know when i was in your honors when i was in law school day a professor told me that when you in allowing you to find the question you to find the answer and i think that that's especially true in this case and the three constitutional questions that were before the district court and the summary judgment motion i think the court unfortunately asked either a definitely a too narrow question or simply asked the wrong question when it came to a substantive underlying causes to some violation the court refused to adopt the objective analysis set forth by this court and castro when it came to the qualified immunity analysis the court didn't pay any attention to the state of ford analysis and how this court recently clarified how that question should be asked and horton and i asked a very very narrow question and when it came to the more now question the court simply inserted a can you know made into the more now analysis by requiring plaintiffs to prove a pattern and notice all three of those were wrong and all three of those demanded remained following its course there were still the subjective deliberate indifference standard do you challenge the district court's determination that there was not a triable issue on the subjective element i do i do i do because well let's let's break down the three individual defendants with respect to nurse to guzman the critical question then becomes which is a very disputed fact and on that issue alone should go back but the question becomes at that critical moment when those officers bring him up and they say he sweaty are getting confused and he needs to be thoroughly evaluated and he says that he may have diabetes but his blood sugar is fine and then in the nurse checks him for diabetes and there's a conversation of that and in that conversation with the officers put in their report that they came to the conclusion that he had drugs on board had drugs on board because you sweating shaking confused there is no direct evidence i hate to interrupt you but during that encounter with them with the nurse i'm not clear on the record did the nurse take his blood pressure or do any any evaluation of him other follow on nurses about this that status and never passed him off until after one of the officers noticed that he was in extremis and then they called a nd senator's correct ok what subjectively the why she needed to call nine hundred and eleven rather than m t s but if that's true and i understand that argument with respect to the objective standards but if that's true under the prior subjective test it would seem that she did not have the subjective village britain difference and there isn't a tribal issue there but then you go back to malley vs briggs ok in the case in the supreme court said you can't qualified immunity does not protect the plane the company and then you go back to gibson vs washington converses reno with this court said if it's painfully obvious if it's so obvious that anybody would know that's all objective right but that does take you outside of qualified immunity if it's so painfully obvious that anybody any reasonable practitioner would know when the subjective element doesn't come into play because it's so obvious but now can it be the case that someone under the old law would have no liability because she did not have the requisite subjective intent but nonetheless lacks qualified immunity i thought probably find immunity always subsumes within it someone who in fact would have no liability under the then aid would create a substantial risk of harm but which doesn't in horton and the state afford is in both of those cases we started from the predicate assumption that there was a triable issue on the subjective element and then we characterize the remaining qualified immunity question as driven by the objective but you don't have that st part here and we emphasize that in both of those cases that's why i'm curious about this how the subjective element plays in particular in the then our expert will tell you you get him to me an emergency room setting with his heart beating i'll save him no matter how much meth he ingested you get him to me dead i can't well you paid that expert well but i understand that's a credibility issue i think at this stage in the game we're entitled to that deference so and i appreciate the court's concern on that on the subject but i think if you look at the state of for case in the harris case mean you look at state of ford and horton the proper immunity to someone who in fact had no liability under the subjective test that governed at the time they acted or i would i would say a survey of the relevant case law that existed prior to this where there is a three cases four case that cited a court where an unconscious individual is not provided life saving measures they need and they're like five or six or seven minute delays and they thought qualified immunity didn't apply i would say nobody here is disputing i don't think that if they know that this guy is overdosing or has drugs on board he's entitled to reason a medical care and i think the reasonable inference that plaintiffs are entitled to in this case is that and we know that for two reasons one immediately after the blood test analysis he asked for them to be put back in the booking and they say no shortly there after the report says he asked for him to go to a sobering sixty or sixty three but it's one hundred and forty one thousand one hundred and forty two and in those in that deposition i ask him i play his tape and i say you say the following words looking at him and looking at his charges i thought he was under the influence that's what you said right he says that's right so he formed the opinion came to the conclusion he had drugs on board drugs were going to drugs and what was causing the sweating the lethargy and the confusion the shaking so i think when it comes to nurse to guzman qualified immunity just doesn't protect that sort of incompetence six hours your honour's six hours you can see nurse to guzman at his computer but ronnie sent of all twenty feet away and a glass cell looking through the cell and never being checked for six hours and deputies that come up to him and said you need to thoroughly evaluate this man we have to take him out of booking and you that type of behavior should not be protected by qualified immunity that's not what that's about qualified immunity isn't about protecting somebody who makes a conscious decision to do nothing because quote in his deposition i didn't have to and why didn't he have to because this fellow the cell was neither fish nor fowl this cell was the cell that was set up for sometimes it's medical sometimes it's punishment sometimes it's housing and then till somebody makes a definitive decision to tell you what that sells for nobody has a responsibility to do anything and that's the rd prong of the cork out wrong court said you've got to show that there's previous dress or constitutional violation adjacent to that  that's a canton element we don't have to fall of a pattern or notice this is a direct policy you've got a policy that says you ignore individuals or not so unless told otherwise and what happened in this case was bound to violation of the constitution that really need to be addressed and need to be given a fair shake in front of a jury and then fortunately we were able to do that do you think you don't think remained for the district court to apply doesn't apply gordon should happen for two reasons one i think it came in confidence and i think underbelly versus briggs qualified immunity doesn't protect the plane incompetent and we can sidestep qualified immunity and just say hey these people didn't know what was going on and they're planning something and you know protected to even if even if we provide gordon versus briggs on the underlying constitutional violation and then we get a qualified immunity and applied to subject a proper analysis  good morning and may please the court my name is fernando case and i represent the a pelleas county of san diego and its three jail nurses did the jail nurses make a mistake in their medical judgment in treating and providing medical care to mr sandoval the constitution does not and should not answer the question mr stand of all die methamphetamine overdose he swallowed the methamphetamine just before being arrested to hide it from the arresting officers and to avoid criminal charges he intentionally concealed it so  he should get the death penalty for that no your honor ok but it does form the information part of the information that's available to his jailers and the jail nursing staff that he's arrested for for drug possession and yes your honor he's on probation for drug possession correct and he's arrested for violating his probation for drug possession correct your honor so you know he's a drug user the arresting officers yes you're on and they think he's right the nurses don't necessarily have the booking sheet available to them your honor oh come on they take they can't look at the jail record know what the guy's book for the question can and the question did are two different questions your honor whether the information is available to them is different to whether they actually did look at that information and in certain instances and it's a fact question as to whether the jailers told the jail nurses that they thought he might have drugs on board i disagree with that your honor for a couple of reasons st the evidence that plaintiff is relying on to make that point is the officers reports the district court sustained the defendant's objections to that report because plaintiff failed to respond to those evidentiary objections that was a request for admission right is that correct they responded failed to respond to that allegation ok they failed to respond to the evidentiary objections during the motion for summary judgment proceedings your honor the plaintiffs have been preserved at issue here on appeal except for a footnote in their opening brief if the court were to consider that issue it would have to consider under statements by the officer that the officers report as opposed to their deposition was was which was properly considered in addition to that i think your honor asked a question about the plaintiff's well paid expert an evidentiary objection to that just be a but under our local rules the court the district court has within its power the ability to exclude evidence if the party fails to respond to an evidentiary objection that's what happened in this case aside from that even if we were to consider the entirety of the evidence i think the issue specifically about diggers man because the testimony was that he was brought up to the nd floor was weird because mohnish if i understand this correctly and told that he needs it there are evaluation it which is that we can take that as establish for the summer that evaluation didn't occur and maybe if it had occurred his condition might have been discovered appeared lethargic i was confused and was sweating and didn't the officer say that he thought he needed it there or valuation whether he used the word thorough or not i'm not sure but certainly that he needed to be a valid that's the whole purpose of taking him to the nd floor and you will respond to that guzman do that evaluation yes your honor it was also colored by the fact that the reason for asking for the evaluation is because mr sandoval reported to the deputy that he was diabetic and so the officer thought it would be a good idea to get a nd a blood sugar test which because he had already had that done on the st floor nurse to guzman does perform that blood sugar test and during that blood sugar test he is having a conversation with mr stand about asking certain questions to to determine whether he is for booking or not based on the guzman's evaluation whether it's ten seconds or not he sees someone that is alert that was and could be used for mix purposes your honor the issue that plaintiff brings to that point is that there may create some confusion in certain instances and even if there is some confusion  makes use in this context your honor means that it could be used for a medical purpose meaning someone needs to be put in that cell because there's a medical reason that requires some further attention the alternative use or the dual purpose is that if someone there for a law enforcement purpose meaning there's not enough room in another cell or they're just temporarily while they're moving someone else out that's that's the mixed use component of that observation so but regardless of the intended purpose of why and have a conversation with him however in his declaration that was submitted with the motion for summary judgment he did testify that he was able to observe mr stand of all the during the duration of his shift at least three separate times including at the end of his shift the deputy suggested that this person needed to go to the emergency room none of the dead at the very worst the deputies suspect the possibility that there may be drugs on board but never been suspected that there was a lethal amount of methamphetamine that he had just swallowed some of them believe that maybe it was withdrawal which is the opposite of being intoxicated and which is present itself with different symptoms so that the record is silent on whether there had been any previous incidents where this so called confusion for makes you still heard is that because that was never developed or because there was there's never been a problem with these  mixers there's never been and there's no evidence of any prior incident regarding this medical observation cell that's in any way analogous to the issues that are for this court with respect to nurse  also point out that failing to discover mr sandoval's lethal dose of methamphetamines was in part caused by mr sandoval himself he was concealing that information he was repeatedly asked do you have drugs on board did you take any drugs as to nurse harris plaintiff's criticize her for being incompetent now she started her shift at eleven pm and when she started her shift she had no advanced information of mr stand last condition she observed him within twenty minutes of a shift and didn't notice anything out of the ordinary he was not in medical distress at that point when mr sand of all was noted to be a medical stressed by a sergeant passing by that was the st time that there was any serious medical condition known by anyone at the jail when that occurred nurse harris responded immediately she went in there in made an ok so either way it was a transport issue right she recognized right away that this man needed to go to the emergency room there's no dispute about that and she made the call right away and that call was made and the mts did arrive within i think approximately twenty minutes ok so i so i guess i don't understand so tell me what the chain of events are she goes in and nurse her as goes in calls e m t e m t eskom and they decide that they need paramedics so i mean and then after they decide they need paramedics then another squad comes and then now we've got and and an hour and fifteen minutes or so before his heart stops while he's in  transport for this man to be sent out to the emergency room right now here there's a question about how quickly she realizes whether or not she needs to call for paramedics it's important to consider her role in this case she is the  responder because she's the st respondent she's in constant observation compare that to the deputies that may be coming in and out of the cell and focused on other things and most importantly compare that to nurse yamato who specifically steps out of that room because she's an assistant role in that point she steps out to retrieve the suction machine she steps out to look up the computer for information about this man he steps out to call the charge nurse and explain what's going on and you haven't you're not answering my question and you're running out of time so observation that this man was conscious and doing certain things that suggested to her some responsiveness and that's spelled out in the record nurse tomato expressed the opinion that paramedics should be called but again that was on a picture that was less complete then a nurse harris's picture that's the reason why the nurse harris did what she did plaintive calls that incompetence but that's just a difference of opinion based in part on different information that the nurses had at their disposal ultimately here under section one thousand nine hundred and three is intended to prevent abuses of governmental authority to disturb state actors from using their badge of authority to deprive individuals of important rights at the very worst this case presents a claim of medical malpractise it started in state court as medical malpracti the call that one o five and when the e m t's get there and say we can't do anything with him we can't we can't we can't transport him in this condition at one hundred and thirty after ten times being told to do it they finally call paramedics and that's where the delay is that's where they key the latest ten times she was told one deputy was actually an e m t and said i am an e m t we can't do anything with him you need a paramedic who can push med who can do cardiac life support it's interesting that they defer to your so your model nursery models they said she didn't have a complete picture she immediately arrived looked at him said he needs to go and i'm on one immediately she could just tell by looking at him he's due at nine and one unfortunately and she was honest or she could be said i screwed up i should've called i know what i should have deferred to her i should've called ninety one and she was heartfelt about heartsick about it her honesty doesn't immunize her in this situation unfortunately but she knew right away that this guy needed to go out nine hundred and eleven that couldn't do anything and nobody did anything thirty five minutes forty minutes of the laying where he just sat there and suffered with respect to the so i deployed to the court that the cell situation has been remedied and that's the state of the record you know change the cell policy there's not it that's doesn't sit there with a mixed use who knows what it's for policy anymore and under henry versus sas the that's relevant posts  this issue had actually been litigated and where the court said no you can't exclude police reports summary judgment you can't explain the rule twenty six report summary judgment you know it was a blunderbuss objection i think this court would have district court would have another reason the court excluded digs the experts i think it was just that you know it's kind of thing where the judge is going to do what he's going to do and i don't think there's much we could have done but you're right next time in front of this court i w