good morning again scott carson representing police officer paul ginn fredo from the west hartford police department i have reserved two minutes for argument and i will try to stick with my time i do want to start out by recognize that the defendant who tasered a twelve year old african american deaf child who has a d h d and psychological trauma made appear to be facing an uphill battle for starting point but we are confident that the principles of qualified immunity protect this officer under the circumstances of this case can't be just because it's a yes but the officer reasonably has to know or be understand that he would be violating the law the basic contours and sorry it's an objective understanding i don't want the objective aspect of it because they're not talking about committing we're talking about a reasonable officer yes i mean an officer can't go out and do something horrible and say well i didn't know that it was a biologist of the law everybody agrees that what he did was a twenty four hours is a clear example of a situation where even though the circumstances were novel it was clear it had both a legally and perhaps even a morally objective sense side from apart from how the how to apply the standard way just talk about the facts here wasn't the what was the boy the boy at that point he he acted out he'd apparently assaulted one of the people with once i guess with  and also with a stack yes i mean that's right yes and your officer appeared on the scene and he was retreated into a construction area at that point he had done that before the officers were summoned and what did the officer know at run into this construction zone and was sitting there holding a rock and that he should the officer was told again by doing davis that he should be careful entering to into that area because the boy would throw the rock at the officer will also note that it was dark getting dark depending on this is april thirtieth of two thousand and thirteen it's about to have a bearing on this there are cases including from the circuit in which approaching ni fall is a circumstance that is that the officers are entitled to take account of for a number of reasons for example in this case they were in a construction area which is of unknown terrain unknown equipment unknown substances and boy could jump up and run away just as he had done from the dorm that he had been in when he wrapped the video phone wires around his neck to the point at which he was face turned red that's how distraught this boy was you have certain knew that there was a psychological problem here points with respect to that points of evidence actually there's the boy's testimony from his first depositions us session in which he says that the officers weren't communicating nobody was trying to talk to me then there were three statements in the plaintiff's rule fifty six they too statement which at least in our district i believe to be binding judicial admissions one of which is an admission by the plaintiff that he saw christopher him and one of the a s d staff members signing to him second that hammond tooled and these are admissions of the fifty six they took that him and told plaintiff through sign language that he was going to be tasered if he didn't drop the rock and this was his last warning and finally and this is crucially important on this from judge walker's question the officer believed that his communications were being successfully and effectively passed along to the to the boy you saying that the plaintiff's takes that position it's admitted in the fifty six a two statements your honor and that set forth that it and he said made it what exactly that he read the signs that he that he saw that he saw christopher him and the staff person signing to him that him and get the information last warning and most importantly again the officer believed that his warnings to the student were being effectively communicated and received that's a very important point yes that is what i want to know is and those are critical because there at the end of discovery there admissions that are signed off on by counsel and they reflect all of the information in the record as of that time the representations to the court and we consider them to be something that we in the court because the second officer officer life was too far away from the student to gain control of him after the conclusion of the first teaser cycle first his or cycle somewhere between two and five and taken away soon let was struggling with the student student made a movement according to officer gene frito to pick up the rock again and that's what he administered the second in order to secure that is that it is it is not disputed i mean you have to you have to live with their fact the record not your facts i do but also also the case that nowhere in the complaint nor anywhere in this case is it ever been alleged that the second taser was applied maliciously or in any other reason for any other reason fleeing non aggressive protesters who were had three tiers of the planets because they were deemed necessary to control their actions under the circumstances of that case look i just want to go back if i may briefly i actually haven't seen any  argument attacking the second taser application right the way that's right thank you but i want to go back to the third admission because there is no question in this case that the apply and i circumstances be viewed from the perspective of a reasonable officer on the scene and in this case there is no dispute given the admissions that officer june frito believed that his warnings and his commands were being successfully communicated to that board and were then being deliberately ignored and given that situation then you have to ask one of the officers options he's facing a situation where he may need to make an arrest for a a criminal assault and he's certainly going to have to have the boy shipped to a hospital for a psychological evaluation in either case is going to be a hands on circumstance and the officers are going to have to take that rock away from the boy and they're going to have to put him on a stretcher that's why it's important to separate i think out between the two tasers because if you didn't if you drop the rock because of the first taser and the threat was gone then it's hard to see how the in mourning may please the court and resents he for the appellee this is a case where in a matter of a minute and forty nine seconds from the police officers getting on the scene that a twelve year old deaf boy was tasered twice by police officers and by everyone's admission at no point in time to this twelve year old boy exhibit any violen behavior made any sudden moves about in violent behavior before and then officer was told about it and also knew that he had a rock and that one of the people he had previously assaulted was there and had to be there comes by him in order to the warning about the taser yes they were told that he exhibited violent behavior but it doesn't justify taking their time to assure that they don't just go in and taser him micro kind of look back and fly specked in hindsight but the officers do under these circumstances if they're confronted with a situation and they respond a certain way that is  not is is not you know is not unreasonable under the circumstances it and part of what you have to take into account is what the officer understood and apparently which i was not not fully aware of is that there seems to be no no dispute over the fact that the officer believed that the warnings were being conveyed in disregard it so the the admissions the counsel of her to are just not just not the case they say  that my client admitted that he understood he understood the warnings and that's just not true repeatedly in the in the statement he states and in his deposition testimony he states he did not see those warnings and th did he concede that the officer had reason to believe that his comments were being effectively communicated and received he said in his deposition transcripts that he did not know one way or the other and could not know whether they were effectively communicate or not because he was behind the twelve year old boy and did not know if it was communicated because he did not get confirmation i mean he was communicating the warnings to the dean i think it was convenient to the teacher who is facing your client now the argument is your client was looking now nothing says if you look down that you can you know look up at the same time  testimony he says i asked on evidence on that one way or the other there's no evidence to really say that at least from your client there's no no evidence the officer testifies that he could reasonably believe that he was his warnings were being conveyed because he was seeing signing going on your client is can't really dispute what was in the offices mind correct and but these are these are factional credibility questions for a jury actions were reasonable or not based on the circumstances well as your client should this j deny that he got any instruction say any information just wrong or he denies he was so when he was hit in the that that that that hammond was signing to to the to the boy i mean why would hammond be signing to the boy if the boy wasn't looking well in sign language someone has to be looking at you that's right for you that i actually received that information so someone could be signing vigorously to you and you wouldn't if you're caught your eyes are closed you don't know what they're saying and so that's the why why can't the officers that hammond the a teacher at this school would not be signing on less unless he had made eye contact i mean i think mr hammond is is himself death here so you know he understands the situation as well as anybody can wri and the reason that it was probably exaggerated was because if you are trying to get the attention of a deaf person who is not looking at you you or your exaggerations are going to be more than that so yes let's say that that happened why should the police officer make that assumption why can't the police officer assume that having having conveyed the warning to the dean of the school and that and watching it being conveyed by mr hammond who's a teacher at the school that the student is receiving it you never got confirmation from chris hammond that that he understood and that he wasn't going to comply with what the officer says is that all he saw was a kid looking down and shaking his head and that's that was enough confirmation for him to show that he wasn't going to comply he never even asked chris him and did you convey the message not an issue of whether he was signalling whether he comply the question is was he warned that if we didn't comply to tolerate right and what the police officer said is that he had no concerns about safety by bringing in civilians into the fenced off compound because if he made any sudden movements or did anything that he could neutralize the situation immedia he had to bring civilians in because the police officer would be unusual with the police officer who could master sign language but he had to bring in teachers and faculty in to communicate with the child so even assuming it was communicated we're still not focusing on the time that it took why why wasn't it fully communicated why were an alternative methods tried to be used for instance to get the attention of a use the situation before using the taser so that's that's why don't you know what alternative methods were available or so being from a school for the deaf they should know that to get the attention of a deaf person you can use light to get the attention of a deaf person had someone chris hammond or someone who was in front of him actually used a flashlight and flashed it to a that could have got his attention and th that could've instead of just raising your hands and doing it this way it would have been way more effective to get the attention that your client see and he not know anybody was signing i thought that that was something that  officer said that he saw that he was shaking his head and looking down in the early going like this negligence that you're identifying on behalf of mr hammond well had he taken his time to assess the situation and taken his time to communicate with the professionals on the scene instead of in a minute in forty nine seconds coming onto the scene and tasering him twice i think that he could have gathered more information to better be equipped to work with to ensure that they didn't have to use a taser and they may be able to use other means and it was and no reasonable police officer would consider as this officer apparently did that it's better to use a non lethal and non device that inflicts no permanent injury rather than wait to see whether whether a person is obviously out of control doesn't hit mr hammond over the head with a rock well there's no evidence that the police officers it for themselves that he was out of control doing anything that was threatening what they were told that he was called by the i mean if he was under control you'd think that the dean and the teacher would be able to control well even the nine one one calls says that he's he's under control at this point and so they were aware that the situation of a neutralized but they needed a police officer to calm him down or to bring him to his senses that's people don't usually call the police well because he was in the construction site on his own and he wasn't he wasn't you know leaving the construction site just sitting there on the ground with a rock and the staff didn't know what else to do at that point and so that's why they call the police and so in order to seek qualified immunity don't you have to accept as true all the plaintiff's allegations you know you're on i thought that was the law in the law is just heard from the plaintiff's counts so that he didn't get the message that he didn't see the signing how can a qualified immunity go forward in that case if that's a disputed fact or a controvers in our view your honor that stray statement from the deposition is on the order of a sham affidavit that is not sufficient to create a disputed issue of material fact when it's controverted it may be the question is does it  upon what the police officer what the defendant reasonably believed that's right and reasonably did that's true and to that point what the what the kid says he perceived is not really pertinent to what the officer who was standing behind and that the officer has takes up there is true what the plaintiff says in order to see qualified immunity that's the point even accepting that it's true your honor i think just jacobs point is that it's not material to the question of what the