case number one five six one four two bracken's jr is a personal representative of the state of re on bracken vs will jefferson county metro government at all and officer brian billick argument  leon bracken's on april twenty first two thousand and eleven leon brackins was an unwilling participant and a pursuit that spanned two states rhonda sullivan was the driver of the vehicle who fled police in indiana and took them on a chase into kentucky because if she had outstanding warrants leon bracken's the passenger called the police many times during the incident and pleaded for help he was heard on the dispatch tape crying for help and begging someone to save his life he said i can't get out she's going to kill me please what do i do i don't want to die i have no choice i can't get out and she won't stop reckons related dispatch there was nothing he could do was he was the one not the one driving nothing i can do i mean here i'm scared for my life never done nothing never been in a situation like this you can also hear bracken's pleading with sullivan in the background to please stop the vehicle the dispatchers that he was relying this information to knew he was just a passenger miso of and eventually stops the vehicle on the kentucky side of the river the end of the pursuit has been described as rather uneventful in fact obstacle last is testimony as outlined in our brief describe the end of the perceived as low key not at high speed not erratic minimal traffic just contesting are you that the the earlier part of the chase was quite quite excessive and dramatic are you i am not and i am not i'm a cut to the chase at least this is my view i don't know about my colleagues obviously mr breckon was badly used in the whole situation and it would seem that the dispatchers are primarily at fault i don't know whether you threw them or they settled out of some point but can you really focus on what the officers did after the stop given the information that they had even taken in the best view to yourself because i think we've got the big picture we're not suing the dispatchers here apparently you did settle cording to the brief with some of the jeffersonville indiana officers is that correct that is correct you're honest your honor we never brought a claim against dispatchers and nor do i think that there exists a cause faction against them if you look at the smoke vs haul case which we've cited in our brief it actually addresses the issue on whether or not dispatchers can be negligent if they provide an incorrect information in this case i think that if there is a disputed issue of material fact exactly what officers knew from that this batch if you look at the statements they gave p s u and that they gave in in depositions their responses are really all over the board as more as what they knew and what they hands on immediately for elevating all he knew he said all i knew is that indiana was chasing a van after stefan said he had no idea what the chase was over her meredith multiple different statements in his first interview he stated he thought a lady called this badge and she was armed second interview you said someone in the vehicle advised that they might possibly shoot someone and police did not stop chasing and there's probably a weapon in the vehicle and  you quoting just that that was officer meredith sheridan thank you and he gave the gave inconsistent statements and obviously you know in hindsight after looking at dispatch records it appears to me and we would argue in front of a jury that envelops the information that he had for us what the officers witnessed at the stop you've got a situation where rhonda sullivan who  was the perpetrator she is the one that's one of on warrants and she is the one that started the chase and you can see on the video that that she gets out of the vehicle she's handcuffed really rather easily by two officers and she s walked off of the video screen and taken and sat in a car and that's what i mean reasonable officer this is the immediately get down on the ground when they tell her to correct well we know that she immediately gets down on the ground i guess what we don't know is is if they told her to or not we could definitely see she exits the vehicle she gets on the ground and i don't know if there is a dispute or if that was even addressed honor i don't think rhonda sullivan was deposed in that case as far as mr bracken's we did make a video of him before he was deceased we notify counsel before we took the video i believe it was before the litigation was filed so we do have him on record describing exactly what happened to him we did not introduce it at the summary judgment stage however so this was  so getting back to mr brackett and mr bracken's was told to put his hands up there is no dispute that he was compliant with that request he put his hands up department officer the first one to get to mr bracken's ok thank you and one of the issues he had because he ordered mr bracken's hands up where he could see them when of the jeffersonville police department rip them out of the car thrown to the ground within seconds you see at least two other officers jump on top of them you've got conflicting statements as to who those other officers were at some point in time early on henderson gave a statement to b s you that he was one of those officers with was interviewed three times and told three different stories at first he did not involve men at all in a second interview he stated he approached the vehicle with a flashlight and look for other occupants by the third interview he admitted to kneeling down to quote assist in handcuffing bracken's and could have waited on him and obviously that is the reason for argument that he is likely the individual that was kneeling on bracken said this is judge moore we have a case done versus that of tall and i'm curious how you why would whether he was the driver or not make a difference because the information that they had about him i mean as far as whether or not a use of force is reasonable you have to look at the of circumstances that the officers knew at the time and use the reasonable officer objective standard practice was not a threat and there was no information that he was a threat rag and did not resist arrest bracken's did not flee or attempt to flee to me this case is a lot more similar to the brown vs lewis case that judge moore the judge that you were on where the information that was provided to the officers was questionable and once they could actually see ms brown they knew she was a she was a female she was not this the suspicious color they knew she was a female they heard her scream then they knew that she wasn't the male they c reasonable articulable suspicion to treat her in the way that they did by grabbing her out of the car throwing her on the ground and handcuffing him i see this case as being more similar to is there any information that would be any contrary to that in terms of what the officers  what we would have to establish that each one of these officers heard that badge and that was their belief and their statements and depositions and in the p s u reports don't indicate go over what information from the dispatch the officers had any officer testify or do you have any reason to be able to prove had that information it also doesn't appear that any officer perceive him as a threat all of the statements from the officers were that he looked like a scared man he looked like an elderly man i could tell he was handicapped and so once again whether he was a hostage or not you see the officers have to take him as they find him any sitting compliant and the passenger seat of a car with his hands up the which officer said that looking at he testified he found a scared passenger who was compliant when asked to show his hands it was defendant hamlin who is one of the supervisors on the scene stated he looked like he was elderly he looked much older than he actually was he looked scared we're going to hear from mr hart now or half the time yes your honor may have please the court counsel my name is mick hart i represent officer ryan you're looking in this matter and chase he testified that he was aware that it was communicated to him that there were felonies for both individuals that they were armed and dangerous and that they were there was a potential of a suicide by  as a threat when he approached the vehicle and had to neutralize the scene as he testified by removing him and getting into handcuffs to assess the situation further and and so that was  going from your perspective at that time as what was told to him by the by dispatch and that is exactly what the the lower court addressed that dispatch warrant use caution that they're saying they was approaching the vehicle he was aware or suspected that mr berg mr breckon was quote armed and dangerous that he had felonies and that they were attempts suicide by cop that was the level of of  vehicle and ones on the ground officer gil if not even handcuffed individual he handed his handcuffs to another officer at that is the testimony in the record and that he was of around officer mr bracken's of head at the time the testimony in the record is that the injuries to mr bracken's were caused by his sickle cell anemia not by any actions of the police and there's no evidence to the contrary to that in a but surely the officers had something to do with the fact that these injuries occurred well your honor it's it's the fact that they had no reason to believe that he was in a shell play if he did not mention when he was being removed from the vehicle he did not say anything and there's no evidence in the record of mr breckon saying hey i can't move i'm disabled i've got a condition my legs hurt i can't the first in the record the undisputed evidence is that that the first time that officer villa was aware of any issue was when they attempted to stand him up to the vehicle and he in they noticed an issue with his leg so you know he i agree yes there are the injury occurred during the incident but  knew is that there was an individual that won't exit the vehicle after being requested to do so he did have his hands up but he refused to exit the vehicle and then they removed him from the vehicle and placed him on the ground and then the rest is on video  pellets reply brief he suggests that the officers may have been justified in simply point bracken's of the vehicle and the rest is just this is what happened on the ground and so to the extent that that  move mr bracken's from the vehicle and once on the ground did not have any physical contact with him other than being at toward his head he handed the handcuffs to another officer and that's all on the video  valerie sorry what exactly is your position as to what because you said earlier that the only thing he did was to assist in the removal of the seat out and that it was schiller who removed testimony is clear that he assisted in removing the seatbelt the testimony seems is less clear on bringing to the ground he says that he assisted in lowering mr breckon stupid ground in his testimony  knee on his head and i think i think consistent with what's actually shown on the video which he when he was shown it to the money was that i was at his head when he was lowered to the ground and i use around his head but nothing about any knees on the head or that was a general location because you speaking with mr bracken's at that time and when they attempted to lift him up that's when they first knew of any issue with his legs have a prior to that there there was no reason to believe that bracken's had any any deficiencies with his health or otherwise and also that was the first time where with just guys question about whether we knew he was court as has been pointed out the information that was announced to the officer as well as the information that was being rolled right by dispatch and what was happening as mr harkins was and he calling on one one but as the court knows there were two different agencies involved and the officers were being provided information by two different just last agencies so long p d was receiving information from their dispatch whereas jeffersonville was receiving information from there just pilots and the information that was known to the officers at the time was both individuals and that car a threat as is evidenced by the fact when they stopped and started someone had a question as is evidenced by the fact that when they stopped the vehicle and they approached the officers had their weapons drawn because they were approaching this as a high risk felony stop and as is clear or miss sullivan got out of the van she followed the commands and i believe officer schiller did testify on his deposition that he had ordered her out of them and she got out she complied she got on the ground during this entire time officers are on the passenger side ordering mr brock and found in the car and he is not complying officer schiller after securing the sullivan comes around the van and as can be clearly seen on the video it's making sure other officers have him covered as they do he then goes up and remove mr bracken's from the car that he was having trouble getting him out he realized he was still seatbelt and then after gillick approached and helped and then they get him out of the car and get him on the ground and it's probably at that time that unfortunately mr brock inflamed was broken but just as and griffin vs hard rock there was no indication whatsoever that the officers used an appropriate force or that they intended to use force that would in fact break his leg it was unknown to them that he had this disability and it was because of his disability i think the cell anemia and the  disease that he suffered from the fractures what about more what about the testimony that he looked scared and then he looked elderly and so forth while he was sitting in the car well actually i don't think there is testimony that he appears that way while he was in the car i think when you review the statements to chill see that that testimony comes after he's out of the vehicle and once he seated on the ground once they've realized they can't stand him up think sitting back down a watch on the video this all occurs very quickly and it's particularly the testimony from i believe it was started hamlin who gave a deposition and a kid it was after because he wasn't that he came up on the thing when he was seated on the ground and that's when he said he appeared to be elderly or older than he was as a as our call the testimony so i think when you review that you'll see that there wasn't anyone who said he appeared to be scared and disabled while he was still in that van everyone still perceive him to be a threat at that tom and so getting him out of the car getting him handcuffed they needed to conduct a pat down to make sure he had no weapon because again the information  do they go i think there's some confusion about that initially i believe they were going to the jeffersonville and at some point i do think he's calling l m l m p but metro level metro's not one one is the dispatch type and that's the information that is being rolled out into the officers and i don't think there's any question but that the information related to the office hours is not any information regarding mr  scared and mr bracken's being the victim and that's all information related to the officers and again for reasons we don't know this discovery was never taken the stuff additions were never taken on the dispatch so we don't know why just patch got it wrong and i'm fortunately they did get it wrong but it's clear the information that was relate to the officers as they were on the scene was these people are a threat and there's n for receiving information from the dispatch loyal metro was receiving information from is it's just patch and both of them both of them were relating incorrect information is that what you there was possibly a suicidal subject with a firearm in the car and that was specifically just the jeffersonville police department and so yes there was for whatever reason differing information relayed to each agency but in the course of lying that each agency was also provide it with information that there was a gun in the car there was a suicidal subject in the car and at least allen pizzey was being also told that they were hom the lawsuit was filed there was a professional standards unit and test again jason ongoing and it was just some clear at that time what role different people played so as a precaution of we knew that that is correct and those groups that hold out let me just ask you one thing about the amount of compliance if you tell a person to show his hands which mr racoons apparently did and he's also  then how can he and comply with getting out of the car well he wasn't asked to show his hands and till after officer schiller opened the chore they had initially been informing him to get out of the car and it's when he refused to get out of the car that officer siller had to physically approach the car and open that door and you'll notice on the video he is looking over his shoulder and he's making sure that he has officers covering him and case the door when he is being commanded to get out of the car they anticipated him to follow his own seatbelt open that door and get out of my colleagues have any other questions your time's about up you know thank you thank you mr adams you know you'll have three minutes for rebuttal thank you judge bugs it seems that the focus of this argument is what each individual officer knew as they approach that vehicle and also should take into consideration what the officers witnessed as the events unfold as far as the the testimony and the statements that these off officers had given in the light most favorable to the point of it is not clear what each officer knew whether or not dispatch provided information that was incorrect these officers had to hear it and they had to take actions because of it as we pointed out in our brief madison didn't know franklin's was a victim stefan had no idea what the chase was over meredith in this first interview stated he thought a lady called dispatch and a lady was armed he is the gentleman that is on the video near the head of mr bracken's that has at least identified and one of his statements they've been inconsistent but that he did is this binney was near the head there was even a statement from another officer it was not the defendant in this case that he refused to get involved in the pursuit all together because he could not get a thank you hernandez was an individual that at the initial stages said that he was involved and he helped cuff mr bracken's and then as as time went on he he changed the story and his current story and what he's telling the court is that he wasn't there at all and we have inconsistent statements from him as well but as these officers approach we've got to departments we've got one thousand officers and we have a frail elderly man sitting in a car with his hands up that is what they encountered he did there was he had committed no crime so anything verity of the crime that he had committed they knew nothing about him committing a crime there was no immediate threat to the safety of officers or others as someone sits in a car with their hands up being compliant with that lawful order to put your hands up and he wasn't actively resisting or he wasn't attempting to evade arrest through flight there is no evidence that any of those things are present and just like in the smoke case that we cited it's on reasonable when applied to an individual when this force is being applied to an individual who is not resisting arrest and is generally compl and at the time it's also undisputed that he wasn't told that he was under arrest is there any other are there any other questions of the court not from not from bed bugs three times about up nothing from my colleague will well we will thank you for your arguments and the case will be submitted