case number seventeen dash four one one zero the keys to cochran at all versus columbus city schools at all argument not to exceed fifteen minutes per side mr fit rockets to meet proceed for the  that as we started here this is really about a child with autism severe autism in the columbus public school system one that ended up having a body stock tooth in his head nineteen thousand dollars in dental bills as a result of that so we need to always keep that in mind as we pursue just inference is in favor of the non moving party i would argue that that was not done in this instance i wonder if as a companion case fathom level answers yes yes ok ok but so that i understand this is in one nine hundred eighty three case correct for a violation of constitutional right yes  we're arguing as a nineteen eighty three case that the appellant demonstrated a genuine dispute of material facts regarding appellee violation of mckee's cochran's fourteenth amendment due process rights the district court contended that there were no faction owing plummer's conduct to be brutal demeaning or harmful  this test applies to corporal punishment cases not necessary necessarily this case but your best case that you're relying about the case that we're relying upon essentially taking a case involving corporal punishment in an individual with and i d who had violent outburst would it well why do you know i don't know it strikes me as probably appropriately maybe not called the teacher but this plumbers desk or somebody's desk nearby tore up something is it not sort of out of control behavior it is in that instance but if you're go control how to control behavior you have to have a protocol there has to be a process that is not one of you have to be trained right on the body sock that was the policy of the school district that you were trained she was not trained that was the first time she ever used it she put him on a hard surface which goes against the training as you can see from amy dennis writing you have to have to use one of these by a shop that ever heard of one photo well be you have to be a physical therapist a licensed physical therapist unit or to be trained on it by a physical therapist i don't know if any of you familiar with it but you can go online and look at the you know a lot of this you know this movement it completely is covering you but part of the training you know would seem to some extent to be common sense when you put it over somebodies head particularly somebody like me keys who has a problem with past your balance you don't put him on a hardwood floor you in fact he denys who work for the school says you sit him down he wasn't trained for he did it wrong yes right there i thought that the defense was there were pedagogical reasons for using this technique will be it using it in untrained and in ways that were not advise it  well that's kind of curious they make a vague reference to and it was referenced in the i p plan i think in the same way joy is referenced by the hangman because he's going to in your suffering i mean the reference there we're talking about it well they talked about sensory perception but what they leave out is that it was in regards to writing right there with there was no real need and the court itself gets it right the trial court that there was no panic a logical purpose floor you know putting a body sock over a coat over a backpack on a severely autistic kid who's acting out well who also it wasn't done forcibly right she said she asked him if he wanted it and he said yes i mean this is curious because the comma's public school fought in the common pleas court to have  incompetent to testify in a planned trial there and now suddenly he's running the classroom an autistic kid who's acting out who knows and i mean this is something you have to train for the keys obviously is not train he has no opinion he's never seen the film for can can we go back because i'm really not sure can you describe your constitutional claim to me the constitution would start with an illegal seizure is that essentially by putting this body sock on them and there's a long train you know the courts are very reluctant to allow that activity unless there's a put up oh god tical a reason for it so we're arguing under the fourth amendment that it is in fact an illegal seizure so we're arguing as well  under the fourth amendment public school students are protected from unreasonable seizures by school officials and employees and we reference again cite new jersey versus are you sure he allowed that violation of the fourth amendment of any teacher tries to put one of the shocks on someone without any training is that the repenting it might depend on the circumstance i think if if you put him put it over their code over their bookcase if you put them on a hard surface i think you have in fact that for them that by about i think you've got to look at the at and i really think it's up to a jury to decide that i think you've got to look at all the facts that are in dispute and let the jury decide whether or not that's a seizure and then you have the question of qualified immunity the again rather than constitutional deprivation of rights but she did in fact places over his head you know we all agree she did it wrongly right but we agree with that i mean you convinced us that and the testimony convinces us it should have been over his head etc i would also argue there's fourteenth amendment questions as well is she i'm sorry is she a defendant or you only suing the school district yes ok and then so for the school district you have to show that i mean they're not responsible there's no responded superior right the with the school district the question is whether they were aware of the policy whether they were actually enforcing or were they engaged in some activity that that was reckless where they'll argue they were unaware of the problem will argue that you know  there was a policy actually in place and that's protected under federal law so what was the policy in place the policy in place is this is where you look at amy i dennis's the director of special had for the school district is that everyone had to be trained on how to use this because it was inherently dangerous to put something in you used the wrong way but it is a known therapeutic method to be united with his auditor pissed and trained individuals and autistic children right it has been testimony seemed to be that it was yes so if if courtney plumber had been trained by a physical therapist he had done it ri the question of the enforcement the principle if you look at his testimony says that they were allowing it to be used to separate out niki's from other students they were using it as restraint and discipline and that was the policy of the principal self at the school they knew what was you know they knew what was going on and did nothing to stop was this so this wasn't the first time it was used on him it was first time it was used on him but it been you it actually had the name of another boy when it was dug out of the closet at the last second at the end of the day and suggested that this is what the keys needed to correct his behavior and then is there a mental state that is required for your claim against the individual recklessness is that the standard would be that she acted reckless and how did say that recklessly well she acted recklessly by putting it over his head by putting it over his coat by putting it over his backpack  hence restricting him the fact that it was reckless cuz it was not in his eye e p the fact that she put it had him standing when if you see from the various depositions and clearing members of the school itself that he should have been sitting so you know and not have a hard surface all right already have your answer counsel th you preserve some time good morning your eyes may please the court i'm john albert here representing the apple e's and to to make a correction the claims google board and congress city school district was also sued in this case ok there was a response it wasn't a claim against them but they it was a claim against him and i don't dress like it can you keep your voice up please yes thank you a couple things seem to be clarified on the facts as you can tell the trial court drilled down and just focused on the on the material facts that were not in dispute there's been reference that he didn't have a good balance ok that's not supported by the record the record supports that miss plummer said he didn't have balance problems but what does this go to and the topic sentence what are we why are we talking about that because that goes to whether or not what's the standard we ask counsel what the standard was is does it have to be shown to be a constitutional violation does that what's the standard i read that it sadistically applied or with malice or for no petty god god tickle reason i mean what are we supposed to be looking at rather than getting to the detail be brutal and inhumane treatment that have to shock the conscience or you're saying recklessness exactly yours are static that which is it one's to quite different that judge seidlin is asking whether it's shot that conscious or conscience or recklessness it doesn't say recklessness it says that test is brutal demeaning harmful shocking the conscious conduct and that you can look at the goal case eight thirty six f thirty six ninety four which was cited by the trial court and then in applying that standard the court is supposed to look at several other little issues as whether or not there was a pedal logical justification which means whether it's related to teaching i submit to you it was here because it was the body talk was designed to calm him down so he could participate better in class the court supposed to look at whether the force was excessive to meet legitimate objective there was a legitimate objective here again the teacher at the suggestion of miss shear who was familiar with the body sock and who trained miss palmer showed her how to use it coat teacher she's a coat teacher whose son had autism she grew up with it you'd use it on her son the school her son went to achieve was very familiar with it and she demonstrated it for miss plummer that day miss palmer had seen it used in her past with other students so the allegation that she wasn't trained is not accurate what did she demonstrate it on a hard floor or did she demonstrated standing demonstrated it in the classroom in front of miss plummer in front of the students standing up and if you look at the material from the manufacture of the guard the body stock you're allowed to use it standing up you're allowed to use it over the child's head it has a velcro that can be opened and slipped off the head or over the head and there's even testimony from that from the teachers here that if he had his backpack on which there's no real clear evidence that he did but if he had his backpack and his coat on that autistic students like that feel of having awaited they even use weighted vest on them so there's testimony that backpack and a coke would provide that type of sensory input there's been an allegation that it wasn't in his ip the overwhelming testimony is you don't put a specific device in an ip because if he goes another school they may not have that device so what you do is you mention what his needs are and in his ip it was mentioned that he had sensory needs but what's your best case that you're relying on here as well with regard to hundred eighty three action and the substantive due process it would be the go case ok and the cases cited by judge sarvis which are right on point bottom line is there's no evidence your honour's that it was sadistically to cause harm the whole purpose was to calm him down so he could participate in class and there is absolutely no evidence to the contrary so these are cases dealing with discipline right that you're talking about right now corporal punishment the cases i don't believe there are obvious restricted just to corporal punishment your honor i think that brutal inhumane test has been around for josh for thirty years or more and it covers judge could get asked about the standard as well and the other claimed there was an equal protection claim made at the trial court that's been abandoned it was an appeal to the only other one nine hundred eighty three action claim that's left is the fourth amendment which is unreasonable and unlawful seizure the standard for that is there has to be a seizure number one ok and we said i submit to you that use of a body sock is not a seizure ok let's say that is what some other standards that the second standard is that if it is a seizure it has to be justified in its inception and permissible in scope and even if you assume it's a seizure which it wasn't because the body is designed to do this it's therapeutic exactly and you can move in it you can breathe and it you can shuffle in it it doesn't can it and you're supposed to move and stretch in it because it helps with the sensory needs of an autistic child but as far as being justified in its inception and permissible in scope it was needed to calm him down so it was justified in its inception and it was a sensory tool designed to do that so it was permissible in it it's just that simple so it's our submission there is no evidence to the contrary to raise a genuine issue of material fact on the on what happened here and keep in mind you know the only the only two that really know exactly what happened where miss palmer and mr and the keys i mean there were other aides in the room they were dealing with other students and i think when he fell a couple of them noticed and assisted but miss plummer was three feet away the whole time he'd only been in the body sock less than two minutes and she said quiet down and then he falls so there's no dispute of fact with regard to that your honour's the other claim is the i thought he fel putting him in it no your honor he was already and it and he was giggling and laughing and said he was having fun and even his testimony said i accidentally fell said but he said i accidentally fell and i asked him i said  are you having fun and he said yes and i accidently fell the not other nine hundred eighty three claim your honour's relates to the columbus cool district and i would submit to you that it was only pled as vicarious liability ok it was never pled that they didn't they've had a wrongful policy and you can go back and look at the complaint on that so i submit to you that's just not actionable the only complaint against the district and the board of education was that they were vicariously liable for mis plummer's actions and i cited the beard case which basically says this it never happened before they had they had them your honor and the occupational therapy department and also this one was in michigan classroom in in her closet there for use with other sensory tools for autistic children and when when she was assisting ms plumber and pay for out of their own pocket or to read a school district furnish this one your honor i could apologize to you i'm sorry on that bike it policy to use them if they're in there well that they had a policy they could be used but they didn't have a policy in place that said before you can use it you have to be an occupational therapist you have to be a physical therapist you have to go through formal training anybody can buy these on the internet and there's and the instructions were provided to the trial court and photo and internet printouts there's no special training needed and it shows you in the end instructions how they're using again michiru knew how to use them she showed miss palmer how to use the other claim your honor that wasn't even mentioned by opposing counsel and judge sarvis found that basically there's no idea claim here that because the cause of action is for money damages for physical injury there's no claim under the id a claim and it's soon under the nine hundred eighty three claim the other final constitutional cause of action is eighty eight and five zero four and the case law says you analyze those together under the same standard which they have to prove is a qualified individual with a disability they have to prove that he was excluded from participation in or discriminated against with regard to public entity services and number that all that was done due to his disability ok number one there's no evidence of bad faith or gross misjudgement as i've already indicated this was all done in good faith to help calm him down that day and he accidently fell the only claim that i saw in parents brief in this regard was they claim that he was denied access to education because he was in the body song which contradicts the whole use of it was to calm him down so he could better accept the education process likewise your honors i cited cases in the brief that say there's no individual liability for eight or five of four causes of action which that would exclude miss plummer and the only claim against a board of education and the public school district was vicarious liability responding lots of period or for mis plumbers actions and when you look at the facts it really comes down to there is no evidence of exclusion or denial of educational benefits he was in the body stock for less than two minutes and he fell how did that exclude him from educational benefits simply did it was again it was done to assist in providing education and in the standard and i think the truck court sided it is that plaintiff has to prove there is more than just an incorrect evaluation or a faulty plan they have to prove discrimination and there is no evidence of discrimination in the use of the body sock they'd use it on another student that same day that nicky's witnessed and the other teachers witnessed so what evidence of discrimination is there in the record there's absolutely no so your honor for all those reasons and there were there were six or seven state cause of action tagged on to this in federal the judge charges after he dismissed the federal action he declined to rule on the state cause of action judge siler there has since then been a case filed in franklin county common pleas court for the state cause of action starts with was there a pedal logical justification for the teacher's action the second were the teacher's actions excessive for meeting his legitimate objectives third did the teacher act in good faith to restore discipline or act for the very purpose of causing harm and did the student incur serious injury so appellant cited material facts disputing the contention that plummer used appropriate instructional in corrective methods there was no pedal logical justification for plummer's action would like action taken after a long day of frustration dealing with autistic students the district court in the present case hell the plumber's conduct was quote non educational in nature plumber's actions i would also franklin county children services that that plumber had covered nicky's his face with the body sock now if you look into the record amy dentist told the director f special ed for the school's top plumber that the keys crackers face should not have been inside the body sock and they should have been sitting down in it stern's also said plummer should have used the body sock on a softer floor so as much as i respect necessity in instant training there's no real evidence that she was trained in that there was in fact a policy of the school and in fact it was supposed to be spelled out  in the in the individual educational plan so the we would argue the plumber this is the question for a jury plumber acted in bad faith which is defined as a conscious act of her own doing or preaching  duty and what she did is breach the duty to protect the minority artistic child in question in the case crocker and by having him stand on a hard floor and cover his face when in fact having seen the body stock up in the keys has a variety of educational disabilities i'm not sure there was no testimony in the record anywhere it's an aside that that she you know instructed him how to in terms of if she was acting in a way that would be logical and worried about you know it was too restrictive or couldn't breathe because she's putting it out over a coat you know as well as a bag and these are supposed to be cut  you know custom fitted by size there's very specific sizes they didn't size them up they didn't say this is the right i think we have your point ok thank you all thank you very much cortez your matter we will consider it carefully issue an opinion in due course thank you