good morning may please the court counsel my name is jennifer hill i'm here on behalf of the plaintiff in this matter carolyn hands carolyn is a deaf person who was previously residing in shawnee county kansas and fifteen she made the important decision to call nine hundred and eleven to help her settle a domestic dispute at her home overarching and in consideration in this case as it was dismissed on summary judgment is a question of whether or not the eighty a is what its intent is its intent is to put disabled people on equal footing as able bodied people in so i think it's important as we go through the facts of this case and as we consider the arguments would she have had the same result if she were a hearing person and i think if we asked that question every step of the way the answer is no in the reason why that matters in this case is because time and again this chain reaction starts from the moment she calls nine on one until the moment she's released from jail that that is if she had been a hearing person things would have gone differently the majority of the brief in this case is related to the facts in this case is a very factually intensive case the defendants in their summary judgment motion had i think ninety five statements of fact that were not statements they were paragraphs my response brief one hundred and forty seven not statements paragraphs the very factually intensive case the district court determined all facts to be all material facts to be uncontroverted in that matters in this case for a variety of reasons and on a variety of  levels st of all the st issue that we have a legal issue is whether or not there is probable cause to arrest miss hons as this situation unfolded at her home the district court determined that no reasonable juror could find that the deputies in question lacked probable cause to arrest miss hans now the reason why that matters and why it matters that the judge made that ultimate binding is because the deputies themselves couldn't agree when probable cause arose what constituted probable cause what actions of miss hons were probable cause to support a finding of a domestic disturbance or i'm sorry a domestic battery for example if you look at the append fourteen there's a series of questions posed to deputy or i'm sorry who was one of the arresting officers i specifically asked them if miss hans pushed her husband to get him away from her tire so that she could try to leave  is that probable cause to establish a domestic battery and his response was it depends so i ask him a nd question well what matters what matters about that contact and he says the violence of the push so then i push him further and i i ask him additional questions ok so the level of violence of the push is the turning fact he then automatically recounts on himself and says no no no any physical contact any physical contact is a domestic battery in this case and she had and i had probable cause to arrest her then ask him well why didn't you if you knew she admits and you can read the facts she admits i pushed him off the tire they don't arrest her they don't arrest her he tells the husband he would have done the same so what constitute a probable cause to both deputies was miss hons gestures a deaf woman in the dark upset in the driveway reenact something they interpret those gestures and they say aha now she's admitted to a crime did that husband say anything no at that time the husband what did he tell the officer when he when the officers arrived at the scene he said she pushed me in the mud and she stomped on my hand and has a battery well if there was an intent to harm me it's arguable it's arguable question if that's a battery the officers at the at the scene said no probable cause level the officers at the scene when they investigated that allegation per their determined it was not probable cause they then later recanted on their own decision based on her gestures couldn't they have probable cause and continue to investigate they if they had arrested ms hans and done further investigative activities it be a very different legal question were posed with in right so if you have those facts if those are the facts that's a prime official case now why on earth would the deputies who know that that's the case then agree to let her leave after she's already admitted she's  escalated she would got her car keys he's got his car keys everybody is on their way let's go this is fine and they decide to let everyone leave it's only at the point in time when corporal badal confront smith hons on her forge and says do you know how close i w arresting you and he gets are upset and she starts reenacting something she has a suitcase in her hand and she's heading to her cousin's house that's correct that's correct so as far and the deputy double himself as i was satisfied i was fine everyone is going to go their separate ways the next controverted issue the fact that court just sort of glosses over doesn't even really address is this idea that there was a kick and a stomp and a push that there is these three separate actions and ducked and by the plaintive now there's complete controversy in the herb controverted facts in the record here st of all the plaintiff her testimony itself is i never kicked him i never stopped on him and then she comes back later and i had  appendix she says in fact physically i couldn't have stomped on him because i was behind him and he was on all fours so i couldn't even have reached my foot over to have stomped on his hand it just wasn't possible so she clearly testifies there's no hons demonstrated an intentional stop he says that page four into the appendix now he has interest he is interpretating a deaf person's motions and that right there that interpretation kind of adds this layer of what are we really talking about those who contend that was something that is not seen on the video and other work or does he say that what's on the video shows the stomp well that's what's really interesting isn't it is the video if they watch the video in their depositions devante job or states oh yeah right there that shows it that at this moment in time i can see where she's reacting to stop i showed that exact clip to deputy they don't and he says no that doesn't show  how is that not a controverted issue of fact if they are watching the same video and seeing different things they are at the same incident and two hundred different have a look at it and consider their subjective views or do we look at objective acts that could support probable cause i think when you are doing a probable cause analysis it is critical that you restudy what the officers studied and what the officers did in the district court opinion the district court notes minutes interview the parties have albion not well but they interview the parties they don't take witness statements they do all this different stuff may ultimately decide she can get out then it's only the only reason they arrested her was her gestures after she was confronted on the porch and the most important issue of fact that's not the only reason and i think it cuts in your favor the dog biscuit comes into play too and what we have is the deputy the corporal who says that's it she's on her and he's got his parent not feeling well and wants to wrap this thing up so i can see where he's getting frustrated that these people just he's the one drawing out he's the one who said you came this close to being arrested which leads to all of the kicking motions in the butt when he says oh that's it she's getting arrested it's because he disbelieves her about the dog biscuit or some reason there's a riot or do you disagree with that's what i got out of the video from well that is what i got off the video from his deposition he says oh no she admitted to further an additional now two things so he's he's kind of a hard one depend on be good if he if he built his probable cause on both of those things at the time as shown on the video tape isn't he stuck with both of those i think he stuck with this affidavit his affidavit that he turns into the magistrate judge says that she admitted to kicking her husband a fact that she denies he says that she admitted to stomping on her husband a fact that he later controverts himself in his own deposition he says no she never told me she stopped and this comes back to original point which is if this were in the deaf person t person would have said i put my foot on him because he's bigger than i am stronger than i am and pushed him so he would not let all the air out of my tires when an interpreter was present at her deposition it was very plain what she believes she did that night and with the with the help and the auxilary ativan and cell interpreter a few questions and were able to understand what happened the final controvert a fact that i really think this court has to focus on is the district court's decision glosses over a whole lot of controverted evidence on the issue of effective communication effective communication is is just it's just it's stated in the in the district court opinion that out there was no problems with communication between the defendants representatives and the pla we have so many examples for example when showed the video of the interaction from the body cam the deputies themselves couldn't understand her on the video they couldn't understand her at the time either because you can hear them saying testimony of the jailer anderson who states that plaintive could read lips plaintiff's own deposition testimony as i can't read lips maybe two or three words at a time we have an expert report that says i tested this woman can't really seven decided the tyler case in the tyler case there's a th sense of dissent the dissent basically says no no no that's not where we're at as a as a district two years later we have a case not the law is settled there is an extensive factual record here showing an effective communication again we put at a hearing person and able bodied person in the jail and we asked them the same questions we get different questionnaire answers we get different responses to the suicide screening that is the thing that is absolutely present in this case if you're going to follow rule fifty six and you're going to grant to know her review i think it's important that you study the record to see that there was never effective communication in this case in that that matters shawnee county can't just get off with saying well she didn't ask for an interpreter well you know she's she's pretty  intentional discrimination i don't believe that's identified specifically as an issue or determination i think that something that could be easily put into the jury instructions on what into what and to whom into jury  you to address the same point that your opposing counsel addressed at the start that she did which is if this had not been a death woman she never would have been arrested and the defendants wholeheartedly disagree this plaintiff was not arrested because she was that she that she was arrested because she supposedly kicked her husband and so she was unable to explain to the officer that she was getting away from the tire and rested her foot on him to push him she did explain th husband to get a way to get him away from the car tire a reasonable officer would see that on three separate occasions within the video she unquestioningly acted out the kicking motion a reasonable officer would see that the victim had injuries injuries that he claimed stemmed from her actions how would she reenact lifting her foot and pushing him that would distinguish it from a kicking motion and keep in mind that she done i think regardless of whether she kicked or pushed him with her foot that distinction is a distinction without a difference ok that's visible contact ok so it's required is physical contact in a rude insulting or angry manner and there's no question under these facts that that occurred ok that's one statute and i'd like to just ask you and i know i realize this isn't central on the case by any focus but there is a stand my ground law in kansas and it says and possession of property and everybody agreed that car was primarily hursti as the truck was primarily she was the one who kept the keys to the car when that's the case the person is justified in the use of force against another for the purpose of preventing or terminating an unlawful interference with such property letting the air out of the property or out of the tires would seem to be an interference with the property what's wrong with that i disagree with that and in so far as this property was marital property under canvas law that vehicle is under the ownership of both parties he had just as much right to let the air out of those tires as she did to john and in the he was not it was not an ritually he indicated that he jumped in the car to move the car and leave and she indicated that she didn't get in her deposition that she didn't want him to do that so she jumped into the car to call nine hundred and eleven it was after that  record that he gave is when he was on the phone with dispatch and he indicated that he didn't want her to leave because he wanted to talk about it they've been having an argument she had left earlier in the night during their argument and then she came back to the residence after it one lets the air out of the tire so the other one can't leave of without some kind of legal justification you would think that the judge looking at the summary judgment would explain why that would be appropriate conduct and i couldn't find that in the ruling well under kansas law you don't have the authority what is on a questionable  husband has the right to let the air out of his wife's tires if he doesn't want the wife to quote leave him there's nothing in canteens and kansas says that well there's nothing that indicates that he doesn't ha well they own other property too and that's a family photos and there's only one copy and it's just precious to her and he said i'm going to light this thing on fire and pulls out his matches and gasoline and she pushes him you're saying not now defense that's a battery i'm saying yes but she does not have the authority what the state lot says is that you don't have the authority d verbal are met to engage in physical contact there's no authority to do that and indeed is letting the air out of tires instructively physical contact not against if she could have taken multiple other steps to escape there's there's no evidence in the record that indicates she couldn't have walked off the property and contact called her cousin she did call her cousin while she was there with the officers there's no indication that he was holding her down imprisoning her on the property that had a verbal argument and he was letting the air out of the tires of the car that he would lose two explanations one it i don't necessarily think that in this persecutor case it matters i think that there's no question that with pushing him that she made physical contact with him in a rude insulting or angry manner regardless of whether she stomped him or not it's worth noting that she told her expert in this case that she did step on its hands and what she said in her deposition was that she didn't miss you know her expert a difference but the word is stop and that's the word that he the husband st years and then he later said as she pushed me she came over the top and stopped and he had physical injuries to his hand but it wasn't like she took a tire iron to his hand it's part of the shoving motion that's the way that it was ultimately left with the officers before they decided to erupt that's the only thing they had in front of them both parties they had the the push they had kicking motions and they had which what he indicated how does the dog biscuit fit into that part of the probable cause no i don't think that well he certainly said on the video he certainly said on the video when he went in announced the husband about this dog biscuit being thrown and hitting his wife he officer says well that's it she is under arrest and there are two reasons he chose she changed her story and he's not buying this dog biscuit thing which there is no reason in the world to leave the dog biscuit and then so does that impact the probable cause determination why not i think st of all it's important to note that deputy badal the one who went and spoke to mr hans about the dog biscuit was not the one who made the decision to arrest the plaintiff and you can tell during the deposition testimony that was the one who made the decision to arrest her and he indicated that after she acted out what had happened he looked up at the deputy purple badal and indicated well that now she's going to jail who had the camera on deputy big and he's the one who went in the house and was talking about the best get right then he says to the husband who doesn't want this to happen he says well then she's gone to jail or she's under arrest or something so i don't know what you're talking about he's the one who said she's going to be arrested the purpose of investigating the do he was the one who made the decision and u p s here and the video but he's the one who made the decision in addition to all of this you can talk about the officers conduct all day long and what they did or didn't do a it's an objective standard and b the defendants in this case are is a municipality so regardless of whether or not there is or is not probable cause the end now if this does not stop there you still have to find that there is a policy or custom on behalf municipality that is the driving force behind the arrest there's been nothing that the plaintiff has pointed to no policy no custom at all in this case indicating that defendants can be liable for that reason so please don't endure analysis of the probable cause it goes much further than that and i'd also like to address the intentional discrimination and the requirement here in order to get compensatory damages discrimination is required for compensatory damages both the rehabilitation act and the a b a borrow remedies from title six and title six requires that intentional discrimination be required for compensatory damage at least four other circuits have ruled this way as the district court correctly noted the supreme court had had the opportunity to redirect this holding and they have to clients to do so and plaintiffs in eighty eight cases are not left without a remedy just because they have to show intentional from a nation to get compensatory damages they can still get an injunction declaratory relief attorneys fees or they complete the facts necessary to show intent on policy that would create a likelihood that pursuit of such policy would result in a violation of federally protected rights there's no attacks capable of supporting and i'm certain that she was denied the ability to communicate with the officers she was provided written materials she communicated with her husband of eighteen years through written materials he didn't even know sign language she was learning to sign in accordance with her testimony there is nothing about the interaction that occurred at the jail that would have changed here had excuse me the outcome wouldn't have changed here had there been any other additional form of communication  there's no question she was on medication for depression had been for years in fact she'd been hospitalized within the last year for depression she wrote down where she'd been hospitalized she wrote down her medication list but a significant factor was her response to the question are you feeling hopeless and she indicated somehow that i don't know of that what she says as i was showing i'm exasperated by this whole condition i was headed to my cousins basically and now here i am subject to all of the us and so that's an area if it she could have explained no i don't feel hopeless i just feel like what in the world is happening to me right now that would make  different and the ability to explain that through a written note was provided to her she had the ability to write it down right there she had just written down her medication lives she had written down that she had been hospitalized a is asked the question are you feeling helpless or hopeless disabled or not could shrug their shoulders in response to that question it's certainly not a negative response she's not saying no by shrugging her shoulders and out of an abundance of caution and an effort to protect this plane to from doing something harmful herself defendants placed her on suicide watch and regardless of her answer to the help with the helpless question still had plenty of authority to do so to protect her so so she went she went from i'm heading to my cousin's house i've got my luggage and i'm on the front step through a strip search and everything's ok that's correct the as t developed and as the interaction continued it became clear there was probable cause it became clear that once she got to the jail she had to be placed on suicide watch for her own protection if she hadn't been and something would have happened would be her on a different case if there are no further questions thank you my argument thank you thank you zero why did he not want her to leave no one knows but him he was drunk he was belligerent she called nine hundred and eleven because she wanted to get out of there so i mean that record certainly doesn't provide as much guidance on that i think it's really critical that we look at the full record before this court when we evaluate whether or not mr han's had effective communication with her jailers what about the plan and the it seems like a good one you didn't see the officers  county so where is your practice and policy well i think that if you look at the qualified immunity analysis in the cortez case that gives you what you need to get to the point we have a nine hundred and eighty t this case it is very clear that shani county policy required an arrest if there was probable cause for a domestic battery they ultimately determined there was no domestic battery and allowed t plaintiffs to get her suitcase to leave then they violate their own policy essentially by saying no no no that that part conduct we saw is now a sufficient basis so it seems as though the policy itself was being