which we should begin assessing the conduct of these these three people who are left because yes you know mr moore was clearly a bad actor and they knew that and so on in their words and they just repor agreed there was a mistake made he never should have been out there but a mistake or negligence isn't the same thing as deliberate indifference if you look at once the problem starts kind of from the moment that more starts springing up the stairs and pounding on scott things happen pretty quickly i mean this is not a lengthy encounter and so you wonder the guards were deliberately indifferent because they didn't take care of it in one minute instead of three or it's deliberate indifference because they allowed the whole situation to rise to begin with which wasn't the fault of some of the responders right so we believe that it it's relevant to start looking at what happened at three o'clock when the officers start their shet but the point at happens in the day room represents deliberate indifference on the part of at least tobeck is that right well not necessarily anything amidst the risk here is that cam is going to start an altercation with other and mates and start  feature you know throws a you know bottle of you know a a cup of coffee and somebody say something hot he's in the day room shouldn't be there he's holding secretly holding a cup of coffee and he shoots in somebody's face and that would hurt right well if in violation if she's seen him in the day room and knows that he's out and hasn't done anything and then that and a commandment violation but here what we have is worse we have them sitting there for four minutes when they can see hand out it would be a trickier case as to who would have been who was left in the day room at that point if she had discovered him back office or me happened who sitting right next to her at all and i well it was it was four minutes after three fifteen so well three ninet and summary judgment we we believe that the that the version of this that you should take into account is that she can see him out before three nineteen because that's that's what you see on the video that it's an empty room and when more walks by the desk i believe that there is no there is no evidence to the contrary tobeck says go back to your cell in substance go back to your cell on lockdown right how did how does that that that's that statement seems significant to me it is safe because it doesn't evidence a mindset of exposing other inmates to risk or to harm she recognizes this guy shouldn't be out conclude that there is a genuine issue of fact on deliberate indifference even said ok they say the defendant say he said ok to go back and when you watch the video from that second angle that the security footage shows you can see that he doesn't break exists and that's crucial and then you ask whether telling an inmate who the president is drugs to be so violent that he can't be out of his cell with other inmates ever to lock himself back up you ask whether that's a reasonable suggesting that she needs to attack him we're suggesting that she needs her but he did say ok that's what the defendants say and mr geils couldn't it couldn't be there to hear otherwise so before you run out of time i just want to we don't suggest that they committed a constitutional violation by getting up the stairs to sleep but once they get up the stairs and they're at the scene of this the start off camera our client's testimony is that officer me here and just stands there the whole time which is exactly what th that you're position has to mean that if you've sensually knowingly set the table for violence you're still not responsible for it if violence ensues you know because that's  explore right with with the recklessness you know when we know that moore is somebody who's on twenty three hour lockdown he has to be all by himself in the room he'd we know a lot of negative things about moore and she and she doesn't say i'm going to ask me hand or something i'm going to a scorch of your cell and i don't see anything not nothing violent has happened yet so it's not like you're asking an officer to walk into the middle of  your first question which is just my position assume that if someone sets the table for violence then you're off the hook and i would answer that emphatically no and true that i would point to this court's decision in guzman vs she in which is a two thousand and seven case and we're talking about what happened fifty eight it says it all violation of this nature does not give rise to deliberate indifference in the language of space especially when your continued steps aimed at stopping the situation that's what we see with tobit but you know we see that i mean on summary judgment yeah i mean there are a mere violation of a prison rule is unequivocally not enough to show an eight minute violation you've got to show that counters the standards for the constitution but  the rules already been violated by this time you know everything is wrong and she realizes that this guy is your proverbial cobra you know heading toward the other inmates and i may act may i  respond to that judgment and that's exactly why her action should be looked at as reasonable an officer doesn't have to be perfect but the officer does have to be reasonable in her response and a mention is on the brief that has only i had entirely unintended and just assuming he's the kind of law abiding sort of guy who's going to obey an order she didn't leave him out attended the first thing she did was give an order and she saw it as one of member of this panel i think the other argument pointed out she saw signs that he was obeying the order which what you see in this tobeck and the other officer if you can see them going through what in other cases get referred to as a continuum of force they start out with giving orders eventually find out that doesn't work then when they get to the top of the stairs there are shouts and they start physically involving and finally the miscreant who starts this whole matter ends up getting tasered which is something i think is relevant now sheltered mr giles has been rather viciously bitten but yes mr giles i i would chip question how vicious it is if you don't need stitches but that is it is a secondary battery what officer told beck does is gives an order rather than jumping up which could have escalated the situation we don't know what would have happened if i don't think she would have had to jump up i couldn't she just have calmly gotten up and saying oh you're out of your cell i'm going to walk back with you that's that's certainly possible that she would have done that it's also very recently possible given mr moore's history his behavior that as soon as she gets up he would have turned on her from another inmate assume he was going to behave himself that seems like fantasy land i would disagree with the characterization as an assumption that he was going to be behaving himself i would say that she is so much she said she was going to get an order go back to her cell  lock up everything would be fine and he was going to be a boy scout about it and just go and get into his cell what reason was there to believe that of more one reason there is to believe that is when she first sees him out that he hasn't done anything bad yet and i do want to reference this person push out that there are some references in there in the briefing to at one point and i'm really not clear on that one point that more was hiding in the shower that's exactly wh was going your honor and that is mr giles testimony in its injured mr giles says in his deposition that moore was hiding in the shower now the defense position is that may have been true it may not have been true but it's mr giles testimony of his deposition under oath so we can assume that's true it's only now that we get into the appellate courts that we're hearing all the arguments about well giles was out more could have ice officer tobeck could have seen him that's not actually what mr giles said and that brings me to another point i would like to make about the difference between mr giles and sworn hold on a second i'm sorry judge got i did if you're saying we should assume for purposes the record that that moore was hiding in the shower the reason i  concerned about that is what is it i mean does that mean lying in wait for scott i'm not entirely sure what mr giles meant i just know what he said and i'm not what i'm saying is the court may assume  given the summary judgment posture given that mr giles said that and in none of my witnesses can definitively say otherwise you can assume that unlike the plaintiffs who seem to be arguing that even though mr giles can't say no when my client say yes that should back made a mistake and when she opened it and her testimony and that's not disputed as soon as she says she saw him out she told him to go walk up and she saw a visual signs of compliance i think that if she told him to go walk up and she saw him go a different direction or she saw something different he did say ok joe but he absolutely said that if you would have said sounds i always have been disrespectful way to do it by the way but yes well i wouldn't have the high standards for inmates for respect i think you might either do right which is you might take what you can get if you're the officers to just briefly touch on the issue ok i was mentioning when it comes to mr giles testimony mr giles submitted his declaration after that summary judgment that directly contradicted his deposition and that is something that this court for thirty years has disapproved of through you know what i think it was a direct contradiction i mean i'm not sure that's the that's what your are  know you had your chart or nine in the brief he's asked an open ended question is deposition and he says ten to fifteen seconds then he comes to any estimates thirty five forty me really is that i think it is a route that is i don't think no no no i mean we forgive discrepancy it's like that all the time when the police are there in the police officer says something happened ten to fifteen seconds and then the next time thinks about it he says oh it's thirty to forty five it's interesting that you bring up the next time because mr  gives that answer multiple times he doesn't change his answer throughout his deposition which would be a different case he changes it as soon as you realize it's bad for months on the judgment i don't well i mean it's and there's like a trivial i would say  sham affidavit and that those quotation marks are based on nothing that's not correct that's a term the court has used the plaintiff also cites a couple of cases saying that these declarations should be accepted when they don't tell you when your reply brief is that neither of those cases did the declaration contradicted deposition one case that he says are your i guess again i'm just taking some issue with your decision to characterize this as a flat out contradiction i don't see that and we and i'm sure you know that the state wants to be careful about what it asks for because we really crank up the standards on this a lot of a lot of police testimony about the window to i understand the court's concern and even if i would still maintain that i'm bringing up these issues because of the way that the plaintiff has emphasized them and that's my response that's that's not what he said the first time this is summary judgment and i would also say that if that you extend the court doesn't see a difference it only benefits my clients because it shows not only did they respond quickly they call for backup they waited as was appropriate according to this court's precedent and on top of all these other things the mr head like to first briefly clarify that there the difference between hiding in the shower and being in the day room when you watch the second view of the video you can see the showers lined the day room and you can see what's happening underneath so that it's shower vs gay room distinction we don't believe as material but to judge what's question about setting the table for violence and then letting it play out i would i would encourage this part to look at pete vs mechanic where the office there set the table for the violence and then shortly e to carry out what you what you hope is going to happen and i would also i would also point you back to the video where you don't see any sign of compliance from inmate more you see him eight more walk straight in that second view of the security footage you see cam walking toward her and her line of sight for at least fifteen seconds on the video it's not just that second view where you can only see him walk right past and so we think that a jury could look at this video and find deliberate indifference here and so summary judgment could not appropriate thank you all right thank you and thank you was well for accepting our request to help mr giles we appreciate your efforts and those of your firm thanks as well of course