sir i wasn't sure you're ready for me good morning your honor stated hacket with the king county prosecutor's office representing came county in this matter this case is a matter of first impression in the ninth circuit with a fairly unique set of facts and a present to those questions how  evaluate use of force and searches in the context of an officer's community caretaking funch function and persistently because this is not an area where there is an abundant or clearly established law this is why deputy heather volpe a deputy saw telle and christian were entitled to qualified immunity and the district court should be reversed i'd like to focus my argument on that second prong of the qualified immunity test the question of whether the law was clearly established and i think in both areas both the use of force and the surge the law is not clearly established thus supporting a grant of qualified immunity as this court is aware qualified immunity is granted to all but the plainly incompetent and that when you are looking for a clearly established right it must be a right that is a stablished with a high degree of specificity for example whether use of force is appropriate to protect the right  suicide victim to access to emergency medical care that would be the type of specificity that the supreme court requires a right not to have a back on your knee during a tussle incident to arrest so  your position that the district court erred in evaluating the use of force in conjunction with a misdemeanor resisting a public servant in the performance of her duties when the court should have said the force was employed in order to permit life saving medical services to be administered to her son and this was a life and death situ i think that is precisely the correct chase to cut to to analyze th that's not why the officer was there that's not why the officer use force and that's not the case law frankly that it should be analyzed under when the when the scene because opposing counsel is going to get up and talk about the first part of the sequence i'm sure about that statements that were made by the officer that caused the mts to come out of the apartment but once everybody gets who can sort of move forward in the sequence once everybody got to the i think it was a car a pickup it was a small pickup truck thank you once once it to that point i just have a really specific question about the evidence i think the officer was testified that she made statements to the effect of you know let us help him because once the sun was out of the of the apartment it's striking to me that people weren't helping him there either on the ground or in the ambulance or something and i think there's a difference of opinion about a discrepancy in the testimony about whether the officer ever said at that point that the e would be allowed to to assist the discrepancy is in amess own submissions so amess recorded statement does it both ways right yes she she says in a recorded statement which happens right on the scene right at the time that the officer  did request that they be allowed to help her son she says in her declaration she specifically denies hearing anything from the officer to that effect so right those two documents are are not are  seated behind the wheel right yes eventually she was seated behind the wheel with her son in the car next door and i think trying to put the keys in the ignition as yes and the record establishes that her hands were on the steering wheel that she was intending to back up even though a police car was blocking her way the record as a stablished that the officer told her that it was illegal to move that she was not going with her side and she was clearly frantic and very concerned about her son's life and i think justifiably so so so what is your response to opposing counsel's position which is that the force used it taking her out of the car she says that her face was pushed into the ground a couple of times what is your response to that their argument that the force excessive well i think if we're looking at the question whether there's a fourth amendment violation which of course is separate from the clearly established right yes i would say that there is no fourth amendment violation if you apply graham in a in a fashion that would be more appropriate to a community care taking question in and this is the problem of the clearly established right i know i promised not to get into that but but graham is not terribly conducive to analyzing the use of force in the community caretaking situation but if we if we must graham you have an did this and phoned a supervisor to say what do i do because the situation was so unusual and i take it that the suppressors instructed her to stop the driver i believe that all happened fairly contemporaneously so so of course the cars moving in back discussions are had on the radio the officer goes up in search yourself in the door frame missing acknowledges that she was trying to shut the door does not deny the officers testimony that the officer was take control of the three and a half thousand pound vehicle with a police car behind her in a police officer next to that vehicle stuck in the door at that point even under a gram analysis that use of force to remove her from the truck would certainly be what would be reasonable and justify that use of force there was a meaning will i mean in that there are holes so that she takes her hands off the steering wheel reaches her hands taking her by the arm in the hair putting her on the ground ames was was was definitely not a happy camper i think we have been there before that is to extract her from the vehicle and then there's the force on the ground and i understand you're relying on that on immunity but yes but is it your position if the force used on the ground was appropriate react she had called for backup backup and not arrived to the officer did have a need without the you know questioning it with twenty twenty hindsight to take control of that scene so that the officer was not in danger i think you've answered my question ok and then that of course wraps around radio transmission happened before this tracked it from the pick up yes definitely happened before she was roofing the pick up truck by contemporaneous i mean you know possibly a few steps before it enters the door and it all happens very quickly as the courts where looking at the use of force under the clearly established right case you do have the sixth circuit case the stryker case which which really involves a fairly extreme use of force the drawing of a weapon inside a home to assist with the suicide victim that is the type of case that precludes a clearly established right in this situation you also have the goldsmith case which is published out of the western district of washington which while does not have facts completely similar to this i think striker's the only one that is completely similar to this talks about a fairly high level force used to allow paramedics to treat an individual who is in mental crisis those cases i think along with the supreme court's direction and sheehan that a general graham right even in a criminal context is a nonstarter you need something more specific the problem with this case the problem that  plaintiff can't overcome in plaintiff's burden in this case was to show a clearly established right that has never been shown and the district court erred by not addressing that question i do like to turn quickly to the search question this is also another situation where there is no clearly established right in the stryker case from the six circuit you had a search inside the house for suicide drugs looking in drawers and cupboards throughout the house the officers the testimony is well established that the officer standard practice was to arrive on the scene help assist with suicide drugs to try and find those things to help up administered care to the individual they looked at the truck which is where the which is where mr gotti was found on the seat of the truck they see the suicide note they open up the glove box which is in front of mr briganti they actually find prescription drugs of mr proprieties name on them although i don't believe those are the correct drugs they find a gun they don't try and trump up any gun charges instead they clear the weapon make sure that it was not stolen and put it under the seats i making sure it was not still and i couldn't figure out the sequence when was the call made to make sure it wasn't stolen i think that call was made immediately medical emergency right so it struck me as somewhat inconsistent for folks to for the action to stop if that was the action to stop to check to see if the gun was stolen but having said that i can't tell when the sawtelle does not have a specific memory of when he when he told the individual so the record is silent on that point ok so i do think in miss that that's young for eating the have another question about this because the opposing counsel is briefing i have an opportunity to respond in a minute but i think the posing counsel's brief takes the position that the these officers who are searching the glove compartment didn't report the medicines to the e m t but i think the empties and i think it's only one officer had a declaration indicating that his standard practice would be to report it but he can't remember whether he did her or not so as to questions wizard declaration from the other officer the other officer was sick at the time so we're not he had cancer we were not able to get their creations from him that we don't know what he would have said if i got in the wreck ok and then as to the officer who did provide a declaration did he say that he doesn't recall or did he say that he didn't give that information to the mts he says very clearly that he does not recall he doesn't have a specific memory of giving the information to the mts but that his standard practice is to provide that information thank you and so i thought i'd ask to reserve my time you may before i forget i want to address one point and that is he argues that the calling that the building the saints by the hair was necessary to get out of the car because he was  one there's no evidence that any command was ever given to her to get out of the car there was there's no evidence that anything other than pulling the hair was ever attempted while i thought she testified that she was trying to close the door so that she could drive off and take her son to the hospital and that's why she had both her hands on there on the steering wheel before she reached for the door i don't believe that she testified that she was trying to close the door she could testify that she was she put the key in the ignition or she was trying to put the like i think this part of the sequence is important as well and my reading of the record was that she was doing two things with her hand one was trying to put a key in the ignition one was trying to close the door but that she was actually looking over to the right to the passenger seat to check that her son was belted in so it didn't seem to me that the evidence supported the she was trying to hit the officer with the door but that she surely did hit the officer with it or do you read that differently well  ames didn't mean to hit the officer with the door not that she didn't hit the officer the door that officer stepped in the way i think intentionally to try to stop or is that right that's a possible interpretation well i'm not trying to put words in your mouth though i'm trying to figure out what your view contradict deputy paul pease testimony that the deputy was struck by the door when she tried to close she did not contradict his testimony but i don't believe the court has jurisdiction to decide that issue well the question is whether or not there's a material issue of contested fact and you don't have any fact that contradicts the deputy's testimony that she was hit repeatedly by the door just that sequence as miss scribes what sequence not contradicting the fact but let's assume let's assume that's correct that possibly gets to the hair pull at that particular time but there's no justification for she doesn't dispute that she had at least one hand on the steering wheel that that doesn't justify the hairball on the ground because misnamed is already on the ground there's no need what he's not complying with with the deputy's order to give her both her hands behind her back so she can cut for but whether or not that force was reasonable is a jury question whether or not she had to pull her by the hair and smash her face incident round three times or repeatedly it is your question is that accurately applying the graham factors i mean i think if we were dealing with a simple misdemeanor obstruction of a public servant arrest maybe but don't we have to look at the totality of the circumstances here and say that the rendering of ms ames obstruction the resolution of that obstruction was necessary in order to permit the aid crew to work on the son who was in a life and death situation then we have to give more weight do we know to the level of force that the officer employed because it's a far more serious situation than simply making a misdemeanor resisting  arrest but i think in this context that weight should not be done at the trial or trial court level or at this level this is a question of law is it not counsel in other words in a life and death situation would we permit  she just can't be unreasonable i wrecked and one of the factors that goes into that analysis is as judge thomas said this is a life or death situation and ames was i think quite understandably frank and and not according to the record i think read even in the light construed most favorably to your client she wouldn't comply she wasn't complying and once everybody's out of the house that's why i came back to  where i come back not to where i started once everybody's out of the house it seems extraordinary to me that there wasn't a realization that there's there's nothing preventing the mts from helping her son right there in the driveway that's right there they let her get from the house all the way to the car without saying anything well it's not let them know not that i mean look at the picture we're only talking a few feet from the house with no no we're not because we're talking about the entrance to where the child was was all the way in the back of the house they had to come all the way down the driveway past the front of the house across the house into the other driveway where the vehicle was and i mean the child was the crew was back at the eight car right because they had retreated to that location until the scene was rendered safe for them to perform their life saving for they had they have retreated back to a car by a car had moved but it was out on the street right now so they were quite some distance well i don't know what you mean by some distance that i had moved down the street where it was later a car was still in front of the house so i said what is it you think that when you said they let them come all the way around the house you know losing me was there even carrying this child or this person as an adult or helping her get him out of the house right right ok so what is it you think that they should have done at that point they meaning the police officer to stop and say hey you know we'll treat the child we're treating but they let her get the child into the car she after the current child was in the car she went back into the house to get something and then she comes back out missing missing and no attempt to give aid to the person is given at all why she's in the house they waiting to see comes back out of the house gets in the car puts the key to start the car and that at that point she stops or and miss ames says and mr evy says and his wife says that there was no attempt to tell her they will treat the child here but when when they do say to her look you can't take him she doesn't comply with that and i'm i'm having trouble because it seems to be that it's where your colleague started out is to say it's really an emergency situation case not like  case and what is your response to that in terms of how the district court actually analyzed it that's correct i would consider this to be an emergency case ok but i still say that when when miss angles a struct it from the vehicle this court is assuming that the force the laying on her that her telling the officer i can't breathe you're hurting me i've had these injuries and office r continues to lay on her and continues the puller up by the hair and hit her face into the ground that could possibly be an attempt to disarm her or render her so that she can't resist or it can be retaliation because she cursed at the officer or because she appeared angry because she didn't let the officer into the house in the first place when i read the record that she didn't have recovered yet when all of that occurred that this all occurred when her arm one of her arms i think was a that is i'm not sure where the even if we take exactly what she says is what happened because we take it in light most favorable to her and i'm looking at her testimony how does that defeat qualified immunity because she's telling the officer that she can't give her arm she's telling the officer that she's injuring her and instead of the officer shifting to allow our arm to be removed the officer is applying more force and grabbing her by the hair and smashing her face into the pavement or into the gravel that's a jury as to whether or not that was reasonable is a jury question that's that issue so this is a very full case telescopes down to that moment in  well i don't think you can just say that all of the force is collective there was a force that was used in the vehicle there was the force that was used to extract it from the vehicle and then there was the force that was used after she told the officer that she had these medical problems that well let's just say just for talking purposes that in the vehicle and getting out of the vehicle was the only way that it's reasonable that that's the only way to get her out under the circumstances because she has her hand on the wheels and she's not getting out that's to say those who are reasonable if you are left with the force on the ground and the facts as we've taken them then explain what you claim to remain cleanly the remaining claim is the pulling of the hair washing on the ground the using her body weight the way she was using it in view of the fact that miss angle is telling her that the reason that i can't give you my arm is because your body weight is on me  using the knee to knee or in the back after miss ames has told her that i can't give you my arm and that you're hurting me and then grabbing her by the hair and pushing her face into the ground i don't think that has anything to do with attempting to save collins life or to render additional aid i think that could be interpreted by a jury as punitive because again if you look at the entire sequence the officer has got to be upset with ames because ames says no you can't come into my house they can come but you have to go and then names also curses that are the extra force at the end could have been used as punishment and the court can say as a matter of law that we know that was not done as punishment simply because the office says i did this but the problem is that you're conceding that some force was appropriate here in order to remove her from the vehicle because at that point no aid could be rendered to her son until she was out of the way so does this really come down to the force that was employed once she got on the ground was too excessive because we have case law that essentially says that we recognize that force is appropriate in order to a factual ate some kinds of harass and the question is should the officers be liable under one thousand nine hundred three because they use a little too much force i mean at what point do we draw the line any force that's used to it is anything that is used well you say that's gratuitous i mean the promise we've got supreme court cases that say not every push and shove that later appears to have been into the pavement no no if the forth is gratuitous or if the force used is in retaliation and you can determine as a matter of law as to whether it was the case needs to go to the jury i guess it depends on the total amount of force that w mean in the grand scheme of life based on the picture that was taken of her afterwards there wasn't a great deal of force employed because she doesn't have a lot of injuries from i don't think the fourth amendment reasonable standard has anything to do with and already has to if the law recognizes that there are some people that just are not going to go quietly and that we're going to have to take on the hard way and that means at some level of force is will necessarily have to be employed is it your position that if the jury could find that the force used was excessive that there's a bright line there and that excessive force would be something that has to go to the jury if the issue is whether or not the type of force use was legally permissible that can be resolved on qualified immunity but if the issue is whether or not the force was gratuitous or the force was in some sort of way retaliatory because she refused to allow or in the house and because she cursed at her that has to go to the first said is it reasonable but then you said but if there's inference that could be drawn that it was retaliatory force then it has to go to the jury but if you answered the first question that it was reasonable you would never get to your second question would you know i disagree because the reasonable this analysis has to look at the totality of the facts involved for example officer can i just walk up to somebody and smack him in the head for no reason you know because that would be unreasonable right  but it's not the amount of force used or it's not whether or not an injury was right i agree it's not the amount of injury but it has to be reasonable force under the circumstances it's very dissonant anyway let's answer that question first so you agree that's of the primary analysis  based on supreme court is whether there's reasonable force it was you know my analysis is that whether or not the use of the force was reasonable and i think that's different ok well i'm going about and i know whether the use of the force reasonable and if you are using force in a retaliation and you also have to use reasonable force and i know you can't use a shotgun when you could just hold somebody saw him for example the fourth amendment talks about whether or not the use of the force is reasonable you have to look at the facts and the reason most analysis has to take into consideration whether or not there's evidence that a jury could find that the force wasn't reasonable because it was used gratuitously or because it was used in retaliation for earlier conduct and in this case you can say as a matter of law that the force that was used was reasonable because it was necessary to control miss ames when the jury very well could consider that this force was used retaliatory given the fact that she told them that she had this injury that she could not give them her arm because it was tucked underneath her body and that she were kneeling her in the back to force her down further on to the ground knowing that she couldn't extract  a jury could very well find that that force was not reasonable because it was not done for police purposes but was done in retaliation so i don't think you can separate the argument into little pieces you have to look at the totality of the circumstance one more please counsel is it your position that there was any force applied after she was subdued after she was handcuffed is that right not after she was handcuffed but after she was you mobilized on the ground yes  there are three record facts that i think really need to be clarified in the course of this argument first off missing ames in her recorded statement did acknowledge that officer volpe they told her long before she got in the car the second time they quote you need to let the mt take him she heard that she chose not to act on it she chose to ignore the officers other warnings second there is absolutely no record even invisible in miss ames as own declaration that the officer pulled her hair in the ground that was repeated three times by counsel if you look at the are forty want any are forty two which is the declaration of mrs ames no testimony whatsoever that mrs ames hair was pulled on the ground that's how she was bashing or is that very last moment where when she's out she's on the ground in the same says his the knee is in my back so i couldn't move my arm but continued hitting the head leaving the area that they had keeps having to get smashed into the ground and he says that at least raises an curie question as to whether that was reasonable force at that stage i think there are two ways to look at that first off that's a prime example of what the case law means when an officer makes a factual error the officer there's no indication the op in the record that the officer knew that her hand was pinned to the officers action of having the knee on the back of missing that appears to be a simple factual error by the officer counsel suggests that we should infer from that that it was retaliate story that all these bad things happen for a reason but but there's a different argument is that a reasonable juror could find that  counsel i think for purposes of summary judgment there's a difference between reading the facts in the light most favorable to miss ames and speculating to the point of of what's beyond what's supported by the record i think otherwise i think that it would be based on the record that is before the court it would be reasonable for a jury to make that decision based on this record and that's the record that that has to live with there's nothing nothing that remotely suggest a retaliatory motive and in fact the district court dismissed museums first amendment claims which were based on this allegation of retaliation finding that there was nothing in the record to support this retaliation theory if you hear time is expired ok thank you very much thank you both for your argument this morning  thank you and we'll take a look at that the case of ames versus king county is submitted