knew that and a lifeguard told that to the police at the pool he had a psychotic break the lifeguard called the police the pool was emptied of everyone other than materials about nine police officers and the lifeguard at the pool was locked up so that when the empties came later they had to take a ladder to go over the fence to access it appears walked into eight feet of water  couldn't swim so he walked he ended up about several feet from three sides of the pool all this is on a video which i trust you've seen so i don't have to describe it in great detail the lifeguard and at least one police officer were trained in red red cross rescue and we're aware that after thirty seconds you go in to the parent of a child perhaps you go in before thirty seconds but thirty seconds said that they were well pleaded facts ok the lifeguard said he had to go in and he was told by the police no don't go in he did not go in how do we know when that happened we don't know exactly when that happened because there's no time that's clear except you can put it together on the on the video as best you can and he is there and i can tell you better than that judge with you know how many minutes  and on a motion to dismiss there was no discovery we could presumably get into the question of what were the lifeguards saying it's beyond the scope of this record for me to tell you what i know from the lifeguard but on a motion to dismiss the facts or to be construed favor believed to the plaintiffs and we have alleged that the lifeguard told the police that he had to go in and he was told no and there after the  sh expressed his last breaths and the bubbles came up and one of and the the person taking the video say whoops there go the bubbles and they're still not doing anything then he vomited under water he still did not go in and then he went in so this was a motion to dismiss i'll get to that procedural point after i recite a little bit more of the fact if i make the lifeguard was there a young man and there were nine about nine  armed police officers telling him not to go in he did not go in he asked again after more than two and a half minutes at which time according to the complaint and i say that because i have better information but according to the complete better information  r sufficiently violently to break his ribs there's no problem with that they were concerned about the fact that he had died on their watch they do not resuscitate him it's in that records it's in the complaint the mts came no pulse no breath but they had a defibrillator that they brought in over the fence and they were able to revive him he went back to poland the issues before the court are whether there was a plausible constitutional claim alleged in the complaint for purposes of a motion to dismiss not a motion for summary judgment and certainly not a trial and secondly whether the defendants were or were not entitled to qualified immunity is another issue of state law regarding gross negligence which i'll get to with if time suffices with regard to the constitutional claim at issue here is state and hence the name ger not state created danger the defendants acknowledge in their own grief if you look at page twenty five of their brief that if the defendant officer created the danger or did anything to make it worse that is ok i accept that as to which the response is this was a motion to dismiss the the allegations of the complaint are what they are and the the inferences to be drawn are to be drawn favorably so that he might have an opportunity to demonstrate what happened for example the complaint doesn't the ledge for instance that there was an intent to harm on the part of the police does it no there doesn't chase cases where the police are engaged in conduct which is if you will inherently dangerous there's a chase case in a situation like that there is a need to show intent to harm and of harm results from the fact that a misfortune occurred as a result of a speeding police chasing of a fleeing suspect they will not be liability absent an intent to harm this is not such a case and let me point out if i may that the two cases are only both sides have only found two cases involving police or in one case sheriff's directing rd party  rescuers not to rescue a drowning person six circuit and seven circuit in both cases it was found to be a constitutional violation of the th circuit in ross versus us called it quote a stunning abuse of government power and the th circuit although there was a different resolution on the qualified immunity issue a greek and i ask you so about those two cases and say this not to be critical of your client because i understand he was experiencing a psychotic episode beyond his control but there was evidence that the complaint alleges that police officers understood or believe that because of that he was a danger to himself and to others is what i think the complaint says or something like that so in that sense this case is different from those other cases where you have these for lack of a better term and truly innocent victims that are not not presented to be a danger to themselves or to others so why would and reasonable for the officers in that circumstance to not at least initially allow life or go in for fear of the possibility that he would endanger himself fully knowledgeable of my peers the state he is the one who became upset when my tears started walking around he was talking in polish he was blowing his whistle the hating in a bizarre manner he yanked that the arm of  one of the pool patrons to grab her colored bracelet because she wasn't supposed to be in the water and he wanted to go in and lifeguards and again this is a question of discovery i never was able to present that and i thought david are certainly not evidence for the knife a lifeguard a water safety expert who will say what lifeguards are trained to do people who are drowning create problems so what does the  danger to others the complaint says that he was not that the police had reason let me step back the the complaint says that the police had independent grounds to take custody of mat on either of two grounds he had in fact grabbed the arm of one of the patrons to take the the color bracelet and he was also displaying such such a behavior that he could have been taken under the mental health seizure provisions for observation they took the position that wasn't the problem it was that they didn't have to do anything because he wasn't he wasn't sufficiently dangerous to do anything so they just seem an hour long session helps the police to some extent because if he is a danger to others and i didn't hear any i didn't watch the film and i didn't hear any conversation around the pool about how dangerous it is to other people and i had missed frankly that portion of your complaint but if you say that you would be a danger to others exists only to this extent i respectfully submit if you see his posture for the minute and a half at the beginning of the video before he goes it is a risk that nobody he is standing there completely quiet without any any aggression without any movement not to the police officers are on guard there is casual as can be that is not a risky situation that he's portrayed he goes into the water and it's like no big deal here with regard to nice guys i think when i read the complaint i get a strong sense that you're in a bit of a bind because you're trying to make these two different cl and one is that really the police should have done something and to advance that claim you're making all of these allegations and you just he's pulling at this girl's arm he's he's behaving erratically he's a danger to himself and others and then  then you're also trying to make this claim that they really should have let the lifeguard go in and you're a little bit across purposes with yourself in the complaint because now everything you've said about why the police should have effectuated a mental health seizure turns out to be unhelpful on why they should have let a lifeguard go let me respond they could have they could have done that i believe that they had the statutory authority to seize him and i but either as a criminal matter or as a mental health matter they didn't and i'm not nd guessing them and that for purposes of this lawsuit what's at issue here is they didn't saying that he was a problem they let him go they they they didn't get they didn't do anything they just let him walk into the water they didn't seize him they didn't take any steps to control him they didn't have to because he was not aggressive for all the period that they were the business about the one the one person was i put it as a predicate for what they could have done had they decided to remove him from the premises it doesn't i didn't mean to detract from the notion that he himself did not present the problem and both lifeguard who is fully chargeable with knowledge of what people who are drowning can do and the difficulties they can create and this is the one who actually called the police wanted to go in yes but you see but my problem is i all along thought that ok if this went further and we have depositions we're going to have the police officers perhaps weren't police officers say they were afraid of what he would do that he was a dangerous person and therefore they didn't want even a trained lifeguard to go in after him and now the complaining gives that kind of argument some legs at the to judge i don't think it gives the legs at the twelve b six stage and if it's a question of lawyers failure in pleading so be it but what is it issue here is that they let him go in and of a patron i make that point simply in terms of showing that they had the capacity to detain him if they thought it was sufficiently important to do so and they didn't they didn't detain him because he had been violent they didn't pain him because he had assaulted anybody they didn't detain him for any reason i understand your argument i see there's a problem but go ahead  let me go to the issue of qualified immunity issue here i would like to bring to the court's attention a case i came across only recently and i did give notice to counsel its garrick in versus state of michigan nine hundred and twelve fed rd nine thousand and seventy six circuit bank denial that was a case involving the flint michigan water crisis there had never been one before that was a unique situation that hadn't arisen and the court had to struggle with the question of how do you address the issue of qualified immunity in a unique situation in which this kind of scenario has not previously occurred and what the court found and what they held was you have to have discovery you have to get the information about what happened and you have to understand the state of mind of the alleged bad actors we have to know that the single most important question to ask of the defendants in this case is the following what were you thinking what were you as a predicate for how they could have asserted themselves to prevent the whole thing from coming but nevertheless they didn't touch it with a ten foot pole because he was no problem and i will represent to you that in the in the police reports that were made they said that we couldn't sees him but he wasn't causing a problem we we couldn't prevent him from going in because he wasn't there was nothing we could do we had no right to put our hands on him so to speak and his so and so is it your position that the  subject of a lot of the nation of the officers is really important this is not an object of standard we don't ask whether you know something more like look at a reasonable officer have said it a reasonable officer some hypothetical reserve officer could have thought there was a danger life going here than it does and shot in the knowledge there's no question but that there has to be an objective test there's no question about that but what we have to understand is what they understood and what they were thinking at the time what information they had what they were waiting for what they were thinking of doing what was happening because on the face of it it's completely bizarre somebody walks into eight feet of water and they they walk around and chat and and and do nothing and they pull out somebody who is if you will for all intents and purposes dead he was resuscitate he had no pulse and no no no breath we need to have that information and the complaint is sufficient i would respectfully submit on a motion to dismiss the permit that to be a pain and the judge offered if you will the judge the judge not only accepted but but but promulgated the defense in the case i understand that the defendants are going to make the defense that the judge offered that they were afraid that he was going to be violent that all the whatever  that's going to be challenged because of the fear of the police reports that would come into evidence i don't think that i thought the police report to the complaint but it's that they talk about the fact that they didn't do anything they let him go in morning i am please the court i'm kimberly about from here with co counsel jamie green's way representing the eleven fairfax county police officers that were sued in this litigation this case was properly dismissed even at the twelve  stage by the district court because the complaint even assuming the veracity of all of the allegations made there and was insufficient as a matter of law to set out a state created danger claim given the current state of the u s supreme court and this circuits decisions with regard to state created danger it was the players he was what was the police officers playing well i think if we read the complaint as we're required to the plan was to wait until some point in time where that rescue could be affected in a way that successfully balanced the fact that we had someone in the water who given had gone in twice and come out on his own but now this is the rd time he's not coming out like he had before and we're balancing that fact that we know that there's a risk of harm to mr fielkow ski with the fact that we've got members of the public specifically the lifeguard who are on seem and the police are balancing those competing interests which really is what the th circuit and the u s supreme court talk about in cases like county of sacramento versus lewis where we've got the high speed chase i guess i really don't understand i understand that officers not alarmed not even particularly concerned talking about this they're just sort of walking around shouting maybe with each other and then this man is underwater for significant period of time the lifeguard wants to go in no and they it's sort of like well they went to the bubble show and i just i didn't see that as part of the player that you were talking about that seems to me to be a step further i mean when they really waiting for him to die then they were going to get that bullet no certainly not i think they're i think they're waiting for those risks to the lifeguard to be mitigated sufficiently such that they could effect that rescue in a way that took account for not just mr fielkow do we know that on the face of the complaint i'm i don't think that you do i think we have to take the complaint to allege that the lifeguard asked for permission to go and i think if you read the complaint as it flows chronologically at about a minute and thirty seconds i think is is where the allegation comes that the lifeguard tells the officers that he thinks that he needs to go in  officers at that point tell him no it's not that's not going to happen you're not going to go in at this point and that there are some brief period of time that i think is about one minute if you look at the at the video after that certainly counsel alleges that after a minute and thirty seconds any reasonable police officer would know that he was at risk of drowning at that point and so then the nd time the lifeguard communicates to the officers that he thinks that he needs to go and at that point the officers instruct him that it's ok for him to enter the water they enter the water as well fieldhouse is pulled out so that c p r efforts can begin and i think we do need to take that as alleged in the complaint to be to be accurate at this point we don't need discovery for multiple other reasons to include that i that the the standard here in the th circuit for this kind of case is an intent to harm and there's nothing in the complaint that would give rise to the conclusion even at this stage of litigation that waiting in instructing the lifeguard not to get in the water for that one minute or so creative to well let me take another scenario we will teach this guy a lesson you know we're not we're not going to send any and they didn't have to wait for the lifeguard to volunteer and they could have said  gonna get this fellow does anybody know whether he's dangerous he doesn't seem to be as and that's why as to what the plan looks it was polite to wait till the last possible moment and maybe they waited a moment too long or a minute too long and that's what evidence and there's there's no alan there is they care about it at all there's no allegation in the complaint that the officers had any intent to teach him a lesson for getting in the water there's no we know there's no evidence that they did and they're walking around just like you know we we assume it to be true at this stage of the pleading because the plaintiff himself alleged that he was a danger to himself and others he's suffering from an episodic episode an episode of psychosis he's mentally unstable and that the officer specifically more aware that that was the situation that they were presented with these officers had a c i t a crisis intervention trained officer come to the pool deck specifically to try to address that issue that is alleged in the complaint  complaint dealing with mr feel koski trying to communicate with mr feel koski to call a polish speaking officer to come to the pool deck they've got a crisis intervention trained officer to come to the pool deck all of that happens prior to the beginning of the video also prior to the beginning of the video courting to the complaint mr fielkow ski puts himself in the water submerged himself in the deep end of the water two different times and successfully brings himself out of the water and so those are  that there was no constitutional the district court relied on qualified immunity which you have talked about i haven't and i'm happy to turn to with regard to qualified immunity in this case i do think that it is dispositive even if the court chooses not to address the substance of constitutional issue the bottom line here in the th circuit and based on u s supreme court case law is that no no court that would be controlling on these law enforcement officers a stablish is with regard to due process law the right of a suicidal individual to a police rescue or a police are allowed rescue at a particular point in time in fact no circuit has found a constitutional violation with regard to law enforcement officers addressing an adult suicidal individual we cited to three circuits the rd the th and the th i was to my knowledge are the only circuits that have addressed a due process violation with regard to law enforcement officers so you're sure you're familiar with the fact that the whole qualified immunity doctor far way from what qualified immunity once certainly and certainly the u s supreme court might at some point do that but unfortunately for this case in this posture for events that happened when these events occurred the u supreme court is routinely overturning circuits such as the th circuit and in law enforcement officer cases with qualified immunity under the argument that the circuits are not properly applying qualified immunity and i understand that there's a kind of a joint a joint part to this we look to u s supreme court precedent we look to for circuit precedent when we determine what the clearly established law is but that we also have to look at is this behavior so egregious that any reasonable law enforcement officer would know that that you're not supposed to do that  my argument as to that are that in every circuit that's considered a law enforcement officers obligations with regard to addressing specifically a suicidal adult which is what we had here someone who is intent on harming himself and intent on staying at the bottom of that hole no court has found that that behavior by the law enforcement officer in trying to manage risk not just to the suicidal individual but to others on scene whatever give rise to the notion that any reasonable officer would know that making those on scene decisions during that suicidal effort shocks the conscience such that it is a due process violation even though no court has told us that it is a constitutional violation the only place you just heard a question about th you're not arguing that that that there wasn't an affirmative act here sufficient to sort of get us into this difference that's a very right i think that the court's recent decision and turner versus thomas gives a really good basis for the argument that this was not informative act this court in the turner versus thomas case specifically how old that a stand down order by law enforcement to other law enforcement officers are different because it's just it's all the government that's th government telling the government to stand down this is so it's really just one actor but this is the govern when telling a private party i thought we held him turner that's just a manifestation of the government deciding not to act yet so it's a negative but you can't go in either why isn't that an affirmative act and then i said i would still argue that under the under the parameters of turner even though it was a law enforcement officer telling a law enforcement officer not to act you have to look at this in the context of these law enforcement officers who are on scene and and attempting to effectuate a rescue of this person in the context of the factors that they've been given that it's better for us given your opinion on turner because we recognize in case law that these officers don't just have an obligation to act in a particular way themselves with regard to effectuate in this rescue they have an obligation to that lifeguard i would argue to you that if the lifeguard had communicated to the officers the desire to go in the water to effect this rescue and the officers had told him to go in and they're setting themselves up on the other side i mean there's the fact that they are trying to protect the life guard gives gives rise possibly to an argument for why this doesn't meet the substantive due process standard because they're balancing the risk but i guess i was trying to ask you about the sort of threshold question are we out addition is this more than just a failure to protect clinton because there was an affirmative act alleges that those officers engaged in an affirmative communication to that lifeguard that prevented him from entering the water i think that this court's decision on turner brings that into question to some extent but i think i have to to case again to our knowledge in the country that addressed either a suicidal adult or a water rescue both of which are issues that are involved with this case where the court has sat and it's outside the th or the th circuit where the court has said that there could be a  process issue that accompanies that and so i want to address that the difference between the ross facts and the facts that we have here and the due process contacts text is that the reason that the th circuit found that  process argument could potentially be viable is because the reason that the officer and gauged in the action that he engaged in was because of a city policy that prohibited that rescue and so if you look at it from the global due process context the purpose of due process clause is to prevent arbitrary enforcement of of government action and so the officer in that case was acting arbitrarily he was saying to the people who were on scene not i'm taking into consideration that these people are in the water that they've been in the water for x amount of time that our rescue is coming in x number of minutes he simply was saying no there's a policy that says you can't do this i mean forcing the policy i will arrest you if you get in the water and he physically took his boat and he blocked the private rescue that's not what we have here in the complaint gives rise to the reasonable conclusion even taking everything in light most favorable to mr feel koski that those officers were not engaged in an arbitrary exercise of their power they were mitigating the risk to mr fielkow scheme while taking into account what the complaint admits that mr fielkow skit was a danger to himself or others and so they're in a situation where they are trying to manage this lifeguard who has communicated that he thinks he needs to go into the water and they have an obligation to that individual as well it doesn't go beyond the four corners of the complaint to say that courts routinely recognize this is like a sliding scale along with the officers i don't think so because we're at twelve b at this point and so i think we have to assume mr mr glasberg alleges that they waited too long i think that's all we need to know from from the plaintiff's perspective you know obviously if this case goes on into discovery it will be  relevant how long how long when went by for the life were asked we don't know it seems like mr glasberg is is acknowledging to the court that we may never know that you can't tell on the video and he doesn't know and that's a hard thing to pin down but if this case proceeds further in discovery that's going to be mr vosper his obligation and he seems to be saying to the court that he's not going to be able to meet that at this point because we just can't tell from the video when that on top of that question that they thin from our perspective because the rescue was successful ultimately and so you know is that determined if the plane had died we would go the other way no i don't think so will i don't know why is it an important factor it's an important factor because the rescue was successful part of the argument here is that these officers waited until he died to pull his dead body out of the water and that's just a mischaracterization given the fact that whatever happened underwater when the officer saw the bubbles and then the lifeguard communicated to the officers that he needed to go in in the officers went in to help the lifeguard pull him out that they were able to resuscitate him we don't know at what point during this video or during the rd entering into the  water when would it have been too late when is it still ok but but what i'm asking you is if it had been too late it seems to me that you were or your position is a lot more difficult because they've been standing around walking around the pool doing nothing for significant period of time the complaint i would i would do our stage right now at the complaint end of this video and the complaint acknowledges that during the time that the officers were on hold back during the rd entry into the water that they were monitoring mr fielkow ski we can see what they're monitoring certainly and how the body certainly and also know that if we have a life guard there that wants to go in and they kill him not to go that's correct for a period of time and i don't i don't think we would couch that as they tell the lifeguard don't get in the water and then it's the end of the sentence i think what we couch that as is that those officers engaged at best for m minute or so delay of the lifeguards entry into the pool because they are to you and i had this discussion a few minutes ago they could have a new lead car was there they could do with five minutes after even they could have to go go get it certainly two minutes certainly certainly and at some point during that continuum of time i think we would get into arbitrary action we're not going to save this person or make any attempts to save this person but that's not what happened here and that's not what the complaint alleges at most the complaint alleges that those officers told the lifeguard to get in the water seconds after mr feel koski would have liked for them to and the courts are very clear both the u s supreme court and this court is clear that when you're addressing situations where you're mitigating risks to multiple people not just a suicidal individual but also people on scene and that a disagreement about how to handle that does not give rise to a due process violation  to himself or others is in reference to the fact that there is a citizen lifeguard who's standing on the side of the pool and that the officers need to take his safety into account when making decisions about how to manage the risk of mr  would concede that if we have a case where the officers stand on the side of the pool for thirty minutes after mr field house he goes underwater for the rd time before they try to effectuate any recovery of his body that that might be a situation where we're reasonably reasonable people would say those officers should have known that you don't wait thirty ok so in this context why isn't a court jury to decide that question given the allegation in the complaint that thirty seconds was the sort of minimum time that was appropriate to keep someone to work the allegation in the enforcement action that is meant to address either a high speed chase situation like we had in lewis or the three circuit cases where we're talking about officers who are responding to a suicidal individual and trying to manage that situation to try to end that situation without anyone getting hurt that those officers have competing obligations not just to the person who is suicidal but to others in this case that would be the life guard and so this is a little bit different of a situation where you have officers who have to mitigate that risk to multiple people and that's why the case law even on qualified immunity allows for that and no reasonable officer would have known that at thirty seconds i have to tell that lifeguard to jump in the water in eight feet of water with someone who is intent on staying under and intent on killing himself who is in the middle of the psychotic break i would suggest to you that no reasonable officer would have told the lifeguard at that moment in time it would happen to get in the water and if they do they're facing the same argument from the lifeguard if the lifeguard ends up getting injured and that's the problem that we have with these officers trying to mitigate that risk to the lifeguard that's why they're entitled to qualified immunity not just because no court has s it in the context of a case that is similar but because no reasonable officer responding to a suicidal individual would tell a citizen to get into eight feet of water with that person which is a danger to that such riffing breath control because i i totally understand the gist of what you're saying but so are you saying it would have been different if the complaint had allege that a minute in thirty seconds it's not that you would know of the risk of drowning but that you would know this person  dying in a minute and thirty seconds certainly it's reasonable to give the sizing the risk and the balancing of the risk according to the complaint ok and i just have one other question so i totally understand what you're saying about protecting the lycra but why didn't the police officers just go into the water like you could send two  we expect that's what they would say that is correct when you don't know that because we're dealing with a complaint but there are many going around healing that it is as i understand the posture here whatever the police officers themselves should or should not have done apart from the order to the life guard is no to us i mean i think they've given that up at this point because the case law is so obvious on that point thank few points in rebuttal please judge i believe you asked the question what was the plan and that's exactly what we don't know and what we have to know the police rescue effort was in fact unsuccessful they waited too long luckily the mts got there and got over the fence the lifeguard was a professional a lifeguard was a professional working at a community pool it's alleged that he's properly trained it's alleged that he was ready willing and able to affect you rescue i never got a chance to present whether my law enforcement expert as to the obligations of the police or my life say of my water safety expert even having to present a declaration to the court as to what happens in the course of the rescue how lifeguards are trained what they're trained to deal with with people who are drowning and that's without regard to the myriad equipment that was all over the place whether it's the shepherd's crook or the the tubes or the the the the raft that i think you see at one point in the in the in the video  counsel suggests that ross is a better case i suggest just the opposite in ross the police officer had at least this justification he's an officer and he's operating under an instruction he's in a paramilitary organization and he's told that this is how he's got to do it here there was no constraint on the life guard he was in fact contractually obliged to jump i he was professionally obliged to jump in i would say he was morally obliged to jump in and he was stopped by a capricious order of a police officer or officers with no justification similar to that in ross where at least there was some policy if you see somebody drowning don't have the lifeguard until something happens that's absentee or so i believe were a th your right to ross rather than the other way around with regard to the danger that material hosed i would ask you to look at paragraph twenty seven dollars of the complaint which focuses on the police and the the danger that mattel   posed despite recognizing my tears his inability to safeguard himself from possible harm as he once against move to enter the pool the defendant officers did nothing specifically they did not singly or in a group teller gesture my tears not to enter the pool a rd time or place themselves between him and the pool so as to prevent his attempting entering the water over police direction that he not do so the to be extent the the complaint talks about a danger here it's a danger to my tavish he's the one who's danger and who's whose problem and whose risk was fact that somebody reported to them that he had grabbed at the colored bracelet of one of the patrons to prevent her from going into the who and in principle use that as a nigger as an excuse to seize him if you will also on the mental health basis if they could have independently seized him for his own benefit for mental health examination and security that's the limited purpose from that i understand from the questioning never see from the court that created a problem for me but that was the thrust of the district court really emphasized that yes a judge but the district court the district court i respectfully submit did not adjudicate this motion to dismiss in accordance with the standards probably appropriate to motions to dismiss which is to construe facts favorably to the plaintiffs and not to make out a defense case that's what the court did let me bring to the court's attention one of the two cases that i brought i brought as subsequent authority to graves v robinson case and in that case on the motion to dismiss who i don't think you can be sure that we know the case i do you do indeed but what's interesting is on the motion to dismiss the motion was denied and then they want on s judgment because they had discovery and at least the plaintiffs had the right the capacity to present the case as to why the plaintiff should prevail and they were allowed to go forward that's what we were not allowed to decision in june of this year according to harris when viewed in the proper standard construed in the light most favorable to him with all reasonable inferences drawn in his favor the record evidence would allow a reasonable jury to find that pittman violated his clearly established constitutional rights we agree that involved a case where somebody repeatedly shot someone and the case was permitted to go forward that it jury might decide that what happened was excessive that's all we're looking for this point nobody's asking for an adjudication of the merits on this but we would like to do is go down and thank the lawyers for their argument and then we will come back to the bench and we'll take any questions that any of you all have but of course not about