we're grateful to him for his collaboration and we'll hear counsel in burwell against peyton and adams thank you and good morning your honor me please the court my name is jim carrol and i'm here on behalf of penance fred payton and christina adams this your honor is an appeal that's taken from a motion for summary judgment that was filed in the district court for the district of mont and granted in part denied in part we are appealing the part of the decision that was denied by judge rice and specifically your honor the issue involves the application of qualified immunity or nudity  connection with claims of excessive use of force both under the fourth amendment and state claims that also basically involve the excessive use of force issues in the case and your honour's it's our position that based on the facts the undisputed facts that were in fact found and recited by the court in its decision that in fact the officers are entitled to qualified immunity on the excessive use of force claims both pursuit stakeouts in the literal bathroom with mr borrow for one minute before they pepper sprayed him i'm sorry or i ask as i understand the facts as found by the court was there a minute is i think what the court has found and were willing to certainly accept that it was a minute in effect there's an audiotape of the event itself so that would be correct we don't we have to assume that they had no reasonable basis to believe when they confronted mr burwell that he was a burglar he was sitting naked on the toilet seat he was apparently calm a tone of no no weapons about him no apparent threat to the officers and assuming facts in the light most favorable to the plaintiff they had been told by a neighbor that the resident had had medical problems in the very recent past so look in the bedroom confronted with that they had no don't we have to construe the facts in the light most favorable to the plaintiffs and what burglars do you know that are found naked sweating comma talks in a home no one else there on plaintive we know he was not a burglar and construing the facts in the light most favorable to the plaintiff why would not reasonable officers conclude faced with those fact that this was not a burglary your honor because there are under other undisputed facts that were in the possession and knowledge of the officers on the scene and at the time they responded to this particular call which is when we have to for the purposes released create an issue of fact for the jury if they have a reason to believe that this person was a burglar there were some reports that there was a burglar in the house what they observed when they entered the bathroom didn't appear to be burglar iran i don't think that assumption can be fairly made based on the information that they possessed at the time that the confrontation occurred in the bedroom and in the bathroom and that's because of the information they possessed and knew at the time which is uncontested in connection with housekeeper who it appeared gone in the residence had called in a complaint to nine one one of them  identified individual within the residence also that there were existent circumstances under the circumstances which is that there was smoke present in the place and that it looked ransacked those were components of information that were within the possession police differed in their testimony as to whether it looked ransacked who are only massey so we have to assume the facts in the light most point of to the most favorable to the plaintiff that it didn't work ransacked honor even if we assume that that it looked messy to the officers as they were conducting a search of the residence based upon the complaint that had been phoned in or called the reported come in that it was ransacked and as they're searching the place and as they're searching a place there's a fire alarm going off and there is smoke present in the residence and they have not been able to it do not have an identity of the individual that they confront in the bedroom they do not stare that's that's correct and so we have i was he a danger but we have an individual who's sitting in the bedroom who is hearing commands from the officers to put your hands up put your hands where we can see them in the bathroom and bathroom i say bedroom again as he would have polish sitting in the bathroom and we have a situation basically with the officers are issuing commands for the purposes of show your hand syrians which they repeatedly did over the course of at least i think the cork out it ten to them he was naked with no apparent weapons staring in a comic toss way why why does that appear to be a threat to the officers your honor because the other information they knew at the time and it's undisputed that they knew it at the time is that we're dealing with an individual who is unknown in this particular residents who has been phoned in as being someone who cannot be identified  associated with that residence by a housekeeper so and there's a fire what they construe the evidence from what was favorable to the point if they had to deal with what they saw what what they confronted and what they confronted with this naked sweating comma times person no apparent threat sitting on the toilet understood your honor and i think that information needs to go into the hopper with the other information that they possessed at that particular point in time who makes that decision once all the information goes into your hopper who decides what the facts were but your honor what i'm saying is already based on the totality of those facts that are in the hopper that that particular point  joran perhaps with then decide which of these facts are more compelling i don't think given immunity and what is required in assessing the community that there are facts for a jury to assess if you take all of those facts and you put them all together with officers on the scene needing to make a split second decisions about how to deal with an identified individual in a residence with smoke and a fire alarm going off and information together with these officers based on the moving and quick quickly evolving circumstances that they're presented with objective leave reasonable officers can differ in how they approach this particular situation and objective lee reasonable officers can determine that we at the very least have a suspicious situation in front of us and perhaps we have an individual who is in need of aid or assistance but all of this is happening very quickly against bridge on qualified immunity and its most recent supreme court decisions sitting to my right your honor today i would like to address three issues first i like to talk about the notion that just judge reiss created  doctrine where if the jury was to find that the officers version of the events is not credible there would be an automatic forfeiture of the qualified immunity that is not our understanding and reading of the opinion by judge rice the second issue i would like to address today is the issue of the clearly established right here the basis for mr bones clint's it is not just the handcuffing it is all that happened before the handcuffing of and the third issue i would like to address your honor's is the issue of the community caretaking doctrine and how the appellant's cannot take advantage of  stockton when they never intended to help mr burwell on the first issue your honour's judge rice's opinion talks about the disconnect between the officers own testimony and the other evidence that can be gleaned from the video and from the comments after the incident took place and where and tape recorders on their uniforms were and i know they were was one on officer adams and the video was only on the cruiser so once they enter the home you can hear what's now i have a dialogue you can yes your honor you can hear the dialogue and you can also hear the dialogue after these events take place with judge rice is talking about in her opinion is that even the jury does not believe they officers they could find that in this case a report came in that a man might be sick who my be the owner that when the officers arrive at the residence the neighbor came over and said to them they issues they said that they did not hear it so from judge wright in judge rice's opinion what she's saying they sequence of the event can be now they open the door but they see no sign of criminal activity that's undisputed the when they open the door of the bathroom they find a man in the same position and he has been reported about twenty minutes earlier he's in the toilet he's naked now when he posed no threat to the officer he was threatened with deadly force he was then pepper sprayed beaten and handcuffed in his own home and i jury was to find these facts to be true then they would find that no reasonable officer could have thought that the use of force they use in this incident was reasonable and therefore qualified immunity would not apply on the issue of the clearly stablish right your honour's appellants attempt to narrow the issue to simply the handcuffing and they seem to ignore everything else that led to that handcuffing the linchpin of their argument as the lower court dismissed sergeant moody therefore they  under the qualified immunity therefore officer payton and officer adams should also be protected by the qualified immunity doctrine they are not similarly situated your honour's what officer moody today i'm sorry your honor if the room before me if that's exactly correct your honor once they approach the bathroom officer moody left to go and tried to call the  fire department because the call was not going out so officer moody was not present when mr bell well was frightened with deadly force he was not there when he was beaten he was not there when he was pepper sprayed when he came back to the residence he came back with the news he might be the homeowner and help heard that second hand what they did is very different officer payton and officer adams are not in the same situation as was officer rudy the were can you tell us  the these two remaining officers knew when they and through the play touche resident or to put another way were there any basis for them to have known that mr burrell was in a medical emergency they should have thought about him being in a medical emergency but they didn't they never even considered that he was in a medical emergency i thought he was it was dru career not sympathetic to his condition correct correct and during their depositions they could see they never thought he was in the midst of a medical emergency let me ask you about that so if you've had a full course of  audio shows and also with respect to some of the contemporaneous documents in the case for example the issue of the officers responding to a place that was ransacked or to a burglary it is really not supported in the record your has the position that they have taken but your honor i think the all at the edge of your what's your position on that there was no evidence even if they thought that the there was a crime being committed if you give them the benefit of the doubt there was no evidence that mr barwell had committed any crime but there was nothing in the home there were no burglary tools there was nothing that said burglary what was reported it was that there was a man who could be sick who may be the homeowner wendy noted in the records what they posted is an identified individual the first time this case became a burglary was when the town of hartford issued the press release saying that the officers had responded oh what would it what could it have if not if not  the belief that there might have been a burglary that somebody was there in need of medical help your honor and that's what the evidence was telling them and that is the evidence that the score was  scare this case under it was the fact that the report comes saying he might be sick it is the neighbor coming to the threshold and telling them check the bedroom it is the fact that in light of being threatened with deadly force he's not respond everything should have led them to believe that they were dealing with a medical emergency they were not dealing with a burglar on the issue of scared taken doctor in your honour's appellants cannot take advantage of these doctrine which for its has traditionally been used as an exception to the warrant requirement get into the house just erect and yes yes your honor and that's why we have fandor of excessive force once you're in under the community care doctrine under the community care doctrine you're they can't take advantage of this doctrine if they never intended to help mr perot well the community care doctrine under katty the supreme court it tells us you must be completely to force from law enforcement purposes but assuming your honor what they are and what we know about their intent that will work what is it that leads you to say that they never intended to help us to go first at the evidence the audio the fact that they don't ask who are you what are you doing here their first response is put your hands out explicit remarks or i'm going to shoot you there was no intent to help them then there was no intent to help them when they pepper spray him knowing by their own admissions at that point he had no weapons there was no intent to help him when they began beating him with the baton there was no intent to help him when they handcuffed him in his own home heat if they had an intent to kill him could they use excessive force to carry out their efforts to help under certain search i'm sorry your honor but they use excessive force or could they only use that force which is necessary to accomplish giving care you're you're faced with and on ruly person that i have to take to the hospital they can use that amount of force necessary to take the person to the hospital can they can they use excessive force even if they intend to help him they can never use excessive force your honor he always has to be measured that's  is excessive yeah it was a little much but no your honor certainly if they when and there with the intent to help and when they got in there they realized he needed help and he was not responsive and they wanted to get him out to connection with the discussion was just under way about the community care taking function there is at the moment and some uncertainty in connection with the law as it would apply in connection with people who are in the process of dealing with the caretaking function and in the connection with immunity the subjective intent of the officers under any circumstances  wedding community is not really what's relevant in connection with that it's the object of reasonableness of their actions and their activities and i care dr only gets them in the house without a warrant it's an exception to the rule that you need a warrant to enter somebody else's residence so based on that they get him but that doesn't give them leave to use excessive force not excessive force your honor but it does give him leave to use force was necessary that is the only force that was available at the time to get him to respond to the comedians the verbal commands that were repeatedly given to him for which he was not responding at all at that of the string of expletives didn't work it did not it did not your honor nor did the string of comedians without expletives right but that that's th problem is that they're dealing with a situation and they don't know if this particular individual at that point in time is an intruder whether he belongs in the home whether he is suffering from some sort of drug issue has a health problem or is in some other state but one thing is for sure and that is when the pepper spray was applied he was able to get to his feet and alter cation occurred at that particular point in time that resulted in his standing over officer adams during the altar cation a very precarious kind of a situation to be in god which is what resulted in the baton strikes as soon as the officers heard from officer moody  the property at that point in time to seek assistance on this radio that this individual may very well belong in this particular residence i think that the audio clearly demonstrates and shows oh now