good morning may please the court one of them and jeff thompson from knoxville representing the balance officers richard sticks mary officer mitch grigsby and also paramedics david randall and robert kooker appreciate the opportunity to argue before the court today and i would like to reserve three minutes my time for about ok in this qualified immunity appeal the district court correctly found the facts in the light most favorable to the plaintiff but then applied in direct legal standard to those facts this case involves two officers who responded to a non one one call from the plaintiff about a combative patient the officer struggled with that patient until actually four paramedics arrived and ultimately those paramedics also struggled with the patient the patient was handcuffed and restrained and ultimately the constitute excessive force and granted immunity on the on the excessive force as to their restraint however the district court to nod off and immunity to the officers based on two page protocol is the entire basis for the denali of qualified immunity to offer its case however there is there is no competent evidence in the record that the officers had any role whatsoever  the alleged this or that and we don't we the district court we don't find facts here the district court said no qualified immunity on certain factual grounds but your brief disputes the facts your honor our our brief certainly and in certain instances points out if it point of talks about a certain fact and the fact is not in the record then we have pointed out that no that fact is not in the record that makes it what dispute it your honor i would respectfully disagree if the if a fact is claimed but it is it was never put into the record it it's not really a fact it's a allegation the complaint the complaint sets forth their claims right now there's it in the record i'm sorry you're saying it's not in the record many of the facts cited or the allegations made are found in in the opinion what we're saying is that there was an incorrect legal conclusion drawn from those facts and for instance in many in many places in the opinion the court states that there there is a dispute about whether about what the intent of the officers in the paramedics was in fact that's that's the major thrust of this entire argument the court in several places  court cannot determine whether there was a punitive intent order or not a punitive intent from the from the facts therefore the court's not going to grant qualified immunity we submit respectfully that that is an incorrect legal standard the correct legal standard is not the subjective intention of the officers but the objective reasonable ness of their actions and that's that's the thrust of our appeal we're not in any way disputing any of the facts as set forth  by the district court and we're not disputing the facts in the light most favorable to the plaintiff however as as many courts have held an allegation is not a fact and and additionally some of the  in the district court found that some of the facts were were not material the inn i want to get to the only inkling of course is the statement th inkling that the officers in this case had anything whatsoever to do with a administration of a drug which i mean frankly it sort of defies common sense that an officer could tell a paramedic you know were going to knock him out that's that's that's and that's a true statement for purposes of this this appeal however of the court has to draw a reasonable inference from that statement in and we've started we've the inference here that you say is we're going to knock him out that the reason that in france that's just unreasonable zol get out he's because the inference you say that is unreasonable is now we become a team here these paramedics and we are procedures are a team we're trying to help with this big situation right let me explain why it's unreasonable let me explain why the inference is unreasonable that that statement led to the paramedics quote using this drug the reason it's unreasonable yes i agree the choice to use a drug right the reason the state the reason that that's an unreasonable inference is the everyone in the case has testified we we didn't hear it we didn't act on it we didn't know he said it he wasn't anywhere he went and even according to plan if he wasn't anywhere near the patient when he was that but it is true correct now we're saying but everybody else thinks that really what everybody else thinks it's true they just they all say we didn't hear it we didn't act on it we don't we don't know anything about it can be true but someone else didn't  if if no one acts on it then what difference does it make if if someone says the statement even according to plaintiff in the facts in the light most favorable plaintiff the statement is made away from the scene in the paramedics the paramedics didn't hear it couldn't have heard it and had no reason to act on it and didn't act on the state so accordingly i would respectfully suggest that if the district court use that statement as the reason t immunity that was not a reasonable inference for the court to draw in order to dot qualified immunity and also i'd like to talk touch briefly on the paramedics again  the county tennessee has a rapid sequence it's based on protocol that was developed by the medical director who is a physician the protocols are nearly two hundred pages long and they're used so that paramedics in the field who are not doctors have a written set of guidelines on how to quickly assess patients and act quickly save the artist protocol states that the indications use it are acutely had injured patients that are combative unable to control the airway or severely combative patients cannot be controlled injury to the patient the district court in the next to last section of its opinion found that the policy was not unconstitutional the undisputed facts in the  protocol in order to comply with their policy in one of the earth earth a medical expert who said when a person in combat a person is in this state protocol as as written is exactly the protocol that he uses he agreed with the protocol as i get it correct and i think as the district court probably got it he agreed that that protocol if that is the way to go yet it's not called for here in your honor respectfully the court found that the plaintiff or the patient was severely combative the protocol in it in the policy it says use this if the person is severely combative so respectfully and we've cited some case in our brief an expert can't come in and say the expert's opinion on what's objective reasonable it's irrelevant the the brief as he's made the protocol itself as if the point of his combative use the protocol if if a policy is constitutional in the government act or follows follows that policy to the letter which is a which is undisputed then it is impossible for the government actor to volley in the constitution it's it simply can't be instead of noting that the paramedics in this case bought the policy the district court instead begin entered this subjective idea of well i can't determine the intent of the of the actors in this case whether they had an intent to be punitive or whether they had an  it appears zero and there's a reason for that everything in this case is it starts from the first act by the first person even that's a dispute right back that it is a dispute i mean it's not counsel if counsel takes the position in the excepts all your facts then we have jurisdiction do we not to look at this denial of qualified immunity that's frankly that's our interest what do we have jurisdiction and i don't think either of you spent very much time on the the the elephant in the room which is whether this court has jurisdiction i think we spent three pages on it and the reason one is that we don't think you didn't have it the facts of the the judge were that there is a dispute and she couldn't decide the case only you heard counsel's argument she was mistaken in saying that because she or she is drawing on reasonable conclusions about the limitation of her ability to to come to a conclusion facts are disputed now they may say now that they're they very dazing judge said but ninety five times they used allegedly undisputed fact oh i didn't know you you said words was that appraiser word undisputed ok so that's the that's the way to get our attention undisputed what i'm saying is they are dispute and therefore because a judge found the facts need to be resolved by a jury you don't have yours to so they're relying on the fact that he was  was he not in the meanings that matter here and i'll start with the facts as they started his girlfriend and the mother whose child did  deputy sheriff deputy they were asked by her as far as the record should by anybody you know that may not be an unusual occurrence and different departments where  you know police are dispatched to be there in support of the paramedics so i don't know that there's not even evidence that they were dispatched they may have been listening to a radio and one of the officers one of the d some prior contact that one of the officers have with mr barwell but is there evidence there was some sort of their will that the officer showed up for some improper purpose or something of that nature if the prior history between the two is the evidence ok officer managed to assault him and that was the history between the two now i mean you would agree though i mean it's just not person in distress i mean the this is a point worth laboring but it just seems to me that's not all that out of the ordinary that officers might show up though maybe in this case as you say given the history of these at the time i'm sure he got there they didn't know what his condition was work you know what we aren't the jury you know that we're here about a couple legal issues so that's that's a good argument i expect you want to present to the jury that ok but let's stick with what we have ok it may have been used pursuant to the protocol but contrary to what you heard earlier that protocol does not require it to be used it's a matter discretion upon the part of the medics to be guilty of a constitutional violation it has to be within the realm and it sounds like you agree that it was one of the one of the prescribed reasons for engaging this protocol went out and the combativeness is one of the prescribed it doesn't say thou shalt right it doesn't say that but if it's within the realm of constitutionality there's nothing prescribed that's unconstitutional about that in having followed this protocol in an unconstitutional way i see a protocol is not itself constitutional what he did was to act in a way that people who are under the influence of drugs which by the way require an over three thousand pills  unconstitutional policy but the officers could and the judge if she did that now could have applied it with a punitive intent what they could have done is to go through this series of drugs and stop at any point before they got to their really dangerous that versa head according to the physician who testified it would have been a good place to stop and you wouldn't even get to the cause of the death you know judge judge white asked you if you can see that was the burwell was combative combative and he said something to the fact that you would concede that he acted i think consistently with the drugs under which that he had taken it can you tell me what you mean by that i know we're betraying a lot of you know again facts that may be in dispute but i assume being combative or something else could you tell me what you mean by that are from behind his back he was prone that's a dangerous position to be but even before that he was apparently either comatose or asleep when the officers arrived in the attempted to wake him and claim that he became combative and tried to bite them and things of that nature you can contest that completely that he a well he did anything took any action at all that might require them he was face down on the floor ok so again that's the kind of thing where a judge has a trial date or the trial jury has to say what exactly he said because that is in dispute and there are a lot of people in the room when this happened to have his friends his girlfriend the girlfriend's mother his child plus six three times he said first to barnwell him self we're going to knock it out and then he said it to the family and friends of barnwell and family he said the same thing while marlo was on a stretcher get ready to go to the hospital so this is the same deputy with whom there was a history of some confrontation before work now what this means is that the the deputies valeted can't is a jury issue and that dictates the constitutional violation your your claim has a state created danger well every single one of the six people was a state actor and we can employ the same argument when there's no private person involved there were four  don't think you addressed it in your brief to give us a case that supports liability for non private person under that theory is this and is this an aspect of your excessive force claim or is this is do you see it as a separate claim but i see it as a commingled constitutional violation because of the excessive application of force with a punitive intent i'm losing you can can you speak louder you see it is the conjunction of two theories so it's part of the excess supply and once again what we're saying is that the tube went down the wrong path which it private actors as well as private actors no no it doesn't so if there is no private actor you aren't able to tell us one and you welcome to submit if it's alright with my colleagues you can submit support for that but they're in the next make it in ten days but we don't see i don't think you even argued a private individual today you said no these are all public people by whatever they were doing they acted for the government and they did and they increased the risk to the right of the victim these government people ok so that your period there's no private individual involved there's not ok this is right then don't bother with it i mean we have your answer we don't need any further we've got that asking the court to do here is take those facts the same facts and apply and it correctly apply the law in the in the in the can do so long as the parties don't quarrel with those facts you are not quarreling with the facts and unfortunately you know we part of the problem you know we just heard something about well there isn't there maybe they want to get in on the action or i mean that's that's just an allegation that's not a fact the court can only the court can only look at facts in this case the court correctly found there's a dispute about what is a fact of actual dispute by any other name there is not of that there's not a dispute about what what the facts are and the fact the district court found all the facts where the district court erred was in a marked the spot in the opinion  the medical necessity of such a procedure and the paramedics intent in performing it present material questions of fact in what our argument is the intent of the paramedics is not a question  fact that's an incorrect application of the law someone's that intent is not relevant to this case the only thing that's relevant under ground is objective reason witness and again on the next page the court  sort of sort of punts the question again this case revolves around whether they paralyze mr barlow to provide medical care or to punish him again this this question centers on intent not the objective reason why most of the actions are you distinguishing between the officers and the paramedics in this making this argument about the facts well the no your honor i think it's the same the same of force was acceptable and is already granted qualified immunity and that the only thing that we're hear about is whether the use of the drug which was in the protocol in which the the district court has found that the plaintiff was severely combative the district court is found at the point of severely combative and there's a constitutional policy that says this is what you do when someone is really combative then object from an objective lee reasonable standpoint the paramedics corporate thanks to both counsel for your argument today we really do appreciate them case will be submitted