honour's this is a case about civic duty and the responsibilities of police officers and first responders to serve and protect i am a size to the duty to protect because this is often at times opposed to this idea that the only duty of police officers is to arrest the bad guys and specifically under these circumstances we have somebody who was experiencing a medical emergency last year was driving the plaintiff and appellant robin winger and the police officer arrested her dui for being intoxicated while driving so there are four issues here and they are to a large extent they've been affected by some intervening clarifications of the law the first one with regard to whether the district court applied the correct standard in requiring miss winger to show that the officers and first  responders were specifically aware that she was suffering a stroke that is the incorrect standard both under the law proceeding the intervening change of law in the castro case which we'll talk about in a second and and first responders were aware specifically of a stroke now under the castro case which was recently the side and an on bunk decision by the way they clarified that for  indifference when it comes to you utilize the facts that you have and argue that your client demonstrated material misbehavior issues to standard yes running under the castle is objective standard which they clarified in that opinion by the way it would be something akin to reckless disregard we have several facts which  of should have alerted these officers who are trained one of those facts being that the officers admitted to being trained to recognize cerebro vascular accidents c v s and there being seven sagging facial muscles poor balance clumsiness impaired speech and difficulty understanding speech now i thought that training e m t stick respond to the scene completed the evaluation and based on the evaluation there were no indications that she had suffered a stroke no that's that's incorrect on what happened was the e m t showed up and after speaking with the officers facts that would demonstrate objective reasoning officer well known of the serious medical condition all of those facts would be disputed with regard to the weakness of the limbs the sagging patient muscles we have a declaration from her daughter who was also present by the way that her face was in fact saying on the left side and so that would be i guess a dispute as to that fact as to her   and my understanding is the e m t i think it was the e m t suggested even though she said she was fine the e m t suggested strongly to her that she go to the hospital or should be transported to the hospital and she refused and did her daughter say wait a minute she needs to be taken to the hospital because she's got a did her daughter ever say to anybody is it in the record that her daughter ever suggested to anyone on the scene that her mother had a drooping thing  her face was dripping in that there was some apparent drooping as as to what any winger told the emptiness in the officers i know and also with regard to the refusal of medical service the the the form assigned that's not in dispute but as to whether she was actually competent to refuse that's in dispute and especially considering miss when i was given i'm talking about robin when she was giving  responses to questions which indicated that she didn't know where she was that she didn't know how to spell her own name where is that in the record that would be in the scene this is talking about at the hospital  specific quotes i would have gotten those from the transcript of the video and audio recordings but some of those quotes here would be when the ass or where she lives she said i live in right here and th verbatim quote when he asked her name she said if your last name she said my robin is robbing she said when he asked her about the time she said maybe thirty and when he asked or  her last meal she said tomorrow and when he asked her to estimate thirty seconds she stopped him at four seconds and you know is it too late i ask to reserve three minutes for a bottle may i may i realize this or than that are up and so with regard to whether she was competent to refuse medical service  and you know her signature if you look at it it's very scribbly it doesn't look particularly doesn't look like a a letter of any sort it that brings in this question of whether that was a reasonable whether whether the officers panties acted reasonably to abate this medical emergency our position is that they did not know any winger and  it the district court also ruled on qualified immunity and your opposing counsel argued that in the brief you didn't respond so i'm going to ask you to spend like a minute or so trying to respond to that issue  with regard to qualified immunity first the district court's analysis was very short very conclusory it was based mostly on this idea of whether there was a violation but in any event with regard to whether the law was clearly established here there are cases that establish a duty to give medical care for four pre fab detainees and and for people who are imprisoned and that duty would be clear in light of the established cases and the established law of the circuit now as for a case that was exactly the same facts to my knowledge one doesn't exist and but i don't believe that would be enough to argue that the law is not clearly established because there were go over disputed fact i mean if if the facts legs and it was clear should have been clear or was objective clear that she was suffering from a stroke and she was not a drunk or under drugs  try some of the facts on you is to see why they don't raise genuine issue of fact first of course is the picture and the tape and couldn't spell her name she said her daughter said immediately she doesn't feel good there's something wrong and then she said she doesn't feel good then she was asked whether she was diabetic epileptic and she said i don't know and she couldn't complete the sentence so that then she said she was just in the hospital and when she was asked for what she couldn't reply and said i don't know i don't know i don't know   she told him that her gesture when they pulled her over she told them that she just been in a hospital but she didn't know why she'd been in the hospital  beverages she couldn't answer the question about the time or when she ate she was asked when she left she said tomorrow when asked how many hours she slept she said one she was unable to complete any of the tests and she fell when she tried and she could to get the officer gets more and more any sense she had difficulties speaking that there was something possibly internally wrong with her the police officer said she was physically showing me that something was wrong  that what happened when they gave in the form and asked her whether she would want more medical attention is i'm clear she obviously signed the form what she understood when she signed the form nobody really knows she's she was not able to complete any tests she couldn't didn't know how to do  but she did complain of chest pain and that she had been in the hospital  that condition before she said that during the mental discussion it was quite evident my mother was confused and wasn't responding to his questions to her appropriately the mother daughter there's no question that she added stroke the question is was it this something that objectively they should have recognized given the fact that she just got mad at the hospital should they have recognized that there was a stroke objectively or that there was a good chance it was a stroke or should they have realized we don't know what they said to her when she said to them when they got   first of all i don't think that the castro standard of review applies i think that castro relied on kingsley kingsley basically took the fourth amendment objective reason wellness test for a traditional fourth amendment use of force case and applied it to a fourteenth amendment claim or a pretrial the taney was alleging an improper use of force by a corrections officer in castro the court took that one step further and said that that that that it  i don't want you to have to use your time i'm out of so we can give you an opportunity if you want to brief that issue ok i appreciate that i'd like that opportunity with regard to the facts ron i know even if the castro objective standard applies then summary judgment still has to be affirmed because there were no objective factors that a reasonable police officer would have could only have drawn the conclusion that she was suffering from a stroke in fact the record demonstrates that when she went to the r several hours later the e r doctor initially didn't suspect a stroke we only know that she suffered a stroke with the benefit of hindsight when she went to the e r the e r doctor suggested that she was suffering from drug induced psychosis all  objective symptoms that she displayed were were entirely consistent with intoxication of one form or another day but in the now there is no alcohol level that you can be intoxicated from drugs you can be under the influence from what i know with drug induced intoxication are a psychosis which is what the e r doctor suspected and that's the trooping of the face through the doctor's declaration i think the other factors articulate are consistent with dui and i think that's why the officer said minister the f s t's but with the drooping of the face that said the officers didn't know obviously the officers don't know ms winger the way that her daughter does th her daughter annie did not tell the police officers look at her face her face is drooping when you look at the at the booking photo with the benefit of hindsight you can look at that and say who was she suffering from a stroke she had a little bit of her mouth was drooping a little bit on the left side but her left eyebrow was was higher than her right eyebrow that's not a symmetrical grouping when she got out of the vehicle and walked before the field sobriety tests were were administered she walked around the vehicle you gives a nice shot of her face there's no obvious asymmetrical facial drooping there's no paralysis on one side of her body there's no weakness on either side of her body she's not complaining about a sudden headache those are all of the objective standards objective symptoms of a stroke that differ from the objective symptoms of being under the influence of something the only symptoms that she that she showed that were obvious were the symptoms that were also consistent with intoxication i disagree your honor that the photo the booking photograph of the videos any of those shows any facial drooping anyone or did say my mom's face was drooping but it's not that fact would would every reasonable police officer or even t looking at that photo conclude without the benefit of hindsight without knowing in retrospect that she had suffered from a stroke would everybody looking at that photograph believe that she immunity qualified immunity applies unless every reasonable officer on the scene would have concluded that not taking ms winger to the hospital would constitute a violation of her fourteenth amendment right and i would submit that that first of all it's not it can't be established that everywhere there's no evidence in every reasonable police officer who encountered ms winger and saw the objective signs that were observed by the police officers in the mts on the scene would have concluded that she suffered from a stroke but even if they had she exercised her upon situation right she hadn't she had a constitutional right under the fourteenth amendment to do to refuse further medical care she exercised that right well i don't think you know we don't know what she knew or what she was told or what she understood about it so i mean her name to that well we know that the there that was her burden on summary judgment to come forward with evidence that she didn't understand the form she didn't come forward with any of that evidence yet is there anything is there anything in the record at all you know i didn't see it but maybe there is is there anything in the record at all that her daughter who is there not what her daughter said later in an affidavit or a deposition that her daughter at the scene said anything to the officers indicating that her mother  may have suffered a stroke or was otherwise impaired other than you know the the symptoms that were consistent with with with intoxication or drug abuse no your hon were there there is no evidence in the record that so she never spoke up didn't say anything she did my mom doesn't feel well well but i did but she didn't say look her face is drooping or i think she suffered a stroke or there's nothing to that effect or she looks different she exultingly there's none of that and i thought there was some suggestion that she might have said well there's something internally wrong with her she had said that she had been hospitalized for stomach problems which would not be indicative of a stroke  with regard to the chest pains your honor ms winger never said she was suffering from chest pains when officer oha me approached first approached the vehicle ms winger had her hand on her chest so awful assumed that she was suffering from chest pains and that's what she told the that's what i told the dispatcher but ms winger never said my chest hurt anyone or said never said her chest hurts and chest pains are not indicative of a stroke and there was nothing that happened afterwards would have suggested that there was a problem with her chest with regard i'd like to just address one more issue with regard to qualified immunity if i may and that is that there was no clearly established law in two thousand and eleven and i don't think there's any clearly established law now that holds that would have held that a police officer or an e m t violated the fourteenth amendment rights of a citizen and by not taking them to the hospital after that citizen exercised her fourteenth amendment right to did to decline further medical care that puts that would put officers in the mts and in a catch twenty two position which fourteenth amendment right to have violate do i violate her fourteenth amendment right to deny medical to refuse medical care or do i violate her fourteenth amendment right to take her to the hospital because i think maybe she ought to be seen by a doctor and in this case we know that the doctors  jail and booking her and keeping you're there until she could be taken to the house yes that would violate her fourteenth amendment right arguably because she has a four hundred amendment right to do to deny medical care she has a fourteenth amendment right to say i don't want you to take care of whatever medical condition condition i have that's her right ok if there are no other questions runners i prefer to address some of the points i counsel raise first is that miss winger did explain that she had been hospitalized previously and the standard that as i said before is that the officers would have to suspect a serious medical emergency wasn't their arse but that was for stomach issues well as far as you know her putting her hand on her chest and and the other objective symptoms she say she had a chest pain but no but as far as the other symptoms which are consistent according to the post training with a cerebral vascular accident that would be sufficient for them to be aware of our risks well you're going to be right and i hope you're not suggesting that we would expect police officers even the most diligent to be neurosurgeons they can't that isn't the standard right and that's because supreme court has reversed every court that's attempted to go that far to put in terms of a qualified immunity analysis some sort of the officers had an e m t who is medically trained hopefully in the e m t goes through all of this with her and then concludes that her symptoms are consistent with somebody who is intoxicated in some way shape or form those are the tell the officers so the obvious is supposed to overrule the e m t on the scene and say well the ok but all right and then end light of all of this then as her and her daughter is right there you want to go to the hospital we think you need to go to the hospital just to be checked nope not going there there is evidence that there the n the daughter did explain that she is not seeing her mother like this ever before and to that extent you know when the opposing counsel is saying that she's intoxicated for one purpose for purposes of dui but then you know she's perfectly competent it wasn't me one of the real difficulties with these cases and this is true at the district court level because i'm a district judge so that's what i do and i think it's also at the appellate level is when we see these cases we have the benefit of hindsight we have the ability to look back at the record and then we our mind fills in the crew you know little crev the officers at the scene don't have that opportunity agree and i'm not suggesting again that they need to be neurosurgeons i'm what i am suggesting though that under the objective circumstances in this case and  training and in light of what ms winger said and what a daughter said and by the way the there's an expert affidavit that we submitted as well in light of those of that evidence back creates but a tribal issue of fact especially under the  regards to when the officers introduce miss winger to seriousness and you know she hit this car and you know and she kept going and things like that and so there's a little bit of a subtext explain the circumstances before she says anything that you know this is what happened this is the circumstances that we encounter and it sort of poisons the well for for them and that that's another reason why i believe we really need to rely on the objective circumstances that she exhibited in light of their training and especially with regard to the new castro case exclusively to malicious prosecution the claims that were dismissed here not malicious prosecution on in light of the government decision that ruling should be reversed and there's no question of unity and