i don't he's on the line judge we had we were in a private room together so he was on zoom i'll give you just a minute enough that he would refer pittman to crisis on the following monday even though he was working day shift at a time to trend deputy warner joked you don't need to see crisis did not take reginald pittman seriously and did not appear to believe original pit question of what the officers knew etc correct so the jury instructions in paragraph to say defendant in and warner were aware of the strong likelihood that plaintiff would we can't so if that st prong involves the standard of purposefully knowingly or recklessly i'm trying to kind of get at this question even if the jury instructions didn't track exactly the language we have to decide that they lead the jury astray who are just on that prong can you tell me have those those standards were aware or strongly suspected facts deviate from purposefully knowingly recklessly because there's not really any dispute the plaintiff in order to succeed prove that they were aware of the point of could seriously harm himself or that they strongly suspect the facts and that they refused to confirm those facts and that they consciously  mike but this is my question you're right it says you know that they were aware of the strong likelihood the plaintiff would seriously harm himself and there's an or and says or strongly suspected facts well they knew the facts they knew that he had the crying jags they knew that he requested crisis counseling and then beyond that and this is what lake county altered is the objective standard of what were the measures that they did take reasonable and that seemed really the question in this case because there's no there's no dispute that they knew the facts they didn't have to strongly suspect in the new judge i did i now understand what you're saying and i and i disagree because based on their knowledge base and what they testified to we found in matthew warner testified he didn't know what a suicide crisis was he didn't know what the suicide prevention policy was you not know what the signs and symptoms of a suicide risk was he did not know the do's and don'ts published by the jail about helping a suicide risk and did not remember ever even reading the policies and procedures that a question of whether it was objective leave reasonable to not refer him his subjective lack of knowledge doesn't matter on is in the next paragraph where it says defendants and or werner consciously failed to take reasonably measures reason say reasonable measures to prevent you from having him so now there's no question that they cons unreasonable for them not to refer based on the fact that they knew that's right  component where the particular knowledge is let's say the subject of knowledge matter and then there is the objective reasonable mrs judge ferrer was saying and my question has been whether the use of that word consciously in the rd paragraph somehow changes this from an object to inquiry would a reasonable person and they are your position have taken you know certain identical to the one that i submitted the council let me let me let me just kind of highlight this point for you whether or not gordon better states what the law is post kingsley in the cases that we've developed in miranda make and you have to show that they jury would have been misled and my concern is even if it could have been said better the question that i have is that the instruction says consciously fail to take reasonable measures well no one doubts that they knew that they didn't report him to a crisis in fact even after we're in or said that he would but he didn't do it and the question really is was that good enough for the jury to understand that the question is whether their music measures were reasonable without regard to whether they thought they were acting reasonably because that's what miranda and they can fairly say it's not right west correct yes but the jury instruction actually requires in the fine and they were aware of the substantial risk and that they could or and that they consciously decided not to take steps even though they were worth it and under these instructions the jury could believe that the actions of the defendants were in and of themselves reckless and harmful and know appropriate in fact there are experts test the defense expert testified that we could have an exonerated the defendants because of defendants as a result of their own actions in failing to acquaint themselves with the policy and suicide prevention no more or is that a legal error broader than that and if so why is it illegal or is broader because in paragraph two it also requires that the the jury find that defendant warner in were aware that the plaintiff would be seriously harmed or that they strongly suspect that and that is a subjective test a strong likelihood that he because there's no there's no question that they knew the facts there might be a case where that would be a problem but here there's no doubt that they knew the facts it wasn't that they failed to inquire about the facts they knew that he had asked for crisis counseling they knew that he had a crying they had the information the problem is that they didn't act well they actually promised that they would act on it but it ended not that's exactly right but the fact that they strongly suspected facts they have testified before the jury and it was argued strenuously by defense counsel that there was no way they could have suspected anything x under which there was a substantial risk of harm the defense counsel jumped all over this subjective instruction and went through an entire list of things that he said the fence did not know that therefore they could not have been aware of any facts of any type or nature that would have created a risk of suicide or a substantial likelihood and he repeated the term substantial likelihood in his argument only over and over that there would be any harm and so and furthermore he conflated some of the current complaints with earlier complaints where he did not try to commit suicide so his entire defense was based on the fact that the defendants did not subjective knowledge that would alert them but them on notice of a substantial likelihood of injury and if you look at his argument he just really focused on that paragraph too and that's what he did and he was very know the video recording was playing no i understand that so but what was your objection that you didn't that you wanted benefits to be able to testify about the recording in some way not just my objection was that every witness expert and the defendants testified under their training and this is in the earlier trial and it was presented to the court that there was a that it was deliberate indifference if one thing and one said i screwed you know i subsequent trials i don't understand why that's not the law the case for i've never been able to get that information and then abuse has said that the in addition to these two defendants the other defendants also been i got a question or two i wonder if i wonder if i'm simplifying it too much and if i am going to tell me but i thought on the point you just raise it really wasn't any more complicated than the two of those things aren't the circumstances of the way this district court chose to handle the drafting and objection process for the jury instructions it looked to me as though mr anderson did what we needed to do and the judge said you canyon subsequent cases but there's a more complex standard and if you look at the district court's opinion after all is said and done on the motion for the new trial objectively on the reasonable but the instructions kind of a mishmash of two different standards and the question that i'm asking myself is whether when all is says that on the problems are not problems that would have changed the outcome or if it is confusing you know whether you know one hates to go to around four but you know whether there's another round that should you know that and i appreciate three i'm not sure the jury realised it was being asked to well i think in totality which is how we're supposed to take the instructions they're not there is nothing in these instructions of what kept  jury from determining that they didn't act objective lady reasonably because reasonable notice is all over these instructions i mean nobody's talked about the state law instructions but they're based in reasonable be liable because they didn't know that they should have referred him to a crisis counseling because they hadn't been trained and risk of suicide it's what i argued in closing arguments your honor was there the proof was insufficient to establish that they knew that he was at risk of imminent suicide when he made the it sound and there was out that knowledge  they could not act objectively or in a way that wasn't objective reasonable because they weren't aware of that ritz and so because i think it's important  and as you pointed out in those subsequent traces based on miranda you have to have more than negligence of course and even more than gross negligence and it's got to be knowing reckless or purposeful and it has to have ruled for points or counsel let me ask you a clarifying question about how you understand miranda and mccann and this line of cases sure do you think that is what you were trying to get the jury to find that they didn't appreciate that they that they knew the signs they knew they had crying jags that he wanted crisis counseling but that they were not in a position where they appreciated the significance of that is that your day he made the decision to attempt suicide that those two were not aware that he was an imminent risk of suicide because everybody knew that they knew those things that you just detail prior to the time he attempted suicide but on the days leading up to his attempt my argument was that the evidence demonstrated or at least the plaintiff had not proved that they were aware of the risk of imminent suicide on the date in december of two thousand and seventeen when he actually heard two thousand and seven when he actually ma the and so because we have a jury determination here obviously the jury must have believed they out the plaintiffs did not meet his burden on the fence because on these instructions i think it's eminently reasonable to conclude that had they decided that these guard jail officers did not take reasonable measures they could have held them liable question as you just did that no no no no no no no they knew about the crime they knew about the request to go to the crisis they knew about that but what we did not appreciate that they knowingly fail to take raised objections of lee reasonable measures but in order to get there they have to be aware objectively of the risk that mr pittman was likely to attempt suicide on that evening in december of two thousand and seven  and i understand that your honor and and i'm of course on the other side of that out because i think they are you know they have a whole set of instructions that they pay attention to including the state court and i think the jury i don't think the jury would be misled by the word traunch asleep because consciously you know who knows how the jurors interpreted  well know because we want facts but i do think i do think the jury had plenty of opportunity if they thought these guys didn't do something they should have done th that would by using the word reasonable so often in these in these instructions that they wouldn't have been prevented from finding for the plane i don't think the question is how many times the word reasonableness appears throughout the totality of the instructions because i think you have to believe that the jury is going to focus on the instruction in question and what if what if the group of us on the zoom today were sitting in the jury room and i said to everyone well i sure don't  that it actually steps because if we're thinking about consciously you know the st half of the test that has been developed post miranda is that the defendants ha purposely knowingly or recklessly and to me that's what the word consciously does in the context of this instruction which of course you know the judge was trying to get as close to seven  miranda you know on the way it's been developed in the subsequent officer in the circumstances would have appreciated the high degree of risks making the consequences of defendant's conduct obvious that is what the th circuit has decided should be done based on the gordon case and they have removed the awareness language and they have removed the strongly suspected one widget and they have removed the consciousness language from their pattern structure in order to me