may please the court good morning your honors my name is keith throughout men and i represent the appellant timothy graham i'd like to reserve ninety seconds for rebuttal if i might and i'd like to speak up a little bit yes sir i'd like to take a moment to thank the court for allowing me to participate in this special opportunity as well and hope to do my part to present the a very best and advocacy that you are entitled to use in the light most favorable to the appellant we know the following september twenty fourth the twenty fourteen timothy sram a sixty two year old infirm man needed help so he did what any reasonable person would do he called his doctor on the phone asking his doctor for assistance and became aware after six or seven minutes that the police were outside trying to gain his attention so he stepped outside he was shirt doc less wearing pajama bottoms carrying a cellphone in one hand and a bloody napkin in the other deputy willis one of the two respondents in this matter was close enough to him to see that he had no visible bulges in his waistband or his pockets he was compliant he dropped the phone immediately when being told to do so he did not try to run and when he saw the handcuffs come out he held his hands out and asked the simply not to be handcuffed behind his back because quote my shoulders don't work like that not only was he not an immediate threat to these officers he was no threat at all within a matter of seconds two officers grabbed each of his arms pulled him tried to pull his hands behind his back to handcuff them and as he testified he stiffened his arms because he knew the pain was coming he just didn't want to be hurt they pulled him to the ground the larger of the two officers fell on top of him weighing two hundred and fifty pounds with or without equipment he was his hands were pulled behind his back he was handcuffed behind his back and he was led to a waiting ambulance where he was taken to a nearby hospital one of the officers at the office just happened to be officers happened to be there his doctors secretary or assistant call the nine one one thinking that he does in the course of a telephone conversation as your client indicated two things one he was thinking about suicide and two he had a gun correct that's what was reported to nine one one yes sir yes and the officers showed up yes they knew those two things that's correct your honor they also knew that no crime had been reported they were there on a welfare check only they had the opportunity to speak with his son in law who lives in the front house and ascertain if they could what he knew about mr strand's mental health condition and we're not able to gather any further information and cuffing him back is standard law enforcement procedure yes and no your honor yes it is standard no san diego sheriff's department policy allows handcuffs to be placed in the front in  circumstances including handicapped prisoners no further examples are provided by the policy so while it is standard in this case and so our position that mr scram was willing to be handcuffed he was willing to go into custody he was simply only asking not to be handcuffed in a manner that would cause him pain and it would not be the officers supposed to know that his claims of shoulder discomfort are true and they're dealing with the individual who is acting in an aberrant way who might act irrationally well the first way they would know would be from talking to his son in law who told them he had a heart condition and a pacemaker implanted with him they also saw the disabled or should have seen the disabled placard on his car that was parked in front of his house while they were there waiting for him also simply by the way he moves you on a he move he walks very slowly he doesn't swing his arms when he walks it just all his physic whole physical appearance his fingers are all now aren't you expecting the deputies to sort of super human knowledge i mean all they know is it's a scary situation and people do act irrationally and you have a guy that tells them i don't want the normal process which is handcuffs in the back and cops in the front do pretty present a heightened risk went to the officers well your honor i would point out two things one they were able to sass attain that he was not visibly armed at the time and two he was being transported by ambulance not by police car so he was in the care of  medical professionals at that point as i indicated to judge hawkins san diego police department sheriff's department policy authorizes the use of handcuffs in front if they need to be used at all and they didn't know he was unarmed until they went behind him and took him down well they couldn't see any weapons in his hands they were able to see what he was carrying and as i indicated deputy willis was close enough to him to see that there were no visible b that might indicate he was carrying a weapon but yes we definitely agree that the police were aware that it was a risk call involving a gun or a gun and they should be careful and cautious they w that he might have had a gun in the back of his waistband versus well deputy myers was off to the corner of the house and from his vantage point he could have seen a gun in his waistband in the back but the way he was dressed it seems and this is again why i think a disputed issue of fact requires a jury assessment the way he was dressed the gun simply would not stay in his waistband it would it would fall out immediately if he had an intention  to commit to harm himself he would have done it without coming outside whatsoever but he came outside and just simply asked the police you know please don't hurt me and i think this court has addressed that type of situation maybe not that exact situation but in glen versus washington county the court it was a mental health case involving an individual and the court noted that it would be ironic if you ng so so what's that what's the precise constitutional violation you're are today i gather from your argument that you're saying they should have handcuffed him from the front to sort of the back is that that's part of it your honor i have the constitutional right issue and what's your best case for that specific proposition yes you on i have two cases meredith versus erath and winter rod versus nelson meredith versus erat mrs bybee i believe her name was was an occupant of an apartment building where the i r s came to execute search warrants she simply asked to see the warrant which is the constitutional right this court's recognized in united states sources prescott and as a result the officer grabbed because the she was insisting on seeing  warty officer agent felt that he was interfering with she was interfering with his ability to execute the warrant which was the lawful purpose for which he was there grabbed her by the arms twisted her arms behind her back and handcuffed her and was a tax evasion case that was a tax evasion and there had been no prior warning of a gun involved true that's true but in this case a tax evasion case is at least a crime where is m not it's a heightened risk situation in the public safety issues of having a gun threatening suicide seem to me to be the issue not whether it's a crime or not well yes the fact that they are heightened alert is certainly important i'm not suggesting they shouldn't have been what i'm suggesting is that once they took in all the information that was available to him they should have realized that there was a more effective way of taking mr graham into custody alternatives are certainly something that this court isn't allowed to consider when determining whether or not a constitutional violation has occurred he could been handcuffed in the front as he as he could have been double cuffed in the back but there was simply no legitimate law enforcement purpose and pulling him down to the ground and falling on top of him and handcuffing him in a painful manner when he agreed to go into custody and at that point the officers knew or should have known that he wasn't on i see my time is up thank you notes we'll hear from the county damages is important to society as a whole the high court has frequently stated that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law the deputies in this case were nine or six uncontested material facts that are critical in granting qualified immunity in this case i'd like to identify those facts and then review the two part test that the court applies require i mean there is no dispute over the genuine issues of material fact one mr strum was agitated when interacting with the deputies is just him himself testified they would have quickly realized i was just upset and nothing more receptionist that took the call reported nine one one and both deputies have also testified that he was clearly upset and agitated to the deputies were told that mr stram was possibly suicidal the fact the truth of the matter does not impact the fact that they were both told this information the dispatch radio confirms mr stram presents a possible suicide threat and both the deputies have testified that is what they heard and that it was outside your honor it was about two feet outside the entrance door to his residence at all times he was with in those two feet of the door and the deputies are also concerned that he could quickly step back  i thought the record indicated also that he had his hands on to his side and he was on sort of firming up and knobs on cooperating with his hands being placed behind him is that accurate that is accurate are another uncontested fact is that mr stram was not complying with the struction to be handcuffed there is no evidence in the record that he ever put his hands in front the evidence in the record is his own testimony i put my hands as tight against my body as i could in the hands around his waist and would not let the new guide nobody testify that there was a visible gun correct articulated that to the deputies on scene and their concerns were that he could have self injured or there could have been another victim on scene and sent to a to their concerns to secure di testimony was not clear as to when in time he would have said that but from looking at the rest of the record what the deputies heard him say he did not discuss that until after he was already in handcuffs and  a potentially disputed fact true no your honor he appeared at the doors and then when he when he told the officers he'd been coughing up on extent that it is your honor it's not a material fact the material fact is that he presented on the doorstep holding a bloody napkin whether he tried to explain it whether the officers should have believed his explanation is immaterial to the fact that he present so i believe the record indicates that that happened after he was arrested however the deputies even if he had any kid that at the beginning of the interaction had no obligation to believe him they were already there in the concerns well the case last clear that an individual farrah which is eleven circuit police officers need not credit injury or stories of injuries being reported to them by an individual but even if that had been clearly communicated they still had the known fact that there was blood present and then they had to assess whether they were you have deputies there they're trying to do their job they can't function in a situation where someone resists a lawful order by using physical force to hold their hands of a particular situation that puts them in an impossible situation wouldn't you agree i would agree on so isn't it more about on the fact that not on background was there was this weapons issue or there was concern for him but on top of all of that he was just simply not complying i would agree with the court very much so in fact the plaintiffs also agree that mr drum agrees that  excessive force that involved police officers responding to reports of somebody who's have suffering some mental problems so what standard would you say we should apply in those cases that might be different from the cases involved with ordinary crime because it's often argued most cases the police officers have different obligations in responding to the situations in which somebody is exhibiting some mental problems whether suicidal or whether it's acting out and so forth so what standards do you think should apply in this type of case to those situations that's a difficult question your honor i would begin by stating that mr strand himself disclaimed that he had any mental health illnesses or he should write we're talking talking about what the objective often were playing objective standard what the officers did so they have they they've been told there's a potentially suicidal person he says i'm not suicidal i don't have any problems but the objective officer goes in there saying he's potentially suicidal and he may have a gun but what was so what standard should apply in that circumstance where there's not a crime being a slick crime being committed or alleged but there responding to a public safety issue that's a difficult question to answer because it would be so fact driven by what is presented the officers the depth of mental health issue and what they should have been aware of as the county of san diego have any such standards but the government police action but the first step must be taken is the scene must be rendered safe before they can try to accommodate whatever the disability that is being presented in this case with the concerns they had about the gun and the suicide as resisting arrest they could not render him safe in order to fully assess or accommodate whether there was a medical issue so there are standards that are different he said you said i didn't ask my question i thought it would depend on the factual circumstances but my broader point is i believe there are different standards that apply to these types of situations i agre as to the two prongs of the test for qualified immunity mr strawman does not show that the deputies violated any constitutional right case law holds that you cannot define it at a high level generality such as the right to be free of excessive force but more importantly on the second prong you must prove both of them before arguing that these deputies should be stripped of the qualified immunity is not identified clearly established a right the deputies would have knowingly violated in their decision to take down mr stram given these factual circumstance held his hands out told him he was willing to be handcuffed and just please ask them not to handcuff him behind his back debbie meyers testified in his deposition that he does remember mr scram talking about coughing up blood which would explain the bloody napkin there was certainly no the officers never heard any indication of a gunshot or anything like that unnecessary pain is the benchmark according to i believe hudson vs and camilla by which worth amendment cases  to be assessed and lastly the mental health standard it's simply a fact under this court's precedent that should be considered by a police officer we believe there are disputed issues of material fact and that the law was clearly