we welcome you here today we have a very short docket but that doesn't mean we're not interested in maintaining our time limit so you when you look like comes on you have two minutes and when the red light comes we ask you to conclude your argument a couple people yesterday had a hard time trying to do that but we know you can do it unless you're answering questions from the court also we've read the briefs and record excerpts we have not dorsey's defense of qualified immunity by the district court i want to begin today by saying that this court has jurisdiction to hear this appeal because the lower court said there was no material fact that is sufficient to show deliberate indifference to plaintiffs serious medical need or without materiality there is no not no constitutional violation of our rights in addition this court has jurisdiction because there is no robust consensus of cases that support the denial of qualified immunity to deputy dorsey the denial of a motion for summary judgment based on qualified immunity is factual dispute is material but not whether it is genuine in addition this court has written that the scope of clearly established law and the objective reasonable most of fifty six the district court denied deputy dorsey's defense of qualified immunity by finding her conduct was objectively unreasonable in light of clearly established law and the show the defendant's conduct violated a constitutional right and whether that right violated was clearly established at the time of the defendant's alleged conduct what you move on to the facts we're pretty familiar with the general rules of what we do with the district courts statement that the deputy did nothing i mean isn't that a you were just talking about the what we have the ability to review legal the legal implications marsh when there's a genuine dispute and we deal with court saying st of all the court i think contradicted himself the court wrote that it's not clearly established what steps should be taken once someone like miss baldwin cried that she was suicidal and then he said but the deputy did nothing suicidal and she would not self harm on video we also heard the e m s driver try a several times to get miss bald one to get in the ambulance that was on site to go to the hospital in addition the district court never mentioned the that tape did no not really well the district court did mention that the deputy turned off her audio in the car on the ride in th socks you see here of the eight minute video she is always in the presence of people in that eight minute video there was a nurse there taking her blood when she was taken and then finally to the booking ah she was handcuffed then she outcry to a nurse at booking and at the durst call the doctor and the doctor said take her to the hospital mrs baldwin arrived at the hospital at about four o'clock in the morning she was there for about an hour say jones here in downtown to clear her said she was ok and she went back to booking she bonded out and here we are so there's about three hours that we have concern about here today she was out presidential but it isn't the timeframe of what happened here and it cites to th circuit per case law and if i could talk a little bit about the allison case the facts of that in that particular case the the officers rolled up on a scene and they knew this woman they found her very intoxicated they knew she had taken prescription medicine not in accordance with her purpose for action and that's what m did she took she told everybody out there she took forty six dollars and the deputies decided and they also knew that she had attempted to commit suicide a year earlier and that's more information than that deputy dorsey had when she arrived on scene at a minute who did that that who had tried suicide a year earlier and ok that's what i say it is there any deliberate indifference case involving failure to prevent suicide where the plaintiff did not try to commit suicide after the defendant got involved that's a stretch a little strange about this when usually it's in a gel they fit you know they put the person's in the cell they keep going cuts or something in there that allows the person to to then commit suicide  here there was no suicide attempt after the after dorsey right arrived at the same so i'm going to say there's no case i know that i don't know i chose cases  full exactly what it meant food another way what is the denial of treatment here in other words if if they had reason to believe that she had overdosed they would have taken her that case this court wrote even if appellants treated to pseudonym now incidents medical needs with deliberate indifference in violation of her constitutional rights their actions were objectively reasonable and they cite to the bro case there here that this court wrote if the defendant's actions violated clearly established constitutional rights the court then asks whether qualified immunity is still appropriate because the defendant's actions position ignores the what we have to take as true which is that miss baldwin told dorsey on the way to booking that she was suicidal and and also i mean i'm personally interests well do that st yes the plaintiffs do make that argument and we accept that fact just through worse it's not serial in light of all of these case laws in light of the case so what we're really talking about is whether or not she should have had it whether depute or she should have taken her treatment at one thirty in the morning instead of at four she got medical treatment she got to st joe's st joe said she was ok for booking and deputy dorsey had a right to rely on st joe's saying she was ok and she went back to booking and she bonded out and she didn't kill herself and in the allison case this cork talks about these facts miss elson who died her speech was slurred she was unsteady on her feet she failed a field sobriety test she misused her prescription medicine and she presented a danger to herself and others miss baldwin fits all of those facts but this court wrote on these facts we cannot say by frequently maastricht the season allison and allowing her to sleep i have two minutes left is there any other questions that the court has for me you know why don't you turn on for audio she shouldn't have your honor it was a violation of policy and why would she even do it didn't wasn't that asked under deposition that she w assume she was deposed with the post i can't recall what she said exactly your honor but i can say she shouldn't have done it it was a violation of policy and she was wrong to do that and i think the court as a lurker pointed out if she had left her on her audio on you know maybe we wouldn't be here today but she turned it off and that's something that i can't undo any other questions i guess not thank you judge i answered your question established by judge jones you asked where is it or why is it rather that the district court doesn't mention miss baldwin refusing medical care on video there's a specific reason for that which is because no such video was presented to the district court no such argument was presented to the district court and in so far as i am aware no such video exists anywhere in the record this is highlighted by the fact that for that proposition that that apparently missed ball when refuses repeatedly on video the offer of medical assistance the deputy cites to deposition testimony not a video which you might expect if the claim is that it actually occurs on video that deposition issue of whether or not miss baldwin refuse medical treatment he determined that some evidence indicated that she did and some evidence indicated that she did it's a classic dispute of material fact he cited for in discussing that issue i believe it was at and twenty seven to the deposition of my client mrs baldwin who says quote i never i did not refuse to go to the hospital that's why the district court doesn't address that issue because the where do you see in the district court opinion the page you just cited says defendant produce some evidence the plaintiff refused the e m t he's urging to accept transportation to the hospital i don't see them with the district court ever says there's evidence to the contrary of that he doesn't address explicitly but there is an implication because he cites as one of his summary judgment evidence citations the deposition of ms baldwin where she explicitly states and this by the way was one of the defendants summary judgment exhibits where she explicitly states quote i never refused to go to the hospital the evidence that she did is also in person testimony it is not video recorded and i i would agree with the deputies position that something which occurs on video may bear greater weight than individual testimony except that despite repeated representations to the contrary no such video exists it just didn't happen the way it's been on its record anyway that's true and like i said it in so far as i'm aware it doesn't exist but that's not the only recall and there's no evidence your client asked when the e m t's were there to go to the hospital and was refused that there's no evidence of that directly although what the video evidence does show is that she's as the district court characterized her  essentially at a point of of incapacity where she's not coherent or advocating on her own behalf it's later if she regains her faculties that she communicates directly to the deputy as a term and by the district court or why can the deputy view it as she only started saying she needed medical treatment once she realized she was being booked and it was a way to get out of being booked as you know just cost of these are always factually intensive cases and it's not simply statement that she wanted to go to the hospital which the district court considered and reaching its conclusion it's the fact that the deputy knew that the mts wanted to take miss baldwin to the hospital the deputy knew that mr bowen had already ingested for prescriptions all go and i'm going use the e m t did want to take her to the hospital now you're saying so why didn't they that is certainly it's consistent with her your client saying at that time i don't want to go it may be it may also be that for example anyone else that miss baldwin had claimed that she was not suicidal there is no evidence or i'm sorry but i'm looking at a bench minutely the e m t want to take her to the hospital even though she deposition testimony it turns out that the fire department for which those were no longer exist both parties have attempted to address that factual issue but there there are matters in that lean i'm sorry but i don't think you raised all these he's in your brief to do and i'm not challenging at least for the purposes of summary judgment the admissibility of what i'm saying though is that what it raises is a as with virtually ever every other aspect of this case genuine issues of material fact because the entire report itself is internally contradictory it says for example that the jargon it uses as a times for that translates in non medical lingo to alert aware and oriented as to time person place and situation the video recording of communications with miss baldwin plainly demonstrates that she is neither alert and aware to any of those four things it's further contradicted by other video evidence where  this is admittedly an approximation i don't have the exact time stamp in front of me but a person off camera several minutes after mr ball in his has been placed in the backseat of his patrol car in the entire scene that the ambulance the and personal vehicle have been moved out of the street a person approaches the car says may i speak to her and then for the st time apparently asked mr baldwin do you have any medical conditions we should know about do you have any allergies asking when she responds i have p t s d the person states is that when you take those pills that's inconsistent or at least a reasonable jury might determine that it's inconsistent with a report of issues exist they must be construed in the light most favorable to the movement and what what do you draw what is your conclusion or the district court's conclusion about the facts most favorable that she it's just the cheese does somewhat disoriented and claims that he is suicidal ideation i would direct you your honor to page one thousand two hundred and thirty two of the record on appeal where the district court explicitly lays out in his analysis the facts that he credits which are specifically these the plaintiff has shown that the defendant deputy had subjective knowledge of the substantial risk of serious harm but that and i'm asking no i'm asking what are the facts about what mr or i don't care what mr dorsey knew at this point  precise because then you'll be precise you know what i'm asking i will your honor she was experiencing a psychiatric crisis including intense anxiety depression and suicidal ideations these stem from her service connected post traumatic stress of committing another suicide attempt it's two things specifically just cost it's that she was at risk of self harm there was that's what i want to ask her how was are a substantial risk of self harm when she is in the back of the this patrol safely handcuffed in the care of w dorsey at all relevant points although i should note too that she was not delivered to the hospital at four am it was actually an hour later but regardless debbie dorsey testified in this is in the record as well that well she handcuffed miss baldwin upon arriving at the intox unit it was by one hand to a bench and there were no proactive measures whatsoever to address what she then knew it was a risk of suicide and what she then knew was an ongoing psychiatric all right if you're handcuffed to a bench how are you going to but there is evidence of is that she was treated as she had as any other arrestee would be despite the deputies but she sat in the open right she's not in solitary she's in a holding cell and there's also no evidence in the record that at any point in the two question i asked the other side is there any case involving deliberate indifference failure to present prevent suicide where there is no suicide attempt this is an admittedly different case in that regard only in the sense that harm provided that it's substantial which is what the law requires not not that it be death but rather based on the subjective knowledge of the defendant in each of the cases that the deputy cites apparently to rebut the proposition that what i just said was was clearly established the court in those cases found that based on the facts presented the individual deputies had no subjective awareness what what i mean let's assume you're correct on your somewhat novel theory that law enforcement have a duty to do something if somebody presents and says are suicidal what is the clearly in the context of deliberate indifference or other civil rights claims it's rather what you may not do well that's because normally there's something object of that you know that's wrong and she has i'm very can prevented her from killing herself which is the logical consequence of having suicidal ideations she was prevented from killing herself perhaps certainly she did not kill herself but  f she is indeed your honor but but but of no by no consequence of the deputies actions and what instead the deputies actions did was inflicted severe psychiatric trauma when she knew what what was ball was experiencing at the time was an ongoing site psychiatric crisis and let me let's say the deputy had st taken her to the hospital and they look at her as they did for an hour and say she's ok she can be cleared and then they go and book or you know and she spends a number of hours and getting her detention related to being the time it took me but i think well i think it's actually having been transported taken herself to the hospital for the specific issue at hand then confronting law enforcement who ordinarily you would look to for help in such a situation asking for help and being denied for protracted period and judge jones you were asking that given that the hospital cleared in about an hour i mean you're basically saying that the deputy should have had knowledge of fact we do take issue with the care provided and what's your best deliberate indifference case involving delayed care would there's no there's no resulting suicide or rather i think in that case i would analogize reiterate one thing that the standard here is that the delay results in substantial harm and this court has found substantial harm and any number of situations that did not involve death and in particular where were delays at issue i'd point the court to easter versus powell this is cited in our brief that this is an th amendment case involving a prisoner which this court has it has said occurs in a situation where punishment is that issue which is distinguishing it from a case like ours or ms baldwin has has not been convicted of any crime and cannot be punished but there a prisoner for a period of approximately four hours was denied access to michael nitroglycerin pills for the treatment of chest pain and this court determined that that four hour period was sufficient to state a claim for deliberate indifference because the person was experience the substantial harm suffering pain for four hours i think that's analogous to suffering acute psychiatric trauma for a period of approximately three and a half hours the easter case cites another case austin versus johnson with a concern even shorter period of delay or trauma did it was like the trauma ended when she went to st joe's was clear and i think you're saying she's that that suffering caused which spitz specifically is the exacerbation of her underlying p t s d symptoms and additional symptoms of trauma associated with that and joe johns i know i know you're asking about whether or alleged that he needed psychiatric treatment that the defendant who was the sheriff knew he needed psychiatric treatment and nevertheless the night it the court said that the facts the lead good behavior clearly events in some psychiatric ill just as our case here present that person to a medical facility a set in some way well everyone knows that the prisons are the mental health care facilities of last resort throughout the united states and i'm sure that true in texas and harris county in every small little town how many prisoners present themselves with the possibility of suicidal ideations and i could give you the example of my small village police department where they have special care for suicidal ideations but if the standard is going to be you have to go to medical care mediately well a prisoner in harris county were to express suicidal ideations it's actually the appropriate response that they be taken to the prison clinic but as a as a constitutional matter it may be that merely asserting suicidal ideation does not give rise has to assert conditions that create an injury and then you get to the question of what is the appropriate response or the standard of care and here the basis of your your principal basis for claiming that there was an injury is that not that she had overdosed but that she said i'm feeling suicidal so it is a vocal statement of the plaintiff's feeling it it is our principal argument because it addresses the nd prong of deliberate indifference which is whether or not essentially the defendant knew of the harm but it is not our only factual support lending honor on one of your questions you asked about you made a statement about jails being the mental health treatment of last resort  allison case this court wrote one year before the events in this case the deceived inmates symptoms hardly distinct distinguish him from the multitude of drug and alcohol abusers that the police deal with every day the deceased inmate was found in possession of drugs while acting irrationally and slurring his speech however an officer could hardly be faulted under a still the gamble the supreme court case for believing that the decision in made needed nothing than just to sleep it off to accept appellants claim would be to mandate as a matter of constitutional law that officers take all criminal suspects under the influence of drugs or alcohol to hospital emergency rooms rather than detention centers that would be a startling step to take he cited the will case i am not familiar with the facts well i was under the name it's a venerable case i just some remember whether a died or not i don't know your honor but again in alice in this court wrote while the result here was tragic we cannot say that all or even most reasonable officers would have not done the same absent an inmate additional external manifest manifestations of medical distress we noted the district court here ruled that the existence of factual disputes precluded a finding that the jailers were entitled to qualified immunity accordingly we emphasize our conclusion on the basis of materiality of those disputed facts in the light most favorable to a balance that the jailers here are entitled to qualified immunity we therefore reversed the district court's denial of qualified immunity for the individual jailers and then i want to go back briefly to the argument that there's no video evidence on the record cites and in my initial brief on and taken for ambien now opposing counsel is correct this is something that was written down by the e m t but on video and this is what before deputy dorsey turned off her audio and video see deputy dorsey get out of the car and walk across the parking lot they have towed miss baldwin's car to get her out of the intersection and she walks out to deal with the tow and you shear someone we don't know who but a male voice say to deputy dorsey outside the car can i talk to your lady or can i talk to your gal and she says sure so he he it's a male that walks up and knocks on the door the window comes down and he talks to miss ball one and he asked sir he got he tells her basically i would really like to take you to the hospital and he goes why are you taking those pills and she tells him when deputies dorsey's out of the car i have p t s d and he goes oh and he then sort of talks for a little bit more video and so the camera and on the police cars pointed forward you see outside of the car you don't see miss baldwin in the backseat it's just the way the camera there is evidence of that i have twenty six seconds and i'm just going to say that there are no genuine issues of material fact there is no deliberate indifference on these facts there is no robust consensus of law and there are no damages were fussin about three hours and miss baldwin got treatment at the end of the night ok thank you very much