there any question about where he was going once this man is the so use sacred that's correct he was naked and there is no dispute that he was being taken to the hospital the first appeal before the court is based on qualified immunity the district court denied the medical defendant's motion for summary judgment by concluding that the appeal pertains to subject matter jurisdiction under the indiana medical malpractise act the district court denied a motion for reconsideration of a rule twelve the motion to dismiss finding that the state law claims against medico are not medical malpractise claims those decisions of the district court should be reverse for two reasons first medico provided the sedative in his role as a medical provider to respond to a medical emergency which means both that his conduct did not amount to a fourth amendment seizure and that it is subject to the indiana medical malpractise act second the alleged constitutional violation is not clearly established put simply it is not clearly established that a paramedic providing a sedative to someone experiencing a medical emergency amounts to excessive force counsel could i ask you to step back for a moment tell us about what else is going on in the district court there are claims against other defendants correct there were other claims so the other defendants in the case involved the police officers that were there on the scene in the city of annapolis that employed them extended on all of the claims against the police officers have been dismissed with the exception of a failure to intervene claim with regard to medicos administrative in ministration of the sedative so there were various state law claims asserted against those police officers as well for battery negligence but those were those also were dismissed so the only remaining claim to be tried are is the claim for or the claims against the the paramedic and those claims that then go against the police officers that are for failure in failing to intervene in terms of his administrative ministr at the risk of getting a little metaphysical i understand that the state courts in indiana treat coverage of the medical malpractise act as a matter of jurisdiction we generally don't it would be correct the you think the appropriate step for us to take would be to dismiss such a claim without prejudice to allow the plaintiff to pursue the medical malpractise panel process that is exactly right your honor who could that is that is the appropriate result in this case and that's the result ultimately we've asked the court to take before the district court here the evidence is undisputed that medico provided a sedative as a paramedic to respond to a medical emergency now in our brief we've identified a six circuit case pete versus metro government of nashville davidson county in which the court drew a distinction in terms of what amounted amounted to a fourth amendment seizure and what not in that case a grandmother called of paramedics to respond for her grandson who was experiencing a seizure and the paramedics used restraints to try to help him and ultimately that resulted in his death and in  in analyzing that the court found that it did not amount to a search or a seizure those who uses of those restraints because they were intended to enforce the law to punish to deter or incarcerate instead they were aimed at rendering solicit and that's the same result in this case that should have been applied by the district court the evidence is undisputed that medico responded in his capacity as a paramedic now the position advocated by the plaintiffs and ultimately adopted by the district court is that a fact finder could reasonably infer that medico was acting as a member of law enforcement in fact that's what the plaintiff argued they said that he was effectively serving as a police officer but that is not a reasonable inference the fact finder could only arrive at the conclusion by ignoring the following critical facts first mr huysman was experiencing a medical emergency that fact is undisputed medico testified to that the coroner forensic pathologist dr socio testified to that and the plaintiff's own law enforcement expert dennis waller stated that he was in a state of excited delirium it's also noted notable that mr waller the law enforcement expert didn't  its background facts and its briefer for this court and the district court ultimately disregarded that fact if you look back in terms of the the the judge's analysis of the excessive force claim it adopted by reference its analysis from the motion for reconsideration and the motion for reconsideration that was in part she said regardless of the fact it was experiencing a medical emergency but that should have been central to understanding what medically coke response was the second important fact that's undisputed is that medico performed an assessment he checked if there was a head injury he tried to communicate to mr huysman who simply grunted rather than responding he checked mr a b c s his airway his breathing his circulation determine that his pulse was taking kartik meaning that it was at a heightened level at one twenty where normal would have been fifty to one hundred and then he decided in his medical judgment that mr huysman needed be a sedated to prevent cardiac arrest and allow him to provide safe transport to the hospital yet again those are undisputed facts that are missing from the plaintiff's brief and missing from the district court's analysis of the excessive for page twenty four and twenty five of his testimony he says i think it was that the medic might have the officers i don't know let's sort of speculation conjecture does not create a genuine issue of material fact you know our jurisdiction on this is pretty limited and those kinds of issues cursing the district court's reading of the evidence are probably beyond our jurisdiction here really need to focus on the legal standard for qualify the munity well your honor qualified immunity and i agree that we are not arguing about facts in terms of what the evidence will show these are undisputed facts with regard to what the evidence shows in terms of him experiencing a medical emergency with the fact that there was an assessment performed he was being taken to the hospital as as judge being asked looking at those facts and implying the qualified immunity analysis and applying to any and medical malpractise act been combatants once the first set was administered medico monitored huysman and provided additional necessary medical treatment as the situation unfolded based on the designated evidence medic hopes medical care was subjectively reasonable under the circumstances and so in terms of a kind of there's a logical inconsistency between the court's analysis on the one hand the court says that what he did was reasonable and on the other side says that it was i'm reasonable and the constitution  paramedic in a damned if you do damned if you don't situation and so in terms of the fourth amendment question whether or not this amounted to a fourth amendment search or seizure looking back to the pete decision so important see that rendering  not a is not a violation of the fourth amendment so what that means with regard to the first step of the qualified immunity analysis is that there was no constitutional violation because rendering aid is not a search or a seizure at the same time those actions are subject to the requirements of the indiana medical malpractise act because the the in and of court of appeals has said that whether a claim sounds a medical malpractise is whether the claim is based on the b b the provider's behavior or practices w acting in his professional capacity as a provider of medical services that's from anonymous hospital versus doe your honors the state law claims against medico are based on his behavior while he was acting in his professional capacity as a paramedic the district court did not apply that standard in ruling on the motion for reconsideration in fact it never even mentioned that standard the second point that i like to see to make to the court pertains to the second prong of the pearson versus callahan analysis and that is that the constitutional right alleged here is not clearly established existing precedent must have placed the statutory or constitutional question beyond debate it's not supposed to be at a high level of generality instead it must be analyzed in light of the specific context of the case so the facts matter neither the plaintiff nor the district court identified any case law to meet that standard instead the cases that they've cited are police officer cases graham versus conner a case where a suspect was forcibly handcuffed and thrown against the hood of a car tennessee versus garner a seminal case from the supreme court  a police officer was shooting at a fleeing suspect and seven circuit cases they've cited abdulahi and the pain versus paul i decision those are cases again where police officers are using actual physical force they're not paramedic cases where paramedics  asked to take you know check on someone as in this case who perform an assessment who are responding to a medical emergency and ultimately trying to take the person to the hospital now the reason we have qualified immunity is to allow people to make quick judgments and reasonable judgments and perhaps they may be mistaken because these people are like mr mr cope in this situation and countering a situation that is tense where they're asked to make split second decisions and we want to encourage them to do the right thing and to act and not be afraid that what they're doing is a constitutional violation and in this instance there is no case law that would have put medico by notice that what he was doing was a violation of the law in fact all the case law that we've identified to the court indicates that that what he was doing was in concord in accordance with the law and that what the police officer were doing was also in accordance with the law because when they see a medical they see the sort of situation where this person needs treatment their job is to provide to call for a medical officer to come on the site and that's ultimately what paramedic met meant permanent cope that was his role in this case so your honors we respectfully request that this court reversed the ruling of the trial court denying qualified immunity against excessive force claim and reverse the trial court's finding that the state law claims were not subject to the indiana medical malpractise act thank you thank you reference that that statute that couple points in the briefing and i'd like to step back a little bit because i think the hospital and medical jumping in at the wrong point of the case in terms of factual zefi and this is pretrial this is the question that were presented here today is whether we have the opportunity to present this case to a trial to a juror from the standpoint of what's going on here you have a circumstance where the police responded to the scene and there was he was naked he was appear to be on their cocks according to the police officers and he was handcuffed you know at one point he was after he was handcuffed he was resisting there comes a point and he was resisting with some amount of force there comes a point where he stops resisting and he becomes effectively still noncompliance non cooperative or cooperate of but not necessarily responding directly to the officers he's in a state of intoxication at that point in indianapolis the way that the law enforcement is made up the indianapolis metropolitan police department responsible for the streets in marin county sheriff's department is responsible for transporting individuals that are that are twenty feet away and to be transporting the wagon that's how they normally take the individuals with all due respect to my friend here there is a dispute as whether he was going to be taken to the jail as opposed to the hospital and they the defendant's rely on the fact that he was going to be taken to the hospital but he was can be taken to the control facility in the hospital the hospital this is a public hospital they have a jail facility control facility the question is not whether he was taken for work there was a presumption there a false presumption that he was taken to be taken to hospital for medical needs he was not a dissident had suggesting he was going to be taken downtown of the marin county jail that was yes it will that was the initial termination s i thought you were just telling as he was going to be taken to the hospital secure facility you know he was he was initially going to be taken to the jail and he was going to take into the jail up until the time that he stepped on it on the foot of the wagon and push wagon it's not safe he might be rolling around he might be doing other things as we're just going to have we have to take him on the cop it wasn't because of a medical need it was because they were making a determination for cash for transportation yes in his testimony was that that is a medical emergency that could result in cardiac arrest so right i think there is some i think there is some evidence supporting that is there contrary evidence  i believe the context in terms of the situation that he was in from the standpoint of is there contrary medical evidence i can easily imagine this case from completely the opposite direction if medic cokehead assessed him as being in an excited delirium and done nothing and he then experiences cardiac arrest we then have a deliberate indifference claim right yes  so what evidence is there to raise a genuine issue of material fact as to whether huysman was in an excited delirium calling for emergency medical treatment that the evidence goes to the conclusion that he was in a state of excited delirium was based on the determination by the pathologist after the fact and so when you're looking at the what the evidence that you're drilling down on to is the defendant's point to what we're using state of could testify that he had that he did make an assessment the evidence that indicates that he was not responding as if he was in a state of excited delirium where the officers that observed medico in the officers that indicated that well this was just a  hum situation where they were trying to get him as a matter of convenience get him to eat to the control facility let me if i could take you to what i view is the core of the qualified immunity problem  in the district judge's opinion and in your brief i don't see any relevant case law that would suggest that a an emergency medical technician is seizing a patient for fourth amendment purposes by administering a sedative under circumstances like  this the supreme court has often been summarily reversing circuit court of appeals decisions denying or affirming the denial of qualified immunity without quite careful attention early and i going to start out with the statutory authority of the individuals that are employed by health and hospital and again going to and i started out with that that citation for reason to enforce indiana laws administr rules ordinances in the code of health and hospital what what koch was doing when he was interacting in police power i defected yes i do what's a statutory authority for him to have police and sixteen twenty eight thirty four the the the language of the statute sensually says that they can enforce they can of force in the end a loss what they were to certain laws having to do with health and hospital matters with me that's the that's the core and i think that's how that what the district court got a right is this is the intersection between between e m t's and i i take from your questions of the concern is that this could be an when he was interacting when he was acting as a as a police officer playing gating i understand the argument this is qualified immunity ok you've referred to the statute one of the other two answers so the the other the answer is certainly a case that this was on a force continuum and when you look at a force continuum you look at ok heightened level of verbal interaction physical interaction also the police officers look at and so from that standpoint the case law is clear in the circuit that you cannot use excessive force to an individual that is not currently resisting he had been resisting he was not resisting at the time that the chemical restraint was was administered and i think that's that's very clear from multiple witnesses the second issue is in terms of  cases to support the notion that in that case they were not going to apply qualified immunity to to a first responder to a medic two or two of the e m t and that's important because that circumstance of the facts and all just determine that he was in a state of excitedly or does not mean the netiquette was responding to him as if he was in a state of excited the leader he was not providing medical care if there was facts and reasonable reason inference is indicating he wasn't he was trying to facilitate his transportation to a control facility that control facility either being the marion county jail or the control facility in the eskenazi hospital he wasn't responding he just shot he intervened the tests after they can't get him in the truck we know now that doesn't that change the complection of that now he is operating as a person that's going to do something other than put them method of transport of of transportation in the location and deputy johnson made it clear means your method and destination destination a sense of it what was he going to do the control facility at the hospital or was he going to the was assumed that hospital yet it in and with the cot involved i think that's a fair assumption now that said you have to look at what did medico do in terms of interacting when that when when that fact occur and that determination made he was talking to law enforcement he was interacting with them he was asking and asking questions there was there was evidence that indicates that he was law enforcement the made a determination of the chemical restraint where he only medical personnel were around that in this case the a that he got it so if it's this case and so i want to know whether codes independent medical judgment was overridden or directed in something he was over and directed by law enforcement directing him essentially to provide him with a chemical scrip constraints make it convenient to facilitate his arrest so we'll all find that in the wreck yes i believe yes and there really have a specific officer who said that to us and i see my time is up if i met him of course just three quick responses with regard to the state statute encourage the court to look at the state statute that he's referencing don't have in front of me but i think it's a catch all provision in terms of health and hospital corporation in the powers that they have  direct the court to indiana code section thirty four to actually eighteen dash due to dash fourteen which is provides that a paramedic is defined as a medical provider which i think is the more pertinent statute to the two to two issues before this court on appeal with regard to a quote unquote chemical restraint that's a medical term of our doctor socio testify to that nurse cunningham was asked about that she said that she had used her sat in the hospital setting approximately ten times so chemical restraint is a medical term of art not a law enforcement term of art in fact when one of the officers was asked about the chemical restraint he thought he thought he was being asked about pepper spray so chemical restraint is ultimately what the i think the district court got hung up on but ultimately it's not and also encourage this case to the court to look at the reverse case look closely at it we distinguish it in our brief it's not applicable here it would not acquit paramedic open notice that his administration