the analytical structure in this case the ultimate question is did a state actor use excessive force and i'm not certain or was the state actor you know acting reasonably under all of the circumstance and i'm comfortable with the idea that the job label governs that so strictly whether the person is a police officer or they're a relied such as in particular thompson against coke illustrate ringback you know an obvious medical intervention something you know trying to give somebody you said it shocked and so we would which impacts whether or not a reasonable paramedic would have been saying no that's as opposed to a police officer who received training on constitutional violations dangers and other very specific issues that police departments but i will say that the at this point is that this is a question that doesn't just remain whether someone is named to police officer arithmetic but it is determined by the actions they took at the scene of the and did they take law enforcement actions or did they take medical so when you said a magic phrase just a nd ago question of sat the thing that makes me most uncomfortable about this case is that it seems that there are a number of critical questions of fact that didn't get resolved in the light most favorable to the nonmoving party for example when officer garrett enters the room was mr taylor head butting the wall and hitting and kicking and doing all sorts of things for as serina and shannon testified doing none of those things you know did he just he just give them a foggy and i don't recognize you what are you doing in my house does the officer refused to let them give him some orange juice this strikes me as extremely relevant to the question whether the force that was used was excessive i can certainly imagine somebody maybe even in a medical emergency who might still be flailing around so much that an officer would need to bring them under control using you know subduing tactics but maybe not you know it just seems to me that there are many questions of fact here we believe medical purposes in light of your earlier statement that labels don't really matter it's really about the training and where they're they're coming from how does that law enforcement versus medical purposes fit into the at the scene of a medical call is still clearly established that you cannot undo reasonably see that person as a police officer there are cases that hold that a paramedic in certain circumstances can conduct the seizure that is for law enforcement purposes just as a police officer can provide medical me so miserably there i think i'm unclear on the criteria you're asking us to employ are the graham factors for excessive force as a result of law enforcement are they some modified graham factors as a result of the use of force as part of a medical approach by a law enforcement officer are they a different set of factors which are you asking us to use application of the graham factors he doesn't say he was rendering medical assistance he knows that the paramedics are on their way he says he's using police to act is that important ye but he doesn't say he's drawing on that set of expertise that he may have does he know in fact during the whole he testified that he said is the until or medical aid is on its way indicating that he was not providing medical aid during the restraint he does his testimony is very supportive of the fact that they're one of the medical provided until even if you they're right so in fact let's ask i mean this goes back to my original concern suppose it hadn't been officer taylor suppose one of the paramedics had come into the room at an earlier moment and had taken one look at mr taylor and punched it as hard as he could in the face would that be medical assistance that would not be medical assistance and i think so just because a paramedic does it that's my point doesn't automatically make it medical assistance we certainly hope you know that that's what they'll do but the fact that they're a paramedic doesn't necessarily mean they're rendering medical assistance right in thinking that point earlier than that that officer your head training as a paramedic and sometimes work part time as a paramedic is not render every action he took on scene and medical factors there was no threat there was no suspicion of criminal activity which is what makes it easier on reasonable matter going forward officer garrett just tried to use the excuse that there was a medical distress call and the reason that his response was one was medical in purpose but he'll arrive at the scene of a medical distress call did not bring in his st aid kit entered issuing orders to the individual in the hall did not provide shoes to even taylor despite the fact that that was the one medical remedy that was readily available he did not check and i don't know if all it's breathing he did not take his weight off of the back when it was clearly seen on the ff what's the plaintiff's position as to why no officer would go into this home and apply force in the manner you describe we believe that officer kerrick based on the evidence before the court had an unreadable belief that that even reasonable which should be looked at by it gerri and there are no hat in your argument what makes this more law enforcement activity as opposed to medical activity that he thought he was a threat to himself there  multiple and cases that would help us determine including we can agree what he wants force and purpose is as opposed to a medical purpose you know the mechanic case the court found that there were two actions the police officers took even th and also what exactly not necessarily just the intention but what actually occurred there when we have an obvious who had the know how to provide medical aid and she was instead painting a subject we can see through those rendering aid that is supported by undisputed fact i'm not saying is there an argument that officer kerrick could make before a jury but undisputed fact judge what what you say seems to hinge on the fact that that officer garrett thought that this man was suppose to harm to himself or others but what the district court recounts in the rd full paragraph on that page his voice told steven to calm down and said get back serina tries to say something but there's nothing in the facts taken favorably to taylor that suggests that the sort of extreme intervention that officer garrett engaged in screaming at him to calm down pinning him down squishing his face in the bed and so forth was it was anywhere in the realm of reason i mean officers don't come into a room and see somebody mumbling incoherently to have the also murs patients in the world you know would have themselves flopped down onto a bed if that were enough to justify this form your honor i'd respectfully disagree because possible things that could happen to someone with like your there's no evidence of that so as miss roughened drowned said he doesn't come in wearing his paramedic had and none of the measures that he takes seem in the slightest degree medical to me i think it's actually fairly common knowledge that if somebody has a sugar problem who's a diabetic you can give them some orange juice which is a temporary measure maybe they need more aggressive intervention and that they're taking the record in the light most favorable to taylor i don't see medical coming out of what officer garrett did well i would disagree your honor because he's responding to an emergency medical crush somebody onto a bed i just i think his basic argument is from the account that he gives which a jury might believe if he's landing all around the room and crashing into things and kicking then maybe what he did was quite reasonable and if the jury were to believe his account of what went on then that would be that would be sacked but if the jury were to believe instead the account that serino and shannon gives as well as the fact that when he comes in he's not doing anything medical he's not with the e m t team he doesn't have you know he doesn't even take sort of ordinary measures that you don't need does that where does that fit in with the gram factors and with other other things and how do we given that this is an objective test you know was there excessive force hughes we need to step back obviously in the context but it's an objective test what's inside his head isn't objective that's a subjective test you're asking as well your honor of what on what i'm asking the court to do is you to look at and this is the most important thing i think for the court to look at is what was the purpose for officer garrett to be there there were all law enforcement purpose whatsoever for officer garrett to be at the house so he talked repeatedly about the mckenna case i don't think that qualifies at all i think that is a common question and that's the thing that the argument the plaintiff may but that's just a pure safety question that a parent would ask are there he said it if he was there in a law enforcement capacity is he entitled to then i think we have to go to the nd the nd prong on that and did he violate that right and then initial well whether it was a seizure or not and then we have to look at the the grand factors but in this be an issue of fact at that point if he's there performing in a law enforcement capacity would there be an issue effect that would preclude a qualified immunity finding as a matter of law perhaps your honor but i think what's so apparent in this case is there is no question of fact at all whether was there along force in the capacity over this is not relevant to look at his own characterization of the tactics that he was using and those tactics themselves there's there certainly is no dispute that he forces taylor down in the bad and smushes his face down to the point that he swallows his own he asked for it to actually doesn't swallow the aspirat own vomit so this is a i'm very uncomfortable again with this label idea that just because you label somebody you know a paramedic then they automatically can't be using excessive police force or if you label somebody something else john seems to me you have to look at what you're doing object your honor my judgment i would agree with that completely i don't i think the way you whether you're a police officer a paramedic a firefighter the maid it doesn't matter as this court purpose but if he you know sits on him as he as he does and forces him down and does police stuff pressure point tactics and the like i'm hard pressed he doesn't even defend these things himself is reasonable medical measures that an emergency medical technician would perform prior to getting somebody you know to a hospital or to qualified medical help what i think that's the goes to the most compelling argument in this right is not clearly established because it's jared's conduct is not so obvious that it person in his position would recognize it as a that may be an issue of fact on the causation issue but when we looked at whether the right was clearly established not to have some state actor come in and sit on you when you're not committing any crime not threatening anyone not in any way there are a lot of cases was clearly established as plaintiff police practices expert highlighted this rast is are clearly established national standards that govern the use of force for officers when the rent an emergency medical assistance and it were that there aren't you don't think it's possible it's just a matter of law you're saying it's not possible to use excessive force with no medical justification as long as the original call had a medical purpose because sometimes as in thompson you know you need to disable the person just to get the situation under control but the problem is taking the facts as taylor presents them this isn't one of them i would disagree with that your honor because as as taylor presented the facts and agrees this was a call for a medical emergency what is it what's dangerous about mumbling mumbling stumbling and falling low blood sugar is very potentially dangerous and so in a clock their access to are in no i mean i am hard pressed to think that the mumbling stumbling and falling are a danger to anybody for it is for to avoid the catch twenty two situation that jared exaction and gets or doesn't take action against you because it's very easy to think of a possibility we're garrett arrived did not do anything five treatments he entered as an officer assessed the threat not the bike call for a police backup and administered force techniques and see there were no medical purpose it was clearly established last actually reasonable police officer called for police backup to you did your honor he call court of the county to respond that's a lieutenant mccullough arrived on scene he didn't ask for an additional paramedic and another back i'll point raised by my colleague yes obviously i was responding to this actual but as the court rightly pointed out what really matters here is the actions he took once he got there whether or not he was responding to a medical call rose to case where the officer has a we're made of a medical distress or an issue relating to a case in the th circuit that shows an officer is response to a medical distress call make elster instructed there was a car accident and some information the officer had that the plaintiff in that matter may have been in times the key to when you're driving the scene of a car accident he grabs the hypoglycemic plaintiff and the room to the grob restraining him trying to revive him and the last point i will raise is that my colleague helped me drive home my point and that there is a question of fact as to be issue in this case such that a jury should decide officers cannot pick and choose when the th amendment applies to their actions and when it does not the constitution applies in chicago as it does in milford illinois that isn't should be able to rely on their right to be free of an unlawful and unreasonable seizure and any