second is the jury instructions that were given in these type of cases these police misconduct cases inevitably the facts are going to vary sometimes wildly depending on who's telling them and at the summary judgment stays the court has to take the facts the light most favorable to this and that the data and medvedev his testimony differs dramatically from the police testimony leaving us with one issue and that is whether or not she could be arrested simply for not opening the door when the police asked her to open the door and in the course of an ongoing emergency in the course of ongoing emergency right and i just i don't mean to interrupt but did it isn't there  forty minute gap since we're getting that uncontested facts out of the way isn't there a forty minute period before they force their way in it's a significant amount of time i think it's somewhere between a half an hour and an hour ok that's good enough for you there and we're not contesting the officers decision to come into the house we're arguing that there has to be probable cause to arrest her and the arrest is based only on the fact that she says or she does not allow them into the house that's the obstruction the rest of the portions of obstruction and the rest of course ins of the grounds for the arrest are disputed let me just make sure i understood what you said you're not disputing that they had a right to come into the house correct all right right i'm disputing them arresting her for not opening the door and letting him into the house because well how do they get if they have a right to come in and they won't let him in and then she won't let him in the bathroom maybe i'm having some understand difficulty making the distinction and you could clear that up if they have a right to come in the house which they have a right to come into the house if they believe there's an emergency right they have a right and so right there at this point she's in they're out they have a right to come in so we're green on that correct right now what happened the question well the question is can you arrest somebody because they do not voluntarily open the door and you can't it's a violation of the fourth amendment to do that because if you have a right to deny consent you can't be arrested for nine consent and that was made perfectly clear in the united states versus prescott that cannot be the subject of an arrest and the case that they're relying on the steve case was really interesting about that case is that the majority was cognizant of the fact that there was going to be under the dissent and the dissent is based primarily on the same argument that i'm making and in footnote two in the steam case the judge says we're distinguishing this because the person did not have a right to be in that and that property he did not own the property he didn't have a possessory right on the property he had no right to be there so he did not have a fourth amendment right to say no in this case she had a fourth amendment right to say no if she doesn't in the case of an emergency even in the case of an emergency she has the right the better rule is that you can't base an arrest on someone insisting on their fourth amendment right not to open the door this strikes me as case doesn't come close to the line she had thirty at least thirty minutes right right it was an ongoing emergency you're not contesting that the rule that you're trying to i think convince us to adopt is a rule that would be that the police literally wouldn't be able to enter if the place of burning down and they needed to render assistance no but i did not they need to get the fire crew in there because water was coming through the wall with the electrical panel that's the part i think you're not contesting rebut that's not my argument your honor the obvious i don't think it's my emergency manager argument because it really sounds to me like you think she has the right to refuse entry even when there's an ongoing emergency and she has really protected period of time you know it's not like you just burst in the door instantaneously so i don't think i do understand your argument the argument is can she be arrested for obstruction ok that's the argument all right and she and i think then let's take the next step there was that sort of scene at the door and then his judgement you're on mention but i don't think you went to it as soon as they came in she ran to the bathroom and blocked that door as well right only if you take the facts in the light most favorable to the defendant if you take the facts and the light most favorable to her she was already in the bathroom when they came in ok and she didn't stop them from coming in the front door right right which is what i thought you were contesting but she stopped them from coming in the bathroom door no only if you take the facts in the light most favorable to the defendant and you draw the reasonable inference is in a light most favorable to defendant she says that she was in the bathroom she heard people in the house if she was not fully dressed she began to close the door because of that and they pushed the door open the door being the bathroom door bathroom door right there but the next part of the confrontation if i can use that word is it is sort of a scuffle right inside the bathroom and if you take it in the light most favorable to the defendant that's what she does she contest that she resisted at all at that point you know she says that she was in the bathroom she realized there was someone in the unit she began to close the door to protect her privacy and at that point they busted in the versions of what happened and my argument is can you base and arrest simply on someone not opening the door and i say you can do is tell me it's not a question of her not just opening the door that's what's difficult for me i physically resist the police coming into the bathroom under the inference drawn from her facts so she began to close the bathroom door to protect her priva the excessive force claim actually went to the jury correct it did and they returned a defense verdict they returned the defense very and obviously the jury instructions become an issue on that situation if we were arguing a summary judgment motion or we were arguing to a court we could argue the fact that she had a disability and she suffered from p t s d and she was in a froze of a flashback which affected her abilities we could argue that but we can also cite the the two cases the two are the two primary cases on this issue which are the i think is the door case and the rather different case but the judge did not allow us to tell the jury that they could take into consideration the fact that she had an emotional condition and it's interesting because a lot of times courts will just look at the six instructions that are in the old mind circuit instructions and when the ninth circuit amended their instructions they amended that particular structure and they included an entire list and on that list is the very instruction that we asked the just to give which was that the jury take into consideration the fact that she suffered from emotional distress or she had a disability my understanding is when it got to be time to instruct or to to to draft the instructions of the judge last night asked what is what's your argument going to be and i think the response was that you were arguing virtually every step in the sequence of events right is there anything excluded no ok so it's really really broad and my follow up question is on the instructions that were given how did they prevent you from arguing your case to the jury because we continue to argue that the officers needed to take into consideration that he was not a criminal this he was just suffering from p t s d and was in a throes of a flashback and that was our argument throughout the trial and without that particular instruction telling the jury that they could take that into consideration it seems like we were asking the jury do something that there was no legal basis for well there's you have you have the totality of the circumstances instruction and as part of that the question is about whether she poses an immediate threat and it seems to me that within that am that you can argue what you did argue size her size versus strength officers during what kind of warnings were you what kind of situation she was in what kind of response she might have given the circumstances all that really goes to whether she posed an immediate threat and nothing in the instruction precluded you from arguing i thought you didn't make that argument that it was made at trial well i did make the argument your honor and i did the best i could but well i think you did a good job of actually making the argument a very good job within the ambit of the instruction but without that additional instruction which the ninth circuit has specifically put in when they amended the instructions earlier this year without that instruction we're arguing to a jury something that there is no written basis for what juror isn't normally do is they look for cues from the judge and if the judge instructs them that they may consider the fact that he has a disability and determining whether or not excessive force was is it makes a big difference because you're isn't looking for that guidance and what point did the judge did the evidence tell the jury at please the courts to esther's for the defendant officers in the city of kirkland whatever issues judge last night actually was given and asked upon billow were well within just his discretion nothing else to what are not disputed or admitted by point of she left the front door the door was open with a universal cue knocks marcie she ran to the bathroom there's only one place the entire department apartment that the fire department needed to inspect and that was the bathroom i think the question i posed to opposing counsel forgive me for interrupting was that she ran to the bathroom and he corrected me and said that he thinks that the the her testimony was that she was already in the bathroom maybe the door was open the but she was already there does that matter she ran from the door from the front door to the bathroom and what sequence well that's that's not what he just he just corrected me on that point and said that he thinks her version of events the uncontested fact was that she was already in the bathroom and my question i'll check the record but my question is does that matter no because there's not can he's only now saying on appeal that they can't arrest her for obstruction for not opening the front door however once they're in lawfully they have a right to inspect and she's obstructing them by shutting the bathroom door and he's in his argument as she was shutting the bathroom door to protect her privacy it may be her position but that doesn't matter that they needed to get into the bathroom because that's where she was they waited thirty maybe longer i think actually more minutes before coming in he's conceded between thirty to sixty but i think i think what we have is forty but be that as it may quite an extended period of time before opening the front door there was a l question is when they when they entered and then proceeded directly to the bathroom was there a whether she was already there or not was there repeated demands to let to let them into to the bathroom well what what no because what happened which is not disputed and he i think he just told you is that his officer would approach she tried to close the door so she slammed the door in his face and in her testimony was that she looked out to see because she didn't know who was in her apartment so the answer my question is no they didn't repeat the command no he walked to the bathroom and she slammed the door in his face and he blocked the door from being shot because he didn't want to go through the whole process again the record with her if you look at the cad computer aided dispatch report the phone call to nine one one was placed shortly after three o'clock and they radioed in one in custody shortly after four o'clock or so from and the water was running well before then so the officers arrived maybe twenty minutes after three more should have been done to make the arrest less fanatic and of a certain since i don't think she was allowed for example to put on any clothing she's just wearing under clothes for the you want to speak to that as to the idea yeah right  e the instruction that is being challenged was not challenged judge lives in a recess thirty minutes came out said how do you like mr parker said i like him better and he went on to discuss number fifteen the use of the term or in fifteen fifteen which is not challenge on appeal so he said he liked them better there was no nothing said about instruction number nineteen this is an abuse of discretion standard because it's the formulation of a jury instruction with a number of elements you have to recall the that this this arrest process would have been less traumatic had she been allowed to for example put on clothing she did say that the jury heard that argument  well but my question is different did he argued to the jury that she should have been allowed to put on clothing yes he did he argue to the jury that they should have taken her down the stairs because of her ankle injury he listed nine things i your theory going to be and then craft of the instruction and so mike my question now is a little bit different it's want to make sure that i'm understanding that that the jury heard all of this evidence is that right they heard in rejecting those claims there was witness two independent witnesses testified about what she or wasn't wearing and how she was being taken out and ok you've answered my question thank you donna if i could just go back briefly because i'm concerned about this you're right of states versus clients were operating under washington case law if you look at nine hundred seventy eight u s versus prescot which is never been cited by this court again or in the other that i found for the proposition you have a constitutional right to avoid injury that was had nothing to do with exigent circumstances it was the question which hadn't been decided in the seventy's about whether an arrest warrant was sufficient to allow entry into a residence to make the arrest and so the court was not dealing with circumstances and what mr parker is asking for is a right to create a public emergency or disaster by not standing your ground and saying you don't have to let us i'm not in the trial court was the argument made that the officers never actually ordered her to open the door knob in the complaint not in the summary judgment opposition but there's a sentence that mr parker made in passing reference that i didn't look at the record before the argument this in the transcript of oral argument i looked at the record below it before and i don't find a direct order so he did make that judge last night didn't pass upon it it didn't come to anybody's radar because he hadn't he didn't argue it other than making that passing reference  i would say that factually there was an order and if if that had been raised at a proper time i could have submitted a declaration of the officers addressing that i also put aside united states versus young and the source of it yes yes she indicated by herself her mother and a psychologist that she had been sexually assaulted in the military and the circumstances of it and there was even a diagnosis of military sexual assault and so and the jury knew that the mom had arrived so that the officers knew that before she was taken from the apartment right yes  plaintiff initially at the door sometime after three twenty three twenty three said my mom's on her way she'll be here in ten minutes well there's another thirty plus minutes and she still wasn't there  indicates that she arrived after her daughter was in handcuffs on the pad and still in the apartment the only partly on the mother's bed and she's sitting there screaming and that's where the eighty eight accommodation argument was made that should have just let her calm down and ironically her her doctor says well as long as she's in handcuffs and the police are there she's not going to calm down because you're trigger her flashback so the only way that they can accommodate her is to as she's screaming and kicking to uncuff or and walk out and hope she calms down and maybe put a blanket over her let her get dressed i mean here's let me ask you this i was trying to thread the needle because he only has title one instructions to work with and we have here a different title of the a b a and i agree with your recitation of how that explanation came out and when he asked everybody well i've tried to kind of give everybody a little of something but there was one aspect of the instruction i have a question about and that is or he says that the reasonable accommodation has to be directed toward her ability to comply with the officers orders so in some respects that seems like you're adding another layer to the so called a da defense that she needs to argue what is your response to that whether that really is something required by the a d f a because they were are other aspects of accommodation to her that may be required but may not be related to complying with the officers order they get specific to this case because there's other situations where someone might be hard of hearing and you need to get a sign language interpreter or diabetic and needs a candy bar something like  the argument not made and you're confusing me because you first said the argument was always letter calm down and it seems from the record seems to me that that was part of the argument are you saying it was limited to that no we just haven't heard it until five or ten minutes before the instructional question is as to trial testimony and that what they saw that the jury heard conflicting stories on that and they obviously accepted just conflicting stories about whether she was seen being carried out without clothing not no conflicting evidence as i understand it about whether or not she was allowed to get dressed she wasn't dressed right she was dressed and that's what the jury accepted otherwise they would have returned a verdict in her favor there is dress but this is this is the trial issue as opposed to summary judgment she said something different from her judgment but we went to trial the jury heard conflicting stories about whether she was stressed or not the officer said she had a top and and yoga pants on and no witness and no one when t independent witness said that she was in her panties maybe that maybe the difference is if that's how that what their testimony is about how to how she was close by the time they took her out of the apartment is that right at trial that was dispute yes ok i think now i think w of every grand factor you might be given those instructions based on this court's new model rule came out after this trial but you're not it's not envious of discretion to give them or not give them many circuits only give the  three gram factors we don't have ninth circuit is unusual and listing them all out but going back to the courts question about the a t m this is from plaintiff's closing argument the last that's the accommodation the other little pieces the nine little pieces are and he was arguing we're discrimination as opposed to accommodation as i understood it i have just a few more seconds but the instructional issues are both abuse of discretion and be the constitutional right to refuse entry is a brand new issue if it's considered i think also we should be allowed to argue qualified immunity because the cases are split prescot did not involve accident circumstances it relied upon a u s supreme court case that involved administrative work no case that i've seen other than our state court steen involved exigent circumstances so if these officers were not on notice of any just briefly with respect to his summary judgment motion he did not even cite steen or even the argument that he's making in his motion for summary judgment he just said there are two issues of whether or not she obstructed the officers and whether or not she assaulted the officer and so when we responded to the summary judgment motion we were responding to what he argued and then in reply after we don't have a chance to submit anything he brings up the issue but with respect to a constitutional right i don't think there's an issue about whether or not it's it is or it isn't because it's a matter of law and we're arguing that as a matter of law you cannot base and obstruction charge on someone's utilizing their constitutional rights a person telling an officer telling a person have a seat in a car or or a person an officer telling a person to get out of a car is not the same thing as an officer telling a person we want to get into your house open the door you just tell me they have a right to get in there right but they don't have a right to arrest her for not opening the door that's my are just my make sure we are in the same thing right and with respect to the jury instructions you know i argued that the jury instruction was incorrect he even argue  jury instruction was incorrect i told the judge that this is not going to allow me to argue my theory of the case because that's not what we've been presenting to the jury we've been telling the jury they took her out this way they mistreated her they didn't give her a chance to calm down they knew she suffered from p t s d in fact one of the officers said that that she needed to be arrested to teach her a lesson this is not a situation where you have a criminal you have a person who through no fault of her own has a disability she has  triggered by banging they were banging on the door so she went into the bathroom to get away from the noise they're arguing that that action is a crime and that that take does not take into consideration that she suffers from a disability and why have the a t o apply to these type situations if this is not a classic situation for everybody would have disability doesn't have a hearing impairment or an obvious physical impairment people have disabilities have mental disabilities and this is a classic case of somebody having a disability being arrested simply because they have the disability talking about it to one of the officers saying that she suffered from p t s d because she was assaulted in the military they make a remark she needs to be taught a lesson and she's arrested she's in panties orus and a sports bra she was working out they take her down she does not get dressed whether or not they dispute our facts if we don't have a jury instruction that allows us to argue that this violates the aviator i do the best i could with the instruction the court gave me they didn't take any consideration of the fact that she had a disability you know that in fact they  treated a harsher than he would treat somebody who didn't because they attributed her yelling and screaming or her flashback to just she was obstinate even though her per mom told her she has p t s d what should they have done at that point coun that's not in the record that's not in the record and two what were they supposed to do well they knew she had p t s d they knew why she didn't open the door right they knew all this stuff at the time they decided to take away thing and i don't i don't mean to when i read your briefing i just hear this drumbeat argument they should have given her a chance to calm down but it seems that there was they waited at least thirty minutes for mom to arrive they waited an extended period of time what's your best shot at that the banging on the door is triggering her p t s d the more the room on the bed it was just a few minutes yeah she's in the room on the bed her mom is saying she has p t s d she's telling the officers what's wrong with her at that point they could have allowed her to calm down and left the water was already cleaned up it was already stopped the arrest and the dragging her down the stairs knowing that her physical condition and not allowing her to get dressed and taken to the car in that manner that's a violation of a b a and we never got a real chance to prove that to the jury because the instruction only allowed us to say ok we have that point in mind we very well i think that what with both sides so i appreciate your argument and appreciate also arguing from other counsel and will now consider this case case for argument will be mansfield versus fast