i know you've all read the briefs over extensively and so i don't want to start off by jumping into a factual recitation but obviously i'm going to have to incorporate a fair deal of those facts into the argument so we have a combination here of state law claims and federal claims each of which were dismissed at the summary judgment stage and i want to begin with the federal claims there's certainly a tie over spillover from one to the other in terms of the relevant facts but favor regarding the objective element so i don't want to focus on that unless the panel wishes to delve more into that issue but essentially he said it was a close call he did for purposes of the analysis that they he did that that that doesn't put us in a situation where there would have to have been a cost appeal for us to address that but certainly not yet certainly not your honor and now i think that it's when you look at the case law involving other jail suicide cases i think the case law comes down fairly strongly every deliberate indifference case that i think the parties have focused on where the plaintiffs committed suicide in prison in this court has said that because this particular plaintiffs obviously had psychological needs that resulted in a suicide or a suicide attempt there was an objective lee serious medical condition now it minutely some of the language regarding the objective element refers to this idea of well had the plaintiffs demonstrated that they had this medical aid i think that's where there's some bleed over into the subjective element which deals with you know where their facts available for you to make the inference did you make the inference and did you disregard that knowledge regarding this medical need let me ask the question i understand that we're on the summary judgment so we have to assume that you know all inferences are in favor of the plaintiffs but there is an allegation or a statement that in fact she was diagnosed with bipolar disorder prior to her perspiration at least prior to the last incarceration correct is there any evidence in the record at all indicating either that she was on medication for that or that ms franks was aware of that diagnosis so she was on medication for that  miss franks was and this is where the case gets interesting in my mind from an analytical perspective miss franks we don't know for sure whether she was aware of that we know that that evidence was available  file within the jail system because she had been to the jail frequently before and ministered her medication while she was in the jail i don't believe she was you know and i believe that was part of the issue  issue how should we deal with at least the record evidence that at the time and take this franks he was supposed to do some kind of medical screening to get information falsify field in the poems rather than a listening information from the detainees that might have might have revealed some of this information right well right and that goes to a judge o y was just asking whether she was aware of the extent of her you know severe mental health issues we're not sure because her defense is essentially became become i close my eyes so tight that i can't be held liable i ignored everything that was in front of me and you know particularly regardless of any bipolar diagnosis what we know for a fact and this came from undersheriff medleys deposition testimony the very computer screen that she was using to falsify the intake form had what he referred to as an active alert that said she is a suicide risk it said that right on her computer screen now sheriff medley was deposed i believe after miss franks was  so we didn't ask miss franks what did you see that suicide alert because we didn't know that existed but we've since found out and there's no question that there was this activity on the computer screen but you're saying that separate and apart from the fact that she didn't go in and search and didn't do the database search to find out whether or not there was a prior alert you're saying that that i guess because i didn't get this from your bring your saying that there was active alert on the screen at the she starts getting asked more and you can decide for yourself why he would have maybe backed off a little but i'll defer to the panel's view of the deposition transcripts when he starts to get asked more then he says well i'm not sure whether she would have had to click through or not so we do know that there's an active alert in the computer system whether that particular screen was up in front of her at the time or not is is somewhat unclear i would submit that if anything that becomes a question of fact so we know that you know when we're talking about this issue of knowledge and what miss franks knew we know that she had this active suicide alert on the screen in front of her we know that she had previously seen miss proc now she said she recognized ms procmail by face i believe she knew her by name she said that she had probably served as the intake officer for miss procmail before now we know that before when miss procmail had been taken in she had been asked this very question here and we have these questionnaires in the record where she had previously informed jail personnel yes i have mental health disorders yes i've previously attempted to commit suicide twice and at least one occasion in this very jail she had previously been in a high observation cell because of her suicide risk so we have these circumstances before us and i guess what what we could not persuade judge cohen on is what do you do when you have those circumstances now i would say let's look at farmer v brennan because that's where deliberate indifference really gets recognized by the u s supreme court for the first time and in recognizing deliberate indifference i think that there is in a way some sort of cautionary language in farmer brown in where the court is trying to explain to courts that they know are now going to be tasked with you know applying the elements of this in a way new theory the court says circumstantial evidence can be used the plaintiffs can prove this aspect of knowledge in all the usual ways that's what farm brennan says in all the usual ways including circumstantial evidence now there's significant least in my mind there's significant circumstantial evidence in this case no mr franks may very well want to get up in front  jury and say no i was so deficient that day and i i was so negligent in my actions or grossly negligent in my actions that i never looked at that screen that i never looked at her file that i cleared my memory of any pr encounters with her now she may say that and a jury may or may not believe that i don't think that we should be held to the standard at this stage of needing to essentially have an admission from the very person that work using in the very person that would be held there other events that occur subsequent to this whole intake exercise that may have been intervening factors in the connection that she went to you know she had another medical evaluation she appeared this bond or something at one time she had a court hearing her demeanor changed after she came back in this court here not those things that might might cut or break the causal chain with respect to miss franks at least and what her duty might have been so first of all i would i would say no i would say absolutely not to begin when you start talking about causal chains and proximate cause unlike something say like duty causation is a pure question of fact it's very rare that a trial court should jump in and say look the facts here are are so deficient that i can judge for myself the issue of causation and i don't think that this is one of those cases but to get into the contents of the record miss pook of on who is the other intake officer that day her deposition testimony clearly states that had miss frayne asked the questions that she was obligated to ask if there would have been a yes answer to any one of those questions which those questions included have you ever tried to commit suicide the answer is yes are you being treated for mental health issues the answer is yes had she answered yes to any one of those according to miss book of on there were two things that would have happened our client would have been immediately referred for a mental health evaluation and our client would have been placed in a high observation cell now we know from i believe it was michelle sanborn who is the jail administrator we know from her testimony that in i believe roughly thirty years no inmate county jail has ever committed suicide while in the high observation it it's interesting to me and i've been thinking about this how do you prove knowledge when you don't have an admission well if we take ourselves out of the civil realm and think for a second about criminal law we do this all the time with a lot of criminal offenses there's a mental element to it you have to have a certain level of intent we don't know what a defendant's intent is unless a defendant tells us and rarely do they do that but we don't take that task away from a jury and say well we think he committed this crime because the circumstances in this case indicate he did but he says he didn't mean to so i guess we can't charge him because how can we prove what was in his mind and instead we give it to a jury and we say to a jury let's look at his actions and let's try to figure out from his actions what did he intend or what did he know let's look at the circumstances and try to figure out based on those circumstances what did he or she intended or know what were contending is that in this case at a minimum we're at that stage with the type of evidence that we have in this record we're certainly at the stage where a jury when you resolve all inferences in our favor when you view the evidence in the light most favorable to us that a jury should at least have the opportunity to take a look at this case and decide what miss franks knew they should be able to look at her on the stand see her demeanor assess her credibility and decide what happened in this case and how christina prac now ended up in a situation where she was able to commit suicide without being you know observed by the staff of this facility you confused me by something didn't  before then have you attempted suicide before and are you currently thinking about harming yourself quoting to mr van she says she answered no to the suicide question that's an admitted the curious part of the record because whether or i've been thinking that perhaps christina proc now was tying that question to the first question have you been in jail before and have you tried to commit suicide before maybe meaning have you tried to commit suicide in jail and maybe that's why she answered no because we do know that moments later or maybe not moments but within an hour later when she speaks with michelle mason one of the nurses at the facility she tells her that she's tried to commit suicide before so she wasn't trying to hide this from anyone she will repeat that she was not currently suicidal right well i believe she told she may have told two people that she was not currently suicidal but the third person i'm assuming just trying to do the math in my head i believe would have been the police officer the arresting officer who says no statement regarding suicidal i now whether he asked her and she denied or whether that's just she didn't come out and offer any statement you know i mean i'm not sure whether there was an affirmative doesn't work checking no to the question of suicidal ideations i don't know if he was tasked with asking her and he may have been but i'm not i'm not certain that that's what the record shows even if that is the case i'm not sure that that's a question that you can win you can rely on an individual to answer accurately especially when you know that they're bipolar and that they have a suicidal history you may very well not feel suicidal at that exact moment whether she did or should she didn't is quite frankly unclear but if that seed is inside of you if that mental illness is inside of you just because you don't feel it right now doesn't mean that it's not going to develop in time and it's not going to develop over the course of days that you're within their care sort of maybe like someone without biloxi for example are you feeling like you're having seizure right now i know but i know i have this condition and because of this condition i know that certain steps need to be taken so that i can continue to be in the healthy state that i'm in so i see my time is up if the panel isn't have any questions on your honor's just opinion renzo for defendants bottom line here is that christina did not threaten to harm herself nor did she appear to be in any kind of distress while she was around deputy franks so there was she had no serious medical condition to which deputy franks could be deliberately indifferent i think that given plaintiff's arguments we should remember that the violation of a policy does not necessarily equate to a constitutional violation for deliberate indifference so well the computer alert if there's just too many that it would have been up there in well i think we have to remember that she is an intake officer so it says this in general order five o four which is the record entry is sixty four two and their job is to assess immediate problems mediate mental health and medical problems so yes if christina had said that she was thinking of harming herself right then then they could have immediately referred her to the mental health help people but she didn't but taking your argument with logical extreme they could have asked her nothing right and as long as they didn't know that and they're fine right they did they keep their head far enough buried in the sa didn't but the question was asked and she knew that it was asked and also the arresting officer had said that he didn't hear her verbalize any thoughts of suicide so we might be having a different argument if she had committed suicide maybe within the first hour that she was there before she was seen by the nurse but that's not what happened it was on the third day now is the nurse's medical records available to them as friends well the nurse used the detainees afterwards and i believe that the next day when  came in she would know that christina had been seen by the nurse and that the nurse decided that the problem was detox that she was withdrawing from drugs so she was put on a detox protocol and not under suicide observation but i  think history of mental health problems would that would those records be available when she's pulling up her computer screen i don't believe so she was supposed to ask one of the questions she was supposed to ask would be have you ever been in a mental institution or had psychiatric care so you know she could rely maybe on the incoming detaining to tell her that if you can replace with i'm sorry i'm sorry that doesn't necessarily come up on the screen and if she was going to get any information from the nurse it would c maybe the next day but i think the important thing to remember when you put the detox per call on top of mental health problems doesn't that even heighten the conserve more so we're that something that the nurse determines deputy franks is just the intake officer so she's supposed to assess media needs and then she knows afterwards the the nurse is going to assess the detainee and if something more needs to be done than the nurse is going to do it knew enough to know that detox protocol was something that required colin that you know it's like asking someone who's got epilepsy you feel like about to have a seizure male and they could say no and that certainly is it's the the duty to go furthe obviated by asking that one question or does it put you on notice or establish an obligation to go further ask a series of questions well they can also use their powers of observation and deputy franks could see her and see that she looked fine and deputy put it on also explained that even if christina had denied feeling suicidal and denied ever attempting to commit suicide had she looked extremely agitated or was acting erratically then they could have if you want to confirm but a high is if you go through that though is there something in the policy that tells these people what their skills that employers what they're supposed to look for because i have been you know i am concerned that there might be some type of stereotypical view about how a person with a mental disease or defect or it's supposed to look you said by the visual observation she looked what are they what are they trying to look for well again these intake officers are just the first the first line so they're not trying to go in depth that's why they go to see the nurse afterwards that's the policy that are screened by the intake officers so if there's something obvious that they're going to go upstairs but otherwise there's there about you waited by the nurse and it's pretty quickly i think he said within an hour or so but high observation is only warranted if the detainee is immediately threatening to harm themselves there's something called a high observation too and that's if there  a recent suicide attempt now obviously they can not be truthful about their reason to is that in times but her suicide attempt was later determined was over a year so this high observation too is only if it was in the past year and i believe hers was more like seven or eight years earlier so that wasn't going to require high observation to and then we have close observation and asked if they appeared to be overly anxious or depressed or acting erratically so none of those things where present when she first came and not to the deputies so otherwise she only gets a routine what would have happened if if she answered if she asked all these questions and she said yeah i've been in a mental institution attempted to commit suicide about seven years ago you know i'm not contemplating it would still be just the routine mental health referral  because she didn't have an attempt within the past year and she wasn't actively threatening so pursue actual suicide attempt that was not while in custody it was only a year before no it's if you look and see actually an exhibit in the plaintiff's brief in two thousand and ten when she was in jail they were asking about her attempts and one was i believe seven years prior and one was ten years prior now you might be talking about the computer alert that said that she was on suicide watch so in two thousand and eight during one of her incarcerations she was placed on suicide watch so i'm going to see a mess because she was threatening suicide even if we assume she was attempting at that still years earlier so she was put under high observation for twenty five hours but after that she went back into general population and she was back at the jail three times after that and she was in general population all of those times where she on detox protocol during those times that's not when you're talking about the computer alerts there is a page in the jail record where you can see the suicide watch and then for the last incarceration it's a detox so i didn't see any other detox there the only other alert was in two thousand and ten in november she was at the jail and she was pregnant so there was something on there about how she needed an extra mattress so that was on that there's with kind of a high incidence of suicides in this jail was there not they didn't say that there were five within a year and that would go to the maybe the claims against the county but there was no evidence in the record of what a typical amount is generally  that this court requires there to be you know some kind of evidence to show how they might have deviated from that and there also was an anything in the record about why these suicides occurred was it something that intake officer did by not asking the question or filling out the for for the deliberate indifference there has to be a serious need that was ignored and we don't have that here and again just a violation of the policy doesn't require our doesn't equate to a constitutional violation case several defendants in issues but the pertinent one is that three weeks prior to the detainees suicide before he was in jail one of the defendant police officers had actually transported him to a mental hospital for an involuntary commitment and at that time the deceased was threatening suicide so fast forward three weeks later stephen is at the jail and he's upset and crying and looks agitated when the officer asks him you know are you thinking that you want to harm yourself and he denies it so the officer put him in a regular cell and didn't even have them checked out by the nurse and the detainee later committed suicide but this was a district court can  decision but it was affirmed by this court and they found that there was no indifference because he was not likely he did not appear likely to commit suicide they said the best that they could tell the best that the officer could tell is that he was recently suicidal well that's  only three words that he was the only knowledge they would in puta the officer was that he knew that this detainee had been recently suicidal and that three weeks more were talking on this record three years so so for all those reasons i believe the district court should be affirmed and i mean i could run through these other arguments i guess the only thing i would say on the you brought up the cause ation element there definitely was something that broke the chain franks again she's just the initial assessment afterwards she seemed christina seen by a nurse and then federal law does recognize these intervening causes and under state law so unless you have any other questions just to clarify a little bit regarding what the tasks were each of these people what the roles were of each of these these people that are involved in this intake process this isn't a case where you've got deputy van and deputy franks both just hanging out at the front of the jail and either one of them can ask these questions they're each tasked with asking specific things how to job to ask three questions she asked those questions she did her job she's not a defendant in this case on the other hand had an affirmative obligation to ask the questions in a separate form which was a more thorough for form then the three questions that mr was responsible for asking there's no dispute that she didn't ask those questions there's been some some playing around with language regarding how to characterize her actions and whether we should say well she filled out the form without conducting an interview but i know if i had  to judge white right now and say does your family have a history of diabetes if i don't ask you that question and i mark yes or no i falsified it i have no idea miss franks was in the same position here regarding this proc now she didn't know the answers to the questions she chose to answer them anyway she marked no to all and quite frankly that was wrong regarding miss mason miss mason as defense counsel pointed out was a nurse now she conducted an interview and she asked suicide questions but the consequence of ask of christina answering yes to that question to miss mason regarding her suicide history was to get referred for a seven day mental health evaluation so within seven days she had to be seen by a mental health professional mr said that as an intake officer if you get a yes the consequence is an immediate mental health referral so these are people these are people that serve different jobs they have different tasks and they have different powers so miss mason coming in doesn't break the causal chain in any way whatsoever now could a jury you know ascribe a portion felt to each one of them perhaps but the fact is that the record is very clear here regardless of what the jail protocols say about whether or not high observation would have been required here or not if anything all that does is contradict mr bond's clear testimony that if she answers yes to any one of these questions she has to be put in high observation and she has to be given an immediate mental health ref plans yet who testified specifically if franks asks those questions and which she didn't and if christina crackdown answers yes to any one of them there has to be two things in immedia mental health referral and high observation when asked why you had to have high observation she has a very telling and tragic quote she says that if you don't put an individual who has that you know those suicidal tendencies in high observation what you're doing is you're giving them every tool that they need to kill themselves so that's exactly what happened ok so who was supposed to those three questions or she was sort of asking three of the questions that franks was supposed to know she was supposed to ask those three questions and you supposed to ask all six questions who was supposed to ask those three franks was then supposed to ask five plus some additional questions franks wasn't just tasked with asking suicide questions there were other questions on this intake form relating to general health as well and prior history as well she admitted all of those questions but for the purposes of this the relevant portion is the questions regarding suicide these two individuals had worked together for a number of years and they testified that they had taken it upon themselves to develop this system that they referred to as the good to go system where to give on what i asked her three questions and if she got a nose she would yell over to frank's good to go and franks would then fill out the rest of her form without asking any questions they had done this in front of supervisors which this relates to the mono issue they've done this in front of supervisors and they had never been told that this was wrong so this film exists for a reason these layers of protection regarding miss miss franks miss mason they're there for a reason and it's because suicide is a serious issue in jails especially when you have five to seven within one year of my people that are not of there's no constitutional requirement to discern that it's only well well there's there's not in independent constitutional they say this there's case law that indicates there's not that individual constitutional requirement to screen someone for suicide if you don't know about their suicidal tendencies now i don't know how you can shield yourself with that if this person has been in your facility before on suicide watch if they've got a suicide alert in their computer saying she is a suicide risk so i  think what it what what that case last century is meaning to say judge white i believe is that you don't necessarily have to ask some stranger off the street that you've never dealt with before are you suicidal maybe the law doesn't require that but if that person's been before you before and you've asked that question and you know the answer is yes now you've got an obligation to figure out ok i know this special aspect of you and your personality and your mental health so let's sit down now and figure out where you're at this book now they have these procedures but they're not constitutionally required what happens if you have somebody who says no i haven't attempted to commit suicide and i don't feel suicidal you have to go further well i think if that's what was asked and that's what she answered that's what was asked by one individual the other individual asked nothing and again i think it it depends on the person now if if i went in there god forbid but then they asked me those questions and i said no they've never met me before ok maybe they can pass me up the chain but if it's someone that you've met before that's been on suicide watch before and that has a suicide alert maybe you need to say ok even if she's telling me she's not suicidal i know she's bipolar and i know she's tried to kill herself before maybe we need to ask her these five questions instead of falsifying her for  so right you don't dispute that she didn't subjectively know because she never at all i do i do dispute that and i think that that's a pure question of fact and again it goes back to what i was the analogy i was trying to maybe ineffectively draw between criminal law and civil law and how you figure out someone's mental state and if she did see that suicide alert but she said well i see the suicidal are given so she's good to go so i'm going to send her to a normal cell she knew if she remembered in my head oh yes she's been in here before and i think she's been on suicide watch before she knew she subjectively knew and she drew that inference now her disregard for that inference is the reason why we're here today and it's the basis of our claim but i think that that gets converted into a question of fact when you look at the circumstances of these cases now if if miss procmail had gone in there and had no history with them and there was no suicide alert and mr franks falsified this form the way she did here maybe she'd be able to say that she answered no those two questions yes we can we have salute we can and again it comes down to what is in franks's head separate from for example if you say to me right now you're not wearing a red tie you can say that to me but if i know i put on a red tie this morning your statement to me doesn't eliminate what's in my head so if his saying she's good to go but franks is seen on her computer screen  it's not ambiguous in the fact that i mean he is as plain as he can be that there is an active suicide alert on the computer screen but he couldn't say is was miss franks looking at that particular screen was she in that portion of the case and the facts well you know i think these are this is one of those interesting areas of water me where yes previous case was important for marie brennan very important because it tells us what kind of evidence we can use but when you start looking at specific factual circumstances in previous cases i don't know to what level of future case can be bound by that that's actually distinguished i think it absolute no legal legal holding that  clear history of being bipolar and requiring mental health treatment i know obviously based on the genders he wasn't a new mother like ms procmail was and that was one of the questions that was on the form that miss franks ignored is there anything notable about your family life right now or your home life she would have asked that she would have been told yes i just had a child that can perhaps interfere with someone's you know emotional and and hormone levels and someone who has prior mental health issues that can be a complicating so to the question do you have unusual home or family problems different question than maybe it yet so maybe you wouldn't characterize it as a family problem but i if i was asked you know basically do you have something going on at home which is the way i read the question maybe that's not mr frank was not to do a medical analysis so for instance of he said yes i'm a new mother and even said yes i have a history of some mental health problems if he said no on the suicide question  had no obligation to say ok a doctor might say somebody who's post partum somebody who's going through detox that they might be more likely to be suicidal if this person said that they weren't if she would have said i'm not currently suicidal but would have said yes i've previously attempted suicide or yes i've been treated for psychological disorders which was those or other questions miss franks didn't ask according to m she says yes to any one of those questions she has to get an immediate mental health referral and she has to be put in high observation so even if she would have denied current suicidal ideations the fact that she had that history there's evidence in the record that indicates that that required affirmative action that didn't occur here