terms of our claim under federal law and our claim under state law and i'm going to begin with our claim under federal law and if you look at the trial court's ruling the trial court ruled that these defendants were entitled to qualified immunity the court is aware there's two different prongs to the qualified immunity analysis here the court limited its ruling to the first problem of the qualified immunity analysis the court found that it wasn't necessary to address the second prong because it found that there was no genuine issue of material fact regarding whether or not the use of force in this case was excessive so the primary disagreement between ourselves in the trial court is that the trial court failed to view the evidence in the light most favorable to the plaintiff and our contention is based on the fact that at the scene of this shooting you have four different deputies in total who responded to this scene and it is the i know the court is very familiar with the facts but this is a welfare check that these officers are engaged in this isn't a suspected crime no one's responding to any criminal activity they're going to check on my client because of reports that he's schizo frank and that he's potentially posing a harm to himself or a threat of harm to himself so what's your point about that there were four in this was only wealth so there were four deputies dispatched on this welfare check and of the four deputies that are dispatched there's one deputy deputy mccann who elects to use fatal force in this instance there's there's case so we can't go back and see if they should have gone about this in a better coordinated way so that this would not have occurred that one deputy would be exposed want to emphasize there are distinct claims here and i had knowledge this segment approach has been and this is been the legal issue throughout the case and judge batchelder i know you were on the two opinions that address this segment approach that have been at issue in this case which are the livermore and the dickerson cases and so you know looking back at dickerson which i believe dickerson was the first case in which the sixth circuit adopted the segment approach there's interesting language in  citing to a seventh circuit case that had adopted the segment approach in the your panel cited to the dickerson language where dickerson explains that there are instances where we entrust police officers to cause trouble and that's the phrase that's used in this opinion cause trouble and i think that's right and i agree with the general notion that there are instances where police officers have to cause trouble by disrupting criminal situations and when they do that you don't necessarily know how a situation is going to devolve what i would respectfully submit is that this instance where you're talking about police officers responding to a welfare check where they've been asked to come to a scene to help somebody and where they're given all the facts they this individual schizophrenia they know this individual's in a garage that he allegedly has a knife and that he poses a threat to himself and only himself at this point where they know those facts i don't know looking at dickerson and looking at livermore as well i don't know whether those opinions represent that the segmented approach should be applied to this type of situation i can't give you a case where this court has said it doesn't apply to this situation but i also can't give you a segment approach case quite this one ordinarily it's officers are responding to criminal conduct they're trying to stop someone who is a known or suspected criminal things devolve things unravel in deadly  seen again the segment that approach applied to facts quite like this and so i don't know if it is entirely clear when you look at the rationale of dickerson reduced english it on the facts here what would what the facts here would be that there isn't criminal conduct that spurred the police involvement in the situation and so when the police are involving themselves in a situation for the very purpose of the well being of an individual they can't use that but i'm struggling with record regarding that point and if you look at her deposition testimony this is this is mr vander brock who was his live in girlfriend of i believe seven years she's the homeowner she states that the reason why she's in the bathroom is because it's the one room in her house that gets cell phone reception and that she was limited to using her cell phone she specifically said in her deposition testimony that if during the nine one one call she said she was locked in the bathroom that that was a misstatement and it was not true but more importantly than that no i don't believe they did and i've looked through the record for this point the police officers are given their information not from that nine one one operator but from the dispatch officer the dispatch officer according to these defendants testimony they were told that he's in the garage that he has a knife and that the woman who called suspects that he's a threat to himself i didn't see and defense counsel can correct me if i'm wrong i didn't see any information that was given to the officers that would have made the officers think that someone else is being threatened here and mr vander brooke was very clear that you know she had she had called the police in years past because of other similar situations but she said she had never personally been threatened by him that there had been no violence between them and that she did not feel threatened that particular day she said all out with her and she refused at first to tell him  what there's a there's an interesting exchange in her deposition and i believe the the sort of debate was over the word brandishing where she was asked did he brandish the weapon at you and she said he pulled out the knife and showed me the knife she said she specifically says though i did not feel threatened by the knife i didn't feel as if he was threatening me but she does use the word scared and the way that i took her deposition testimony and i guess there could be room for interpretation which would be a factual issue is that she was scared over the prospect of a knife being in his possession because of what he could have done to himself how that side of the sheehan case which was last year's supreme court decision how do you deal with the language  plan is quote cannot establish a fourth amendment violation based merely on bad topics that result in a deadly confrontation could have been avoided well i think the shot the situation we're dealing with it in a way it is the situation we're dealing with here i believe she handles postured a little bit differently because that case was presented almost as a equal protection case or an american with disabilities act case about a fourth amendment right they do talk about a fourth amendment violation and i think that there was a discrepancy in terms of factually whether there was criminal conduct involved in what happened i also think the discrepancy we have or the difference we have with she hand is that we don't have multiple officers at the scene making a conscious choice about different levels of force that are required we have six circuit precedent judge mary you were on the panel i believe in miller v sanal at county that talks generally about the idea that under graham v connor you have a right to be free from the use of gratuitous violence i had a case here last year an excessive force case that i prevailed on the livingston county in which judge sutton wrote the opinion noting that you have the right to be free from disproportionate use of violence or disproportionate force so what i would submit is that where you have multiple officers using different levels of force and we have plenty of cases in the past by the way where partners use fatal force to protect their own partners so it's not that you only have a right to use lethal force if your threatened so these officers saw someone being threatened with some type of force allegedly and they chose to use tasers or use no force at all i would submit that that presents at a minimum a question for a jury about what level of force was necessary but i see my time as it were not being immediately threatened this officer was being immediately frightened by barely substantial life pointed right at the very close to it was a four inch blade she was the farthest officer from my client at the time she walked into the garage he turned toward her within five or six seconds and begins to walk toward her what i would say is  he got within i believe the estimate was six to eight feet i believe when the shot occurred almost five feet she ok i think my understanding was if she had made it five feet out of the garage she had backed up approximately five feet but i thought that the estimate was six to eight feet i could be it could be five feet your honor i could be mistaken to back up she she states that she tried to back up didn't have much further she could go without being in a more vulnerable position that's that that is how she described it would what it is in line with though your honor is a michigan claim for gross negligence which is a distinct claim and what i would submit to the panel and i didn't courage the panel i think the most jurisprudential significant thing that has occurred while this case has been litigated and pending is the beales first state of michigan opinion that came out from the michigan supreme court case this is a case that's described in depth in my brief but an autistic child drowned in a state pool in michigan because a lifeguard was not on duty and not paying attention the michigan supreme court said that the proximate cause of the drowning death was not the lifeguard failing to respond it was whatever caused the autistic individual to be under the water so what i would say here is that judge batchelder i see you're frowning and i hope it's for the same reasons i would frown about that opinion but judge your opinion in livermore there was a state law claim for gross negligence in which you your panel said that the proximate cause of the death was the individual who was engaged in criminal conduct well if the state of michigan is going to go to the length of interpret ing that term the proximate cause as literally as they did in beale's i don't see how the proximate cause could be anything in this case other than the officer firing a bullet at my client cases that this this favor transforming climbs involving elements of intentional towards and the claims of gross negligence there's certainly case law along that line honor i know my time is up but just to answer your question i think that that case law applies more to instances and i've seen this happen where plaintiffs plead claims as this is assault and battery and or gross negligence or this is a constitutional violation and or gross negligence for the exact same conduct what we're saying here is the force should not the fatal force should not have been used and was not necessary and wasn't intentionally done here was intentional arghandab was not fired acts of that that's correct and that's not what i'm trying to argue when i say that there's a gross negligence claim when i say there's a gross negligence claim i'm saying that under general principles of negligence that you are liable for the reasonably foreseeable natural consequences of your negligence in this instance where you have an individual who's mentally ill who you stardoll who you form no plan regarding how to approach the natural consequence of that is he's going to move with that knife and then you're going to feel like you have no choice but to shoot him and so i don't think this is a situation where i'm just trying to play semantics and convert intentionality into negligence i think there are two different aspects of this case i understand that there could be limitations from a federal standpoint as much as i disagree with them but from a state law standpoint it's a distinct claim and i don't think we're subject to those same limitations thank you patterson apparently have the defendants your honors appear to understand obviously that the second approach applies here and i would just point out that in my view she had case last year the supreme court and segmented approach because in that case they dealt with officers multiple officers responding to the scene of a mentally impaired person who was they were brought there to commit the person not for any criminal behavior so they were in the same situation as the officers were here the officers entered the room they were threatened with a knife they were treated there then they re entered the room weapons drawn one officer pepper sprayed pepper sprayed the individual then didn't stop them and then  the individual shot this court in viewing this looks just at that second entry into the room and they determined verse of the ninth circuit which had gone the correct that they did they found that after entering the room the second time with weapons drawn when they're threatened with a person approaching with a knife lethal force was justified you know when you read the supreme court jurisprudence of qualified immunity and he's got a cases it's it's not all weapon and a police officers direction that officer has an object leave reasonable basis for believing that the person poses a significant risk of serious injury or death and your honor judge given you had it correct when he said the plaintiff in the appellant brief admits that the individual got within five feet holding a knife extended directed at an officer with no no barrier between them at the time she pulled the trigger under any  that justifies the use of deadly force and it cannot be seen as excessive force in this case or in any other case based on the law just as it's been established the i don't think there's much question and as far as any of the federal claims go in that regard and plan is counsel seems to understand the limitations he's faced with based on the law is as it exists with regards to the state law claims i'd like to address those  because the plaintiffs attempt to be he's saying he's not trying to play semantics with different types of claims but that's exactly what he's doing he you know it's clear that the shooting was an intentional act he gave alleged assault battery an intentional tort it's the law in michigan is pretty clear that an officer is allowed to use force including deadly force if they're threatened and it's object and from the gross negligence perspective and judge building you correctly point out the cases michigan cases have said you can't convert an intentional tort into a gross negligence count and clearly again that the act of shooting here was an intentional act there's no mistake about the plaintiff's counsel takes a step back and says well i that's not the act i'm talking about i'm talking about the acts before that that that led to the situation where the shooting that brought about the shooting and it's my allegation that those are the acts that were grossly negligent the problem with that position is the law in michigan requires that the gross negligence be the proximate the one most immediate proximate cause of the injury there's no question in plaintiff's counsel basically says the one most immediate cause of this injury is the shooting not the events that led to the shooting on michigan law there can be multiple causes but there's only got to be one in a in a state law gross negligence claim to avoid governmental immunity yes the statute says that has to be the proximate cause the michigan supreme court in robinson defined the proximate cause as the one most immediate cause of death counsel mention the beales case and there it was clearly the left guard had left the pull the autistic child got into the pool was unable to swim submerged and stayed under water so the in looking at those sequence of events the michigan court said it wasn't the lifeguard leaving their post that was the one most immediate cause of this individual's  it was the fact that they couldn't swim in these submerged under water whatever caused them to say stay underwater was the one most immediate cause analogizing it to this case you have whatever events however much blame they want to place on not having a tactical plan for entry into the garage all of those events occurred prior to this individual approaching the deputy knife drawn at her chest level within five feet of her at the time that she chose the time that she chose to pull her trigger an intentional act and that would be the that would be the proximate cause here so he cannot go backwards in time to try to come up with a gross negligence count and say that in still make  claim that it's the proximate cause did strike me that it wasn't it wasn't obvious at the point where they enter the garage i mean now you had all forum that this was going to be the sequence that was going to play out i mean he might have just cowered in the corner but there they had no idea what how he was going to react and you know they were there they did officers entered the house with permission they went into the garage they open the garage door to allow access for the other clearly instructed him repeatedly upon entering the garage to drop the night drop the night drop the knife there's no question that that was part of their instructions that he disregarded those instructions when he when he turned and and walked towards the deputy who eventually shot him there's no question that they didn't just walk in there and say you know they walked in there they called his name they got his attention and then there's a dispute on whether or not he said anything but it's kind of a it's really irrelevant whether he did because they didn't told him to drop  knife he disregarded that so i would submit that regardless of whatever tactical plan they came up with they did not know how he was going to react and based on the way he did in fact react there's nothing to indicate that he would have not have to react when he was he was the one who approached the deputy i mean he was they called his name he's in he's in the corner of a garage and he's standing there he sees the deputies he's the one who pull he's the one who pulls the pulls a knife out so she backed up as far as she could and at that point time he was essentially on the edge of the edge of the garage still knife out in approach and continued to approach her so the threat is there the threat is real the threat justify the use of deadly force here it cannot be considered excessive in any way under six circuit precedent or supreme court precedent and from state law perspective the same circumstances support the use of force to defeat any  intentional torque result battery claim and plaintiffs attempt to swirl this into some type of gross negligence the count based on events that occurred prior to the shooting itself fail because none of those events were the one most thank you again your honour's judge may or just you know one one point i'm a little concerned about is i want to make sure that this doesn't somehow lead to an opinion in which this circuit says that she hand has now settled at a national scale whether or not the segment that approach been approved of or not and for that point i direct the panel to footnote four from she hand in which after citing to the ninth circuit's approach towards what you can consider and can't consider they say are citation to make circuit cases should not be read to suggest are greenman or for that matter disagreement with them and then they basically say see also livermore and so they lay out that different circuits approach this differently and at least based on this footnote it's seems to me to indicate that we're not taking a position on this matter because we don't need to for purposes of resolving this particular approving lou or more approach as well as others i mean they're not rulin always end up making in qualified immunity cases is i'm not the one who moved for summary judgment i'm not the one who is saying as a matter of law it's crystal clear here that they're liable what i'm saying is that this needs to be submitted to a jury and when you go back to you know some of the clear supreme court precedent we have on this subject you know graham v connor you look at something like grand teton or what it makes very clear is that look this is a totality of the circumstances analysis you have to put all of these facts in front of whoever it is that's making on the panel in the baker v union township case which was a pinion i believe authored by judge boggs where he said that in a qualified immunity case when the parties start arguing facts and making factual arguments a court is divest it of jurisdiction to make to make those types of determinations i really don't have much dispute of the material box here do i guess you're mainly fussing about whether it was reasonable for the officer to do you know i'm glad you asked that judge because one thing that i did want to make sure it was addressed in this rebuttal is you know this idea that while the officers come in they confront jeremy they tell him to drop the knife and he decides to charge i think that we're losing some sense of what this situation actually was to officers this is a garage that's attached to a home so there's a pedestrian door if you will that weeds from the home to the garage and then the vehicle door the large garage door to officers go into the home jeremy has no idea any police officers are at the home or that he's about to be encountered and he's going through schizophrenia one officer reaches through the pedestrian door triggers the overhead vehicular garage door so now jeremy is in the garage going through schizophrenia  music playing all of a sudden he hears the motor of a garage door opening and over all that chaos he looks up sees two people behind him one with a taser looks in the other direction and sees two people coming towards him one with a taser and one with a pistol drawn this all occurs within five seconds within five seconds of the first officer triggering the garage door jeremy is dead you have a better point then absolutely should have been i know that goes back to the segmented approach  but when you look at what these officers did the fact that they did not have any discussion with one another prior to engaging with my client and that the shooting officer in this case it minutes that she turned off her radio that was one of the first