good morning if it please the court my name is james climber and i represent the appellant's in this matter and i've reserved two minutes for rebuttal it appears to me and i would suggest that the court but the real matter at issue in this case is whether or not the defendants were deliberately different to a risk of serious harm and imminent and excessive risk of serious harm to mr errington bay when they arrested him and transported him and held him in the jail pending a medical evaluation that they knew was all coming was coming when the nurse arrived in the jail at six o'clock  vs a different course of action summoning medical assistance earlier i would submit to the court that there is no constitutional violation here because there is no evidence that the officers and jailers involved actually recognized and appreciated an excessive risk of serious harm to mr errington bay that the test you have to actually show that they admit that they appreciated the risk  isn't recklessness enough it is i do not believe so i believe the the standard is criminal recklessness and established and farmer versus brennan which is essentially a concious to disregard of a risk of serious harm my understanding is that the officers not only have to perceive the risk the but they also need to appreciate it and this is one of those cases that is not like a broken arm or a broken leg where the need is obvious that was why i guess i think that's a great analogy and i'm just not sure i know the answer to the point i mean it's i realize psychiatric problems aren't as obvious as a broken arm i mean put the compound fracture but you know they never will be there is no such thing as you know you don't bleed when you have a psychiatric problem like this so you have an awful lot of indicators that this person was quite unwell and they they kept growing they didn't shrink over time they kept growing and so i don't know your honor there are there were am bill in science yes there is no question mr er bay was observed by aveling at times his mother had indicated that he was bipolar there was no medication he wasn't taking had not been taking so that's reason for concern right and there were various stories about what that medication was for at the same time a little bit i mean i thought this was pretty well accepted at least for summary judgment that they knew he was on medication had medication for psychiatric problems and had not been taking it i thought that was we had to draw that inference from the record they had been told they had by ms arrington bay they had been told by mr arrington bay that the medication they had on him was to help him sleep well yeah but that's what's called  in the favor of the you know the nonmoving here that here the plaintiff i don't take the best evidence for them right i don't disagree but i don't think that evidence is this positive the real issue is whether this delay in treatment put mr errington bay at excessive risk of harm the officers and the jailers did know that medical assistance was coming the question is should they have taken a different course of action and got him treatment center now mr  evidence in the light most favorable to players how long did they think who's going to take before the medical treatment that the nurse will rob they knew that there would be a preliminary medical screening upon booking now the booking was they laid somewhat  the preliminary medical screening occurred to my recollection about three o'clock in the afternoon the actual confrontation in which mr errington baby died occurred about five o'clock the nurse was scheduled to come into the jail at six o'clock did this quote there was no medical screening at three then there was a preliminary medical screening but not by anyone connected medical profession it was by a medically trained corrections officer that mean nurse or what does that mean now in the state of ohio officers corrections officers an order to obtain their license take a curriculum and they do receive medical training in giving preliminary medical screenings to prisoners and so that is not in and of itself medical treatment or necessarily a full medical assessment but questions  asked concerning medical histories and psychiatric histories and in that preliminary medical screening mr errington bay indicated that he had never been before been treated for psychiatric issues  i will say i do not read the record as indicating that mr a behavior progress throughout the course of the day at the scene he was alter y babbling he was cooperative he was lucid and he kind of went back and forth when he went to the jail there were a couple incidents in which he kicked the door to his cell and he was yelling and screaming he later in the cater that he was on happy claiming that he had been trying to get the jailers attention for about thirty minutes in order to go to the bathroom when he went to the bathroom it was necessary for some male officers to accompany him because he needed to be observed while he was in the bathroom during that time he did fly and she was genitals at the jailers  this is not unusual behavior in a jail it's certainly unusual behavior in polite society or free society this is not unusual behavior in the jail after he went to the bathroom mr bay was medical screening he was largely calm and quiet in most of his contacts certainly with officer or officer moved or who did the preliminary screening  officer mood noted that he was calm asked him if he wanted to after he screen him put him back in a cell he was then taken out to make a phone call he was calm right up to the point that he ask where his cell phone was and at that point what do you say about this fact but when you look at our cases when someone dies they just tend to get to a jury that they tend to get past summary judgment in these type of deliberate indifference cases and you could argue that's not legitimate the question is inexact is not the extent of the injury but you could also see the intuition behind the cases that my gosh if one ends up happening is a  death that seems to suggest there was something a little more wrong going on in a maybe don't agree with me about the case law but that would be my sense after fourteen years on the court that when there's a deliberate indifference case and there's a death same thing with  arrest situations and there's a death they just seem to get to juries pass summary judgment little more often i can't quite put my finger on why but that just seems to be happening well your honor there's no question that that started supposed to happen  as a result of deliberate indifference or conscious disregard of a known risk of imminent or excessive risk to that prisoner and in this case we would submit that there was no evidence that those officers appreciated or should have appreciated an imminent and excessive risk of harm to mr errington bay by not summoning immediate medical assistance versus  nurse to see him setting aside the constitutional violation itself the supreme court just a couple of weeks ago in white versus polly reminded us once again that clearly established law cannot be demonstrated by a general principle of law it has to be with case law the preexists the incident that is factually aligned with the case the facts of the particular case in this case i have the greatest respect for mr gilbert i have the greatest respect for judge gone but there is not a single case cited in either the summary judgment proceedings or the court's decision on summary judgment that is even remotely factually aligned with the facts of this case  why is that so these death cases in jails you're saying those are cases where the what the guards were watching were problems that would really have shown usually person being a risk to themselves or that that's the difference for me because there were signs here and here these signs weren't signs that would suggest the person would die or these weren't signs that suggest the person would be seriously injured i mean there were signs and in western there were signs at a time issue that you know this was how many hours six hours or i believe it was on the order of eight hours from the time they arrived in jail that time they arrested a ok so is that it i mean is that the is that the comparison point that none situation in which a prisoner was held in jail over about six days exhibited a lot of symptoms it bears noting that the people who work one shift were found to be in time qualified immunity in that case but some of the people who were more involved with that person who were not all of the people involved in this case worked less than one shift and had a limited time to view mr and in fact were operating on the knowledge that he would be assessed later on toward the end of the shift i am or if i may as you talk about these cases are you saying that they are not clearly established law for purposes of this case because the nature of the person's problem differ maybe it was you know droid drug overdose or withdrawal from alcohol or is it because of the length of time or what is in general a number of different issues your honor i mean there are substantial differences in the circumstances in which the the public employees came into contact with the person there were huge differences in the amount of information available some of the cases posed to date this and we know of course that clearly established law has to be established based on preexisting law any involved bizarre behavior by the  lot of bizarre behavior involved in the other cases that is the one common element but i think that there are other facts or factors that substantially distinguish all of those cases from those that you and i say that's all the time i court my name is terry gilbert jacqueline greene we represent the police state of omar carrington day i'd like to reiterate the principle here in a qualified immunity appeal based on a summary judgment matter is that all the inferences have to be drawn in favor of the not moving party i think that in this particular case we have a situation where omar thirty nine year old man had a history of mental  was diagnosed as bipolar created in a bizarre scene at lowe's or even the manager thought that he was mentally unstable there are three components there is the police that arrived at the scene and had interaction with him where they discovered the pills the mother was there who dropped him off and said he has bipolar there was reference to sarah  which is a treatment for bipolar he had been taking his medication and at the scene he was he had changed clothes he had he was rambling he was talking bizarre was talking about million dollar so phones he was talking about his father being the son after incident what do i do with this reaction that is a matter of law everything that happened up to his death would not have predicted he would die we have nothing that even remotely suggest that to me now is  that relevant or is it relevant well that's that that is is relevant but the actual cause of death in this case was bipolar was in part bipolar disorder according to the medical examiner  they don't have to know the actual specific cause of the of the death they have to know that there is a substantial risk here that people with psychiatric acute psychiatric symptoms which he was displaying pose a serious risk if not dealt with risk of harm a risk of harm and then the issue of whether whether there is a link between the harm and the actual death that occurred is a question of damages all we have to show is a link and we have done that i mean maybe my question is is the same as judged by what happens in a case where let's say the officer could and did perceive a serious risk of harm and disregards it and then after a few hours a totally different harm  that's a harm a is that he's going to engage in action which is going to trigger we call for force by the officers ok that's harm harm b is he's going to have a stroke and they don't do anything and they should have known that he might attack somebody and get shot that doesn't happen but he just has a stroke in itself or the officers liable if if the if the if the signs are there of a risk of harm they don't have to know the specific harm that may be for that may develop saying you know i'm going you guys come in my cell one more time i'm going to do whatever it takes to tear your head off you know kill you whatever and they come in the cell and as they walk in the stroke i mean are it's a causation issue which is for the jury to determine well i think a judge catheters high poets and some think there's any can i mean they're just they're just different i mean bright i mean i mean that you're talking about physical danger to the to the to the staff ok let's switch to this case they have reason to fear that he might have a heart attack if they didn't get him to a hospital now and what do we do with all they knew that he all they should have known and didn't do anything about was that he needed medical or mental health support and the what is the evidence here's where i'm struggling what should we be looking at to say that they should have perceived that the fact that he needed some mental health help meant that he poked he was at substantial risk of serious harm of whatever variety well because the first of all the policies that they never learned about and the policies that they were never trained about go into extensive detail as to the importance of providing medical or mental health professional assistance to people who are exhibiting signs of of this kind of behavior and to immediately conti either take them to a hospital emergency room or call the the medical director or call a nurse who was not on duty and none of these people were trained in the correctional such sun setting there's case law that says that they they cannot avoid responsibility when they refused to verify a particular problem these these officers knew that he was a risk he was acting bizarre he was he was eating food with his feet he was yelling and screaming he was he was kicking he was he was out of control various times he was going to the bathroom and he was exposing and wagging his private parts and they never thought f one moment to call a doctor or a nurse that was paid for by the city for these particular types of situations and they just let it go and fester for so many hours t particular incident happened no one is asking them to analyze his mental health situation and try to figure out what could happen or not happen all they have to do is make a phone call and see what should be done  out after he died no no one i don't think any there is any indication in the record that they were going to call a nurse at any time maybe a misunderstanding the record i thought what was going on is part of the reason for not calling as a nurse was scheduled to come in at six is that right that's what consul said ok so what's the record say that but none of that none of that none of this far as i know none of the eight people who who were involved in this the police officers or the it was arius correctional officer said that well we're we think he has mental health problems and we're just going to wait until a nurse comes in owen said that they had their claim was it was just typical abnormal behavior in a jail and they were going to put him in a holding cell let him sit there just because the records show that a nurse was going to come in at six forget whether they explicitly relied on it is that the records show that i can't say for sure whether whether  i don't think it's relevant because he was a need of attention for about nine hours in a good nicu psychiatric floor and lee is the expert we have looked at this state and they they they claim they don't even know that he was in the medical or mental health support they try to you know shove this off to some kind of typical behavior in the jail rather than saying ok what we think you may have a problem but it's no big deal wait for eight hours before the nurse comes in that's not their defense their defense is that they saw all this bizarre behavior and didn't think it was necessary to do anything and i think that's what judge gone repeatedly indicated in her her fifty page decision when she analyzed each and every  issue of liability raising a serious question that is by doing it why should the arresting officers be exposed to liability here given that you know that they're taking the person to mean that's where the intake that's where most of the medical stuff that happened i mean i don't i don't think you're saying they should have driven him to the hospital right well first of all they they did not inform the happened at the scene with the bipolar reference with the with the the pill reference his behavior about the situation at lowe's none of that was one of one you know he didn't come in and all she knew was that we all know as well i thought about the incident they knew about the lead to a new knew about the pills were found but did not did not ask for what they were for and they didn't and she was supposed to do the booking and never did the booking they just thought they had a combative person who and what she had made of that there were back to you a little bit let's just go back to arresting officer right your theory for them is they had a duty to give more information to people the jail that's the deliberative and different or they should have taken him i mean based on the behavior at the scene of the spill they should take him to an emergency room i mean this was not a you know a major criminal offense it was a misdemeanor or was it was just a you know breaking some of the case that you would cite that makes clear to an officer that based on those and issue you must take this person to an emerge well one thing that does seem to be lacking somewhat here mr kleiman points out is case law that shows that these officers should have known better than they did i would say the cooper  versus madison clark versus murphy persons versus which ones your best one and why do you think those facts really map on to the ones we have a couple outside of the circuit cases  best one inside the circuit that really you know factually would have given these officers pretty pretty clear warning that they needed to take him immediately to the emergency room  that it's been the law in the circuit since nineteen and looking likely and i can't point the best case because every fact and situation factual situation is different most that occurs to you that you think really maps on to these brief the recognition that pretrial detainees or even people who are in prison that psychiatric presentation of psychiatric problems is considered under farmer versus brown in a serious medical condition all right and i'm not trying to give you a hard time i'm really glad i don't find out what case says that we don't know that so i just i just want to be a central part of the case it's kind of like a dog that's not barking well i don't i just don't have the case right with me but i do i think it's the one of those cases that many psychiatric conditions mental health issues that are defined and and knowledgeable by staff but you know just wire require intervention you might you might think about this after arguments you know it's hard to remember everything in an argument so maybe you can identify him after the argument but you know one of the best cases on psychiatric illness is why no pretty well clark and that's a case where the guy just diminishes over three days well it's three days and you know here we have nine hours the signs are nowhere near as extreme as they were there and so i want to tell you in our case clark establishes a rule and that's  say that's the whole level of generality problem to say that art that you're in that case that deliberate indifference could occur in one shift oh i think i know the case think i'm telling you that you know that fact pattern is the fact pattern we have to use here and that fact pattern is very far away so i mean i'm not saying pick tell us today but it's really important for the second prong of qualified immunity i think i've heard of but another thing that's troubling me here is that it seems as if i think you just said a little bit ago that these officers these arresting officers they they saw this bizarre behavior and they just thought they were dealing with somebody who was you know behaving bizarrely as lots of prisoners do which totally undercuts the deliberate indifference claim because for them to have been deliberately indifferent they would have had to recognize that this guy was something more than just you know an obstreperous narcissist goof the they just arrested they would have had to recognize that these are serious psychiatric symptoms and then they would have had to ignore that recognition they had that information judge they had the fact that the mother told them that he had not been taking his medications regarding they found the pills on him the mother didn't say go to the emergency room well it's not up to her to say what should be done yeah and they weren't given that kind of information if they had enough information to believe to be knowledgeable of the fact that this guy may be having a psychiatric episode i mean given what happened at those given what happened at the car the rambling the bizarre ranting going on now the police were only with him for you know an hour or so they didn't give a lot of information when they dropped him off but one  the j o there was a there were five correctional officers who saw this kind of behavior going on and when he finally got to the emergency room i mean them the preliminary screening there that there was something wrong no one bothered do anything now what could have happened after that we don't know but they they had policies and procedures and we won the mon now claim by the way and there's an extension of the extensive discussion of how completely indifferent the city of bitter heights was in training their people in the jail to deal with mental health issues which is a major problem around the country as are experts one forty percent of people who are pretrial detainees from some kind of mental illness they had no clue of what to do they hadn't read the rules they hadn't gone through the through through any kind of training or or updating and yet they had these beautiful policies that nobody read so when you put it all together it just seems to me that this is a matter for a jury to determine determine whether or not there was sufficient knowledge there's sufficient risk that they should have intervened and done something and that's all we're saying is that the jury should be able to consider this thank you very much  thank you at the tail end of mr gilbert oregon up there was a reference to the ellis shoes and i don't understand those to be at issue here my understanding is the only issues are number one whether there  r well fully under ohio law in terms of the cause of death there was some interplay there i believe that the coroner said i haven't read it for a while but the coroner's a verdict basically stated that the cause of death was an underlying kirti act condition in connection with bipolar disease or something to that effect i understood it to be basically saying that the immediate cause of officers were in no way on notice of that cardiac condition yes i mean you don't make a proximate cause argument i guess i was not trying to make a proximate cause are you i mean that i did feel the brief i mean i guess you're not arguing that there's a proximate cause problem because of this sort of mismatch between what harm might they have expected you know maybe get really beat up by the cops because the officers because you know he has an absolute and attack somebody we're not making that are as opposed to a heart attack we're not making that argument and i'm not sure it be appropriate at this stage yet you know i'm just trying to clarify what's direct i would also like to clear any misconception there may be as to the duration of mr eric conveys behavior i think the evidence is very clear on the record that his behavior was not consistent throughout the day and so in other words we don't have a screaming ranting raving prisoner for nine hours the unrebutted testimony is he would have incidents in which he would act out kicking the door wanting to go to the bathroom  quiet down he would yell some he would quiet and that's very distinguishing i think clark is the same way well i'm saying is that i think that that is a very different situation than hand he been