good morning your honors my name is lance baker and i represent the state this morning white house erwin we're here appealing the district court's opinion in this matter at the outset i would like to address that this case in our opinion is a straightforward commonsense very relevant opinion given the policing and the backdrop that that we're seeing on a daily basis at this point but certainly not to mention that it's relevant but also a recurring situation that police officers are going to face time and time again and in fact are probably facing somewhere in this country at this very moment  we have to have guidance on an issue like this it's got to be much more clear than just being able to tase an eighty one year old elderly woman with advanced dementia  at the end of the day we believe that the district court erred primarily in taking this out of the province of the jury should be a jury question and not something that was decided so quickly by the court what i would like to st turn to and and talk about is of course the graham factors and as we know in order to state a claim for excessive force under the th amendment the facts asserted musch oh that both the seizure occurred and that a seizure was unreasonable in making this determination the court must look at or must look at the following factors in determining the totality of the circumstances and i would submit that the district court judge erred in this case by not considering the totality of the circumstances in this matter of course and as this court is well aware there are three factors that are important when evaluating a case such as this number one the severity of the crime at issue in this case the district court opined that this st factor was just not relevant they didn't want to discuss it the problem with that is is that there was no crime there was no crime at all that mess or when committed whatsoever she wasn't charged with the crime before she wasn't charged with a crime after even several months after she was never charged with a crime lieutenant jones never told her at any point in time throughout this evening that she was under arrest so we believe that factor should certainly err on the side of the appellant in this situation and certainly should have been addressed more so by the district court in considering the  secondly and what the court seemed to hand its opinion on was the nd graham factor and that was whether the suspect poses an immediate threat of safety to the officers or others in this situation irwin was eighty one years old the officers that came to her house twice that night were very well familiar with mr irwin and her son i can't tell you how many times they've been called before the entire green county sheriff's department was aware of mr her when her diminished capacity her advanced dementia not only that they knew that she was never a danger any times that they have been out there to her house and prior occasions or been called by her son she's never once had a weapon never once been arrested there's never been once to my knowledge at this point in time ever been a threat of any violence the main issue that we're talking about today is whether or not a garden rape and i'm sure you'll hear by opposing counsel that it has the metal tens on it which make it much more riskier right but at the end of the day we're talking about an eighty one year old  elderly woman that was walking towards lieutenant jones with a rake in hand it was out there originally around midnight for the call mr irwin had calmed down a he she discussed things with the officer the officer clearly knew that there's something wrong whether he's asking her do you know who the president names you know her data you know your date of birth so there is complete advance notice on the part of lieutenant jones that she is not in her right frame of mind in support of this the mts were called they did come out there originally and check mr one they checked her vital signs things of that nature there was no mobile crisis or mental health counselor called upon leaving the saying the st time shortly after midnight lieutenant jones in this case drove approximately a mile mile and a half up the story set in what appears to be just an empty parking lot because he knows and i believe even states on his dash cam body cam that he knows he's going to receive another call ok he knows he's going to have to go back out there and in fact he is right about an hour doing your honor ultimately that she was just she was combative she she had threatened to threaten to kill him she did not ever at any point in time to threaten to kill the officers i think the original call for her son the  one around midnight he does state on the dispatch called nine hundred and eleven that she's threatening to kill me she's threatening to her many things of that nature but certainly at this point in time and several occasions prior this department and even this specific officer at this point in time cannot reasonably expect mr irwin to be of any sort of danger ok if i see white ways at well she's never presented any danger in the past and certainly when he was out there just discussing with her around the st call around midnight well you know she's not she's not of sound mind and she threatens to kill her son if the officers are supposed to totally discount that and  i mean somebody of not sound mind and you know says i'm going to kill you i think it's got to be taken somewhat seriously doesn't i think it certainly should judge him and i  respect the graham decision of course we have the language that this court of course is very familiar with the circumstances that are tense uncertain and rapidly evolving the problem and i'm not trying to monday morning quarterback or hindsight twenty twentieth's or jones at all in this case all i'm saying is that there were other alternatives when he got to the say ok he was not but let's talk about the incident because i i have seen the video and she does have this mental rake in her hand the officer tells her to stop and she says no i'm not going to stop i'm not going to stop and she continues to advance toward the officer with the rake in her hand and that's those are the facts are they not i would say that she is walking towards officer jones at this point and again it goes back to whether or not this should be a jury question of how she was walking how advancement it is their contrary testimony in the record there is no contrary evidence from my client because he came out shortly there after but i will say this to the court officer jones contradicts his own statement in that in his testimony advancing to him i mean i think video i think the video shows that yes i think that she's walking towards him again i think that it should be in the province of a jury to determine what officer jones should have done i believe should have done an undisputed facts you think that the the th amendment violation and undisputed facts should be different depending on different juries  that's not what i'm saying judge i think that there were alternatives that lieutenant jones could have used and put in place before using what i would amount to as as deadly force given today's taser is deadly force i don't think  so i believe it is deadly force judge but i went beyond that and that's and that's perfectly fine judge what i would say in this case and putting whether or not it was lethal force or non lethal force aside i think when it comes down to it we have to look at whether or not mr irwin was actively resisting or passively resisting there is a case from two thousand and thirteen that the th circuit decided and it stated that it is clearly established that the use of malone clearly established the straight for proposition of law that it is objective unreasonable to tase a nonresistant suspect again we're not talking about someone who is a danger he could have very easily grabbed the rake from mr irwin at this point he could have backed away lieutenant jones or someone who's five thousand seven hundred you're going to require police officers to engage in hand to hand combat before they can defend themselves and that's that's a proposition of law that you want us to establish this case that you have to do and began to combat before you can use a taser no judge but i think in this case what did he because he's bigger and she's smaller that that's that's your alternative and he would you would have us rule as a matter of law he's going to do better well there is precedent in this court that the courts certainly consider mr irwin's petite stature her weight her mental capacity that's something that certainly the court and the jury can consider talking about dangerous precedent i think this court by signaling to the public i'm sure this court as i do i've had someone in their family who has had all timers or some type of dementia and mr irwin on this particular night just repeatedly just needed some help he needed some intervention from police from someone in the medical field and that just was not done so i think it's more of a danger that this court sends some sort of chilling signal to the public that hey if we call someone to help us like the police and law enforcement are supposed to do if our you know loved one can't remember is disoriented as having delusions that they may show up and get taste because an eighty one year old or an elderly individual has a rake in their hands in this regard let me ask you let's just change the scenario as i recall just might i saw that looked at the dash cams as well and i recall officer lieutenant joe saying the fifty feet that that was between the two of them was i think he used the word evaporating quickly and by the time he decided to use the taser she was but then ten to twelve feet and would have it at if she did not have this rate which is not your sort of standard garden rate that you use from the pictures i've seen you know to break your leaves it's got the harder times or the the really hard hard metal rake portion but what if it had of either death and or bodily injury ok so she's got a nice race yes she's ten feet away from her man advancing in this direction and he's got to make a decision in the moment as to what action to take and so the question is i guess does she proves an eminent threat to him at that moment what what under our under gr immunity what what would be objectively you know reasonable for him to do i think a taser in that incident that we're we're discussing hypothetically i think that it would have been reasonable a ut point for officer jones to to use the taser to deploy the taser that she if she had a night if she had a knife i do believe that but in this particular instance if we're talking about a knife something that you know depending on what type or what size of knife it is i'm just assuming you're talking about maybe your basic kitchen knife your kitchen i bet is a much smaller device than something that is six feet long that a trained officer on a daily basis actually not necessarily a trained officer because he did testify ultimately that he's not even trained in hand to hand combat unless it's his last option unless it's an emergency situation which i never really understood as part of his testimony but i do think in that position that you just described your honor that it would be reasonable if officer jones lieutenant jones used the taser in that specific scenario not when an eighty were eighty one year old woman is walking toward you used certainly changes the whole scenario at this point but i think that the jury should be able to consider whether an eighty one year old woman with advanced dementia was really an imminent threat to three officers especially one  that doesn't go to the jury only if she has a rake is that is that your position i think she wasn't going to shoot the rake she wasn't going to stab the right there was no contest only thank you so i think that's what the inference is that she's going to use these hard metal ends of the rake to actually assault him i like i think that's the syria anyway you know it's all been just kind of the same way you would assault with a knife but probably not as  that's all i think if we're talking about inferences i think that all inferences should be drawn against the nonmoving party that's the standard and that should be submitted well i'm not sure it's true and qualified immunity i think once qualified immunity is court to make the law a much more clear i don't really want to start off with a qualified immunity argument because i don't think among the two prongs of qualified immunity either reached there was no constitutional violation but he is all that his argument that it is not clear that this law is not even asking this court to do to do that through this case if that's the situation if that's the relief he's asking for is it inescapable that lieutenant jones is in town qualified immunity  the grand factors do play a role and there factors the totality of circumstances the law referenced by counsel is on point it's exact when i get in office and law enforcement i   i get the facts the go into the deposition phases such as we did in this case and i find out that actually either side you had any facts this room is planted that would alter these factors that are different than the facts i've received and in this case just griffin is exactly right there are no dispute backs every fact in this case it's one of the one of the rare ones i can sit here and say there are legitimately noticed  fact the sun comes out of the house and his testimony is you saw one second of the event before the taser was fired and in that one second he saw his mother in his own words brandishing the rate advancing towards the officer who had at this point retreated back into the roadway if you're going to write there is no law won't work under these circumstances and they have to retreat then the less lieutenant jones it's designed to tear up the are designed to iraq's the error and law enforcement should not be required to wait within one foot before having to decide if this person is frail enough to last we know she understood it why do we know she understood it because she responded you know articulate manner it reveals her understand matter she had dementia matter she was intoxicated matter she was on any kind of legal or illegal substances these these factors shouldn't have to be considered by the officers having make a split nd decision i'm glad glad to answer this situation hasn't been referenced yet that there is clearly probable unjust cause to see this woman who had taken back a gram packers in the severity of the crime committed aggravated assault prior to the  she was clearly an immediate threat to the safety of the officer and his duty and if there are factors she actively resisting arrest when she says i'm not going to stop i'm not going to stop is not passive clear the facts are in this case that is clear law let me let me jump over to the qualified immunity argument again and i really i really can't state anough that i rights in the situation but if the court determines that there was the torker the district judge did an excellent job of setting out the law and qualified immunity he did an excellent job of that there is a new case with similar facts to this one that would put lieutenant jones on notice in two thousand and seventeen that his actions of using a taser to subdue a suspect is approaching him brandishing a weapon with metal  green county were unlawful they had no evidence that lieutenant jones was improperly trying to the contrary evidence in the record really he was properly trained and he met every requirement i stated annecy is a relates annual d training  that the federal laws require and therefore we would submit that if the police are your c s should be banned order d issued on state law claims there should be a blanket dismiss even are you in this particular situation while i'm certainly glad it's only happened that deadly force could have been used in the situation lawfully but again we don't get there bank thank goodness and i am glad that i've got that lethal force could be used in that sort of a situation but i'm just wondering what case which you cite to us that the nd prong of qualified immunity is has been met thank you judge  one in that opinion the court stated that it is clearly established the use of force on a nonresistant or passably resistant individual might miss or when i would submit in this case may constitute excessive force another case that this court court took up that's very similar in and of course your honors i don't have an exact case on point that this was a very unique set of circumstances and as this court knows i don't think that i'm required to submit similar situation you had an elderly man that was driving his truck he was pulled over by a deputy that was in an unmarked car in plain clothes at the point in time had a sheriff's office a small emblem he approached the car mr hodge was very confused he in fact had about advanced vascular dementia mr hardy was even armed at this point in time with a handgun in the car that he was carrying legally at this point time the officer didn't know that but this court with mr hodges hands on the steering wheel ten and two it was just sitting there they ruled that that was passive resistance and that it was clearly a decision that the jury should decide and not something that the court individual firmly on her feet just like the court asked me a little bit ago about the hypothetical with a knife as opposed to a rape does that change the standards that change our analysis well i would ask the court and anybody else that that views this case if you take what mr lauder back said there taze mr irwin was routine on an individual firmly on her feet well is it his position that a seven year old girl would have gotten the same treatment if she were walking towards an officer saying she's not going to stop with a rake in hand at that point i mean surely our policing standards are better than not a seven year old girl had the same mental capacity same strength that surely mr irwin had at this point with her diminished capacity and all of her medical issues which were known i think that's very important for this court to know which were known mr a lot of back cements that deadly force could have been used i think that's laughable at this point in she cannot wield a rake like this in a way that would be harmful or that when she's less than she's ten feet or so away she's got this rate in an office of position you would have us find it that that the lieutenant shows would some have to you know rest the rate from her control it's pretty dark out there from what i can see your honor i don't think that i can point to anywhere specifically in the record that says that she could not wield the rake other than her son saying on direct testimony what what would you have done well i would have just taken the rape from ok you had a brick she had a broom prior to would like to just mention the either the green factors apply or they don't right i mean the district court just did not even consider the st issue that we would submit those and neighbor of mr irwin the rd one as far as passive an active resistance we would submit those in favor of mr irwin the nd one we can sit here and debate but in our view she was not a threat certainly not a deadly threat or serious bodily injury threat to lieutenant jones