a questions about plans for i'd be glad to address them in regard to point one is part of reasonable accommodation a da claim there's only one issue whether there is a genuine issue of material  denied in this part of a state custodial environment when they failed to accommodate her epilepsy by ignoring her repeated requests where necessary medication to you in the evidence in the record in the light most favorable to this tired as the start of prickly to leave requested her requested warning dosage of medication for her epilepsy in the precinct repeatedly the n y p d ignored that request and she experienced a seizure in a cell ascendance have failed to offer any explanation whatsoever to the denial of her medication the service to which this part of her isn't titled under the a was a safe custodial environment where her health was not compromised a service in disputed lea afforded to all detainees whether disabled or not the reasonable accommodation an unexplained denial of medical treatment to a disabled person in custody unlike a claim for inadequacy of medical care constitutes discrimination by reason of disability and as this  versus bloomberg and eighty a reasonable accommodation claim can be established with evidence that the plaintiff's inability to obtain services was not always so related to her disability precent as the magistrate held in his report and recommended is reporting recommendations that there is a dispute a fact whether or not at the twenty at the precinct she got any care at all because she was denied care that's the difference that the common case makes it's a difference that the gorman versus evenly case of the th circuit makes the difference between questioning the kind of care the substance of care and whether or krieger just following up on judge parker i'm not sure i understand this distinction that you're making if your resume accommodation includes medical services or treatment i'm not sure why there would be a distinction between a denial of care and inadequate care but putting aside even under your approach every denial alleged denial of care for example in a prison if an inmate doesn't get medication on one day then what would happen under your approach would be  the whole framework for deliberate indifference claim under section one thousand nine hundred and three and all the standards for that would be completely replaced by the a b a in that situation wouldn't be every single denial of medication of an x ray would all now come under the distinction is if there are circumstances in which the prison has explanation the explanation could be here that they were trying to get the medication and they didn't get the medication they could get it quickly enough yes mason could be that doctor decided to get the medication that's the kind of issue that is not covered by the i d f but kind waiting time in kind when you keep focusing on kind which is i think the only case out there that would argue we support your position but that was no medication for a long period of time wasn't one day it was theory there was that you're denying this person treatment for so long that they can't even use the services of the jail theoretically i guess but this it wasn't a one day denial of treatment right that's correct year on year however what we're dealing here with with pretrial detainees and i don't see how at least in terms of the causation requirement under the a d f a how there's a distinction between multiple times of repaired of time at the time and and here with you baby p to request it's not like you made one request but battery claim it seems to me your position is an anon a rest a chew a sion a police officer can never use force without being liable for a battery is not your position not  position is that force can be used for example in a crowd control situation without it being a battery so we might i think you're suggesting that reason this is not the standard for crowd control anonymous situation however one of the elements a battery is an offense of conduct contact and that does judge there is a judgment of reasonableness but that's reasonable ness from the standpoint of the victim so in other words in a crowd control situation room if a reasonable victim would not consider that the minimal force  judge and officers use of force from objective reasons from the standpoint of the officer what was in the desert and getting it from the new york common law battery one of the elements sensitive as to its personal dignity and the p g a i realize the statement of what nd which gives an illustration that just i think very similar to what what you're talking about judge in that situation the ls ration they give is a while walking in a densely crowded street deliberately but not discourteously pushes against dean to pass him this is not offensive touching the simile here you look at the reasonable mistake hundreds from that standpoint this is new york law under battery you look at from the the reasonableness of an ordinary objective person whether or not using the social usages of the time again knowing the griego that i had ignores that officers have a public function never ever put words to use reasonable force in a whole argument with respect to sergeant mccarran and how that was an issue with respect to his use of force but such mcmanus even if that was in your own use instruction there was no issue it was either that minimum i don't believe so your honor because it's unclear from the jury know whether or not the question that they ask about the use of force in the performance of it was crowd control and that and so there was an argument both by the defendants in this case that the reason that i think mannus did touch her was because he was trying to separate the crowd in order to be able to take an arrestee from union park all right thank you very much thank you justin follow up to that question because i have a similar question about the record so you're saying that that  say that the mistake wasn't harmless because the jury might have concluded that he he touched her but it was inadvertent as he said it could have been if it happened right because correct your honor your cases that hold that if an arrest is determined to be unlawful any use of force in the context of that arrest constitutes a battery but i share my colleague's concern that these cases are about unlawful arrest and i don't see them as estab shing the principle that force used outside the context of an arrest always constitutes an assault and battery or outside the nearest circumstances you've described this morning is that seems to me an extension of those cases so are there trial on the model of medication whether or not it was a decision based upon some other factors other than just a pure denial and secondly should be americans with disabilities access to services programs or activities by reason of disability in the context of medical services or treatment that means for the disability has to be the reason why the plaintiffs was on able to access services evidence in the light most favorable to her denied medical treatment while in custody because of her disability she was denied medical treatment for a condition of her epilepsy moving to the assault and battery claims the district court properly charged the jury that in assessing just harvest a lot of salt and battery claims if you consider whether any use of force by officers was reasonable under new york law a police officer privileged to use reasonable force is not just targeting correctly contends limited soley to the context of arrests but extends more broadly to accomplish the performance of their duties including as relevant here crowd control which officers then and allow the plaintiff to access a form of treatment that he was authorized to receive how do you distinguish that that case well i agree with judge young girls that it's a true that the city didn't offer any explanation and didn't offer any treatment the city has protocols and someone's taken into custody so many can't just pull out a hypodermic needle and inject themselves with medical that non disabled people were allowed are allowed or were allowed to south medicate while in custody correct drama that you know it's still difficult to draw the distinction i mean  if we proceed on an eighty a theory it's parts of your brief seem to say well there's no evidence of bias here and there and i think your adversary is correct that in a reasonable accommodation claim that's not part of the theory so so  how is this different how would you distinguish our decision and right where we said a prison had to individually evaluate an inmate request for a motorized wheelchair even though there was a mobility assistance program go ahead it all right there was that it was about access to other other services that were that had to have to be made available on the same terms as as not to non disabled  actual language university hospital court observing where medical treatment is an issue it's typically the disability itself to rise to at least the tributes and media services and so the section five a core which is title two of the a b a religious discrimination against a disabled individual only where the individuals disability is unrelated to a must in property to consideration of the services in question so it right you had a situation where because right had a disability he wasn't able to access other services in the prison that were available to non disabled and disabled prisoners alike was a question  receiving treatment for his disability i don't want to use up all my colleagues time but before i pass you on to you could you address that even if we accept your argument with regard to the assault and battery claim that force can be used outside that context you acknowledge i mean outside the context of an arrest and then will be assessed and or a reason want to standard you acknowledge there was an error in the instruction on subjective intent so so what is your basis for asserting that that error is harmless because if you need it it's supposed to be in the context of the entire charge  denied that he made any contact at all with tartous let alone pushed off across it he testified this is a page twenty five in the appendix that the st time he saw lho was when she was on the ground so there's there's i mean that the argument from the attorneys in the latest was always challenged in the phrase was you know this was a reasonably supporting crowd control and their position was d no this is completely unjustified he ran out focus up focus on again on that issue of harmlessness which relates to that charge i guess i'm having a hard time understanding if you're saying look at the charge overall but this note was asking about a situation the use of force sion that the judge had never instructed on that there was a gap in the original instruction so it wasn't as if there's an earlier instruction on this that was correct there was no instruction on this and on the issue of whether or not good faith was something that the jury could be focused on such material testified that he believed that she was about to run into the officer and that was the reason for the growth the use of force so couldn't a jury have concluded here that such a i'm a terrible weeping good faith that the plaintiff was about to run into the officers back when he grabbed her but at that belief was unreasonable but under the instruction they would have found him not liable even though we know that that's incorrect and there's an argument i know the focus wasn't on you know subjective intent but in the summation i s happened let's look at the facts and circumstances which is discussing the object of facts and circumstances i'm not i'm sure you're correct in saying that somebody was a statement about them not being monsters like not coming to my mind right now but i know in our grief we certainly stressed and highlighted all the areas where they were pointing out this is based on the object of reasonableness and even the factors that were given in the st factor that they were told to consider it was the need for the application force in the why he reached out and tried to push her away from the person they were d going to run into but i don't i don't think that they could conclude that you know this was objectively reasonable but could you briefly address the proposition that the proposition that the penal law provides that this use of force that there was no justification defense in this circumstance if we just look at the statutory justification defense why shouldn't we look to that in this context were wrapping up but i had asked one final question could you just briefly address the argument that we should look to the penal law this was an address in either brief but your adversary relies on the  statutory justification defense in the penal law as the crux of his argument and you support outside the arrest context and i just wondered why that should inform  precise scope the defense of thirty five or five would never applied to accusations requiring a killer criminal intent because  servant with hardly a search that the theft was undertaken as a reasonable exercise of the official function in other words for example if a police officer is speeding in order to of the victim so new york law in a crowd control situation will our contact as long as a reasonable or near person would not consider that to be an attack on their personal dignity it would make no sense that this could this court to hold that there is a greater privilege for law enforcement officers privilege in the nominal rest situation than in the situation of a person who of an officer who makes an unlawful arrest you let me ask your hypothetical a high public official is coming out of a building the police are standing there doing surveillance and crowd control and individual comes running racing toward the  entrance where the official is is is accepting the police the police officer believes that the person is approaching the official restraint german push or pushes the person down that but that's not necessarily an offense of contact what you would have to determine what the judge summary judgement really would have to decide is whether or not that contact was one that would have found an ordinary person not unduly sensitive to his personal dignity in a situation like that and one of the everybody you know the everyone who was animated enough to bring suit would say that was i was just running for a cab a police officer came over knock me down and then the question of fact you're on a would be whether or not a reasonable person in that context with the official coming out of the building would consider that to be offenses and that would be an issue that the judge in the st instance would decide whether or not a reasonable the objective victim in a situation like that would consider that to be offensive so the crowd control situation is addressed by the new york battery law the difference is is that under the justification defense you look at the objective officer  in the state battery contacts you look at whether or not it's reasonable for from minute jack to then that there should be contact in that situation if there willingness to argue in this format we will take the matter under advisement and as that is the only case on the calendar i'll ask the clear to adjourn court