we would take the position that that's classic hearsay it's hearsay within hearsay because the declarant wasn't even the person that was part of the detention center workforce and she herself determine what the nevada this record really did with the qualified immunity arguments of the detention center officers because what they really said was what the what the district judge really said was that i don't have them well developed enough records to make a determination what i think they were really saying what i really think that the nevada district judge was doing was making the same mistake that was discussed and sauce yeah and they were he was confusing the evaluation of whether the force was reasonable for purposes of qualified immunity with whether the force was reasonable for city the place department and the detention center which deal with provision of medical treatment yes ok so not only on him bender there's the situation you've got you've got a drunk guy in the shower right yes and they claim that they pushed him he slips and falls and well he tries to get away and they push him he slips and falls that's correct and he claims he doesn't he can't rebut this with anything because he he's memory yeah you know memory of it and we don't know when we don't know whether you know when that occurred but the fact that he has no memory of it can't be fatal in all cases because obviously you could just beat someone to a pulp and then of course things are not going to remember and that can't automatically entitle you to qualified immunity and that's not the argument i would make i would make the argument that they have to come forward with some evidence though a statement that logical evidence there was that he is hurt after the this situation and the shower correct here is there any evidence that he couldn't have gotten the e by more than slipping and falling is there any of us we could have got in the record of the medical evidence is there any medical evidence that would say i mean the officer say he tries to run out the question he slips falls on his had it scraped then you the doctor who examined mr smith the university medical center at the end of this event testified that he was simply sort consistent with a cute had closed head injury that occurred two to five days prior to  the hold circumstances of his drinking binge before he ever got to the pension center are where there is evidence that he was injured there that i mean you'll recall that he began drinking on january twenty sixth in the hospital three times a dr macdonald testified how and why these e r doctors would have missed a closed head injury they would have missed the closed head injury because he didn't have any external indication of injury they would have done a cast family because of  doll testified that those symptoms of skull fracture would occur two to five days after the injury when the brain began to swell to the point where it's that where the symptoms would he may have been exhibiting symptoms of he got injured and at that point they took him to this nurse chessplayer chest like all right what more did they have to do at that point well and that would bring me to my to my sort of fallback position assuming that he did suffer the injury in the shower that is not dispositive of whether excessive force was used excessive force is is evaluated certainly in part by granted to a large extent although i don't think they were granted with respect to mr chesler again mr chesler was the medical personnel in the best position to have identified that mr smith had an injury and did nothing effective amendment argument that they failed to provide medical treatment and i don't see any evidence to suggest that they're liable for that that's part of the the opposition brief that we got as you know under the under the farmer case and under your own gibson case these are just evidence of subjective awareness that mr smith had not only a  medical condition but one which if they did nothing to help him he was going to sustain a grievous injury there's no evidence of that in this case with respect to the city of north las vegas the friends the city of north las vegas fence as the record indicates took mr smith and the requested medical attention at least four times during his stay in one of the city's the police officers strike the city employees the police officers and the detention document donald testified during his deposition that it would be difficult i think that's in the record to twenty seven that it would be difficult to determine and he explained in there one of the ways you would diagnose a closed head injury with an intoxicated person is lapse of time after a period of time when they would no longer be intoxicated if they're still exhibiting symptoms consistent with  now i'll close by saying that we would like to also take advantage to the extent that you are able to determine or determine that either opposite cardinality or for that the individual detention center officers did not violate the this does this decision was made in district court judge george was bound by the ruling out of the ninth circuit on jim carrey versus the no that again the control board holding that in fact the statutes in question were under circumstances which reasonably indicate and i would submit that reasonably indicate is not the proper standard that and once again it leaves less than reasonable suspicion certainly not probable so we're judge and what what what happened well there's certainly nothing in our record than individuals that suffer from skull fractures there's certainly nothing on the record but to the contrary you have the admission by the army it's not like you said think nothing happened bullies so you have been taken over to the trauma center thirty six hours after he was brought in and in terms of the questions that you were asked you before that are important here is how does an individual s because there is an issue about the void for vagueness in this statute and i would submit that it isn't raised and i believe that it was raised in kerry that it would be raised at this point in time because when we were before the court jim curious case was good a lot and good law allowed us to have the judge rule in our favor because the right circuit are to hold that statute to be unconstitutional and i would submit to this court that the same reasoning i don't want to take up i have two minutes i just want to make a couple of comments with respect to hill if there's anything that further i need to give you on here well i i do know that the united states supreme court did look at the statute and did find that it was quite a bit narrower than some of the other statutes that have been held constant of the other stop and identify statutes that have been held unconstitutional primarily the one that was involved in brown versus t  in the papers that we've submitted it i want to clear up something in the record has died he died before he was deposed but he was interviewed  your honour's asked the question regarding how many times mr smith and when was he seen by medical personnel during his thirty six hours in the jail he was seeing immediately a booking and he was seen three more times but once right seen four times in the jail this is not one of those cases the facts that he sat in a room for thirty six hours monitored that's not correct he was monitored what was the argument that was made a i submit that there were dark e r doctors and nurses practitioners trained medical people in the jail who saw him a number of times and also did  not diagnose the close head injury intil sufficient time that elapsed for him the no longer be intoxicated and it's it's not clear to me how the district court could find that there could have been a not underlying constitutional violation that would result in liability on the part of the city under mo now but for failure to train when the people that were going to do the training failed to identify and diagnose the head injury themselves so thank you