and more it is an honor and pleasure to be here before you all and i share in just just as hocks appreciation of the weather and the relief from the heat and i appreciate getting promoted to just my pleasure my name is david kat and he said here on behalf of the opponent brandon smith with respect to a ruling made by the trial court finding as a matter of law that his act in harming himself under the circumstances was a superseding intervening cos under the law there are basically three prongs would have to be met for this to be superseding intervening act that being it being forced on forseeable extraordinary and occurring after the unsticks place and under the findings in this case i don't believe any of those can be found and if there is an argument to find any of those it is at best a question of fact that should have not been considered only by the court and left to the jury  the trial court should have remanded this to state court and let the state law claim proceed if intervening superseding was something that could be factually supported then it should have been left to the for the jury to decide this police who were trained in dealing with an e d p an emotional what's the alleged duty here the alleged duty is to follow protocol and procedures when dealing with than a emotionally disturbed person to act reasonably based on their training to do those things that they are trained to do so that what happened in this case wouldn't happen it's ironic that one of the this is that th from the training that they receive as police officers and they're when they're supposed to work or confront people who are mentally disturbed absolutely especially as st responders your honor they're specifically trained not just to do the right thing but they're trained not to do the wrong thing and this is embedded in the post program it isn't but in the pros post program it is something that is not only embedded in the post program but based on the testimony at trial is something that officers rich receive training on every several years and in light of the fact that unfortunately in our society today these officers are the st responders this is the negligence claim is based on the theory that there was the zero to duty to exercise reasonable care according to the standards correct your honor they've been when confronting mr smith correct your honor and what i find remarkable in this case is one of the tenants of something being intervening in and superseding is that it can't be forseeable yet what my client did was exactly what would have been expected based on the training of these officers they're taught to give them distance to not yell counter commands to not aggravate or accelerate the situation where the person may harm themselves if you're not to take acts that are designed to prevent someone from harming themselves than them harming themselves is thereby i think if a seal if i'm very member of this correctly the district court cited why did he err in relying on those cases though those cases dealt with different acts of negligence and causation in those cases the it was alleged that the conduct of the defendant created the underlying mental state that caused the i can't is an intervening superseding intervening cause absolutely generally it's absolutely ok and then and then these cases point to the and if that is your underlying it goes to basically with the heart of the defense's case with which is which is legally flawed and that is in any instance when someone harms themselves that is automatically a superseding intervening cause and that's just not accurate regardless of what the conduct is if you're going to call it superseding intervening you've got to meet three prongs it has to be on forseeable it's got to be extraordinary and it has to occur after the negligence alleged neck legian act th takes place that's your criteria whether a suicide fits those three is going to be fact dependent which is in this case and i believe that the district court follow the general rule with which without taking into consideration the exact fact in this case is the take this case out of that area of law into basic causation and the basics of superseding intervening cause it is not a difficult concept to grasp and when the facts in this case are applied to it at  it's a question of fact for my position i don't even think it's a question of fact i think when you are told don't engage in this type of conduct to someone will harm themselves and you're in that situation you do those things in the person harms themselves it is by definition forseeable regardless of whether you want to call it a suicide and genocide and euthanasia whatever you want to call it if it doesn't meet the all three of those problems it can't be a superseding intervening cause and that's what you had here in this case  the this is this is one case in which i believe the proper course overstepped its bounds and took away something from the jury was the jury's right to hear if this really was a superseding intervening cause it should have been but there was also a special in iraq which were in this case is if you've read the facts one of the issues is whether my client was told to stand up and then when he stands up he gets plugged with what he believed was a live shot gun ended up being a being down rag but he is forces it used against him for complying and in this case that instruction was submitted to the jury is to determine one where the other whether they could find that my client was told to stand up and they couldn't fix one way or the other so that is still a critical issue a fact would preclude intervening superseding causes while the other issues with the attorney's fees are going to rest on my briefs that doesn't apply and i believe that reason it really should apply in this case is they have not won on the state law claim that this should go back to the trial court should be reversed and it should be instructed remand this court back to state court because we've only got a stake claim remaining there's no federal issue to be decided that was the side of the defense verdict unfortunately was it removed from curious i tend to agree with your analysis then you judge below through a bright line which i'm not sure can be drawn based on toasting the other two cases but twice he said that you didn't argue that you're didn't try to distinguish i think the deal with those three cases well i mean we've i believe i had dealt with them and i believe in reading them that they are their lack of applicability to this case that the fact that they're not similar so striking that this was not those randy assistant city attorney with the city chandler i'll start with the fact that the there is a duty that the officers had of public safety and that they you know their job was to ensure the safety of the public in engaging in dealing with brandon smith so unlike the bus driver there was a duty you're just dealing with foreseeability that's correct i mean even though you obviously in a case of negligence you have a duty you have to prove breach of duty but then there is the issue of cause ation and that's really what this case is all about and in proximate cause you have you can have an intervening factor that becomes superseding and that's the situation here the arizona case law says that you have to if you are if the negligent potential negligent act or is not responsible for causing the mental illness from which the harm you know occurs then that is a superseding factor i don't read the case or to say that i read fish to say that one  way you can prove negligence causation is to show that you cause the mental illness but it seems to me it's another matter to say that's the only way you can prove liability and even the case discussed three and proceed ability in that case a bus driver who runs into the back end of this lady's vehicle i've had no duty with regard to attentional suicide i was he was not  much greater mention to say that that's the only way you can live but i think that the issue for see below the is much clear cut in the tosi case because it's a bus driver obviously a bus driver doesn't know that when he hits another driver that if that driver has a mental illness that that might subsequently lead to a suicide well let me say this there were six training features that the police are trained in with regard to dealing with someone who's emotionally disturbed right and wrong and i can't people there were six of them and i think the testimony at trial was each of those six had been violated now with conflicting testimony with their leaves their testimony the jury could accept isn't the existence of that training saying you got to do this or not do this when you're dealing with emotion disturbed person because if you do this or you don't do this bad things can happen such as harming themselves harming someone else so that isn't that the essence of for free ability you know the essence of the foreseeability is the question here i mean the reason why you have the the rule in place that if you do not cause the mental illness is because mental illness is on forseeable and even though these officers are trained to deal with and engage with emotionally i think it's an illustration of why it's on forseeable the facts of the case show that the police and dean the father whose house brennan smith went to he knew that brandon smith said to his father i people are after me he didn't say who the people were he went and got a knife and he refused to give up the knife he said that he told his father i need a knife to keep me safe now your interpretation of that my interpretation would be that i need a knife to protect myself because i'm in fear of people coming and attacking me it suggests that he would use the force against someone else of nine  call by marci the stepmother was that he had a history of resisting force resisting police he has a history of suicide those are two different things resisting force means that he might take action against a rd party the police suicide may he may do harm to himself so the police when they arrive at the scene they don't really know what is going to what she said wasn't those were the main things that she said she also testified and the father testified that brandon smith had not told them that he intended to harm himself but here is where it went this was in their dispatch to the officer yes in this say this was a suicide yes well they said no they said the call the dispatch was that it's a potential suicide call or it's a nine hundred and eleven but that this is where there's a critical part of the record that's very important that shows that now i understand your point your honor is that the police knew to a certain i knew they knew that they were going to be dealing with an emotionally disturbed person but they didn't know the persecute tory delusion that brandon smith was operating under his delusion was the constitution had been changed and that the police had been told to round up political asking the police to engage with emotionally disturbed people and that's a very difficult position to be n and it would be unfair to ask the police to do that and then also be responsible for all of the fact that a mental illness my caused this person to commit suicide and the police here did not know that he was operating under this i agree with a very difficult job i would not want to have that i myself as much as you know that is their job and they're given a suicide call they're trained not to do at least to do at least six different things which the testimony policy that we should adopt or the euro zone has adopted that is a bright line he can never be held responsible if the end result is a suicide that though my argument your honor is is that if if you will st if you show that they have a duty and if you show that they breached that duty that that they fail to do what they are supposed to do no they are not they should not be held liable for a suicide or attempted suicide based on a mental illness that they did not cause because it's unfair on the officers in this case because it's unforseen able what happened in this situation was completely unforeseeable brandon smith had this perks persecute tory delusion that the police were going to come take him away the father didn't know that them the step mom didn't know that that wasn't conveyed to nine hundred and eleven operators the police did not know that it's ironically the father basically had substantiated the delusion by calling the police nothing that the police did on that night as far as coing out in approaching brandon smith basically played into exactly what his fear was was that as it turned out he was going to step in self rather than be taken  away at that that was not and your honor it's important to keep in mind that when we're talking about suicide as a proposition there's lots of different reasons that people can commit suicide and that's why we have that rule that if the negligent act or has not caused the mental illness from which to suicide or attempted suicide in this case occurred if there is not liability for the harm hold on  thing new i don't want to repeat this but it seems pretty clear that the that the officers knew that they had a suicide car well they knew that they had a potential suicide call based on information that he had a suicidal but they kick in sort of all the training that they've had it does kick in the training that they had and the training and then there's there's  dispute over whether the training you know what strain applied and whether they have this training post i mean that was a disputed fact but the important thing is that the officers are not liable as a matter of reaction their liability to me was that foreseeable ok so who's i'm sorry who is somewhat bystander mr dean for example ok mr dean standing close in that case if you know well that would not be necessarily forseeable now that would not be a forseeable action of out of the ment so in the mental illness for saying that he is brandon smith is taking action out of his mental illness and into up stabbing his father now that would not be that's because again it's still what we're talking about is for see ability and people who are mentally ill are not for see are not forseeable that's that's really that's really what you're probably saying is it's not perceivable that someone who has severe mental illness as he did obviously pollution who has threatened suicide who has a knife in his hand to his throat it's not forseeable that he might stand himself or it's not forseeable it's not what he's going to do in fact it's an forseeable the crux of this case the crux of the rule is that mentally ill people are it's not forseeable if it's not perceivable why do we have all this training to do certain things is filled with mentally ill people and the front line people are the police and the police do have a duty to the best of their ability to ensure the public safety their training is to so that they can fulfill that obligation of public safety and the police and it's not as if the police are not there there are for example this case also showed the police are not unfettered in what they can do there was a section one hundred and eighty three  everyone all of us are aware of that even police officers can go so far as to incur criminal liability there's definitely there's parameters and there are boundaries to what the police can deal but what this is really a limited thing so the police though shouldn't they just what we've decided is that it is just to limit liability for actions by someone who is mentally ill if the police constitution had been changed that the police have been told to round up people is extraordinary and in hindsight the police were probably the wrong people to approach brandon smith on that and in fact there were facts in the in the record that there may have been attempt by the father and the mother in law to contact community bridges that was this the stepmother not the mother and i'm sorry the stepmother thank you honor that they made attempts to contact in say organization who are who deal with mentally ill people if they had been available and showed up maybe nothing would have happened because the persecutory delusion was that brands smith was after was that the police ha been sent out and so you know the fact that the police showed up just completely substantiated his delusion and the police had no idea about that i mean this is just one example but i think there's just so many different variations where mentally ill people can do all sorts of things and even his delusion itself made no sense because he said political dissidents like schindler's list well that that's not a political dissident case right i mean that's a holocaust that's part of the holocaust so that also shows you how you know these delusions can take all of our idea forms ok thank you thank you isn't an forseeable probably at any time in our country's history it's forseeable now as ever unfortunately we see it on our streets every day it is unfortunate these officers have to deal with these situations but  it's sorry it's hard and it's hard you have to do it well you have to rely on the training i think what everyone here and he was even can see them by the defense it's absolutely forseeable that someone who and by the way so we're clear mr smith did tell the of record page forty four lines four through eleven a he told the officers my son's paranoid that that's a specific connotation but if i have somebody that's paranoid that's looking at me that's not trying to harm themselves that's holding a knife to their throat common sense tells you it's forseeable that if i rush them if i scream at them if i escalate the emotions that they are likely going to harm someone else absolutely in fact they were trained that if they did what they did shoot him when he's trying to comply scream at him which they admit they did corner him and not give him space which they admit they did all of those things you're going to look at this in oh my god you're going to set him off and the council would store response to opposing counsel's position that they didn't know specifically what he is delusion was regarding the government coming f him i agree and they're going to be there in that situation every time but the what they're trying to do is to deal with those situations when they don't know because everything they were taught to do and everything that they didn't do in this case was to bring that situation down to give that person time to think to make sure they're safe all of those the our client even said and for matters of of this court's review should be taken histories i don't know what i was doing i was hoping they were here to help me but when i complied and stood up and they started shooting at me it let me know that they weren't there to help me have these officers follow their training treated them like a human being and not a thing and step back and did what their training told him this would have ended safely but when you start shooting at someone that's already scared difficult when somebody is holding a knife to to know it's difficult when someone's whole in the night to know what actually should be done i think that changes the equation would challenge that and if you do you really think if someone's holding a knife you got to question whether you should charge them abruptly and quickly but it's you know i found over the years that it's really difficult to put yourself in a situation right now of a police officer who's you know it's easy for us to sit back here you know in the comfort of a court room with the comfort of our offices and nd guess what the police do but we you're there in the situation and it's nd that you have to make the decision i don't feel as comfortable saying that the officer should have done this is shut it down that because the ways holding the knife the work i do it's just really difficult for me to say that the opposite should have or shouldn't have done something and that's all i'm saying it's not clear cut to me as clear cut as it appears to be to you obviously no question of that but that's why the jury situ decided that it should not have been taken away from the jury in this case the one thing that wasn't addressed was the fact that one tenant of superseding intervening and that's what we're talking here is the negligent act passed and before the superseding intervening i can occur and that's not what happened then he was taken it was shot he was shot twice he stabbed himself and then he was stace the stabbing was in direct result of my god they're shooting at me i don't want to attack them but i'm not i don't want to die but it now it's not easy but sorry that that's your job and you're taught you're trained away to do it's a certain way yeah yeah but it's also you know we have to decide when liability is