tactical conduct and decisions employed by the officers proceeding and not by use of non deadly force my answer is no i don't think this court needs to certify that question to the california supreme court i don't think it's overlooked the longest abolition principle of california negligence law that resists the wilderness of a police officers conduct must be determined in light of the totality of circumstances i don't think so though because he's also said we've never address were there peace officers i would duty of care when without any use of deadly force suggests that they have not resolved what happens in the senate goes on to say we haven't decided that and then our court in my view nichols had hayes did not novel basic garden variety california negligence law and it says to find liability and negligence for anybody regular citizens and police officers we looking at the totality of the circumstances we're looking at everything that's before this actor and if it if it were another reasonable person wouldn't have behaved the way the actor did then you have a question of fact not law and it's reasonableness like negligence and you have to get into comparative law the only times it seems to remain is are the death cases but that doesn't that's not the only time police officers are held to a negligent standard right there's c h p cases but i am i right that you don't have just a straight up negligence claim here you have a wrongful framing we have we have a wrongful death framing but we have conduct there that subset  substantially can cause death because seriously dangerous conduct that can necessarily lead to death so we disagree with the district court's  characterization of these all these officers did was manipulate and control her extremities that is not their testimony that wasn't certainly not what they said in their police interviews so what we have is deadly force and this court also i understand your argument that it actually was deadly force but but i think this his question only comes up if we disagree with you about that and think that it was a tragic death the result from what would've been expected in non deadly for will and published a decision on it even then the officers weren't entitled to qualified immunity on their use of force in that case because basically just good common sense if you could if you would lay somebody on the ground on their stomach and pile on top of them you could kill them and so that's how their that's in the training and it was in the city for the city officers training and there's multiple questions  you compress the shoulders the upper torso the upper back but also to lower back officer to and his that so do you understand the expert's report to say that this would have happened with taylor's heart  defect i guess i do have a seems like you i didn't think it was so clear that that's what the expert was saying and it wouldn't have happened without a heart defect on the officers didn't know about the heart defect right well this is a different case from gregory and gregory the officers for sure didn't know that that man had like the widowmaker like artery blockage of ninety percent kayla's morbidly obese so what was also with a heart defect i thought do be very very careful it's because that's a characteristic and you can just look at her and see that officers avoid tasing pregnant women and they avoid tasing people with obviously who have a pacemaker  you a baton strike to the is not a significant use of force but to the back of the head it is like these or it's you know i'm not trying to be flip calling it common sense but they are certainly trained on these on these human physical jacopo aspects for a reason and this was in their training and this is what dr spitz is saying compression and so in terms of the fact questions officers i think are far more forthcoming about how much force it took and how long they were on top of her and based on that i  and his police interview says she was on her stomach and it was just me and officer brown i was on her hips and had her had her hand right hand and handcuffs and i could not help officer brown get her left arm she was on her shoulder blades and trying to pull her left arm out and we were like that for several minutes before officer smith arise officer smith confirms he was face down that's several minutes of just inconsistency and by death by his deposition it was my sternum was on her hip bone and there was without regard for any time and the district court's finding was it blurred together like they immediately got handcuffs on or then and got her on her side and recovery position right away which is which is not even the evidence the end consistencies are even when they got or in recovery mode that that happened right away and that's not true either officer the nd officers to arrive at mathis and gardner say she was still face down gardner especially says she was face down for a minute before before we turned her over on her side they kept her on her stomach and till she stopped moving they put her in recovery basically after she had expired the breathing and can come out with the expert testimony at trial that everything that they thought they detected and then went away i agonal breathing those are dying breasts it was already done by the time they got her there by deposition she you know the testimony from some of the officers was that she was in recovery immediately and that's not the truth or there's a you have any other you want to reserve for rebuttal oh yeah i can actually do that thank you and it's the entirety of volume two as well as portions of volume one that includes the expert report from dr spitz that was just referenced as well as the training materials so it's improper to  ask this court to consider evidence that was not before the trial judge just prior but that i've brief that i just wanted to mention that some of the argument that she just made actually does so is there is also there is a spitz declaration of that's in the record right that's correct your honor any real difference between the two yes your honor there are significant differences are the things that should your opposing counsel discussed only in the part that's contested because i thought it was mostly in the declaration it's in there but it's not supported and also the city objected based on the lack of foundation for the opinions that he made and that was the reason that the city included its reply brief because that included the the objection to this bit's declaration to the question of the cause of death so i think it's my primary point i do want to address the court's question regarding certification and i was pleased to hear that  appellant also does not believe that there's a need to certify the question and that it was already answered in a haze i thought for a minute that maybe they were making my argument until it continued the way that it did but  city agrees that there's no need to certify in this case because there is controlling precedent i do believe it can try a precedent well i do believe that hayes addresses it in its in the it's the adams case  ok what do you think the rule is i think the rule is that there is no duty your your honor that so that's the opposite of what your opposing counsel think exactly i said i thought she was starting to make my argument and then i realized that we were we were going separate we had to leave you  it is you both are confident the clear what you think the rules are opposite of each other than is about a situation that suggests we should certify well your honor that if you could look i would like to address the adams case and see if if the panel agrees with me that adams actually answers the question i think the city's point is that there is no question that this panel needs the california supreme court to answer because the standards already set forth in law that still remain standing today and this panel is is can can answer this question of law so in the adams case adams involved a suicidal subject a man named patrick who shot himself later setting off a volley of shots by the officers so while it was a case that involved an officer shootings it was not considered a shooting case in the hayes court the california supreme court goes that's i believe that's true i think the suicide cases are more serious i think that that there is even less duty where you're not dealing with somebody who's holding a gun and crouched in their backyard where you know  that the fact that you're going to exacerbate an already dangerous security situation is very clear here we had a situation where it wasn't clear that there was any imminent death that could occur case and well in this case and let's let's look at it i think i think it's important to look at what is the appellant arguing are the tactical errors that the officers made because i don't believe there were any tactical errors made and that's really like even if you were to decide that you want to apply the hayes standard that you should look at it at all of the pre force tactics and decisions that were made there's no reason to find negligence in this case the the there or a few things that are pointed to one is i think the most important one is that they're saying that the officer brown triggered kayleigh by saying that there was an outstanding warrant that they needed to go to the station unclear yet but kayla was already triggered that's what where the officers were they are she had already kicked out her roommate she in the middle of a psychotic crisis as is admitted by the plaintiffs and it was also admitted that she had been doing drugs all day and maybe for several days but it is a testimony that she became much more agitated after the statement about the war in officer bro spent five to seven minutes in an effort to try to calm her down it's not clear that she she she at that point wanted to leave the conversation and that's what the testimony is is that she decided kept saying i'm going to go call the f b i i'll find out on my own i want to call the f b i and officer brown spent five to seven minutes and talk of continuing to converse with her this is after the initial fifteen to twenty minutes of evaluating whether she needed to be and fifty and so i don't think that you can say i mean at some point caylee needed to be handcuffed in order to be taken into custody and the california supreme court said in the case of brown versus that there's a whole continuum of reasonable conduct by police officers and you can't say that there's one way that is reasonable for an officer to take somebody in or these decisions that are made and this is an example saying that they should have told her she was going to be taken for a three day psyche psychological evaluation would have been were calling to her then you were going to go down to the station and clear up a warrant that's something that's within an officer's range of experience and how they should handle it and the supreme court has already said you can't micromanage those kind of decisions when you alternatives the police officers under this arrest to leave her in her apartment and not handle the situation and  knows we would be here on a different case if we don't know what would have happened if she hadn't been taken in on a five thousand one hundred and fifty but all night as to the police officers were going to take her in and have the cycle of psychological testing been done it centered cetera where they're all turned used in the methods they used that they should have considered they're trained to call the fire department for a medical evaluation when somebody is exhibiting the kind of  alternatives were there to how they were restraining her thank your honor i'm so the once the restraint occurred that's a post force situation and we're we're all the court that's an excessive force situation where the standards are in fact the same under federal and state law so what we're trying to focus on in terms of deciding whether to certify the negligence liability question to the cal supreme court is what were the decisions and conduct of the officers before they ever touched her and so it's true that appellant does point to several things related to the manner of restraint as tactical decisions that constituted negligence but those are the same standard so what i'm focusing on are the pre force standard preforms complaints about tactical decisions and the st was telling her that there was a warrant the other thing that appellant brings up is that  call and he also spent five minutes with officer brown discussing the situation before she ever went upstairs and the rd item was that officer brown did not contact them or family to find out what to do but the more family had been repeatedly and this is in the record contacting the police to deal with haleigh both officer brown and officer two who were the risks st responders had had prior contacts with them or family dealing with kayla and then th to make sure that this particular patient should go to the psych hospital rather than a regular hospital where they may need medical treatment so that could have resulted so none of these things would have resulted in any kind of a different situation in terms of needing to handcuff kayla eventually to take her in and i do want to point out that in the adams case and judge friedland's am concerned about that being a suicide case that the actions taken by the officers in that case were much more triggering if you will there were dozens of officers who showed up many with their weapons drawn they entered the home of the of the suspect they aimed their guns at a suicidal man they released a parking police dog on a suicidal man and they used a non trained officer to lead the hostage negotiations that wasn't a hostage situation but they were trying to do negotiations but they instead of using their trained hostage negotiator they used somebody who didn't have that training and an excuse me and then when there was when the man ultimately did shoot himself they all fired on him so we don't have anything like that in this case the level of escalation of what could cause somebody to react officers don't know how somebody is going to react and they had no way to forsee that  would would resist nothing that these officers did could could in their mind knowingly give rise to a dangerous situation that would have necessitated the need for deadly force which is the time when the california supreme court says you need to look at  of the circumstances it makes perfect sense the supreme court is saying when you shoot somebody and you an officer is involved in a homicide you can't just say well they pointed they're going to me or they had a knife in so my shooting was justified you have to look at what preceded that in order to answer the question about whether that deadly force was justified why is that different from force i guess on your position would be just slightly less than  force it's the lack of knowledge that what you're doing is is imminently going to cause a dangerous situation but at the moment of the force it's past the earlier decisions so i'm not sure  why i'm not sure i understand the logic of why it would be different that in the moment you're about to use deadly force we now look back and see what you did before but not in just short of deadly force of the force in this case so there was resistance that resulted in them having to use their hands and in some instances their need or in their officers to case he used his sternum his chest to hold down her hips because she was kicking and struggling and but in this case you're dealing with handcuffing officers handcuffed people on a daily basis there's no reason to think when you're handcuffing somebody that that's necessarily going to result in you needing to draw your firearm and shoot them however i'm not saying that that never happens they know that sometimes sub subjects resist it and there was argument by appellants that they should have known that she had a heart condition because of her obesity but they you know they did not know the extent that the real truth of the batter's nobody could have known the extent of her heart condition it khela didn't know the extent of her heart condition i'm not sure there's nothing in the record that suggests that kayla knew she had a way to widowmaker condition or that she knew that she had a severely large heart more than double the size of a enlarged heart the expert for the city dr bill key said it was the largest heart he had ever come across in his practice of it's an unfortunate situation that she did become resistant but there's i think that the city has laid out in the record the facts about the use of force about the probable cause about why this is is not a purpose to harm case but if there's any other questions that your honour's would like to ask thank you counsel thank you force cases hinges on reasonableness but i disagree with the the a plug ability of the adams case and i think your honor pointed it out there and that the supreme court in hayes the california supreme court in the days they punted on trying to decide whether there's a duty to act reasonably when trying to assist someone who's threatening to commit suicide and they in and said that is not this case and that's not what we're deciding we're deciding reasonableness of force and the you know and basically restating what we said and groot that it it's the t to address the i think this court has to novo review this the court did two motions for two orders on summary judgment and we provided and one in document number seventy one which is didn't see anything in the nd order that suggested he was reconsidering any of the legal questions in the st order not reconsidering i just it was an abandoned of caution when to to make sure that i'm giving you the record minute and this court is is free to just and i had that in my mind also this just because i'm not addressing it doesn't mean didn't mean that this court would want would order us to look you know to look at it now actually want to talk about this issue so that's in my mind there's also the matter of the policies that were withheld from plaintiff wanted that one i wanted to talk about it and two i wanted to make sure that that was in front of this court but the  point is that it was in front of the district court and his and his decisions he's the one that said ok this is actually there are two separate orders on summary judgment but i'm looking at him i'm treating cites to seventy one as well and says this you know this now disposes of bantay or case this is a final judgment case not just a and basically do with it parties with what you will  just some other points on i think the you know gram analysis reasonableness is a balance of factors so hit the factors are you know underlying crime that was minimal  in that she was under the influence and her own home her resistance again you know the testimony that we have to accept because the officers are the only ones still alive to tell the story is that she was bubbly bubbly as in effervescent full of life talking about you know rambling and talking about nonsense and definitely delusional too angry and then back and she's and as  back to ok as well as what i think a reasonable juror can take that to mean and then the switch and the snap if you will is going hands on one telling her ok you're under arrest and if this really is a five thousand one hundred and fifty evaluation by the by the city's own policies you never tell them that they're under arrest you tell them that this is for an evaluation and let's you know this is about the about if you're straight up with them about what this is and this whole so that's a definite question if her decision to to try what her experience which i think it's arguable  our position is caused kayla's reaction if that's reasonable a jury can look at that and be like ok she went off script she went off program she went on our own and this is the result of course kayla who didn't believe she had a warrant at all is going to protest this even if she was in her even if she wasn't ill i think anyone would have whatever refuted that and conference on these cases and then we will come back and speak with the high school students and anyone else who's interested in staying