good morning and we're resuming our session from this morning judge chris and i are pleased to welcome judge morris from the district court in montana thank you for joining us to help us out here good morning your honour's heidi's turn on behalf of appellants the death of carlos perez is a tragedy there's no dispute about that here in this court today and as the case continues acts that they are responsible for but we believe it's important that this case proceed against the correct defendants and given the allegations in the amended complaint former director cox w never an assistant warden filson and lieutenant all over are simply not responsible for what happened to carlos paris on that day and they should be dismissed from the faction the problem with the amended complaint in this case is that it pleads only conclusions against the supervisory defendants the written policies of and doc the nevada department of corrections as well as high desert state prison are not really at issue here  the district court did not find that there was an unconstitutional policy and as written those policies do not violate the constitution the district court instead relied on the conclus that there was an unwritten custom at high desert state prison to deploy deadly force where it was not required and to needlessly shoot inmates was shotguns however aside from that conclusory allegation there are allegations to undergird that allegation i would ask this court to contrast this case for example with star b botha and with the rodriguez case in which there were underlying factual allegations that those jails in that case actually had a custom repeated instances of abuse of prisoners are you saying there's no allegation there was a different just to determined later but one has to be determined later under our stand yes yes so what is your position exactly as far as the practice goes so the practice here here's the here's the problem there's a difference between the allegation made here and the actual practice of the present the only not going to make the factual the finding here so now you've lost me well i'm just i guess i'm referring to the a s c a report which the district court did decide it was going to take judicial notice of so let me ask you about that report i was a little fuse because that report was promulgated after these and said issue here is there any anything any other allegations of information that would have been available to the president before the ask a report was published that would put them on notice about the use of a shot of i'm not sure that ask said you shouldn't use it  certainly identified some dangers associated with the written policies to permit the use of birdshot not currently but at the time that this occurred so the written policies did say that one of the options available to maintain order in safety at high desert state prison was to skip shot the bird shot but wouldn't let it be heard at the grounds of the ask a report coming out after the the if and said issue here so my question is whether obviously a report that comes out after the is and isn't something that would put on notice the people at the present so can't be relied on for letting them know that this was a dangerous practice no certainly the report cannot be used for that so so what is it puts the people on this it's a dangerous practice there is there is nothing well the report talks about i mean i just want to make good use of a time when you know opposing counsel is going to get up and say that the report talks about a long l history of the use of that this happened often happened frequently and there are quite a number of injuries so what is your response to that yes all addressed that it did happen frequently however if you look at the asker report  page forty six it says that the number of incidences where a shotgun was actually used is not abnormal considering the mission of high desert state prison so high desert state prison is the intake facility for nevada and that as the a report explains makes it a more volatile prison situation it's also not supermax security the way that eally state prison is and so the prisoners have more freedom and so that results in the need to use the need to resort to the use of guns occasionally however i would also point out that there were forty eight dollars incidences of shotgun use over the course of three years so that's just a bit over an average of one per month now if you consider that high desert state prison is also by foreign about its largest prison with approximately four thousand dollars plus inmates it puts that into perspective as to how often that really was and that's why the ask the report concluded that this use of shotguns was not abnormal well what does it say about the use of shotguns as a methodology at all nationwide what does it say about whether that i the ask report does conclude that it's not a best practice however it also concludes based upon an unpublished decision of this court which i understand is not presidential but it concludes that there that it was found to be not assuming assuming other facts like you know that's a pretty factual determination i think because in general i would say yes assuming that the warning shot was taken the verbal warning was shot in the chest and so that requires and to know that this is a problem so is are there allegations that would provide information that the use of buckshot at the prison had resulted frequently in deaths or serious injuries of this sort you know there's absolutely not and that distinguishes this case like i said from this court's prior precedence when was the prisoner blinded when did that happen before or after you know your honor i'm not i'm not sure i think it was around it was a similar timeframe but i don't know ok and then just to follow up on judge accuse question were there other is it is it the state's position there haven't been any other serious injury as far as i know  not aware of any nor am i aware of i mean there certainly are injuries but something like this a fatality absolutely not my interest so i was trying to be maybe i wasn't clear but that's why i asked about the blinding if there have not been other but maybe you've answered that you don't know either way as far as far as i know there have not been no though that's the only one that i'm aware of so if there were however those situations we would expect the complaint to contain some type of factual allegations to undergird there their general allegation that there was somehow this custom you can't have a custom if you don't have prior incidences of something like this happening or people being in danger if you do said there's it happens about once a month or that that had been the track that's just the use of guns right that's what we're talking about so they give me what am i missing i was talking about of the shooting at every test yet the actual the actual custom of using deadly force see that's the problem with the complaint in fact i think your confusion i also have the same confusion because if you look at the complainant you look at the district court's order that's the error it made it basically finds that well there's this conclusory allegation that at the high desert state prison is using deadly force unnecessarily in a case where there is no need however you're  foreign shotguns in a confined space to me whether you're aiming at the ground or wherever if you're going to potentially using deadly force it based upon the previous experience of the prison system it's not considered deadly force because it is not likely to end up in serious injury or death but yes is a buck shot by contrast is considered deadly force this is difficult for me because the report that comes out i think a judge or court is exactly right it comes out after the fact but it certainly takes issue with this and in terms of best practices and we're talking about defendants that your position i think it's these folks are entitled to qualified immunity and yet if you're in the business of establishing this kind of policy for a state prison for any kind of a prison it seems to me those are exactly the folks who are supposed to be charged with adopting practices that are accepted within that profession and so that's why that report has been given an opportunity to respond to me that that's why that report is meaningful and was meaningful to the district court so the supervisory defendants here did adopt a policy and that's allege in the complaint it's the written policy the written policy that allows shotguns to be used in a certain way yes i understand that your time is ticking so just to just to be clear what i'm trying to understand is that the written report that came out afterwards does take issue with the written policy and says it's not b practices and that and that it's concerning have i did i misunderstand that no it says that it just doesn't say that it's unconstitutional and also point out that on page fifty three dollars of that ask your report it makes recommendations to the prison system of nevada and stopping the use of birdshot entirely is towards the bottom of that list and i think the reason for that is the asker report recognizes that these supervisors have a responsibility to maintain order they owe a duty of protection not just to enhance but to the officers who are on the ground to any visitors to the prison and that they have to resort to some type of a disciplinary staff they would love nothing more than to hire more so after they were that sensitive at a legislature want to go to a separate problem yeah that is a separate problem and i think the asker report takes that into consideration you have to look at the supervisors position that they're in specific to the circumstances that actually exist on the ground but you don't have i'll say again you don't have the type of custom and abuses that were alleged rodriguez where was also caused a bit by overcrowding but in those cases the supervisors really didn't know that there was a custom and practice of abusing prisoners and they did nothing to stop it and in fact in the rodriguez case my name is powell are many and i represent the pres family yours we are asking that today you affirm the district court's decision where he partially denied the motion to dismiss hitting on some of the topics this court has already picked up on let me start with i think the last question you asked of my opposing counsel was with the recommendation she stated that the recommendation was to stop using the birdshot however other things had to be done st while other things had to be done st because they don't have other mechanisms in place i think at the tongs one of the things they suggested they said before we tell you to get rid of the birdshot completely you need to put some other things in place such as different mechanisms of use of force as well as more staff but the overall recommendation was this is this policy was archaic i believe nevada department of corrections is the only department of corrections in the country that was still utilizing this mechanism  your question about the forgive me for interrupting the question about the scene i'm sorry the scene it's a little hard to tell from the record the record tells me that what happened i understand the passing coming out of the showers all of that and there were two guards on the floor both of them of resigned and it says that they that they after the one warning shot was fired that ramos was in the what they call the bubble and that the two hollered to him to then additional there was an office underneath and on the nd floor there was this bubble someplace where he can observe and see presumably yes sure ok so then the next question i have is when there's an allegation of deliberate indifference to be all over and when that person showed up i'm not sure i can even answer that question as the court knows we haven't done discovery yet so i'm not one hundred percent sure was difficult because it's your allegation that he was deliberately and if i understand i understand allegations so just so you know where i'm going i promise i'll let you respond with question i don't see an allegation about whether or not a lover for example was trained in st aid or much less whether he was close by where he could have delivered any st aid i don't know if the problem is they didn't call for nine hundred and eleven i'm really having a trouble figuring out how how that rises to the level of deliberate indifference and i believe it's the latter you're on i believe based on the information we have frankly it's not one hundred percent clear on the timing different staff members different medical members have all alleged different times and things occurred so it's difficult even when i'm reading it to surmise whether oliver lieutenant all over got there before the medical staff which would put this i think in a somewhat of an earlier i think it's a question judge question was i'm sorry ramos and had officer ramos come down but he did say in his statement that he witnessed mr pres on the top level bleeding profusely on the top level yes mr presence on the top level on the nd floor and so it was the bubble of the bubble was on the nd floor as well so they're not calling up to the calling over to ramos to shoot yes was to assess the situation figure out what maybe mr president needed if there was additional medical treatment that needed to be had i think there was recognize a recognition that in prior instances they had called a medic for life where the helicopter comes in and so that was something he certainly could have done if you went up and assess the situation but let me ask you about this because the complaint says merely that defendant all over responded to the scene after carlos was shot but rather than at the only allegation that is your own ok that is i'd like to address the notice my colleague said there wasn't any notice i dispute that i believe although the report came out after the fact the court indicated these were incidences that were occurring over the years and you allege with any specifics in the complaint about this unwritten policy of shooting to kill i mean obviously they have a written policy of using birdshot for maintaining order but i don't think i saw in my complaint a policy of shooting at people's chests as occurred in this case or a shooting to kill or shooting in a way that was intentionally because i think for the excessive force claim you have to apply force maliciously and sadistically to cause harm i didn't see those sorts of allegations are they did i miss them or should i be reading the allegations that are there in a different way to your specific facts sorry about the used because it's in the written policy and there's no dispute about that the question is whether it was used in a way not permitted by the policy as in this case and there was a custom of encouraging or allowing that and there i didn't see any examples or any incidents that were in the case are they there are are not well let me tell you what's in there what's in there is this idea that the policy allowed for the policy warning shot as part of the bird shot process because the as part of that and then from there so that happens because of the low staffing what ended up being what ended up happening was this really ended up being the only type of physical force that was being utilized this was became exclusive and that's what the report picks up on that this was exclusive and the staff members when the staff were interviewed they also they say they can see that that they said yes this is this is what we do here to cause harm point for an th them and excessive force claim well because you're out of a they'd this is non deadly force there's actually a contradiction in between the administrative regulation and the operating procedure in the ministry of regulation for n d o c they actually identify deadly force as force that kills or substantially injures which substantially injures is normally a question for a jury so it wasn't  discovery so as i stand before this court no i am not aware of any other guess there are other situations however that the court picked up on which is the case of a living yes and that happened on seventy three thousand one hundred and twelve dollars that was the blinding of the  e there was another incidence on for nine of two thousand and twelve where that person was also injured in the eye there are there are incidences and in the report it talks about unfortunately not specifically so i have the same information you have but in that report it specifically talks about multiple people being injured i can't tell you what that injury is they've classified it as being injured so there are multiple instances where this high desert the officials the warden the associate warden should have known their own policies and procedures a way out that their response both to implement and enforce the these policies that if force is used if there's a use of force or a weapon is utilized the associate warden and the warden are notified so there there has to be a reasonable inference here so for the eight them and claim i think ashcroft and archy's and stars as the supervisors would would support that answer for the supervisor but yes i believe the answer is yes i base based on the notice that this bird shot did substantially injure people yet they still utilized it as a mechanism that's that's the gist is that we have the two incidents that you reported of blinding there was the use of birdshot consistent with their policy and on the at the supervisor is continued the policy of difficulty that i have so you can respond perhaps to this at the same time mr to koos question is that the in the earlier incidents one of the people i think person who was blinded wasn't the person they were shooting at correct so there's rights to go back to judge moore says quote unquote question birdshot inside a prison with a lot of hard surfaces and things are painting around and people are getting hurt it's seems to me the problem that that individual wasn't the person who was disobeying an order correct and that's and frankly your honor based on the case law that has address birdshot which is very limited most of the people that have been injured are actually bystander it's because as the report indicated this is very birdshot is very unpredictable  so when they shoot it it can go in multiple places so that alone but this allegation in the complaint doesn't include all of her as a defendant i don't believe the if the excessive force does it as your own or under the  more so i believe the training the deliberate indifference for the training in the supervision so that well look what it may be let me just ask it this way what are your allegations against all of her that he was because he was he was a supervisor he was present he was aware of the practice that was going on and allowed it to continue on what paragraph in the complaint and then you allege in addition just so i can complete this you haven't mentioned but you allege also that he was deliberately indifferent because he didn't call for medical care or administer medical care and is that right yes so which is it they didn't administer medical care was he was he supposed to do that standing next to the bodies or was he not did he not verify that nine hundred and eleven had been called or what is it that you're alleging visa v all over the place so your honor i didn't write the complaint but i will take the position that it is the latter that he didn't call nine hundred and eleven yes that he didn't take steps to facilitate medical treatment more quickly and again when for in care and as i don't have the timeline of when everybody showed up exactly as somebody made the allegation in my and i appreciate that this is previous coverage but if there are one of the of the interviews where i missed it or the a number in the record i've read them i'm happy to read them but is that your allegation that someone indicated that they somehow observe that he had not verified that nine hundred and eleven had been called out that specifically your honor ok just very general did i answer your question or i believe thank you thank you would that you're if there are no more questions i would just ask that you affirm the district court's order thank you for your a well just briefly address a couple of things there's really no dispute oh that's a good please go ahead there's really no dispute on our side that birdshot can cause harm the the issue here however is that these supervisory defendants in making the policies both written and custom at the prison have a choice between maintaining order where more harm could be caused by the actions of the inmates themselves and less harm floundering around kicking each other who's going to get hurt beside the two of them in this and you order birdshot and that that demonstrates why what happened in this case is an aberration the problem with the complaint is that it doesn't actually allege that the supervisors implemented a custom that would allow this type of thing to happen or that would allow the excessive use of deadly force but it  you shoot out the ground and well that's just see the problem it just seems to be remarkable that is the reality in a prison you have a situation where reality in the prison according to this national report is that this isn't done in any other prison that this is really an aberrational policy that's correct but there's also no allegations in this complaint that having this type of policy is unconstitutional th you understand the question i've got to defend all over is there a particular interview that discusses what oliver did when he responded and interview the one prisoner interview this incorporated into the complaint does not mention this is there another one as far as i know there's not i'm not aware of like like counsel said we haven't done discovery all i know are the allegations in the complaint and that does say that lieutenant oliver and failed to ensure medical attention however there's no allegation that he delayed interfered with or enabled substandard care in addition their own complaint alleges that medical attention arrived within five minutes it doesn't allege that lieutenant all over there was there before that at least that leason at least a witness statement does indicate that he was there before that that he and so for you anyway i think you've answered