down the hanging in mate calhoun instead stood back and spent time completing paperwork this court observer and hyatt versus thomas that quote america faces an epidemic of would say that there is a significant amount of time judge smith where he isn't doing anything the record shows that in the first thirty seconds is when he makes the radio calls to some and other officers and we certainly agree that that's reasonable because the policy required him to first call for backup and then immediately cut down and made and of course we would agree that getting the wrong key is merely negligent we would certainly agree with that but that  delay only compounds another twenty seconds what if the backup had come as i'm sure he expected within a minute then we wouldn't have i don't think we would have an issue if it was within a minute a half so really your case trues on  some there is an immediate duty to enter alone and cut down your case turns on at some point the reasonableness of waiting for backup when backup doesn't come the eight the memory requires the officer then so is that correct that's correct that's very important for me that the you are not seeing me at the memory requires a solitary officer to go in immediately well while the policy is in the policy yes you're correct your honor of course the policy should what his eighth amendment duties are that should give him instruction that it's not reasonable to stand around for five or seven minutes and wait for other officers and of course we know from the record that after five minutes other officers were there in fact officer calhoun's affidavit which is at the record in page two sixty five says that it is safest answer when there are three officers present and we know that after five minutes we see on the video sergeant shelby and officer haas have arrived at that point then we wait another two minutes to enter the cell that gives us a certain two minute delay where i would say that the officers are doing nothing there's no evidence that they were doing anything to assist mr to vera other than standing around and waiting for a second supervisor to arrive the video is pretty clear it will control what we see it looked to me like they are against that door and they are banging on the door and then and then calhoun runs to get the right key those judge judge rodrigo's pointed out i'm not sure it's fair to move the video will decide as i don't see anyone sitting around it seems like the second period they are there up against the door and then they have the key well they also know that at that point iran or that they've that mr callan that mr to vera has been hanging for five minutes you can hear on the video the handycam that which is that record seven sixty three to four minutes to rescue someone who is hanging so they know at that point that they that he's been hanging for five minutes that three to four is the window that you really need to get in there and they really are not doing much i would say the eighth amendment of course does not require in this court in the jacobs versus west alyse on a sheriff's department said that you can that you don't have to do everything possible that you can take some actions and still be deliberately indifferent in that case there was evidence that the sheriff's officers had done some things they had increased the watch requirements for the inmate they had taken some of her materials away but they didn't confiscate the blanket that she ultimately used to hang herself that is and one of the officers in the case in jacobs they found was merely negligent but the sheriff and the supervising officer they found were deliberately indifferent despite them having taken some measures to protect the end made i would say that banging on the cell door when you know that he's been hanging for five minutes and you know that three to four minutes is your window where you have to favor specifically finding that the policy didn't control and was not applicable at the prison when the policy clearly says that you have to enter the cell immediately and cut down and when you filed the motion to reconsider in the district court issued it response to that i read it basically as say i'm not resting on the policies i believe that it required that a large portion of the court's order did rest on a pause in that ultimately that's a even not even after the motion to reconsider and i think that is something that the jury should certainly be informed as to what the reasonable response of the officers was whether the policy applies as a critical portion to determining what response is reasonable the tenth now that court the case that the district court relied on in the ruling on the motion to reconsider is a district court case from texas that that case the policy didn't have anything to do with the protection of the constitutional rights and we're certainly not saying that because there's a policy of that that creates a constitutional right that's not the argument here we're saying that when the policy has to do with these life safety issues and the policy is reasonable you need to follow the policy which that you're referring to now we're referring to the only written policy document that's in the record it's a record for ninety eight and the critical pages record five eight that's the when an inmate is discovered hanging staff will immediately initiate appropriate first aid measures in the event that any inmate is found hanging the correctional officer will call for backup by radio and then immediately cut down the hanging and mate and initiate c p r which number is that the policy number is i believe it's v g sixty eight zero zero zero one even better but that didn't apply administrative segregation there's no evidence that it didn't and it's certainly a a fact dispute that needs to be resolved by the jury both of officer calhoun's direct supervisor sergeant shelby and lieutenant dixon both testified that the policy applies in the situation that they prevaricated later is exactly the kind of issue that the jury none of the policies that the defendant that an officer calhoun refers to are actually in the record we have description of policies saying what the practice was at the smith's state prison but we do not have any actual policy documents the only policy document in the record is at for ninety eight through five away at the policy that the point that the plaintiff appellant is relying on that i think is critical and certainly something that the jury  could could weigh descriptions of the policies versus an actual written policy moreover there's a robust consensus of courts in the sixth seventh eighth and ninth circuit's where the circuit co all looked at this exact facts an aerial an officer finding a prisoner in the act of committing suicide and said that the reasonable reaction was to immediately cut down the and  to your concerns about that the application of the policy but you've made that statement of law yes let's go through those the six circuit the six circuit opinion is heflin versus stewart county tennessee right in that different in the same year the sixth circuit says no quote no case has been brought to this court's attention which recognizes a constitutional duty on the part of jail officers to immediately cut down a prisoner found hanging in his or herself well notably rich that's rich correct notably rich was decided before halfling was heflin you've agreed with me is just different if an officer goes in and stands next to a hanging person with no pulse and someone else says here's a knife and he says no get out that doesn't resemble the safety consideration that's been articulated here at all well to look at that i would agree that there's a some factual differences between heflin and this case the more applicable cases are the seven circuits opinions in the state of miller vs toby and san vs macaw tree and perhaps the most applicable case is the eight circuits opinion and also in vs bloomberg ok but miller again you know these are important to look at miller doesn't have much discussion but it does say plaintiff further alleges security officers plural waited to assemble an entreaty and then applied restraints before removing the ligature so i was looking at that case as closely as i could i'm just asking you did the seventh circuit say that in any clear way i'd have to look at the opinion again your honor i do believe that because the severson filed a motion to dismiss certain qualified immunity for me the motion was denied and the facts are very similar to here and right i don't think that it lays out exactly severson have a duty at this point and then you've i think modified but i accepted your position you're not saying that you think there's an immediate duty to enter alone you're saying it is reasonable under the at the moment to call and wait for backup when you're seeing at some point in time deliberate indifference to give that that that doesn't make sense to me i suppose if ten minutes go by and the bodies totally  faking and that they the condition of whether the inmate was mr to vera was actually going to attack officer calhoun some of those conditions are taken away by officer calhoun's testimony that he thought it was a genuine attempt that he saw that the noose was tight and that mr calhoun that mr to various body was lam we're looking at the video there must be fifty different cells in that one room that's correct but all i can as the only officer there he go into one and leave the rest they are with if there's a fire so it would seem to me he almost has to wait outside while he knows that he knows that backup is on the way down or he knows that they're responding he's talked to them on the radio he also knows that all  are locked in their cells it's and this is not a situation like unplanned cover says sarah where the inmate has a heart attack in the middle of the corrections yard and still the officers are denied qualified immunity this is a situation where everything is  controlled as it can be in a prison and again that's an issue that the jury should have been asked should have been given to resolve given the opposing testimony of the experts our expert commander been ask o said that he would have ordered his officers to immediately i think it's also very important to look at the eight circuits opinion and also in versus bloomberg where the facts are most like this in fact the inmate in all sin versus bloomberg had multiple times that same evening said that he wanted to fight with officers but the court still said that the officer had an obligation to cut down the inmate when he saw him preparing a noose maybe not cut down but enter the cell to provide immediate first day that's in tension with our court i'm ellen cusumano on behalf of officer john calhoun we're asking the court to affirm summary judgment to officer calhoun on the grounds that he did not violate the eighth them and responding to bear suicide alternatively we're asking the court to affirm summary judgment on the grounds that officer calhoun is entitled to qualified immunity in this case and less the court prefers otherwise i'm going to address the eighth amendment issue first followed by paul community to succeed on an eighth amendment claim in this case mr arenas had the burden of shilling that officer calhoun acted negligence and here mr arenas has not met that high burden the evidence in the record shows that officer calhoun responded reasonably to the suicide  simultaneously preserving the safety and security of the prison more specifically the record shows that when he found mr to vera he immediately called for backup assistance and he called for backup assistance four times and still he received assurance that backup assistance was on its way he then went to the control room to obtain what he believed was the key to the dormitory and then he waited for backup assistance to arrive once backup assistance did arrive he immediately went to the cell attempted to open the door unfortunately he did have the incorrect he at that point the videotape shows officer calhoun running to the control room to attain the correct heat and then running back to the cell at which point he immediately opens the cell door and he helps the other officers lower mr to veer to the ground and then he videotapes the other officers provide mr to  case such as grogan where officer calhoun truly did nothing he did not refuse to help mr to vera he instead did all that he could do while still making sure that the safety of himself other officers and other inmates and the general security of the prison was safe i didn't see that the latter three articulated safety or other offices other inmates security prison i really felt the argument was he felt even though he had the arm vest on and he would be unsafe going here that is correct and he did feel that h  and if that had been one of those situations here that would have created a very potentially dangerous situation because at that point officer calhoun had the key that went on walk the cell door for every single cell in that dormitory and so he also with that one key and mark simone that's and that is correct also have the fact that this was administrative segregation so you were dealing with  mates in that area who were relatively more dangerous than the general population absolutely inmates and administrators segregation are often placed there because they have in the past engaged in violent behavior so there is a greater risk that violent behavior will occur when an officer inters that there would be an issue of fact if he hadn't called little yes if he if he had not called or if the team when they arrived they just didn't go with absolutely and that situation that would be more like the case and that the circuit decided in two thousand and seventeen in grogan versus kumar in that case would it least be an issue of fact especially given the policy if he had been it could be a break but your honor that that argument of whether officer calhoun knew that he was suicidal or storage should have foreseen it he was suicidal that was raised at the district court level and the district court denied granted summary judgment to officer calhoun on that issue and that issue was not appealed to this court it is undisputed on the record that this little window couldn't cannot see the feet absolutely that's undisputed that is undisputed when you look at the window it is is fairly small and it is there are holes and the window after calhoun clearly testified that he could not see the inmates feet and he said that because of that he did not know what he was getting himself into so there was no way that he could have can conclusively know whether this was a fabrication or whether this was a genuine i do this gets passed summary judgment i'm guessing therefore would be different if over a five minute span he goes back and he can see the man is hanging in inert and he gets a call by back up say saying we can't get there part of the ten minutes would be deliberately indifferent for him to still wait for backup no matter of time i believe in that situation even if officer calhoun could see the his feet was hanging it depends on the facts of the case so for example when that there is no danger to the officers and so what officer calhoun did here was consistent with his training and the us what the record and the law show us absolutely first of all that policy begins on page four ninety eight of the record and that policy while it is in effect for all border president s it applies only in specific circumstances and i believe the title in and of itself makes that clear that the title shows that it applies only to managing potentially suicidal and mates the policy then goes on to discuss in detail the procedures that have to be followed for inmates who have been specifically identified potentially suicidal beforehand and they have to go through a process of being a valuated by mental health professionals and then they have to be placed in one of the six tier hers of units that provides mental health services and here mr arenas had not been identified as potentially suicidal he had not been seen by a mental health professional he had not been placed in any of correctional officers who are assigned in those crisis crisis stabilization units are required to have special emergency scissors that can be used to cut down inmates that's a record five o specifically refers to these emergency scissors used to cut down inmates and it is undisputed that those scissors did not exist since misstate prison because it is not a mental health prison and it does not contain any of this current crisis stabilization units that are black prince in this policy and so for those reasons this policy does not apply however even if this court were to determine policy did apply the law is clear that the mere violation of a policy does not give rise to deliberate indifference and that is something that this court reiterated last month  deliberate deliberate indifference and i think that's particularly true here when there is no evidence in the record that officer calhoun knew of any policy or practice that would have required him to your view is it is never as a matter of law it is not deliberately indifferent if they don't come you don't have to go in possible that different factual scenario so for example if two hours  yes and the judge had been saying you did at the beginning of this argument have to make the point that perhaps at some points it is reasonable to require officers to go into a sound card and in a down however there are no cases from this circuit or any other circuit clearly establishing what that point is and so that is if we accept that proposition and write it are we creating a split with the state of miller the language i read two opposing counsel seems to say sufficient facts to suggest the security a duty to enter before you've got your security team in place i do not and that the facts of that case are somewhat unclear there and there is a suggestion that one of the officers who first arrived at the scene was able to feel the inmates poults or they actually did go in also and that's what it seems to imply because it does say that that one of the officers felt the inmates holes and there was no  hole so that again is a situation where it does appear that that officers injured the cell in which case the security concern at issue here is does not exist so i do want to  grogan and again in grogan and that's the case where where the officers just completely ignore the and may so so there are there are no decisions from the circuit stating that in dad an officer has to either immediately go the video you can you can see one of his hands but you cannot see the other hand so we know in hindsight that there were no weapons or and we administer segregation  armed on the inside of the cell they should not be however there are there are many instances where inmates can and construction or you can go to the call for me and i thank you so so and that burden is extremely high because the case has to dictate and truly compound the conclusion that the defendant violated the constitution and in the beginning of this year the supreme court issued it says a decision is decision and city of ask and you know versus and where it's reiterated just how difficult it is to defeat qualified immunity in that case  made it clear that the plaintiff has to identify a case where our officer acting under similar circumstances was held to have violated the constitution while the case does not have to be directly on what's what's the best case for your position clearly established law at the time of this sure well again there are no cases from the circuit that deal with this issue of how to respond to an ongoing court has not address in a haze involving an inmate suicide where you are assessing and officers reaction to an ongoing suicide on the eleventh circuit has not either or the only two do you agree with law case but regardless of with which circuit you go with with the whether it's of the circuit or levon circuit neither of those circuits clearly established the law in this case any even if the circuit this is the circuit does follow other circuits but only if there is a consensus and only if those cases are factually analogous to the case at hand and again there are no cases that would fit that mold that would place auster calhoun's conduct clearly beyond debate and so for that reason we're asking the court to affirm summary judgment officer calhoun on two grounds one he did not violate the eighth amendment in his response to the suicide and number two that he is entitled to qualified immunity in this action officer calhoun there's two cases that you should live in the circuit or supreme court eleventh circuit or supreme court of course you are not agree that the supreme court has not spoken to this issue specifically other than in the taylor versus barq's case where there is discussion about a general duty to prevent suicide from inmates the cases that you should focus on from the eleventh circuit or greece and versus camp there the court affirmed the denial of summary judgment in qualified immunity in the prison suicide cont a caseworker was told of a suicide attempt the quote did nothing with that information that is certainly different than here but the court reasoned said where prison personnel who directly responsible for an  for inmate care have knowledge that an inmate has attempted suicide their failure to take steps to prevent that inmate from committing suicide tantamount to deliberate indifference that would certainly tell officer calhoun that in this situation where he knows that mr to there is going to die if intervention doesn't happen soon that he had a duty to prevent that the second eleventh circuit case that you should look at is bozeman versus oram what this case is really about is an emergency medical response and by this case i mean the case that you're considering today bozeman versus or is a case where officers knew that an inmate was this fixie aiding but delayed either providing c p r or obtaining medical assistance that's the same facts that we have here today when you boil it down to what was actually going on with mr to there he knew that he was exceeding he officer calking testified he did not believe that this was a fake attempt but he still did nothing during the critical minutes when it would have been when it would have been necessary to see if you cite that was a single officer i believe there were a few off there was more than one officer there at the time your hon directly on point it just requires that you the that there be fair warning to the officers that's been the law since hope vs pelzer that these combined recent in bozeman certainly would give fair warning  there's certainly an argument that he was following orders but the eleventh circuit has also said in a roar and i'm i'm blanking on the opposing party i'll get that citation for you that in a roar you can't even if you the officer is not quote the mastermind of the policy they are still responsible for their own actions and that at that point when there's three officers there we know that they're there within the timeframe that could make a difference for mr to vera and there's no dispute that those officers are doing nothing at that point judge smith to answer your questions about the policy and i misspoke the correct page is five o nine the section begins and i have to wait if we don't need to pursue more time yes the policy the policy does however apply to all the prisons look at page four ninety eight they are relying on the exception to the policy that replies in county facilities and in transition not the general statement of policy which applies to all prisons that we are parsing the policy here today is exactly why this is a fact issue that should be considered by the jury and of course shelby and dixon both testified that the policy applies to page six seventy one of the record lieutenant dixon was asked do you agree you've got to follow that policy and he responded yes the policy and i will admit that i have not read the circuits new opinion from iowa application to the prison in the delivered in a deliberate indifference context in the context of a prison while we recognize that a deliberate indifference is a high bar this court said in jacobs that officers can be liable even when instituting some preventative measures there is no dispute here that officer calhoun waited and did very little after the first ninety seconds when the policy commanded him to immediately enter the cell to cut down mr to vera for that reason the court should