v the prisoner was handcuffed and shackled he was not seat belted as the officer was proceeding through fort madison he received a radio call concerning an armed robbery in progress in the west end of fort madison  he responded to that call with the prisoner in the back seat with the specific intent to sit in the parking lot and observe what had occurred so he could report that to the fort madison police department when they arrived prior to the arrival of the police department to be observed that the robbery suspect exit good the one of the doors of the bank deputies rule followed him in the s u v as he approached and followed this individual the individual turned around with a i believe a forty caliber handgun began discharging that weapon toward the officers police vehicle the officer then made a sharp right turn to  gunfire as a result of this mr starr claims that he was injured in the back seat because he'd been bounced around in the process of this mr stark claims that this was a constant violation of his th amendment right against cruel and unusual punishment sproule move for summary judgment making an argument that he was entitled to qualified immunity the district court reviewed the qualified immunity claim on the basis of deliberate indifference and it is our contention that the proper standard for you review should be that of excessive force whenever and i in no small part rely upon a case in the th circuit that cited in the brief thing is absolutely clear and i would point out page nineteen of the judge's ruling when she's discussing the th amendment claim which was dismissed the judge makes a very specific finding and then the judge says there is no evidence of any use of excessive force and there is not only is there no use of any excessive force or there's no intent on the part of deputy school to punish mr stark at all and therein i think lies the problem and what i've attempted to point out in the brief as they deficiency in the deliberate indifference standard when it's applied in this type of a circumstance the supreme court and i wouldn't decision i believe it is recognize there circumstances where the officers confronted with a situation that is described as rapidly evolving and dangerous and that is exactly where deputy sproule found himself to be now one can raise the question what should he have been there in the  st place the plaintiff has retained an expert that expert finds that deputy's rule of receiving to the bank to make the observations was a reasonable thing to do it was in the moments when  the robber appeared to be escaping and could perhaps void apprehension that deputies through decided to follow so he could advise the police of his whereabouts when this individual turned and started firing  police were in fact able to shoot and kill the robber as he was firing at deputies through walls police car so the question becomes here what is the proper standard to apply in this case is it deliberate  indifference and that becomes an exact question or whether as a matter of law in the absence of any evidence whatsoever of an intent to inflict harm on mr starke this matter should proceed to trial a brown is the case i think where they took it said that the failure to put somebody a seat belt can under certain circumstances be a violation and that the deliberate indifference standard is there the problem i see with the deliberate and different standard mere absence of the seatbelt isn't a constitutional violation that piece of actions would certainly be described as deliberate because he's trying to avoid going over the trial in front of them does that mean that he violated mr stark's constitutional rights against cruel and unusual punishment because he was confronted with an emergency situation that forced him to make decisions on the spot and that's what i tried to make in the introduction here who how does the officer in this situation who decide whether his conduct is or is not reasonable which is a frankly different question whether he was negligent is a different question well that's that's right and i'm wondering even if difference my argument is that that this is not a case that should be decided by a jury there is no evidence here or there is no basis upon which one could reasonably call rule intended to punish james stark we look at the deliberate in different cases those have to do with medical conditions medical conditions or conditions of confinement where you can say believe in this guy in a jail for weeks without medical treatment you know he's got a serious condition that we can infer from your behavior that you went in to inflict punishment on this guy because of what you're doing and a deliberate indifference that you have to show deliberate indifference implies you've got some time and who makes the decision as to whether or not that is or isn't proper that's the difficulty that i see in a case of this nature do you impose constitutional liability for infliction of cruel and unusual punishment in a situation where it frankly appears absolutely obvious there was no intent whatsoever to do that on the part of the acting officer be acting officer if anything one could criticize him for putting being in the situation in st place but to say that his actions taken were intended to inflict punishment on mr stark or that in doing so he had deliberated the situation to know that this would create a situation risking stark i think is not supported by this record and i think the court applied the wrong standard when they applied there are no other questions i would reserve the remainder of my time for rebuttal firm which is quite an enviable position courtney but it is accurate if you read this decision it's right on point on it follows a case that is right don't point that you spoke about mr orcutt brown the brown were driving what might be described as an aggressive matter crap speeding changing lanes quick that kind of thing in the ended up being the collision in this particular case we have an officer who was charged with the health and safety and welfare of mr starr transporting him to a dental appointment who made a right decision at st as our expert conceded because he was near the area where this call went out to go and observe and see if you could assist why but as soon as the bank robber to bob and he decided to get right into the thick of the chase of this bank robber that's where he that's where he crossed the line and put mr stark in danger obvious like not just to be injured by driving at other legitimate police activity in which the officers were involved that was simply a case of transporting people and driving in a way that caused injury to people who were prisoners who weren't wearing seat belts but here the officer had  another police activity he was undertaking why why isn't that different in query whether that should change the standard to intent to harm or whether it least it shows that the activity here wasn't deliberately indifferent well it clearly was deliberately and different because he didn't care about mr stark's welfare when he decided to chase this armed bank robber who was shooting of across an open field no officer with a citizen in their vehicle at the time should choose to undertake that kind of risk to the person that's in their car on the surface we honor them because they take those kinds of risks and in some cases that's that is our their job but in this particular case it was fine for this officer to say i'm in the area i can go to the side of the bank and i do believe  at you have to be a lot of towards words we've got himself in harm's way too and that's a choice he could make for himself as a law enforcement officer he doesn't get to make that choice for the guys in his back saying see what the heck are you doing  i don't want to get shot at i guess i didn't get do anything that requires me to have to be put into that kind of position your number one obligation for time as a deputy jailer transporting a prisoner is the welfare of that prisoner so he voluntarily put mr store in harm's way and i don't believe there's a certain amount of intentionality to that but i really see this case for mr or argument as more of a big switch  you know they cite the whitley case the supreme court case from which i said you know the reasoning in that case makes sense because they were in a prison riot situation where they were force was used intentionally a gun was fired at a prisoner and they and they said the supreme court held in that case that are it is not sufficient to simply talk about that case applies to enter the billet indifference and that's where they went to intent to harm but any time you have an excessive force case you are having intentional use of force and then the question becomes was the force excessive or not that is not with this case is about this is a deliberate indifference to case this stark was in the custody of the lead county jail in the end an obligation to protect him and not to be deliberately indifferent to his welfare putting him in harm's way so that he was driven across an open without the ability to brace himself no seatbelts on legs shackled arms shackled and also being shot at is not the kind of thing we want to encourage our officers to do when they're transporting prisoners he certainly could have been assistance of assistance to the other officers at that point in time but he violated mr stark's constitutional rights when he decided to voluntarily put it in arms weigh in it may not have intended to harm him oh but it was certainly foreseeable  there wasn't in the it kind of the category of two thousand and twenty hindsight i mean we've got a we've got a law enforcement officer trained sporting but also is notified and learns of the robbery two competing means what law enforcement officers do protect the public investigate it i mean why wasn't there just a situation of competing obligations presented to the officer and he had to make as the proverbial split nd decision because there's not there's no hindsight involved because he knows stark is in the backseat of his car that whatever he chooses to do with the u s car he's making starke go along to do the same thing now this is a smaller county it almost is like you're asked me questions about budgetary limitations in the town i'm unaware oh my client's  smaller counties that can't get all in various directions because of lack of it but again our constitutional rights don't depend on that and once we were tasked with taking this all out detainee t to a dental appointment and bringing him back that includes doing so without putting him in harm's way and getting fire using the momentum of the vehicle to cause harm to a prisoner was even before there was intent to harm the prison that the officers intentionally put on the brakes and gave him a rough ride and so forth i think that was wrongly decided in applying the intent to harm standard we have to conflict with that rule for you i don't think so i don't think so judge and i don't see a difference between if i understand the facts of the cases you're describing the allegation was that the officers intentionally slamming on the intending to deal with the emergency bank robbery situation and regrettable that he may have been injured but it doesn't meet the intent to harm standard under that case why i agree that i  but i mean we have to decide what the legal standard is independent of what the facts of the case are we can say well the intent to harm standard applies only when there's a certain tended harm and if you didn't intend to harm the different standard right i mean do you think the standard needs to be consistent it does but it works both ways if you if you're going to change the standard now and say anytime we would otherwise apply a deliberate indifference standard we have to show intent hard there's a whole lot of cases that you're going to have to reverse from the circuit where people were not the provided appropriate medical care treatment in most kinds of things that all you have to do is come up with some competing interests are that we didn't have time that particular day to crypt to jail and he failed in that regard and that is why you should be held liable under the deliberate indifference standard as the district court appl your time's expired one quick factual question why does the th amendment apply here in the record didn't seem to show the this man was convicted prisoners serving the sentence but it also didn't show that he was a pretrial detaine cite in the reply brief some fairly extensive excerpts from the testimony of mr stark and i did so because i wanted to convey just how can that situation was as it developed from his point of view mr stark actually placed himself right in the middle of the backseat so he could see everything that was going on definitional did not start to follow this after there was a gun fight he started to follow  and as he was following the individual turned around started shooting at deputies sproule that's when deputy sproule the district court took the opportunity to describe as reckless driving because he turned to avoid the gun whether you're in a small county or not least officers have competing duties and at what point do you decide that this officer should or this is a school shooting these drive on by because you have an inmate he did not go there with the purpose of preventing an armed robbery he went there to advise and inform the authorities who didn't have jurisdiction over and got himself in a situation i'm sure he would rather not have been but to say this is a violation of the th amendment of the constitution that he violated the oath he took when he was a deputy and imposed cruel and unusual punishment on james stark under the circumstances this record does not support it and s stark is a frequent argument of the lead county jail and he had been there awaiting trial on one matter while he still had a sentence to finish on others so he was convicted prisoner and he was also a  different that have arisen but i'm not disputing that james stark was a prisoner because of the th amendment and we also argued that that he failed to exhaust remedies under the prison litigation