defined that a reasonable jailer in their shoes would have understood that they were violating it but we have a couple of cases that it have held that the right to be protected against deliberate indifference to medical and psychological needs includes the right to be protected from suicide when i ask an arc is there some whether any case relied on by the lower court or the plaintiff can constitute controlling clearly established law and whether that clearly established law was properly defined by the lower court or as to your  question i believe that the u s supreme court has recently indicated that only u s supreme court cases would be considered for no no that's true but our cases have held that th so clearly establishes this right and so in so far as we've held that supreme court law is clear are we bound by those precedents to the extent that it is clearly defined on the u s supreme court and i guess my other question for you is just how detailed does the supreme court's statement have to be in other words it can't  complete level of generality like deliberate indifference is bad but it also doesn't have to be have a harm level of detail life you know in small jails fo supreme court's decisions that you cannot use a high level of generality the qualified immunity hast to be clearly established so those and so that the law can be simply  defined to has a right to be free from unreasonable or deliberate indifference to medical needs is not sufficient as the u s supreme court has said in the mosques and most recently in the she and the taylor cases then in in in the lower court when the court said it is clearly established that the fourteenth amendment protects against the liberty and difference against serious risk of suicide that was not sufficient and that is  inaccurate or were just too general to general but not inaccurate well if it is inaccurate for purposes of a qualified immunity analysis because it may be a statement of law just as fourth amendment says the fourth amendment prohibits unlawful searches and seizures but that is not does not mean that it is accurate for purposes of the clearly defined so what else has to be added to it besides protecting from deliberate indifference to the risk of suicide what more needs to be added in your view well based upon the mosque case as well as the sheen in the taylor cases that are just come out in the last couple months from the supreme court in this  n you look to is the particular circumstances and context i'm asking you specifically when did you know this that you think needs to be stated if we were if you were writing for us what would you say has to be added to that phrase to liberty and difference to the risk of suicide going past seventy what else needs to be added in this particular case your honor i could say that where an inmate is medically cleared and not on suicide watch non medical jail staff must rescreen to identify his pseudo suicidal tendencies to establish an inherent suicide risk is that last stablished because that is what was the screening for suicide because the supreme court taylor said that there isn't that that is not the law and it wasn't the line two thousand and nine what i'm saying is for downs and and long to be not given grant a granted qualified immunity there had to have been a right is stablished at that time the given those circumstances that this individual was screen medically cleared not on suicide watch that it would have put jail staff on notice that it was their duty to diagnose determine and recognize suicidality and then take proper action whether it is medical care or right referral and that one of the you don't want to the issues i have i think with your recitation is that it takes the facts in the light most favorable to your clients but  in determining qualified immunity to get past this stage don't we have to take the facts most favorable into the plaintiff your honor with all due respect what i'm stating is the law that would have been political in the context you know but your description of the situation takes has factual premises underlying it and that was factual premises are not the only possible ways to view the record i believe that it's undisputed that she was medically clear correct which lead to judge to seamus question as to whether there is a requirement that there be a medical premis or information given to the jailers before they can be held responsible no it's just the opposite because the jail staff should not be in the job and have the job of trying to diagnose and and determine medical conditions that's not why is this a medical i wanted my is this a medical condition if someone if someone came running into the court room screaming i'm going to kill myself i'm going to kill myself a reasonable person would be concerned that they might act on that without caring whether have some medical condition or not a medical condition i guess i'm not sure i understand why diagnosis comes into the picture because the risk of suicide or the with whether she received proper medical care based upon her mental state state and so for that reason as the it deals with screening or an identification of suicidal tendencies that jailers should not be the courts have not said that the court that jail should be required to to do in the taylor case the u s supreme court specifically rejected any kind of adequate suicide prevention or screening requirements and that goes whether it's in to your question judge that that even someone who asserts that they are suicidal is the supreme court said that there is not a right a constitutional right that's been clearly established courts to reject that by saying that there is no right to be screened for suicide screened correctly for suicidal tendencies or rejecting the proposition that the right of detainees to adequate medical care includes an were the bay could ignore any other actor conduct by the by the detainee did it because there was some according to the defendant some release they didn't have to pay any attention to her or any other i guess inmate for any other contact at all and if they see anything so what is that what you're saying i mean because it seems like that's where that takes you i mean there was a lot of conduct alleged that happened post their release being given to the to the jail people there was a question of the phone call whether or not the the guard heard the phone call the statements that she was making the fact that the guards even despite the released thought that she was suicidal then you look at the video and think it's three times you know attempts or suicide  she is nobody's looking i mean so do you mean to say that once they get the release and there's no there's no obligation on the guards to look at any other conduct when i'm saying for purposes of the qualified immunity that there has to be a clearly established right that will direct and give indication to those jailers as to what their responsibilities would be in those kinds of circumstances have said this particular case under the context based upon the moss case and the taylor and the sheehan case is that right has not been clearly defined by the lower court and it was not  heightened suicide risk was clearly established long before august two thousand and nine does taylor affect this analysis at all the supreme court's recent case to date no one your honor taylor is very different from case this case falls squarely within the farmer versus brennan standard the key there is actual knowledge that triggers the jail staff's duty to do something when they know that it in major detainee is actively suicidal in taylor there were no facts that the individual defendant had such knowledge that was a case that tried to rule that there was a duty to perform a certain kind of suicide screening it independent of whether or not there was actual knowledge of active suicidality so there's a much tougher case for qualified immunity purposes here this case falls squarely within the farmer versus brennan standard that govern know what is the clearly established right and issue here how would you define that clearly established right the definition of the right properly defined is the detainees right against the libera bring you know to give a jail deputy notice of what she's both to do for that under that to protect it right it would be too broad if we were asking the court to rule that the eighth amendment's prohibition on cruel and unusual punishments was clearly established through the fourteenth amendment principle that pretrial detainees intitled to at least the same treatment as an inmate under the eighth amendment or even maybe the general prohibition on deliberate indifference to serious medical needs but because story all suicide cases that survive summary judgment and that go to widgery are all factually similar they all must involve an individual in custody who is displaying heightened suicide risk and jail staff who are aware of that heightened suicide risk even even more specifically than that all of these cases generally feature similar facts about how the jail becomes aware the jail staff becomes aware of the suicide risk generally these cases all involve prior suicide attempts known to the jail staff agitated extremely distressed behavior in the hours before the suicide and or  threats of suicide r k says all three of those caught include your had those facts to a degree as well we cited in our brief twenty five custodial suicide cases from ten different circuits many of those cases had similar as well there are many cases decided prior to crystal bannister's tragic death in two thousand and nine that had very similar facts to this case when downs and long became subjectively aware the bannister was actively suicidal they were on notice in light of kong clues here in light of elliot from the first circuit gordon from the fourth jacob's from the fifth comstock from the sixth cavalli ary and hall from the seventh greason and snow from the eleventh there's a long list of these cases with similar facts to this case the put them on notice what they had to do they had to do something when they became aware banister cited suicide risk i it's clear to the court what's happening in this appeal to the supreme court has repeatedly said you don't need a case directly on point to defeat a qualified immunity defense have to be pretty close well it has to be asked to have specific context that is similar and there are plenty of cases that do as i just listed those cases they have to be supreme court cases well and the farmer versus brennan standard which described how you prove deliberate indifference is a supreme court precedent that all of these cases follow and that's where the taylor case went beyond that standard and if anything the tailor opinion issued just a couple of weeks ago helps the bannisters because the supreme court seemed to reaffirm that that actual knowledge standard set forth in farmers is brandon is the touchstone for these cases what is your best of a supreme court or ninth circuit case that sets the standard the deliberate serious medical needs applies to the specific context of custom and you'll suicide more recently this court in conn includes the year following farmer versus brennan applying to deliberate indifference standard ruled that the  your honor the important thing about con include here is that they both ruled that the right in question was clearly established as of two thousand and five there is an issue about the original opinion  if con includes your didn't exist there are dozens of other custodial suicide cases from the circuits coast to coast that define the right in question in the same terms that the this court defined the right in the first appeal defined the right in conning clue here like i said at the outset this is not a close case the supreme court has repeatedly said you don't need a case directly on point and yet the defendants are here contending that not only do you need a case in point they seem to suggest you need a case that is factually identical likewise the supreme court has repeatedly emphasized it is important when dealing with qualified immunity at summary judgment to view the facts in the light most favorable to the party asserting the injury my colleague said it's undisputed that bannister was medically cleared well that's not undisputed i'll tell you why because  downs and long didn't know what the facts said that the g l received and banisters condition deteriorated significantly after receive that fact that facts this isn't a case about imposing an obligation to perform some certain kind of screening this is a case about what jail staff have an obligation to do when they actually know an inmate is actively suicidal most significantly in light of clue theory and dozens of other custodial suicide cases the right in question here was clearly established long before august two thousand and nine and yet the defendants are here asking the court to ignore all of those cases to ignore the fact that those cases fit squarely within the well traveled path of the farmer versus brown and deliberate indifference standard the defendants are asking the court to go way out on a limb and rule that this case is somehow unique for qualified immunity purposes to go against what all other courts have done in cases like this bannister's death is horribly tragic but for qualified immunity purposes this is a  i appreciate the court's attention to our arguments i also want to say sometimes it's hard for my clients to understand why the process takes so long so we very much appreciate this panel accepting this comeback appeal and scheduling the arguments  farmer farmer states and officials failure to alleviate a significant risk that he should have perceived but did not while no cause for commendation cannot under our suitcases be condemned as of the infliction of punishment if a person should have been aware of the risk but was not then the person has not violated the eighth amendment no matter how severe the risk all also a wall simmons is not presidential for determining clearly established law because it was post this incident in that case contrary to what counsel said that inmate was on suicide watch and so it isn't a case where you have all suicides in the jail staff knew more cloth year does not help because in that particular case you have a medical professional who identified the individual as as suicidal and then took away the risk  analysis and and put them off that even though they were the medical professionals in that case and we and we've briefed that khan was not precedential because of the status of that case just going back for a second the judge graber you've you've identified that in the sheehan case quoting the carroll case the supreme court has said assuming for sake of argument that controlling circuit precedent could constitute clearly establish federal law in these circumstances where in this we believe that the supreme court has said you have to look to supreme court law not sister states some of which have been reversed that point of has already cited two namely the barkus taylor case and the colburn case that was cited by the supreme court and rejected it sounds like your time has expired thank you very much we appreciate the arguments by both counsel they've been very helpful and the case just argued is submit