this is a case that presents fairly tragic factual circumstances it's a case where mr mckinney jeff mckinney was an inmate at the fake county detention the really to understand the arguments that we're going to be making i need to go into a little bit of detail about about the underlying facts we have where we are today is scaled way back from where we started there were a slew more individual defendants that were nine and from the detention center they were dismissed we are left now with these five or six individual defendants all of whom are seeking this court father and then he had to move former wives each of whom had minor children and so those two former wives or named as plaintiffs in this case as well as for the benefit kill their children at the time of the events in this case mr kenny was thirty seven years old young man he'd had somewhat of a troubled past he  epilepsy and had been treated for seizures since he was seventeen or eighteen years old so you had this seizure disorder he was being treated for that disorder and for anxiety by neurologist named patrick leon and he was on certain prescribed medications for the seizure disorder at the time he presented to the detention center that  disorder so the added ban is what is known as a then so diop i mean drug and in so he could be presented with those three drugs at the fake harry detention center when he showed up for the first time on the seventeenth in addition to the epileptic problem he also that undergone he had the accident on an a t v several years before the events in this case and sustained a traumatic brain injury so he had those types of problems as well so he was being treated for pain and had a number of other medications all of which were fully disclosed to the fake a detention center intake person when he presented to the jail now it's also important to note that at the fayette county detention center they contract directly with a medical service provider and that in this instance it was a company named khor the corrosion personnel make all the medical the terminations that's what they're there for the guards are just that there guards they are there for care custody control types of situations they are security personnel th are not locked out of school personnel defer to the guards of the guards or suggesting that there's a security issue you're not saying that the medical personnel would try to stop the guards from restraining someone if the guards felt they needed to be restrained are you not at all you're i'm not suggesting that i guess what i'm supposed to decision of the officers that's at issue here not the decision of the medical personnel when the issue was restraining the person correct well it goes to the argument from the other side which is that we used excessive force and did all these bad things while all these nurses are sitting there you know but my point is don't you agree that the nurses would not intervene oh i watched the video as well they did not intervene when nurses stepped back and they did not intervene when the security guard personnel were doing what they felt they needed to do in order to restrain a combative so certainly they're not going to intervene in that and what happened in this case was that mr mr mckinney had had  he was there from the seventeenth on the nursing staff put him on a benzo withdrawal program so that out of a and was toned down for him and then a limited and by that may twenty first the day before all this happened on all those medical decisions were made by the corrosion medical personnel so on on may twenty two within a day of his being withdrawn from the outer band mr mckinney saw first the first seizure at about twelve thirty or so twelve forty in the afternoon he's in the shower in what was then the unit a of the the tension center which is a general population area he had been initially placed in the medical unit which is unit c and then had been released the day before to the chase the argument here seems to be now what actually happened what you see on the argument first the first part of that argument is that they utilize the force that they believe was necessary under the circumstances the video shows what the video shows there's no disputing what's on that video we're not disputing those facts  all the deposition testimony of the officers is we believe critical and this is what the trial court judge probably not addressed and she she needed to i me ask you about what judge caldwell addressed ok because i take your argument and then i'm looking at your argument and you go through each of the there's basically five people that are at issue group you go through each one there's massingale gear and in each argument you basically say there's no basis to find for instance here league year should have been aware of substantial risk of serious harm to mckinney and in mosques you say there is no basis to find that mosque should have been aware of a substantial risk of serious harm to mckinney and so on i mean i believe that here it is jones there's no evidence that jones was aware of facts from which an inference could be drawn that there was a substantial risk of harm and the same for the other two judge caldwell disagreed with that right so there was a basis to find those facts that right that's correct your honor and you so you're challenging her determination that there's enough to get to the jury on those factual issues  is that correct or not that's not entirely correct you are correct about that because it seems to be what you say over and over well certainly that is what we are arguing we disagree fundamentally with her ruling in that regard however but do you concede that your disagreement is not properly before us on those issues i agree with that and it seems to be that's what you're arguing i'm looking at the summary of your argument summary of the argument as three paragraphs a material issue of fact not only insufficient evidence on which a reasonable fact finder concludes the defendants had sufficient knowledge and actually drew the inference in adequate proof to support a finding those are facts that so i'm reading your summary to say we're challenging the district court's determination as to whether there are enough facts to get to a jury on these issues your honor what her reading it wrong well you know you're reading it correctly but what what judge caldwell did here or failed to do here more aptly is that she based her rulings proof she is required to do an individual assessment of these components for each i use individuals and go through and say for each one of them she doesn't do it that's an argument that for each one of them there's not enough fact i don't see how you can get around with your arguments are strong they just seem to be premature but obviously we think they're strong we don't think they're premature because immunity the issue of qualified immunity or official when there's a legal issue this is a legal issue no when there's a legal issue and number and have immunity based on factual the terminations or you can say there's no immunity because there isn't enough in the record to support certain facts see that as a legal issue that we could address yes i think that is what i think that that's what she is required in what sense do you say and how do you show and what is the basis for your conclusion that she did not make an individualized is by specifical but she clearly did conclude whether she did it individually or not is my question to you and i'd like to know how do you say that that order was insufficient in assessing an individual basis the conduct of each officer or the order itself so it's just that it says that she's not making this individual assessment for these individual officers she's deferring that till trial and immunity is i do at this point in time and didn't do and because of that we believe judge called will commit air and that this court as a matter of this de novo review hindoo can make a couple  choices it seems to me one would be to reverse and remanded back to judge caldwell so that she doesn't fact make the individual findings for each of these individual off officers that she declined to do ok i'm going to ask you one more time or order here what what is your basis for saying that the order other than the fact that she said she was going to her till trial because i don't see it that way she said there was a genuine issue of material fact as to each of these officers and therefore she was going to defer again and allow after more evidence was submitted a determination as to individuals and that doesn't mean that that order did not also do that my question to you is why do you say the order is insufficient to the extent that it did address the conduct of the officers but it is addressed the conduct of the officers as a global unit as opposed to individually number one and that's what she's required to do for each one of those individual officers each one of those is entitled to the court's attention on an individual as basis moreover what we're saying that judge caldwell didn't do that we believe she should have done was to have considered the evidence presented in the deposition testimony of all these officers and again she cites repeatedly to the deposition testimony does she not will she does and some of it she gets wrong but that's another that's a whole different issue that's not properly before this court the fact of the matter is is that the see didn't in her opinion build down and review the testimony that we've submitted through these through our submissions to this court she didn't look at any of the deposition testimony and quote from that in any any type of individualized assessment we believe that that's what she was required to do may please the court ram cure is chris richard guarneri representing all of the apple lees my co counsel with me but they graciously agreed to allow me to do all the argument today  the judge rogers really got to the heart of the matter and that really what the issues before this court is the jurisdictional issue and that is they made a motion for summary judgment based on qualified immunity judge caldwell decided they were factual issues that needed to be resolved by the jury they didn't like that ruling they filed in a walk toward the appeal of course when they file an interlock a tory appeal on the denial of a motion for summary judgment on qualified immunity under the collateral order doctrine the only issues that this court has jurisdiction to review are abstract questions of law and an abstract question of law as to whether the district court made an individual determination as opposed to  global determination i don't think it is judge in fact it's something that it is in some sense a legal issue how do you respond well it requires the court to make determinations as to who did what at what time so i think from that standpoint it is a sufficiency of the evidence argument in fact i would cite to the case of an actually it's an it's an opinion that you authored it's mcgraw versus madison township and in that cage leave a million or in that case judge there were three police officers that was in one thousand nine hundred three action they were the reallocations of false arrest false imprisonment and excessive force and they argued they made a motion for summary judgment on sovereign the court would have found that there was no evidence that certain of the officers were involved in certain of the counts of the can point and such that case as wise as it may have been have been published cases that have focused more on this idea that an individual determination is necessary is assume for the moment that we can look at that issue is it is it true is as judge berger suggests that there's enough in there in her opinion that deals with these five people sufficiently specifically to meet the requirements that we have for an individual to terminate if we assume that this court has jurisdiction over the individual ice assessment argument that an argument that argument or not it's a individualized assessment we can go through and the question becomes did she do an individualized assess and i think by looking at and judge burton hit the nail on the head she got a twenty seven page opinion that goes into great detail about what all of these five guards did throughout the course of this event this event basically was a forty five minute situation that started at six  in ended a little bit after seven o'clock when they carted his body out of the detention center all five of these guards were present during the entire episode it wasn't like they were there for part of it not there for other parts sake your argument i infer your argument to be that if he talks about all the five people and then at some point says all five of them failed to act while they were standing there she doesn't have to go through and say all five i mean mossel year and name each one exactly i don't think she needed to have a subsection of each of each section of her opinion that says well the gear did this jones did this because you can see from her opinion she recognized that all of them did all of it there's the case of philips versus all of them do everything the fact that collectively they manhandled him is a whole lect of lee the original question was should they have applied for what they have just left him or left into the to the devices of the medical staff and i guess my read viewing of the video at least was didn't look like the nurses were probably going to go in and deal with them i labeling condition maybe maybe that's a factual question with just generically is it your view that they violated the constitution as soon as they started applying force view that they violated the constitution from the time that they first went into a nine which is where he was when he had the seizure throughout the time they took him out and put him in the restraint chair in the comments area and at the end when they moved him into the individual room that wouldn't you say as you just said that we don't have to get into the details of who shot struck giada what point that they were violating his constitutional rights soon as they went  in and got added right direction if we were if the parents were saying we concede every single fact that the plaintiffs have alleged in this case then it does become purely a question of law for pretty much fully getting in there and interfering with interfering in not only interfering but actually taking positive action to create the situation that resulted in his death  two things i think first and you know i think you can see from the video the officers were clearly in charge of the entire situation the nursing staff was not telling the officers what to do it at any point and you can see from the body language in the comments are being made lieutenant jones is in charge of the entire situation none of those nurses were going to tell intent jones what to do and what not to do and then secondarily to that once the signal seven was toned it started out with a code one hundred which is medical emergency but then after the scuffle started in eighty nine there was a what's called a signal seven that was tone once the signal seven was toned under the internal policies and rules of the jail the medical staff had an obligation to stand down and to simply await further direction and instruction from the from the guard so from the district court's opinion that she was relying primarily on these long periods of time when nothing and he was just bound but nothing was being done is like a nine minute period  in the subsequent period i thought accurate i think that she she did focus a lot on that but i think if you look at the end the focus is on that's at issue here really right yes and as if she made certain kind of factual determinations then you could have a legal issue as to whether those factual assumptions amounted to a violation of constitutional law yes and but i think she makes findings that start at the very beginning where she said that he i guess what i'm saying is i'm not sure even have to go there why can't you just focus on the things she focused on you still you still wind brecht yes or i think that really made gets back to the issue terminations even if they're wrong and even if there's not enough to get to a jury on those determinations there her determinations that at this stage we're bound by but it was just locked up and no no medical treatment was requested for him for whatever it was nine minutes at a time and those five officers were standing there when that happened and each one of them should have known all of that may be false but that's all stuff that she says there's enough to get to a jury right she was the one that made the determination based on the review of the record they are basically arguing well we don't like her version of the facts we like our version of the facts and in fact in their brief they again it's like i was pointing out to judge bogs as long as they're willing to concede all of her facts were ok but they're not willing to concede all the facts and if you look at their brief drift away from conceding her facts and get into their own version of the facts there are several different things that they put into their brief that are contrary to what she found in really contrary to the evidence that's in the record that supports our position ice she did make finding what made determinations that a jury could find a jury could that there was enough evidence to where it was a jury question yes or that's why you think this is not properly before the court correct yes because it was a because the argument of the evidence argument but that question of the individual assessment of the evidence though i thought i understood you to say that you still felt that that was somehow effectual question but isn't that really a legal question whether she did or did not do an individual ised assessment i mean it's case i think that that's arguable i think that well let's say that it is then what do you believe the proper standard of review is that we should apply to the court's  what it is that the district court is supposed to do and the the best case on this is philips versus roane county which is a case a lot like our case the worst i think seventeen or eighteen guards that were sued a woman died while she was in custody  the the district judge in that case wrote an opinion a lot like the opinion in our case she talked generally or the judge talk generally about the guards were aware of this the guards were aware of that and the six circuit in philip's averse roane county said that that is sufficient as long as the district court found in made the determination that all of these guards were in a position to where they were actively involved were able to observe what was going on were participants in the entire matter that you don't have to go like judge roger says you don't have to go into each specific officer and say officer a did a b and c officer  c i don't think you need to go that far again if you look at her opinion twenty seven pages she goes into great detail about things that jones did things that elko did things that gear did things that moss did things that womack did she clearly ties them all into the situation you can see in the video they're all actively involved my question though is if you look at it on a continuum and you could say in one case where district judge failed to make any individual choice to sussman it was very difficult to tell what the judge was why the judge was saying what the judge said and on the other hand a very detailed and particularized analysis of the conduct of each officer this falls somewhere in the middle how does what county arnold versus the lexington fater county government those were all cases where the district judge had no discussion at all about particular defendants no mention of the facts with regard to particular defendants no findings as to the knowledge or the awareness of particular defendants those cases are completely different from our case and then you've got on the other end you've got philips versus round county which i think is the case that is a much a lot like our case where the court went into detail but didn't articulate each individual defendants particular role but did enough to where she clearly found that there was sufficient amount of evidence to tie each and every one of the five defendants into the  clarify that judge that's why this case started out with we sued a lot of people because we didn't know who was doing what and as the case is going forward we're really only pursuing now at this point and i think arnold impel may have fallen through the cracks with judge caldwell it's jones elko moss look gear and womack those of understand i appreciate that's clear how should we clear that up do we have to reverse with respect to those two people because the district judge inadvertently didn't defendant officer may invoke qualified immunity until the evidence at trial establishes the amount of force is by defendant officer at each particular time and the defendant officers rationale for applying force at that time so she deferred until trial and what we were respectfully submitting was that all of this information was covered in depth in the depositions of these officers and talking about this they rely mainly on video or something isn't it a commonplace that we get qualified immunity appeals and we deny them sometimes and say and in fact they do a motion for qualified immunity is renewed after more discovery or even after a trial because although there was a genuine issue a factor the judge said there was a genuine issue of fact based on what happened up until the summary judgment and then when more facts are developed it turns out that you know officer a the had a better defense than than she thought so why is this different from what happened in what i called a number of cases that we've had but it's different because at least from our standpoint there needs to be an individual as assessment and that again 'm i guess what she what she was basically reverse on the basis of that sentence it's going to deter judges in the future from stating things that are just true i mean she could rule later on the basis of further evidence that there was qualified immunity and that would be to the benefit of clients like yours but we say don't be saying stuff like that because you'll get reversed and certainly the problem i guess the fundamental problem i have is that they were accepting their version of the evidence as being true but be there just wasn't enough evidence we don't think in the record again this court may disagree but when you say there's not enough evidence in the record that's that's that's the issue we don't get to see that's the problem it seems like it reverts always back to whether there's enough evidence in the record but that's explicitly and if this was a situation where the guards were being for instance deliberately indifferent to his medical needs as a claim then and that this was obvious it wasn't obvious to the nurses because at no point in time during any covered in all of the depositions every single witness the nurses included said they were not instructed not to do anything moreover mr going every reference some sort of policy that required the nurses to stand down and that simply incorrect there was no such policy if there was a medical issue they were entitled to to do whatever they need to do there is no policy that says you can't as a practical matter is  highly unlikely that a nurse is going to a medical staff member is going to intervene when when the officers are in the process of restraining somebody that's i mean that here once he was restrained he was sitting in that restraint chair for fifteen twenty minutes and all throughout that most of that time period they had not yet signaled off either the code hundred which is a medical emergency or the tone seven which is officer needs assistance so that was but yet the nurses at some point while he's sitting there you do see them come over and inject a shot of added it that's all that's in the video so so they are quite a while like that to be watching it looks to me like the officers are kind of looking around you know what's going on but if they're there they say we told them something we didn't tell testimony from any of the officers that told them or asked him not to intervene and that i ask you because i'm trying to think of what all the testimony was i don't believe you and i don't believe that there's any evidence that they asked the nurses to come over and