appellate can demonstrate sufficient facts to overcome summary judgment that harris county is liable to him due to its failure to accommodate him under the a b a appellant presented sufficient facts to establish a prima fascia case his case is extremely similar a pile versus victoria county texas from this very court almost identical in fact except for the type of disability in delano pile the incident began with a car exam accident a highway and reports of a potentially impaired driver mirroring exactly what happened with dr wyndham just as with dr wyndham the deputies had knowledge of the plaintiff's disability prior to order him to point to perform the standard field sobriety test and despite knowledge of this disability the deputies refused to make a reasonable accommodation where you say they refused where in the record in this record site would help or even a video date stamp time where did he the doctor second was taller he said my neck hurts and when i think that when someone says my neck hurts after they've given you a letter from another doctor which says you can't extend the neck due to injury that when you say this hurts and doctor's letter that would be hard for an officer to understand maybe one leg stand walk and turn but not neutral gates so then it would to me it would seem to me unless it's obvious the accommodation is requested he would have to then as a doctor him self say here's what i can do i can do those sobriety tests but not this one but he doesn't do that he says the when the officer says are you refusing he says no but he does say you're in the letter and it's very short which is good because of the patient's risk of a neurological injury from neck extension and then the extension is in the  dictionary this is extension according to scrape which substrate and he testified to deposition deputy dundon that he knew what extension meant and also he said he understood and he read the part about  injury so according to dun himself out of his own own louth he knew what extension was and he knew what neurological injury was he had read this letter from a doctor and another doctor said earlier in the video i won't be able to do it then he says are you refusing and then the doctor says no he's not refusing but so and when he lifts up as we're making that of his head he's saying is hurts so the fact that he was shown a letter admits that he knows a neurological injury is admits he knows what extension is and then the doctor is there the doctor also explains what is wrong with his neck as well and if you look good tire video he is looking down somewhat like this proposition is here it has the same level of obviousness that he couldn't do a certain sobriety test based on the letter yes i think that's your bill i think it's the best case that's not of the deafness because to me deafness is a much more obvious need for an accommodation you have any case after that is closer to a neurological deficit being one that an officer would understand would mean even without a here's the accommodation and the adjuster an officer would i think it's either the third circuit is is can be considered force and depending upon the situation can be can even be considered excessive force with no touching and that particular case an individual had a neck injury and she and she was she wasn't touched in order to do things after they knew about the neck injury and it caused more damage so you wouldn't win on your excessive force claim if you don't win on your eighty eight because if it's reasonable for the officer not to have perceived in the combination was necessary you couldn't win on a fourth like a defining set of words to define exactly what you could use to show intentional discrimination however the supreme court has stated in dicta in a case regarding the eighty eight that because a lot indifference but there's a second where there that's deliberate so if it was just merely indifference that be one thing but deliberate requires that you actually know what's going to happen to this person if you don't act it requires that you actually  into law is a little bit blurred a difficult my gosh in two or more the law seems to put the burden on the disabled person to articulate the accommodation needed unless it's somewhat obvious that a reasonable officer would have to know that's what i understood the to state which is why i'm asking you for a best case that shows this type of cervical still gnosis would be so often obvious that you don't we aren't asking police to guess at what the accommodation that's that's my concern well i got a point to a letter from a very short letter from a doctor that says you can't extend a neck due to neurological injury to me to most to most up please they should understand what that means and in the deposition done said he didn't know what it meant even he said he knew what extension meant and he said it would newark neurologic injury meant so this isn't a case where don did not know didn't have not didn't have the requisite knowledge to know what was going on so if you look  at that the the jury can easily determine that he did have the requisite intent and that he knew that it was dangerous to go forward because under the deliberate indifference standard you have to appreciate the danger yet move forward with action or inaction and you caused the constitutional violation officer before done had asked your client to do the horizontal gaze test too right yes and he was shorter and he could do it because he kept his his eyes down like this do remember if you look at the video he's constantly all the time like this when he's talking to people with his head down and his eyes like th there's something going on in his note no time at all to go like this raises head so if you're if you were novice or you come across some of this is i got to you know here's a letter i got a neurological injury i can't extend my neck i think right there at that point right that's what you're seeing the first officer same height holding this were neutral no extension right now the training that they received in harris county according to the thirty six the point to which we brought forward to talk about these training issues on the center field sobriety test said there that the officers are trained that the officer must be able to you know look into the person's eye when they're standing and do the test so when he did the test the training was that the officer has to be accommodated furthermore when you land the thirty sixth point about all the training and so forth testified that they don't have any training at all to deal with neurological injuries or neck extensions or anything and furthermore not done testified that deposition when i when they operated been sued and after seeing all the allegations about the height never send the top done said i said would you do the same thing a question would you do the same thing now that you know this and he said yes i would still do the same thing this was after he knew exactly what happened mr wyndham had read all the read the complaint asked him did you did you read the complaint and he had read the complaint so he today apparently will still do this again so called them about any claims so you know  another thing that believe is important that the officers testified that never testified that holding your head down is a sign of intoxication they testified falsely by the way that dr wyndham ha blurry eyes he had slurred speech but when you look at the video he's not slurring his speech he doesn't have blurry eyes maybe enough to get closer to see whether blurry eyes however they also say his hands are shaking you see his hands are rushing so basically you see on the video things that contradict what the officer says that caused any reasonable suspicion in the first place and as i mentioned having your head down is not a recognized sign of intoxication context of facts where you did have contact the other person said i think he's drunk correct a driver just like but these were just looking at the larger orbit for reasonable suspicion and then i thought some are in there reflect that he had nodded off a little sleep maybe in the there's this possible there was reasonable suspicion in the beginning but remember he sat there for an hour and a half and the standard feel sobriety test just take minutes and so for some reason he was there for an hour and a half why is he there for an hour and a half he did not agree to be there for an hour and a half they took his driver's license as reported in the the brief and so he was not free to go and as a matter of fact because he was in a loaner car he didn't even have his own hard drive away so there is a concept of how much danger the public would be in or anybody else when apparently they were investigating a class b misdemeanor and sure rival intoxicated you know if you were to keep on driving that would be a problem but the dealership came and took it took the car that he was with his he was in a loaner vehicle because his vehicle was somewhere else so the danger that he presented was extremely low he didn't have the ability to drive a car longer during that period because the car had been  damages under the idea normally that requires evidence of malice ill will or other indication of discriminatory and witness that language comes from the campbell w risk of sustaining an injury from performing field sobriety tests in that regard dr wyndham made no request for any accommodation from that but he does and he expressed no reluctance or concern about performing the tests  when you saw him perform the test you could see why he maybe thought that because he sort of stumbled and i think it was probably you know well i don't know what was causing that but he did stumble maybe that's why he thought he would he would not be able to do it a play this must show that the defendants employee need not only of the plaintiff's disability but also the physical limitations resulting therefrom in addition to the fifth circuit case that we cited in our brief on that point in support of that position there is a tenth circuit case that is not in the brief which also supports the argument i want to bring it to your tension that cases robertson animists county sheriff's department at five hundred fifth third eleven eighty five i didn't put in the brief because i just didn't run across it until i was going to preparation for this argument in robertson the court that before a public in the can be required under the idea to provide an auxiliary aid the entity must have knowledge that the individual is disabled either disability is obvious you talk up just in the story or because the individual has informed the entity of the disability however in addition once a public entity has knowledge of the participate in or receive the benefits of its services if the need for an accommodation is not obvious to the public entity will usually not have no age of the need for an accommodation unless the individual requests an accommodation in the instant case doctor one of them was in a far better position and it would be done to evaluate the need for any accommodation the videotape shows that dr wyndham did not ask deputy da for any accommodation the information that dr wyndham gave deputy about his condition was simply not sufficient to inform the doctor when that comes a lot of it comes down to obviousness because you recognize a disability could be so obvious the officer would have to accommodate even without a request yes your or your point is here there's no material dispute of fact as to obvious because the letters to sort of sophisticated and esoteric well it it really doesn't convey to and to a person who is not trained in medicine that there is some risk associated with whether the field sobriety test when the focus of the letter is talking about the next extension in connection with the surgery and i don't think that's going to alert the police officer that that there is something that the man can't raise his head even as high they claim the word extension alone implies if the head is frozen down lifting it up to straight was something that the officer was told he couldn't do and then he says hurt well when he says it hurts it seems to me that because he is a physician and a peace officer he's should be required to alert  necessary in the you know in other words in and rest context and that was no risk here but it was it it was a detention context in that context there are there often is some discomfort associated with it but that's not wood even if an h g v into this could somehow be viewed as a use of force it was reasonable force employed as part of a routine police procedure therefore any resulting injury could not support an excessive force claim if some injury occurs in connection with the use of reasonable force that injury does not support a constitutional clash it must be the use of excessive force in order to support that kind of a close however even if there had been a constitutional violation dr wyndham fail to overcome the officers entitlement to qualified immunity to there with respect to the old lawful detention calling dr wyndham continues that his detention constitutes an arrest for which there was no reasonable suspicion or probable cause however he clearly committed the offense of favor control his speed in violation of section five forty four five forty five point three fifty one the two of the transportation code  deputy passkey that serve the damage to the vehicles and that observation provided reasonable suspicion to detain dr when particularly when the witnesses present said that dr wyndham nodded off while waiting for the officer to arrive you know with respect to this issue of whether or not dr wyndham had watery eyes or these hands were trembling and all that sort of thing suppose that if he was showing signs of impairment they may have decreased to some degree or other in that period while waiting for the productive done to  arrest him so the issue is one issue is packet does the sobriety tests he doesn't fail them then he prolongs the detention a long time till dawn comes we is is your position is a matter of law that an officer can prolong a reasonable suspicion detention for just a second opinion for as long as they want well if he sees an indication and he did in this instance if he sees an indication that there is some question as to whether or not the man's intoxicated he can't just turn him loose on the road again he has to he has to alleviate what's the best case that describes to us how long because these these are busy  how long well just maybe tell me this how long did it take for done to a rife how long was that interval my impression was that it was close to an hour but i've i really don't remember that entailed but it was a good one and you know the case law says that that you can maintain the detention and is sufficiently to alleviate the suspicions  and that's what they were doing here he you know done deputy pass get felt like he needed to have a sort of a drug recognition expert look at this me and that's why i call for him you know unfortunately if that be done was a clear cross town apparently it took  you know as this court said in the us we bring them there is no constitutional stop watch on traffic stops the question is whether the police diligently pursued a means of investigation that was likely to confirm or  building on a failure to train theory dr wyndham had to show inadequate training procedures also that the inadequate training caused the constitutional violations and deliberate indifference of policy makers a training program must enable officers to respond properly to the usual and recurring situations with which they must be a doctor when they had to show their skerries training program the training program not the training of the specific officers was inadequate to meet that standard the possibility of an injury occurring in a rare or unlikely in canada does not suggest that a training program is thought it was interesting that dr when the council said that dr wyndham needed to drive so he decided to risk it maybe that's what he was doing with respect to the field sobriety test maybe he decided to risk i not tell the officers that he simply you know shouldn't be doing that or requesting that they give him some alternative method of demonstrating his sobriety if he didn't alert them as he should have they couldn't could not know what they needed to do and therefore harris county could not know that it had to provide any accommodation the only thing was interesting is the statement that there may have been reasonable suspicion at the beginning but that that somehow dissipated if they if there was reasonable suspicion they had to dispel that suspicion and the process they went through was designed to do that but one of the things we must keep in mind with regard to the detention factor if they had probable cause or reasonable suspicion with respect to that transportation code violation of rereading that that the typical that's an offense that you could arrest for that they didn't do it they normally don't do that sort of thing but you can arrest a person for doing exactly what dr wyndham did and if you can do that then you can hold him long enough to go through your investigation and what it comes down to basically on this case he's a doctor when i'm being a doctor being a law enforcement officer knew his rights he knew what risk if anything he was taking and he knew so far conley afford him the opportunity to address these issues in whatever way that you can help them to put the burden of the tremendous burden upon the the pla to explain he is his injury let's look at what he did he first of all present like we have down all the time if somebody is with their head down all the time like they're walking around and i apologize for walking but i got to do this demonstration going like this who doesn't know who's seeing the guy for a long time that there's something wrong with his neck it's like this entirely  we're not talking about some maybe some long time criminal who knows that to stay out of jail he can fake some injury and then go to the hospital instead we're talking about a person who has never been arrested for a crime in his entire life and he's going is that isn't it now mike this is actually been the first indication about the problem and furthermore remember that pass could have been there for almost an hour before he showed up we can assume that paskin actually talked to him about the condition of mister dr wyndham prior to it so you could explained all this has passed that city also read the letter so you've got a guy with a doctor not a criminal of any kind and he's got his head down there's one indication then he percent letter with his head down to you which says he's at risk for strenuous activities because of the patient's risk of neurological injury from neck extension when he admits he knows that neck extension is he knew it at the time that's what he testified to despite all that if that wasn't enough then he says twice before they even start i can't do it so he's got this obvious dreamy obvious if you go see a guy that's walking around with his head down like this that that's obvious to me it's obvious public and the lay person they might say it what's wrong with your head i think it's extremely obvious and then when he did started doing it he said my neck hurts i don't oppose once or twice but at least once so how many indications do you need is it was quite obvious now to place the burden upon the individual what kind eight there was some remark about turn him loose on the road once again the car was taken from him furthermore that's not the only option sort of loose on the road remember he is a licensed peace officer he's a reserve officer he doesn't go out of the road much so he doesn't have much experience a lot of people are reserve officers you become a peace officer you don't you don't really work so the concept that he's a peace officer that it has a limited  injured and that prevented him from doing his his doctoring job and of course he could not do his police work because of his injuries he was extremely severely injured and