by the way on a personal note i want to thank the court and council for their understanding of had a number of health issues over the last year that's permitted me to reschedule a number of times i really want to thank everyone for that and a brief administrative issue well preparing for argument we learned that was it that you waited til the night before argument to look at the relevant facts actually was last week and i actually looked at the relevant facts for like months and months and months so that's what i would think right and just now hits you that that w know as your honor as my dad always used to say there's never an excuse is always a reason for him during both times i was working at least i just got out of the hospital and the other one i was actually going in for heart surgery so you know if you kept your letter and you've clarified what difference does that make in the facts but you know it's a turns out actually i think it helps our position as it turns out so we have the issues here it's less or wasn't nervous so he thought baker should just s officers do in our schools all over the united states we're here because we believe he made a mistake and we also believe that this is a teaching moment for ourselves as lawyers and also for our clients that we represent both my families and the officers so we think it's an important this whole concept of qualified immunity is still sort of littered in the case can we just focus on the rehabilitation act in eighty years and what that has and talk to me about what are that we've cited in our brief here for us kind of almost what i would call a checklist you know what's a reasonable officer supposed to do when he or she comes upon a child that they know is mentally ill and by the way one of the threshold questions that we wanted to answer because it came up in judge o'connor's writing on the five zero four section is whether or not the office you knew the child had a disability and that now they write your brief that they did not know that he had a child while to receiving special education services which is true but that's not the issue the act and the the case of the case in the factual aspects of the case are clear that he knew that the child had a disability through the very first meeting that they had with the child they knew he was suicidal they often met together officer slusher told officer baker that the child had a behavioral outburst at school they visit the child at home officer baker admits in the report that he did after the incident that everyone knew the child was mentally ill so as a threshold issue we know that officer baker knew the child had a disability which of course is an important consideration when we look at these cases because arguably when an officer is out in the field and there's someone acting up we can hold them responsible to know th person has a disability at the onset hence the hainsey exception can be versus rigid exception which we're here to discuss so what if that checklist had of the effect of today well one of the things that the various cases teach us is that the age of the person involved an important issue here we have an eight year old another thing that the case law tells us is the body size and tape type of the person is also important you know i agree that it would have been irrational to think eight year old without the benefit of a gun or something like that could kill you could use lethal force simply by punching you on the other hand the concept of lethal force is in response to lethal force or potentially lethal force but that doesn't mean that you have to just let somebody punch you if you don't if you don't reasonably think they could kill you by punching you that doesn't have to just stand there and be punched you can respond to that under the haynes exception right but i think the that was going to kill the principal this officer just have to stand there and let the principal get punched or can officer use non lethal force to put an end to that behavior under the hands exception means i think we all would agree that the officer has not just a right to but a duty to keep the environment safe i mean of course i mean i think that's just fair nobody is here to handcuff the officers from doing their duty to protect the public particularly protect emotionally or mentally ill child the issue as it under the hainsey exception kind of going back to the let's say a fourth amendment claim of the reason on reasonable or unnecessary risk ranger cesar we're not there we're talking about a statutory issue that gives a right for a person who has mentally has a mental health disability to have accommodation for modifications to the environment made to address their needs so going back to your particular question what could a reasonable officer have done well you know this court has probably had hundreds of thousands of cases dealing with police officers involved with individuals not so sure there's been as many children i'm sure there are some in fact councils writing he talks about that we don't have a case that's directly on point well that's kind of the kind of the issue that's a qualified immunity analysis which is not what this is about because this isn't a nine hundred eighty three case at this point was in the district court but it isn't exactly and in fact that's why we appeal that because we believe that under the statutory issue the it but what happens after the child is handcuffed it's horrific i mean the interaction that sergeant baker has with the young man during that period or abominable and i think everyone would agree in fact that police department agreed their own professional your job because of it so one of that was exacerbated by the handcuffing and the way that the officer treated him so that you know there will be a fact issue if we ever get back to a jury that we would address your honor but you're prepared to present damages based on just the post handcuff conduct we haven't gotten that far we would do both but but let me ask answer your question very quickly and somewhat differently we can avoid this whole issue of the hainsey exception we could avoid this whole issue about whether or not there was a reasonable accommodation to handcuff the child by recognizing that particular issue that during the handcuffing the child's right of a person with a disability were violated under five zero four in the a b a by the way officer baker handled him and exacerbated mental illness so i think the quickly he could have done what we call it we could've done nothing i mean the child's like a match one of the things that happens is they burnt out naturally instead officer baker put gasoline on it and that inflamed the whole situation i mean the child just could they could have done nothing just waited a few seconds he was in the hall quietly quietly was in the hall and even they say there was nobody around standing watch that's one of the things they could have done for a few minutes they could easily call soft hands or hard hand they could have had two officers impact on individuals with disabilities in the circuit when this court graded the hanes exception almost twenty years ago determined that the a b a did not apply to an officer's split second decision made in self defense and for the safety of those around suggests that we are considering hames too narrowly when we say it only applies in life threatening circumstances but i would submit that that's the only fair reading opinions when we look at the three po you are disagreeing with what i said which is that he should let the kid just keep punching the principal and what i'm saying so your honor i think under those circumstances that would be considered under the reasonableness of the combination i think that for the exception to avoid the exceptions the rule needs to be confined to the narrow that if you look at page one of the decision the court states that the exception it's creating applies in the circumstances presented in that case if those circumstances involve a armed suicidal male approaching long foresman within three to four feet despite repeated commands to stop if that's what creates the exception and the weak then extend it to an eight year old with the jump rope where probably admits he posed no physical threat to the accommodation case so it was presented at the district court level as a reasonable accommodation case and i think there are a number of reasons why we need to make a distinction between when the hainsey exception applies and when it can be discernment discipline the fact upon all the facts and circumstances of the case why would we expect congress to want to people get hurt because i think that they create that's why they created the reasonableness prong of the eighty eight is because they wanted a jury given the competing interests between the need to not second guess law enforcement operating under difficult circumstances and the need to protect the rights of individuals with disabilities i think that that could be intention is the very reason why congress intended for it to be considered by still there might be a factor speed as to whether or not it was a jump rope but i don't think there's anything in the record suggesting that at the time that officer baker approached the s w that he was using it on anyone at that time if question he had already done that already and he might yet have done some things but at the moment he wasn't doing that and the record lacks a lot of facts explaining what what officer baker was actually walking into we don't know if there was anyone else around we don't know if there were we don't know for example his colleagues that there was to stand here and watch i think at a minimum that creates a fact question as to whether or not there was a combination that was reasonable at that time so i only have thirty seconds left but i would want to conclude with this plane i think it's important to remember that this is an eight year old with autism that was arrested in school congress has done a lot to protect individuals with disabilities in theirs in school including through the i court has any further questions for me i think you motto is to protect and serve them honor to be here before the court with regard to where we are today i look at this case and i have to say is there a way in for of the immunity is there over waiver of qualified immunity is it specific in these statutes and i represent to the appellate court that it is not specific anyway so we're just talking about the city of south likes are you saying the city of southlake is not subject to the a b a are and i think that the city of south lake is subject to the a da in the r a n i think specific then the city would not be subject to if the waiver is specific you have the problem of this is a federal law ok so this is something texas passed and we have to try to decide if they really mean it to be imposed on cities or not we already have an on bond where we say it's with the city of arlington all that far from south like we're saying it does apply but we went through that were some other issues in that case so i'm struggling with the notion that a federal statute is very specific about public entities and entities that receive federal funding which no one disputes so you sound like it is is not subject to these laws and i'm just saying that's under the eleventh amendment going on i still don't think there's a problem with this situation because we talk about the haynes exception being in the immediate danger that requires a spontaneous response and when we talk about an immediate danger it is the threat and it's not the actual injury or danger and you saying you had that here yes or we had that in that this young man brought a weapon which escalated from this first event where he's turning over tables and hitting teachers and kicking people in the knees and then you are part of weapon he did he says it's a weapon what is it that's the homemade non chops that he brought that he wouldn't show that he wouldn't produce until the teacher or the principal goes to the backpack he produces it and threatens them with it he kicks so many hits on he spills hot coffee on can or cannot tell him to he did and stand and watch right here saying i think that's what i'm calling to stand down we can debate whether that is what that saying that ok at that moment when baker walks in what is the immediate danger not what's happened in the past not what could conceivably happen in the future but what's the immediate danger at that moment according to the undisputed evidence obviously it's the child ok what exactly the same immediate danger at that moment coming into this courtroom i practically had to undress and go through a metal detector in my immediate threat is your point that his immediate past conduct is what they were afraid he was going to repeat conduct by the officer the child is still violent and yelling and threatening death his arms that justify that the words that the officer used and so i was i was i just by the words that the officer used if the court could tell me the specific words i'll tell you the justification but i'm sorry what we're asking is once he's handcuffed he can scream all i want can't punch anybody can't hit anybody with a numb chuck wrote garnering else so why are you being rude to him as a police officer what is the justification for that almost the same listens why i can't throw a tantrum in this poor the courtroom is required in the school the custodial responsibility of the school is great as well as it's rude to educate and is not the police officers job he's called because they've lost the ability to do that to retain the peace is the police officers job to practice protect is the police officers job he is doing his job and he is taking a bad situation that they tried to calm down and trying now to deescalate that situation in another way i think he's in do that city of southlake things he's intitled to do that but officer baker know that the child with autistic officer baker had no idea of what the level of problems this child was experiencing the officer only say wow i mean this is a scary concept to me that we should bless police officers calling autistic children names when they're sitting there in handcuffs because that somehow situation to a cold peaceful resolution so that that school could go and put functioning protecting the children in that school and teaching the tilt children in that school the yelling that came from officer baker pales in the comparison in the violent death threats of that young child asked so yes i think that the officer yelling at the child although he paid for that with his job is sanctioned by the law well ok i'm sorry that is your point that the officer was correctly fired for this conduct but it's still reasonable accommodation i say that the policies of the city of south lake are great and they are high and that's why when a policeman goes to work he kisses his wife or significant other goodbye and says i don't know if i'm going to get promoted or fired today but i am going to get do my job and i'm going to come home that's the policies anyway anything that goes up wrong in a day can get you fired that's the cities that i work for so consequently that the law in the constitution's well below i'm sorry the standards of the law in the constitution are much higher than the the policies that they run by i can get fired for anything under a these officers in this city is allowed or allowed to protect and serve the public pursuant to the constitution of the united states of america that constitution is the soul and heart agreement of this united states with the citizens and everything else including the aviation the rehabilitation of fall subsequent to that you know if we didn't have the all right hook up to be accepted by federal funds you know i think that be a little better argument but southlake can say i we all want to be our own we're in texas we want our on life we're just saying going to take the funds and we're going to run our city as we run our city then i think we may have a closer argument although i'm not so sure but i don't understand how you can make the argument a standard all right a positive federal funds for assistance and they did and that's it this is out of contract you don't position i heard it my understand is just going to confirm the record one of the quotes attributed to officer baker after the handcuffing is you want to act like a punk this is what happens to little punk kids away your requirement that you be somewhat compliant and allow us to teach children and to protect children in the school i'm not sure you would think i was teaching decorum if i ca upon so thank you for that analysis you're a lawyer you're doing the best you can to represent your client but i'm not sure it makes logical sense i would appreciate it if you called me a punk or a liar i would go require that you have all or the facts that put me there and if the law and the facts put me there then i need to respond to change your perception and my reality if i'm being now almost eighteen or twenty years later that counties and police departments have to follow the eighty and five and four in that they change the decision there's some language that we wrote in our brief that i think it's worth reiterating because we quoted it there the court through circuit said that once the area is secure and there's no threat to human safety the william county sheriff's deputies would have been under a duty to reasonably accommodate haney's disability in handling be transporting him to a mental health facility and that came out of pennsylvania department of correction versus yesterday and gorman versus batch so i think the law is clear that once the child was handcuffed putting aside the issue of other he needed to be handcuffed anyway if i have enough time to talk about that again as well they clearly had a duty to accommodate him in address his mental health issues i think counsel would have i would agree would be right except we're dealing with a mentally ill child i mean right off the bat we know the child is mentally ill he's incapable of handling his behaviors he was incapable of handling what his language was and once again your honor we talk a lot about what was written in the briefs if you listen to it if you listen to what occurred during those almost eighteen minutes it's horrible it's horrible so it's obviously i'm one of the reasonable accommodation you're seeking coming  you're on what's the reasonable accommodation but at that point at that at that point correct at that once he's had cuffed any and yes well i think one thing then would be to bring in the school counselor and let him calm the kid down rather than yelling and exacerbating the mental health issues i mean it really calms people shout it well it might shut them up i don't call you know i would agree your honor the other thing i want to do go back to i have a minute or two if you know what else could what else could a reasonable officer  do so we come down to the scene and i think the visual depiction because we do have a video of when he comes in through the body can't he's just walking into the school district slowly he's not running he's not rushed  saying hello to people he's having banter with other parents and other people there officer slusser tells him just to kind of watch for a little bit and a few seconds later he goes in handcuffs and i think it's hard pressed to say that there was any emergency occurring at that time no media doesn't media have to be i guess is a question here because your opposing counsel says well he done all this stuff for him that's enough to sort of create this environment left for the jury as well but in terms of we're talking about as an issue of law and going back to the purely language of the hainsey decision immediately into media now i think there is what i would call a penumbra i mean we  we're reasonable people here but once again we have to look at what we call the totality of the other circumstances which i started on a while ago the body size of the child the body size of the officer how many are involved as a child dancing retreating or standing still what kind of weapon is used these come from all the case law that the judge seidlin counsel cited in his briefing we did in order of what the threat deadly was a threat imminent was a crime being committed was open or close played with the sovereign immunity argument that unless it's been more clearly stated that they didn't wade the soccer community i think hainsey described i mean i'm i'm side little pile describe that very very specifically two years ago police departments have to follow the eighty and five zero four for rehab act  and obviously have a wide range of physical risks once again in this particular instance the officer could have done nothing they could have surrounded the child with other adults they could have restrained him they could have used what officer called soft hands or hard hand they could have picked him up and moved him the handcuffing was the absolute last interaction that would be suggested under the their own c i t program less or any further questions your honor thank ron thank you very much for letting me be here it's a great honor thank you