the summary judgment to the individual officers on the qualified immunity the drug court as its basis for it and i have stated that there were disputed facts and differing accounts of what occurred leading up to the use of force take early with regard planes actions and the impact those actions had on the officers the order does not provide any specific example of those disputed facts and does not cite to a specific disputed fact is that therefore not appeal we have several cases where we have immediately remained and because the courts opposed to find the facts you know favorable in this case to the other side and our position in this in this instance your honor is that when the court reads the statement of facts and the undisputed admissions made of those facts that the material facts are not in dispute and therefore becomes a question a lot for this court proceed and every view beginning at page forty two  appendix in the admissions to those statements of fact which are at page two of two of the appendix clearly demonstrate this point they establish the reason that the officers read the scene they stablished that the father be violent his father noted that he had not been violent that day but could possibly become violent these are all admitted the dispatch reported that mr craig or indicated his son was diagnosed as a paranoid erratic behavior with possible medication issues and reported that craving or statements to the effect that plant was not his right state of mind was talking to the walls and might become combative when he realized what was going on it's admitted that when deputy schuster arrived at the residence he met with the father who stated that he wanted to get his son a forty eight hour observation is undisputed the deputy schuster could hear plays voice coming for the other room saying i love stat when asked plainly stated that he was not on his meds and not taken his his schizophrenia medicine in the last two days deputy schuster explained to plaintiff that his parents were concerned with the way he was acting and then he started talking about chemical burns on his skin and can ask that we have already read a brief thank you roger what's the closest case u s case it depends on which issue we're addressing what do you think your best issue the ehlers case where the gentleman was walking away from the officers at the time the officers attempted the arrest that he did similar things to what the play he did in this case he wouldn't offer his arms up he wouldn't he wouldn't surrender to their request that he give them his hands to cuff and in doing so then the officers took him to the ground with an arm bar technique this is what keith the ehlers it's it's in the breeze but the severity or of the injury being a factor we've asked the court to consider ryan versus armstrong which in that case the plaintiff actually died to get what catches everybody's i standard for qualified immunity beyond debate right why wouldn't why wouldn't you told up the score on something as as as as persistently raised as tasing i mean  you say it's a no it's a ten standard tactic fence tactic and i i think ours i know that's right it's the tasing that catches everybody's eye and you don't talk about well i guess days multiple times right  so with respect to the tasing the what i can say is that he was at that point actively resisting arrest and he was warned that if he didn't stop doing so that he would be tas which you think is the closest taser case well you know she just sitting there talking on the phone johnson i think it was you but that was a classic not a resistor in this case by the time then we have then we have the farmer and his son who  was tasered and we have held the grant of qualified immunity or we reversed its denial over the cases you should care about do they exist yes they cited other than the boys no that's true the focus was not on the tasing in the briefing the what i thought what i would suggest with respect to the tasing is that the tasing did not occur until he was clearly physically resisting arrest and they still h clearly on your side with tasing are very recent case of case law and that's the way it was used here with respect to i would ask the court to consider one other thing in terms of the officer maggard maggard was left in the case and yet he had no involvement in any of the tactics that were used he didn't tase he didn't implement the arm bar technique he remains in the case and to the extent that it's based upon a third intervene we would respectfully suggest the pleadings didn't raise a failure to intervene and to the extent that it did certainly with respect to the arm bar technique it happened so quickly that he would have had an opportunity to respond even as he thought there was something wrong but the more important point is that we do not believe that there was anything that occurred that would it's play ed i don't believe there is a to the point of the apple e makes a reference to a it's very beginning paragraph of the complaint says it's played there but it certainly isn't in the in the body of the complaint we didn't know that he was making out it was a denial of qualified immunity based on nonintervention i don't know that that brings to mind a question that i've had all along is that if you look at  president in hand versus lynch there has to be some sort of a discussion as individual eyes to each of the individual defendants so that you can actually review it on appeal own response to judge ben's first question you said you don't think no it needs to go back to for a more definite statement from the trial judge because if we look at the record that the facts are actually undisputed and so my question  is whether it was you know discussed or not discussed what the facts show that matter in was doing because i think what you're asking us to do is to look at the underlying facts and not bother to send it back even though on it this particular opinion does not perform any individual ised examination of the conduct down there which name defendants that that is correct and in that point your honor not only do the underlying facts and the admission support the finding in mr magers favor but even the limited denial that was made in the to the statement of facts was to deny that magritte had any involvement in attempting to take not relevant in your analysis because it's just happened it was an accident what what's your position as far schuster is concerned well that is the position that he was taking what he believed to be appropriate action level of force they implemented when he still was resisting arrest even after his arm it broke and so on the use of force analysis use escalating force in order to was subdue a resisting suspect or a person who is need to be taken to custody and all steps up to that were reasonable that's your argument as you are right i believe that there is a difference in this case then some of the president that is currently here in the eighth circuit and i think the difference in this case does not require that there be necessarily a i my point is simply that there is not a case exactly on point to this one the courts to close with i think the case it helps me the most at this cyrus is on point i think dural really sets the stage because what really going on here we have in this case and i think green vs connor helps me on this case in this case we have an individual in need of mental help nobody just disputes that the difference with his situation when the officers  in the other cases cited by the defendants in this case is that he is simply sitting in his room being passive most all the account i'm going to i'm going to take it to where you don't want to go and i want to start you where you don't want to start thank you because in oregon my view in order to avoid reversal in this case you have to you have to convince me that that matter did not but the facts undisputed facts or disputed facts don't entitle right shoulder while while the arm broken and the tasing her and without discussion was denied qualified immunity by the district court so unless unless you can individual eyes of the facts though that matter doesn't get qualified immunity we must maggard in my opinion falls into what the courts have been having and been saying since approximately two thousand one at least recognize recognizing that when we deal with them with a mental person in need of keir it has to be some extra care given to them we finish not avoiding your question in this case we have three gentlemen that show up at a room all of the same qualifications apparently by their by the testimony with no indication or a play in or discussions of anyone outside that room how they're going to deal with this with this gentleman who does not one will hospital is not causing home maggard in my opinion like the other two officers showed not to jump ahead but he was deliberately indifferent and showed no due course in considering this maybe that's not it that's not an excessive force climates it's it's somehow i mean i certainly understand the logic of the of that there are but it's not an excessive force there well my theory is that his failure to intervene is what but that's not that's not pled no it's not the basis of the district court ruling but as we as we can't make that up i mean at a minimum beyond the bay the sun and proceeded to sitting in the squad car and refusing to move over because they're in the midst of of a non complying event and he gets tainted into of course he moves over and it hurt because it hurt it and cia my position s which is what i've been decay did in my brief is that the procedure is somewhat different in this case in for in for a reason being my position is is simply that once we have a situation where someone is in need of medical treatment i mean they've they've agreed that their caregivers in this instance that they brief that that they're a caregiver there's no indication that you're trying to provide care or they're just simply taking in some of that be no different than he criminal suspect my client commit a crime he did not ok but did he says to force cases that are are do not support but that's not an excessive force theory we have we have the boys we have and we have we have a violent or resisting mental health patients who are killed oh i by law enforcement officers and in  started to say initially is that voice is completely different in this case so in this case it's similar to cyrus except my guy didn't even leave the house my guy simply was as it was gets a frantic and needed medical treatment and our mark was used on him is arm broken he's on the floor and then there's a five round of a taser used on which in my opinion at that point given what we knew about what was going into this at the very outset that that's more of a  force at that point than a force that's going to do anything to solve the situation these gentlemen had an ambulance sitting outside this my client's home or the home as they had and asked no one for systems until after they were holding him down someone came in to give him a techniques applied other than the officers that's because because craven or doesn't remember and his parents were not there he does not the parents were kept in the other room by another officer that's correct you're correct  so where were the facts disputed well and this is i think this is what judge it was well i'm going to hold your question there were very little facts actually disputed with the with some of some exceptions that may be important to the decision in that case those being that my client left out of the facts presented to the court was that my client was polite sitting down not make any harm stay when the officer said there was no harm but he presented any one there was one disputed fact that one office of the protocol was to not do anything until the scene was completely cleared before medical personnel was allowed to come in another officer said he'd seen medical personnel come into a room like this before and assist officers in  entirely different by a jury in making a determination whether or not an officer was that's always true but there were qualified immunity is left to the judge i grant that i don't i don't think that statement will and i'm not here to dispute this i'm just saying it at my perception of how he drafted his order in this case  as i understand your argument the officers are on the scene in a caretaker function and they're there on a wellness check they're informed that your client is suffering from a psychotic break that he is land but that he is sitting in his room talking to the walls and that he is likely to become resistant if you try if they try and take him into custody the police arrive at the scene the three officers go back into the bedroom they find your client talking to the wall he's overheard to say the strange things like i believe with i love satan or something they get in there they have a brief conversation they ask him to put out his hands he refuses to put out his hands so the officers are going to try and take his hands are they going to handcuff to making you know to get him in a in the squad car and get him someplace where he can be seen by professionals that's the background little allow his seizure for that purpose in this situation in my in my i don't research that is that wrong i'm not sure it's clear well of me father  aren't they and they arrived at the scene was purely at about a medical request the facts are clear that he wanted his son to go get medical treatment because he was he was recommended paramedics were there to take him to an institution i mean hospital whatever right well they were they are they were never involved in this until after his army broke and he needed to be taken somewhere for them and they were they were there and they were there bed because of the the call from the father worry they weren't there but they're put requests to the police to back up the police were they i don't believe they were there they were the they were the primary people with the police as i understand county protocol as described the police being the ones who are to secure the situation before the paramedics possibly placed themselves at risk well the protocol testified that one was there another officer said you've seen medical personnel of basalt i'm not surprised that there are security precautions taken and that they're there to to get him to medical professionals who can decide whether he's off his meds and needs to get on and i think that's why were i think that's why they were they are and i think though that the case law from so the plan to go in the room and seems to me is you're collapsing the priorities and responsibilities of  medical evaluation and the transporting to a hospital there to secure the city the scene and i think i think i actually agree with you with your stated except to the extent that i think officer should have been involved or at least asked what to do given that the person  nonresistance sitting in front sight is great they could have said that the medical sounds like one where you ought to come with us and i think hindsight would be not allowed in any case it was a quickly evolving set of facts but these were not quickly evolving but they were in the thing you know negligence isn't going to get you anywhere and if the officers were negligence and initiating a contact with mr craven or that there's just mere negligence right but once you actually made physical contact and resistance starts to play out then there's an escalation of force that's placed on your client then escalation of force is driven by a number of things one is a level of resistance that your client has into the increasing level of fear that the officers have read i mean any time you have a person who's talking to walls and is resistant and you're an armed person be your physically at risk of being killed we know that most officers are killed by their own weapons right i mean that's just stickley a fact in this country and so once the contacts made and once there's resistance then when does the force actually become excessive worry is the excessive force at the very moment that the first con physical contact is ma see and i think the distinction in those cases is similar to what they recognized and or ok and dorell simply says we're in an environment now we know that there are mentally disturbed people out there and that officers reasonably shinnick should expect that  if they use force in a certain way it will escalate the situation which is why we involve all kinds of different personnel would be ambulance would be psychiatry for somebody that knows what they're doing i think that's the point of this case he almost didn't know what to do with that of the ninth circuit and i actually call ok i actually quite a long passage elec case about the status of what's going on mentally disturbed people dating back i too thought about it so it's not a controlled it's not a controlling case i don't even know if a discuss is qualified immunity it's our controlling qualified immunity cases that matter here matter the most well controlling is to the today story but i even if we thought it was persuasive if it's inconsistent with our our panel has to follow our case i agree with it or not but i'm not sure it's really consistent or inconsistent with what the service done before in this particular scenario but that's my point well and then i had the case with the psychotic woman in the drug store who was taste and then shot because she wouldn't she scared the clerk who got a customer who ran from the store she was standing by a restroom that might be occupied or she wouldn't and she wouldn't put down her knife and my client didn't have a knife in your honor and he was not a public place he could be posed no media threat to anyone in particular well it wasn't but it was a place the officers were assigned to be it i mean the fear fear there was that the public place didn't matter as much as the threat to the that she posed to the officer and she had a knife now you know it's the father's home here right i'm assuming the whole time he owns the property right a father who called the police owns a proper my time's nearly up but i'm happy to try to answer any questions i try to do better than i did