morning erik stamping appearing on behalf of the appellant shannon roth it's our position that this case is a relatively first i'd like to point out i asked for three minutes to be reserved for rebuttal this  case from our position is a relatively straightforward application of this court's prior holding in mechanic versus actual this is a case where my client suffered a seizure call for medical help response came from a police officer the police officer as i will demonstrate engaged in what at least as a question of fact as to whether or not it was a law enforcement capacity versus a medical responder capacity and under mckenna's holding that specifically is an issue that a reasonable jury could then find that there was a clearly established right to be free from that kind of conduct in this instance his actions were objectively and reasonable with regard to the clearly established prong the mechanic case was very clear that if you know the if the responding officer is acting in a law enforcement capacity then there is this right to be free from in a seizure an unreasonably and unreasonable seizure so the question becomes whether or not officer viviano was acting as a law enforcement capacity the facts in this case are similar to the mckenna facts i understand and i acknowledge that there were some additional facts in the mechanic case that aren't present in this particular case in macand that particular officer did some other things including running her license plate or his license with the plaintiff in that case was  was a male running his license plate asking about whether or not there had been some abuse in the house things of that nature but when you look at the language of mechanics so this is just an application of what the court held in mechanics in the first thing i'd like to talk about is the defendant raises the issue that they say mccann of this language that i'm relying on is merely dicta and is not binding on the court a proposition for which i disagree macand when the court wrote the opinion and mckenna the court specifically looked at this and said that they were asked by the defendant in that case to determine whether there was qualified immunity and they specifically said that that issue that issue of qualified immunity is specifically depend on whether he was acting in a law enforcement capacity in the they held that they must determine whether there are any facts that a reasonable jury can conclude that he was acting as a law enforcement officer so these are absolutely essential issues these  determination that were made or the factual observations that were made by the court were absolutely essential to its ultimate holding therefore it's not dicta these things that we rely on were were the essence of the mechanics holding mckenna did hold that generally it's a jury question that they said it's a jury question that if the obvious or if there's factual disputes as to what the officer was engaged in that it's an issue for the jury to decide a made a specific reference that that there was an issue with regard to whether it should be the court or the jury came down squarely on the side that this is a jury issue even though it may be application of lot of fact it's still an issue that the jury has to decide so looking at sort of the similarities i think with the mckenna case the court the said that you know you have an officer who comes in and starts asking immediately about drug use drug overdose starts rifling through personal property through personal  effects making certain insinuations by the way that he's acting and talking that's exact same thing we had in this case the testimony of both the father and the son of my client both testified that that's exactly how the officer acted in this case immediately started coming in ask him oh drug use drug abuse overdose sort of medical person response to an emergency and the person as to who he is responding is having seizures wouldn't a medical person need to ask some of those questions to try to figure out what he's dealing with that is correct why does that make that evidence that he was acting in a law enforcement capacity well the holding him accountable was pacifically that that those  alone before we get to the other things that were going on they said would be equally suggestive of law enforcement versus medical response so my first response is if it's equally suggestive if it's a tie where you say well this could be law enforcement this could be a medical response  it's equal that would not be like a tie goes to the defendant the tie goes to the jury the jury's got to make a determination as to that taking in the totality of the circumstances but even more so in this particular case you have the additional aspect of the father or the husband's testimony where he said that we were being treated like criminals that was his testimony he said this officer came in and treated my wife and i like criminals where in that instance you may say well that's conclusory and that's you know maybe that's subjective of some nature but really it's not because he's making this conclusion based on his objective viewing of what's going on in the situation we as human beings communicate in many different ways we communicate with the words we use and the acts we we take but we also communicate by tone of voice we communicate by facial expressions body language governor all sounds all the things that we all do as humans they can communicate certain things the husband is viewing the situation so this is three years ago he says i'm looking at this whole situation everything that this guy is doing is treating me like a criminal the defendant says you know i was only acting as a medical first responder i was doing all this for medical purposes only but again mckenna specifically says it's not a subjective inquiry it's an objective inquiry so his statement that i guess seems to me a policeman stand over here well i look at this person lots of people will say well i was being treated like a criminal correct but that wouldn't be is his questioning about the drug use the drug abuse of the right that's a tie right right and we're on a summary judgment appeal so my point is then that if that was all we had i would say yeah then you know i still think that goes to it's medical or well right in that it and i think there's a tie in between whether he's acting in law enforcement capacity and the actions you take in a whether those are objective the reasonable generally speaking when you respond  to police call where the only thing that's alleged is there's a medical situation and they come in and there's no firm of indication that the police are doing anything more than treating it as a medical it seems to me would mean that we're going to try to keep policeman from responding to medical situations where would you have a plate for the other people and not go immediately when you go police there who  helpful if he was being helpful i would agree but he's not he handcuffs or face down on the stretcher after she fell off it but how and i don't know that there's no way to say how putting somebody's face down on a stretcher handcuffs somehow protects her or anybody else but i guess it could protect somebody else if she's if she's trying to puncture why did somebody that make what he's doing a function of his law enforcement capacity it doesn't there goes the objectively reasonable i think it's conflated a little bit but but that but that his actions before that are what lead to the conclusion as law enforcement so many handcuffs are that's a law enforcement act so he seized her without any probable cause at that point how should he have kept her on the stretcher now i know your client say should have done anything but they called for help did they really mean don't do anything no you have e m t that are there at the time she's placed on the structure there's e m t if he didn't bring a structure they did their four point on these structures and they didn't fact restrain her in these four point restraints on the structure after the fact there's no evidence the mts asked him to step in there's no you know there's no evidence that any thing happened where there was some outside force that said he needs to jump in this is a person who is acting in a long foresman capacity as he comes in and ask these questions he then handcuffs or he says for medical purposes because i need to be able to let them transport her but there's no evidence other than his own testimony to support that which is a subjective intent that's the point that that's still his peers testimony is subjective he's saying that's why i did it but that's not what we look at we look at the objective evidence which is he's acting in this manner and then the ha serve no medical purpose not now but i would but i think that i mean that's just an argument i make and based on the facts i mean you can have somebody who says they're falling off a stretcher i don't see common sense i'm putting them on the back is going to stop them from falling off the str would stop them from fighting which would contribute to the falling off of the structure i'm not sure stop them from fighting they can still flow around with their arms handcuffed behind their back the  the still while they could still fight and roll around you know i mean they can still move through questioning or anything else stablish whether she could still move around after they put the straps around her impact her journey when she was already restrained she was handcuffed first and then strapped in that's not clear in the record or factually i'm not sure how because the officer testified that she was continually handcuffed all the way to the hospital but the medical records show that she was strapped to the stretcher so there is some sort of factual disconnect here as to exactly what happened w claiming that she was handcuffed until she got to the hospital that is what the police officer testified as one officer the defendant officer video testified to that ok but i thought you were that was one of your claims that there was no need for her to continue to because of when she was strapped that is yes that is correct our whole point is that the handcuffing from the point when he did it when she was on the stretcher all the way to the hospital that is the nature of our point is correct in that is correct that there was she's been strapped in there's no need definitely no need to continue to have her handcuffed at that point thank you morning douglas curlew appearing this morning on behalf of officer vivian no i went to my cardiologist monday afternoon the first thing out of his mouth was what medications are you taking it's a medical question he asked me that first thing every time i go to his office the last thing that we want is to have police officers as i think the panel already noticed afraid to begin to offer assistance to find information when they go to a medical emergency consider the situation where a person is conscious when they arrive they have a chance to ask them what medications they're taking and then they're not responsive by the time regular paramedics arrive here basically the officers didn't  off when the e m t is took over really well the e m t is more to able to take over because they were struggling even mr saxton the son says i carried mom down she was struggling she didn't want to go she's fighting everybody because she doesn't want to go the officer to step in because the e m t is couldn't do the job of getting her on the on the gurney and getting her to the hospital or solve time don't delay is life you've got to get people to hospital after once they carried her out and they decided that she was you know being combative or whatever we really don't know what was going on why would they continue to have her cuff when she strapped in well i mean she was cuffed before they strap they get her her first to try to get her into a position where they could get her strapped onto the gurney now why he left the cups on for the trip after she was strapped i don't know but really doesn't make a difference if you're strapped and coughed she's not moving anyway i know but instead of not moving because of the strap restraints you have somebody who's injuring their wrists because of these cuts it may be a you know i would expect the situation was she's on the gurney they're going he doesn't want to step in and say well wait while i remove the cost before you go in like a safe delay is life you've got to get people to the hospital where the first thing they're going to ask is did anybody know what medications she's on i would see what i wan focus on and i'll be very brief so i think the briefs were thorough and unlike the past case we had to reconcile hundreds of years of law here you've only got really two cases to try to reconcile as far as the objective  immunity he doesn't have to make the best decision he doesn't have to make the right decision he has to make a reasonable decision and in the circumstance where you've got this person struggling where you want to get the hospital as quickly as possible you want to help paramedics it was not an on reasonable decision to handcuff her to the gurney before they were able to get those straps honoring in a position where she could go i mean you don't want to put officers into a damned if you do damned if you don't situation if i could use just briefly before i sit down a personal example i was in judge white's old stomping grounds that wayne county circuit court in front of judge brian sullivan doing a motion hearing i passed out on the record talking to the judge and and literally went down to the the bailiff when county sheriff's deputy who was there it was able to grab a chair from the counsel table get under me grab my shoulder and put me down on the chair before he of the floor but consider what could run through his mind at that time well if i grab a shoulder i could wrenches shoulder and hurt if i let him drop he could bang his head damned if you do damned if you don't there are a lot of things that could have gone wrong but he had to step in and take some action and i don't think you could hold a news responsible either way it came out same thing here officer had a situation where we can look at it with hindsight and say it wasn't very good medicine perhaps to do that but it was not on reasonable the situation he faced where he was trying to help paramedic do you do the contrary that acts that are put forward such as that he was asked he wasn't cuffed at the gurney he was actually on her stomach with her hands cuffed behind her back well either way that would actually be a more effective in a covering of a gurney i think because that would make it harder for her to move which would be a far more effective approach i would think ok but clearly once you get a person like that in your normal strap restraints would you leave their hands again do you want to intervene and make another delay to get those cuffs off or ok hold on fellas before you take her let me get my cuffs off and go just get her on the way i can get the cuffs off the hospital it isn't going to change her position she's still going to be strapped coughed whatever she's not moving anywhere it doesn't alter her position of being confined on this gurney whether he's left the handcuffs on or not but it certainly saves time to let her go to the hospital before he takes the union are going to take them off when are they removed they were removed at the hospital he testified very clearly that they were on the whole trip you the only thing i'd like to add to my prior argument is and the object in the lee reasonable conduct of the defendant and his deposition he justified it emitted lee he did say she was being uncooperative and following up the structure he said that but he also justified it by saying she was punching and kicking one of the empties in the growing that she spit on one of the empties which we spent some time in his deposition exploring that issue because it certainly appeared to be one of the motivating factor for why he did this and handcuffed her and it was one of the issues that was raised in the defendant's brief at the trial court level as a basis why this was a reasonable act on his part and at this point in time it has not been raised by the defendant in this court and i think the reason is that because that's clearly a question of fact because i have an affidavit from the son who says i was within eyesight i was within my mom's eyes at the entire time of this entire interaction and at no time did she ever kick or spit on any of the e m t's so we have two to competing factual issues so you know the judge at the trial court level  disregarded the testimony on the affidavit and from the son who who said this by saying well could have happened when he wasn't looking at the we're we're assume it happened i mean assume that there was no kicking or biting or whatever it's still uncontroverted she was not cooperative and she was trying not to she was trying to not be on the on the gurney correct but again the the mechanic a says if you're way acting in a law enforcement capacity and you see somebody there's clearly no problem and there's no there's no problem there's no accusation of crime or that she needed to be seated for a law enforcement purpose if he's acting in a law enforcement capacity than then liability attaches i just think mckenna absolutely so is it your position that a reasonable officer simply wouldn't have done anything the reasonable officer may have come in and done some initial things in and assisted with the medical side of it but but there's a question of fact as to whether or not this was medical or law enforcement there's not there's not that he can't do anything but the handcuffing comes on his own accord again he wasn't asked to do it no medical personnel came in and said this is that you need to come in and help us with this woman because we can't control her because she's a danger to us or somebody else he just simply jumped in after what i would describe as very aggressive one foresman actions that were leading up to that it's a question i think the jury needs to answer thank you thank you the case will be submitted but recall