must be drawn in fair for a few good gray a better food fifty seven year old woman who wandered two tenths of a mile back and who a jury could find was staged while she was lying huddled at the se officer who had just yanked her to the ground and who outweighed her by seventy five pounds for two reasons the district court summary judgment order against miss grey should be reversed first by may twenty third team it was his great was a patient with mental health issues and yet she taser while she was on the ground merely for failing to comply with his arms given as i understand  whether that's because she is likely to take pills or to be violent it would have taken a matter of moments to realize that ms gray was not in the violent category and that the moment of the pacing i want to be clear about this the officer had himself eliminated in his view and you knew that she was likely to be violent at pages forty and particularly just forty three in port forty four of the appendix your honor the the officer is clear that he  mode this is we're talking about significant pain and this court's cases from parker sciolino it etc establish that officers can't just hurt somebody because they're not responding to our overall command and going back to himself to the oxer that is what that is what his grace direction is a line on the ground powering because he sees them take him there and she's not moving an edge the officers testimony is that she put her hands in immediately upon hitting the ground this is it to a wanting to fourteen morning what do you make of the screen court's recent statement that the supreme court considers it only in my view window proposition that you can have clearly established war with the sort of context huge amount of weight on minimizing the difference between the two ways in which a teacher can be missed because parker involves the promise that sent a current through the body that literally keeps the body from brooks case within that is a it's a dr stein case i would say here also there's evidence in the record in which the town has conceded this is again at page two hundred fifty seven people with mental illness should not be tables at all and they do concession that it shouldn't have happened and combine it with officer cummings his account again at forty and forty four that this was a teasing about refusing to listen to it grimace that case very squarely under under the rule of parker in parker he was taste when he was not resisting and the court was clear that the reasonable jury could find him did find in that case that proctor was not resisting at all he released his hand then he was completely different situation in the situation that happened here where officer cummings his job is to go get a section twelve patient who escaped from the hospital so when he  that she is a danger to herself or others and she doesn't know what so that would cause a reasonable officer to be wary of the situation to to what extent does the perp but the officer knows that this is a section qual of patient where the someone depends it's very stack specific i would say but it's certainly something that a reasonable officer would take into consideration this person certainly has some significant issues and the officer can't know whether the person is or is a danger to herself or others in this and he says you need to go back to the hospital and she says i'm not going back so what officer then does as he calls for backup in the reasonably follows her down the sidewalk over a distance of about one hundred feet for about twenty five seconds saying to her ok will you please stop and talk to me you need to go back to the hospital and she wouldn't stop until at one point when he's closing the distance and certainly a reasonable officer would follow her and not wait by the side of the road for a person that he knows is a danger to herself or others to go on down the road it is his job under section twelve to go retrieve her and bring her back to the hospital so as he's following her he's closing in on the distance while he's talking to her and saying hey please talk to me this isn't a situation where he got out of the car ran up to her and grabbed her and in taser at some point she stops and turns around and then you say to the person who is clenching her teeth clenching her fists and i see describe collapsing her body tightly in the she quickly goes at it he is afraid of that situation he's on the defensive he gets into a defensive position he puts out his arm to hold her back and she keeps coming and so at that point he has to make this is a rapidly evolving situation it's tense it's uncertain he makes the split second decision to take her down to the ground so he can control the situation rather still in contact he makes the decision in a reasonable decision including with the decision of tartar is rather than physically fighting this person who has tucked her hands under her body and has refused to give them up for handcuffing the reason the decision by the partner is i'm going to use the use force and the type of force that he decides to use reasonable and he has run option which is to just wait there goes back up comes he's got another option either try to prod her rounds he could try something about the drives down mode of the taser in other words suppose they had a five percent chance of being fatal i think we would probably conclude that was an on reasonable use of force suppose you had with zero percent chance of any permanent injury at all then you've got a much stronger case given the summary judgment rule what is there in the record that would allow us to make some finding percent chance of people that are cased have no actual long term or significant injury if the summary judgment stage i think what was before the court there was just the drive stun it is a less intrusive  but further showing that he's entitled to qualified immunity is the fourth circuit case of the state of armstrong where the officers were granted qualified immunity where there was no crime committed in that case the pla there was tase places five times over two minutes and he was no threat at all to the officers their only job was to return him to the hospital that was officer cummings his job here but it certainly rattled the escalator when she read it the officer refused to stop coming towards the officer and then he was forced to bring her down to the ground and make that split second decision of do i get into a further physical confrontation where she just throw shown throughout this encounter which is not going back to the hospital peacefully including going out or refusing to stop and then immediately touching her hands and refusing to release them there's your time is close to what i just that issue because it is so clear that in this case there were exigent circumstances and neither of the officer nor the talent acted with to deliberate difference as for the officer i will go through the facts again but exception for existence circumstances but that itself would be making the warrantless circuit certainly in the circuit would be making completely lost in the other circuits that have looked at this the six circuit looked at it and said well if it applies  but but but let me let me give you a hypothetical not so hypothetical there was a point at which the officer has the plaintiff down on the ground she hears she won't take oreos out from under her but he has control of her at that point he knows backup is on the way and he knows he's not dealing with someone who he set out to look for because of criminal activity but he's dealing with a patient who he knows of some sort of mental disability or it could be a reasonable accommodation at that point to wait for the backup rather than to teach her that not in this case or on the phone from the very beginning that she will not be sickly going back to the hospital she then commit themselves battery against him so he makes the split second decision after he has to get into a defensive as for the back of the officer does not have that scene under control and does not have the person under control and it is always uncertain reasonable officer would think whether backups going to show up when they're going to show up  he certainly does not have control of anything into there is no trace anywhere that i'm aware of that would suggest that an officer should not have a scene secure especially where he has just been assaulted where he should just stay on top of her  rose limited facts and i don't think so but she hasn't committed a crime and she's just sitting in her wheelchair  and started coming at him and then he's gone into a defensive mode turned around so he's got the wheelchair facing away from him but she won't cooperate and she has her arms climb and won't let him against the officer and i think what if an officer in a situation couldn't taste the person who's committing an assault on him is refusing to be arrested or be in custody that would start to create two tracks a fourth amendment analysis distinction between drives down and target it is a blanket concession that this is improper judith gray has testified that she still has headaches and that she is now afraid of police of course there's a likelihood she's going to have to encounter them again given their condition and finally honour's the ambulance is what took the person this great back to the hospital so the notion that she needed to be wrestled with is not consistent with the record that's a page to go for the ambulance arrived within one minute of being called that's it too late on  a issue as you're on a pointed out there is no exit in circumstances exception and the department of justice has been clear since it first issued guidance in one thousand nine hundred one that the regulations on their face apply to the police five one point one three nine and three five thirty five point one three nine thirty five one zero for this notion about direct threat to safety and there isn't no way a jury would be required to hold th which wonders for a threat to herself or others i don't see how that information would necessarily put the officer in a position where the officer would be compelled to make a different choice unlike the simple i gave the wheelchair you know exactly what the incapacity is you know exactly what the handicapped is you know how it manifests itself and you know how that restriction of behavior from threatening others all he knows he or she has some unspecified mental illness but never handle an emotionally disturbed person is called and should be kinder and gentler than this officer was this is a there are known ways of how to deal with that this officer simply dispense with or thank you co