for argument is day against a tragedy plain and simple but tragedies do not always amount to violations of clearly established constitutional rights and this appeal is case in point sorry starting with an officer denny submit that they did not violate clearly establish law where as here to l day never complained about how tight the handcuffs were or indicated that the cuffs were causing his breathing difficulties that the medics cleared him for transport to jail after an examination without interference from police officers and those medics never said that those cuts should be removed or modified when it became apparent after two sternum ribs that something was wrong with day despite being medically cleared shortly prior the officers called medics again these officers are entitled to qualified immunity they were not plainly incompetent nor did they knowingly violate the law they did what you would want police officers to do in the circumstances in which they found themselves and approximately twelve fifty four pm on september th two thousand and fifty eight police dispatch went out for an armed shoplifter running from a department store across an intersection to a gas station on the east side of indianapolis and this was the information that  wooten had when they arrived on scene a few minutes apart from one another officer denny arrived and immediately handcuffed to relegate behind his back to detain him what was his condition at that point the officers could tell also e the police were not there the police arrived shortly after the loss prevention officer from the department store chased him after a confrontation where he refused to come to the store to talk about the  denny immediately handcuffed day without issue denny testified that mr davis hands came together easily behind his back day then complained to officer denny that he had difficulty breathing but this was not surprising they had just played a department store with a gun after attempting a theft he was obese sweating and out of breath denny acknowledged today as condition he instructed day to take deep breaths in and out to slow his breathing denny also had a handgun laying a few feet away that he needed to quote unquestionably reasonable minutes later sergeant wooten arrived and when de complained to him of difficulty breathing wooten called the medics this was five minutes after danny officer danny initially detained him the medics arrived quickly and they examine this day without interference from please dey never mentioned anything about those cops to the medics and the medics did not find those handcuffs to be a hindrance in evaluating him if the handcuffs and caused those medics any concern they knew they could ask the officers to remove them day said he was having trouble be breathing but the medics assessment showed otherwise day told the medics that he had no preexisting health issues and in their professional judgment based upon the medics a valuation they believe that day was fine i did not need to be transported to the hospital for additional medical treatment tests or whatever did the medics do this so they put a pulse   on him to determine his blood oxygen saturation the bill his blood oxygen saturation was ninety seven percent meaning he didn't need any oxygen and they they were unable to take his blood pressure because he would not allow them to  but they listened to his lungs with a stethoscope and they found b b s clear but bilateral breath sounds that were present and clear and so they conducted this evaluation of him they were talking with and they said he was breathing regularly and normally he was responding to their questions and after they made their determination they informed that they were going to transport him they inform the officers he is fine and we're not going to transport him to the hospital how long so after the medics informed the officers that they were not taking day to the hospital since day himself never asked to go sergeant they request the medics requested that sergeant wooten sign a signature of release and that was so the state of philips versus city of milwaukee and in that case there's a lot of similarities both the individuals were overweight they were detained police officers were called medics once it became apparent that so testimony from wooten and danny along with both medics confirm that police officers have no ability to impact the medical treatment and rescue received once danny knew that day was not going to be taken to the hospital he other police officers were always near day to monitor him and while waiting for the jail wagon to arrive days eyes were open he was breathing and moving but when deputy monday from the american sheriff's office arrived and began searching day for contraband before transporting him to jail something seemed the wrong it's light of day breathing his eyes being opened he didn't respond to monday's questions and after failing to show responsive to sternum ribs monday said he couldn't transport day because he might be having a medical emergency so we wouldn't call the medics back to the seam and the officers assisted the medics in placing day on a gurney one officer overheard the medics say that dave coles was weak they placed him into the ambulance and began performing c p r on him the day was pronounced dead three minutes later and now the small claims against the officers on appeal are excessive force based on excessively tight handcuffing the question understand back versus is whether these officers knew that the handcuffs were causing days breathing difficulties now stand back also says that an officer cannot be expected to accommodate an injury or medical problem is not apparent or have been made aware to him the only evidence in the record that the handcuffs had anything at all to do with to relegate his injury or death with an autopsy report was conducted after the fact but of course case law instructs that only the information known to the officers on scene at the time of the incident may be considered curiously though days autopsy never found any internal or external injury as today's wrists which is not what you would expect if days handcuffs were indeed too tight the autopsy further revealed that day had override the of underlying cardiac conditions which he was even aware of in any event there were no complaints about handcuffs to officer denny there were no complaints about handcuffs to sergeant wooten there were no complaints to either medical or the jail wagon about the cuffs terrelle de never complained that the handcuffs were tight too tight or tight at all no complaint whatsoever when officer denny handcuffed him day never indicated that he had any preexisting injuries or conditions which would be aggravated by using the force of handcuffs to detain and subsequently arrest him he never complained about the position in which he was place he never complained that they were he never asked that because be placed in front of the medics likewise mentioned nothing about the handcuffs and indeed they testified that the cuffs didn't hinder their evaluation of him in short clearly  his sprint away from the cross of st your honor initially when officer denny handcuffed him he was winded he was sweating he was out of breath denny testify that he had been even hyperventilating a bit at that time  handcuffs but there's i don't think it's necessarily well known that placing those cop placing a suspect in that position automatically leads to exacerbation of difficulty breathing or anything like that so here the district court's definition of mr day's clearly established right was less than clear she said that it was well established that was unlawful to use excessively type handcuffs and violently yank the arms arrestees who were not resisting arrest didn't of police and did not pose any threat to officers or others and were suspected of only committing minor crimes well that doesn't cut it because officer didn't yank terrelle days arms they didn't complain once about the cuffs being too tight now the district court also said that there is a right to have officers consider whether an arrest is injury or medical condition will be aggravated by placing the cuffs on the arrestee was also remember that again the you know the district court found the initial act of handcuffing reasonable under the circumstances but in terms of considering mr day's condition the officers did consider it then he considered it by instructing him to take deep breaths in and slow down his breathing sergeant wouldn't considered it by calling an ambulance the medics considered it when they have valuated him they determine that he was breathing regularly and normally and did not need to be taken to the hospital the medics never said anything about the cost being removed or modified and when it became apparent that something was wrong with they they can the officers consider it again by calling the medics back to the same council i've been waiting for you to address the plaintiff's principle contention on appeal and so far you haven't done so that contention is that th not correct now obviously we can't resolve a disputed issue of fact on an appeal based on qualified immunity so i'm puzzled that you have chosen not even to address that argument  sufficiency of the evidence challenge we're not arguing about asking the court to resolve any factual dispute the plaintiffs or excuse me the officers contend there is no factual dispute the district court explicitly found at that that the medics had clear day for jail and that's on page six of the the appendix on the district in the court's opinion and were qualified immunity turns on an officer's actual conduct it becomes necessary to look at all the undisputed evidence in the record not just that th consider that has support in green versus carlson washington versus hopper white versus gerardo thompson versus coke and that's also consistent with this court's standard of review and qualified immunity appeals the undisputed evidence in the record shows the medics clear day for transport to jail and that after they made that determination the medics themselves asked sergeant wooten to sign a signature release form trance that transitioning custody back to police officers so the question becomes are there enough undisputed facts in the record which would entitle these officers to qualified immunity and the officers contend that there are and that there is jurisdiction thank you council the question is whether there is a factual dispute is did you produce for example an affidavit from one of the emergency medical technicians saying i wasn't given an adequate opportunity have any breathing problems is that an accurate summary that is that is inaccurate actually in summary judgment we designated evidence before the district court and the district court nodded to the fact that these issues were in dispute the medical to including false information in that medical report there was also on page eight you know like could you address my question please my question is did in the depositions did either of emergency medical technicians say either that they had trouble examining day or that they found that he was in any breathing difficult yes in the record on page five before during the deposition the medics gather that they were able to determine heroes oxygen concentration sure they weren't able to determine his blood pressure because he wouldn't what well that's that's a bit of a stretch in fact that he asphalt in order to continue the medical evaluation and at the time while he was lying on the asphalt in the video evidence you can see officer sergeant wooten pick up the pad and sign exactly his name on the refusal of medical refusal of medical treatment on page seventy five this is after the examination the meds this is at the point that day collapses during was captured on video on his feet at some point the officers lifted him onto his feet but he was unable to remain on his feet for very long well three hundred and twelve pounds pressure cuff around him due to just logistics of him being at handcuffs being held up by the officers so it's not that he said i don't want to handcuff her i don't want a blood pressure that's not in the record what's in the record is that they were unable exactly what you say the violation of crilly established law was is it that well in declined medical treatment when it should have been apparent to him that they needed it or is your contention that they should not have handcuffed him because he wasn't resisting and because his being in the handcuffs was excessive force because it exacerbated his breathing problems because it seems to me that if you take the medic out of it so that the officers let's let's say let's assume there's a factual dispute at the officers can't rely on the medics the sest meant to say that well we could rely on their saying that everything was fine still you would have to point to a case which showed that they were on notice but it was my handcuffs that were causing the problem and that's a different kind th amendment right you don't have even a claim here that the handcuffs were excessive your argument is that it was a constitutional violation to use if you don't have a drew the arm right and you don't have a claim that day was completely cooperative with the officers they told him not to roll the way he did and so on so how does one say that clearly establishes something when the statement of the rule in painted shells describes a completely different set of facts yes and i think in my opinion that at the time where he is not resisting in the so the unreasonable ness occurred in time it was initially reasonable but at the time you know this this lasted you know by the time that max left there was almost twenty minutes before he died and during that time yes there is yes there any precedent in any other circuit the stablish in the proposition that an obese person who runs away and becomes winded can't be hand no but that's not is that something that suppose i mean whereas you know that the connection between that go back pain or read thank you tightly handcuffed i mean that's obvious so why should the officer have known that and handcuffing him would have an effect  brink certainly during the during the surveillance video which we have the entire incident captured on video you can see the officers monitor this is a question about law not about whether something was captured on video and i would like to hear your answer to was so you know pain reached the same result because he was cooperative and he complained that the hands were numb you complain that he couldn't breathe and you can see the shoulders are back so that the reading is restricted through the line the officers are misrepresented something well they misrepresented in their report but the police officers were present at the time that the medics perform the evaluation and all the testimony shows that during this evaluation they were unable to complete it because he was collapsing on the floor and then we women who sign that the medical refusal and it says that he assumes full responsibility for medical treatment that may result in disability or you have but he's fact whether or not this was the cause of the terminations the medical treatment because it's entitle treatment slash transport riffle and the signature line internationally that's very conclusive i'm looking at what happened on s apparently yeah they did and examination of several things in seemed to be satisfied that the he was no longer in distress or whatever so they hand whatever they have to get signed over the officer signed the refusal of treatment and then the ambulance driver made the report that supported him going back into police custody but when we depose him about what actually occurred at that time that the police officers were photographic evidence for example on page ninety four of the all the photographs show mr day in a single set of handcuffs and you can see very clearly that it's very restrictive on his shoulders and his ability for his