third time that we're here in front of this corner and this case the second time that we're asking the court to look at the qualified immunity issue with its youth the fourteenth amendment denial of medical needs you're well aware judge why you have to have you wrote the opinion on the summary judgment motion that found that there is a question of fact that send it back and sa plaintiff gets an opportunity to prove a trial that the officers were deliberate indifference and gave and gave certain guidance as to what that evidence may be to establish that and so i think the critical issue obviously here in this appeal is why is a different result warranted now as opposed to your prior decision and why is the jury's finding of no fourteenth amendment violation able to be sustained regardless of the proximate cause instructional issue which was the basis of why i just ordered a new trial on it and i think what the answer is to that is that there are some critical differences in the factual record that was before the core at the summary judgment stage and the facts that were presented to the jury and  support of the earth upon which they based their their finding of no fourteenth amendment violation and a couple of them i mean there are there are differences but and there are a couple that are critical i think that when you look at the summary judgment opinion judge white that the this time period that was was giving plant plaintiff the benefit of its twelve minutes the trial record time period at best and i think even plaintiff agrees with this in in his brief at best is nine minutes and forty seconds or just under ten minutes between the time best best case scenario between the time that the officers shot mr scott sorry and the time that they call and them are on site to treat him and of course in their in that time period there is a here that we might get into but i just want to be clear as you would said even the only claim nine minutes molly reading of the record is you have the eleven twenty six  four minutes and fifty seconds to send in the alpha unit but we know it was still be judged arguably for a couple of minutes before that that's why i thought their best claim was nowitzki maybe up to a minute after shots were fired to cause so i put it at the absolutely earliest time that mr because ari could have been shot would have been one minute prior to the eleven twenty six zero nine so that gives an additional an additional minute and then as you as you indicate the m m r report indicates that they were staged at eleven thirty three dispatch one two stage which i take it there's some controversy about what that meant but might mean that that's about when they actually got there which would be congruity or close to can grow it with the eleven thirty three granting a new trial is not before us here correct correct we had we had done a petition for permission on the instructional issue at the time that we briefed it with pending but that had been denied by the court so the question is even even assuming the instructional error was there were the officers entitle to qualified immunity in the medical the ins and it's our position that on the record at trial despite having perhaps been given the opportunity to go back and from the summary judgment stage in established a different case one that may have supported the prior court's decision a finding  a fourteenth amendment violation that that record submitted was not and here's where i think is a as i indicated is the crucial difference in this into the time period asked me is that part of it at least as as i read it and i'm i'm i think that this is a correct reading but of the of the prior opinion that part of the reason of finding our of saying that there's a question of fact and that the plaintiff should be able to go back and try and prove the case in front of a jury was was some evidence in the summary judgment record that the that mr was not armed at the time that he was shot and that part of this time this time period  be was used and to call out witnesses not for a legitimate purpose of securing eyewitness identification of weapons in his hands before he was before those weapons were removed but to go into the cabin and get weapons and plan to plant them on mr scott's arre and then hence have the witnesses come out and take a look at that and that was there was evidence in the summary judgment record that if that could be established at trial that perhaps they would have been able to establish a deliberate indifference that that kind of activity no legitimate reason for calling witnesses out no legitimate reason for having people stage having m m r stage for that could be sustained and as we've argued in our brief that the jury's finding no fourth amendment violation and that the officers action in using deadly force is subject of lee reasonable i believe precludes any conclusion that the calling out of witnesses or that time or what they were doing if i take their side and i'll ask mr davis as well the time during which there could be deliberate indifference essentially is the first minute between shooting him and reporting at the time that you keep them away by staging them rather than bringing them in when you know that he's dead or dying or at least down then you had five or six minutes and then when you interrupt to look for more weapons but each of look at the whole block of time i think that that you you do have to look at that initial period and obviously the what waiting a minute to call this we have status is not clearly established that that would be valid if with respect to the checking for weapons and here's something that i think is important and it is in the record is that it was it was a based on the deposition testimony and the trial testimony when you brian's who  the paramedic who was on scene was that it was a different agency it was the michigan state police officer to her recollection that after m m r after the paramedics had had gotten access and called for an outside agency to come in michigan state police clear county came in our officers were clear city so there were michigan state police officers there at the time that that the m m r was there and so the question is check checked and he thought he removed them but he did in the in removing the obvious weapons from the sand rolling over handcuffing him and that and that he did check is that even seeming that they had done that that wouldn't necessarily have prevent culpable state of mind to deliberate indifference to know that by not doing the most thorough job that i can do in these intervening six minutes or what have you that i know that in the course of the period that course of time that is to have less than and just i would i would sum up that again that this these differences are critical not only i think to be establishment of the constitutional violation but i think they also go to the qualified immunity analysis in what every reasonable officer would have known and in september of two thousand and seven was it beyond debate that these this conduct that they when was it was it beyond debate that in doing so in the situation of this case that it would have been constitutionally by a given and that's our position that based on the trial record and sing from the summary judgment prior opinion in this that the this argument is based on a fallacy i didn't lose that claim because the jury didn't believe the witnesses are lost the climb because judge ludington decided to instruct the jury i had to prove that the delay caused the death and even though it's not briefed if we give you the transcript of the closing argument i just straight up told the jury i can't prove that and therefore the idea that somehow parsing the evidence of the five independent witnesses who talked about staging the scene they did the question before us i think whether on the evidence now all the evidence which is before us there should have been qualified except that we didn't brief all the evidence because that wasn't the point that was done in the district court the district court heard the trial made a decision made specific findings basically found a twelve minute delay basically found that the officers had engaged in not securing the scene but in fact bringing witnesses on to the scene and polluting the scene displaying the body displaying the weapons and doing things which literally have nothing to do with the duty to provide immediate care to a fellow who is laying face down in a puddle of blood and gurgling and not moving and so when you say he found that is that in his ruling grant him a new trial what what piece of paper are you saying went back on that or is that are you parking back to the earlier i mean i think that i think the answer might be for the new trial but i just want to be clear you're a document two twenty five filed january twenty eighth in its opinion an order to nine defendants motion for relief and denying plaintiffs renewed motion for a new trial with yes that's another appeal which is still coming here but that that was the document that's after the trial that's after the trial and so the idea that somehow or another jeff richardson jeff morgan the second jeff morgan's jeff morgan's girlfriend jeff morgan's brother and a lady who contacted us after the first appeal and came from oregon to testify as to what she observed about the officers entering the cabin and bringing out weapons that's all a part of the record is just wasn't part of this appeal because of wasn't framed that way the twelve minutes read you referred to is it fair to say that that the time a minute before the twenty six o nine entry and the thirty seven ten when we know that the m m r is treating school is that fair way to get that twelve minutes i think it extends back a minute before that when he first called in shooting but didn't call for medical records while the shots fired is the twenty six zero nine and i was giving you a minute before that because there was some testimony that that he didn't do that for a minute so that gets you it twenty five of the time of the shooting and thirty seven when kennedy says the m m r is still treating s is that fair if you're ok and then from your point of view what's the quickest it could have been if they had done everything right i mean assuming that they could shoot him which is separate but assuming that the shooting occurs what's the quickest that from your view that without deliberate indifference m m r could have been treating him they hospital is one mile to the south the emergency medical service headquarters is one mile to so that in my view in spite of all the talk about protocols and all the talk about priorities and choosing between alternative law enforcement objectives once because ari was down on his face bleeding to death there was one law enforcement objective ensured the security of the area check him out while the e m s came you don't have to stage them off the the scene idea that there's some iron protocol that they always have to be staged off the scene depends of the time place circumstance including your honor in the case that was that you just decided it would be here's free springfield where they go and of the guy who shot himself a guy shot himself he's sitting there he's alert he's awake the first thing they did was report to the to the supervisor e m s was on its way within a minute they were there within five minutes there was no staging off the scene there he was on his way to t reatment with another five minutes it's a different case but there's hocus pocus about some magic protocol where everybody goes through a dance depending on regardless of what the actual situation is the people who saw what happened there were horrified and they said so and the officers what protocol is it that requires independent witnesses to view the body and the weapons you know maybe they made bad choices and they didn't do it the way that they could have citing no huntley sycamores school district that was a state created danger case of a teacher who was attacked by a student it's different than the duty established long ago to grander medical aid that's completely obvious to everybody as rapidly as possible consistent with security and the security issues here schools are he wasn't fighting he wasn't going anywhere he wasn't talking to him he wasn't getting up with a knife in his hand to threaten them it's just different than  piers fees springfield he's lying there dying and they're doing something else that's the point and the idea that there are somehow or another the first decision on th e qualified immunity issue when we were here back in i think two thousand and twelve or is now undermined by the trial testimony were it to be briefed in my view it wouldn't be undermined it would be strengthened because there were still witnesses that we haven't found yet that were not part of that record but now are and so to in any direction possible like to him as people who got there the first person who got there was a deputy who drove from twelve miles away the county seat it's true that the images people got there fairly shortly and is true like with any crime scene investigation they entered that cabin at some point and they brought weapons out and when he bryan's who happened to humans us dispatch and went there voluntarily wasn't this spots there and happened to be there when the state police did that it is a meaningless fan of course they went in of course they came out of course they gathered weapons the question is when and it was well after the initial to lay in the treatment i i can go on  and narrowing the the first amendment sequence and what the jury could consider as a part of the entire transaction with regard to the  actions he finally said i'm going to give them a note saying they don't consider anything except the minute that they were at the door but first could came out with the knife so all there the going to consider all the provocation and all the needless chasing down and forcing out of his home of the straight clothes is not going to be relevant to their decision i said judge it's a directed verdict he said i'm going to do it nine minutes later they came back with no cause of action that the real issue in this case which will be coming back up here if we can never get this out of the way so that it's right for us to consider the segmentation arguments which have gone back in forth in police shooting cases in the circuit on about which we've been fighting about about what this court did the first time or what judge what it didn't after he heard the trial got extensive post trial briefings made detailed decisions and decided that a reasonable jury could decide that these guys whether they were in shock over what had happened what ever reason they didn't reason bottle i will be brief i think i obviously take issue with with with mr davis conception of what issues are on a p r how whether what has been briefed or or what is not i think what is clear is that we have argued regardless of the instructional air could the jury's verdict the fourteenth amendment a finding no liability worthy officers and title to qualified immunity and that the fact that we could have come up with additional witnesses or we could've you know tried a different case they didn't and we have a trial record of what evidence was submitted to the jury in support of that fourteenth amendment claim  that record work the officers in title to qualified immunity and i think what another critical point is two points and i have no doubt we will likely be up here again on the fourth amendment claim but the issues that plaintiff has raised so far that are not at issue in this appeal that will be the subject perhaps of an additional appeal regarding segmentation in the fourteenth and the fourth amendment claim and how that increase should have been sliced up and whether or not just sliding to and ultimately instructed them or answer their questions to to correctly as to the right time period that even assuming that plaintiff is correct in there that doesn't that doesn't change the fact that the jury's finding his argument doesn't go there his fourth amendment issues don't go to whether or not mr scott's ari was armed his arguments go to because the jury found in finding no liability in the fourth amendment that at the time the officers used fatal for he represented imminent risk of serious physical harm to the officers or to somebody else they rejected the theory that he was not armed that he didn't pose that didn't pose a risk of harm whether or not the events leading up to that and how big of a segment the jury should have been able to consider at that door prior  to him in the woods whatever that segment is doesn't negate the fact that they found that he that he presented a risk of imminent harm at the time in the sense that i can imagine the shooting was perfectly justified and nevertheless they were deliberately indifferent or i could imagine the shooting was wholly gratuitous but nevertheless they weren't owed liberally indifferent because you know whatever these other facts turn out differently well i think that yes i mean that the claims are independent in that regard but i think and i referenced that with respect to the prior opinion that was saying the fact that they called our witnesses they used some of this time went after it is for six not sure they use some of that time to call out witnesses for reasons unrelated to their duties because of the theory plaintiffs can go back and try and prove that they didn't do that for a legitimate purpose of looking at ways of having witnesses view weapons at the time before it had been disturbed by m m r before it had been they had removed the weapons or are handcuffed him was not was it wasn't the plaintiff to prove that it was that was done because we were planting my fence because he wasn't actually that's my read of of why it was sent back or that was a theory in addition to the the which we haven't really touched on the additional three minutes at the end none of that proven in this record the fact that now plaintiff may try and create a new record that might actually sustain that is not really the issue we're saying the issue that they put in the case that they put in the evidence that they put in with submitted to the jury that on that record with delaying there was no evidence of the fourteenth amendment violation in any event  that it was not clearly established that what they were doing viewed on that record and based on the conclusion of the jury's verdict that that was it was not clearly established the juries were it was  the instruction were was do you find that they had committed a fourteenth amendment violation if you say yes or no they answered no so we never got to how much delay do you find so but my question i so they were if even if based on their record i think that that we were entitled to a direct hit which we move for a directed verdict based on the evidence that came in at trial there was no evidence of a of understanding the significance of the verdict that's my question the right and the verdicts what i think is significant for the medical needs came is the verdict of the other clean the verdict on the  because because the question of fact identified by this court that plants could prove to establish deliberate indifference pertaining to that their actions served no legitimate police related function what they were using this time for there was no justification for because if he wasn't armed they were using that time at least there was a suggestion to go into the cabin and get weapons and do these sort of things so using that period that delay caused by that action would be a deliberate indifference or could be established that i'm saying that the finding of no fourth amendment violation means what gets rid of the theory that  wanted these witnesses to cover their behind point because even if it was a legitimate shooting you might want to more you might want to have more witnesses on your saw it sure  sure but i think what it was sent what a theory would had been at the summary judgment stage was that that this was being done the time was being used to plant weapons and to have people view them and that did not get established at the trial