good morning or honors may please the court of appeal the denial of defendant's motion to dismiss as your honour's no the district court denied our request for qualified immunity which allows us to file an immediate interlocutory appeal and plaintiff dennis quintet in addition to officer read this action has also been brought against sheriff neil warren in six members of his current or former command staff as a national matter the supervisory claims against the command staff members and sheriff warren are by barred by qualified immunity because plaintiff has not provided a clearly established law in which a supervisor was held liable for actions of a subordinate under the particularized facts of this how did the supervisors also taken disciplinary actions against the officer in question in the past yes your honor joe how does that fit with our analysis the fact that he had taken some steps i would fit that in by saying that the clearly established law that's particularized to the facts of the case would need to involve a scenario where supervisory defendants had faced a situation where there was a subordinate who had various disciplinary problems over a period of time and had addressed those in some manner of discipline and that was found by a court to be insufficient level of discipline because what really the plaintiffs appear to be challenging here is the adequacy of the discipline in the training in the supervision and from a supervisory defendant's perspective in this case there is not a case that tells them exactly what level of supervision that needs to be what level of discipline you would institute against a defendant who has for instance in this case to use of force incidents over the course of ten years turn into this particular is it your contention that the  impeding safety because any time that an inmate puts his hands on an open cell door i would argue that there is some level of reasonable but even so the door open no he was banging on the door at one point and then when the detention officer comes to the door to add another inmate into the door and he begins to shut the door if you slow mo the video which i would have courtesy to do if you haven't yet  honor and i would like to make two points quickly one point would be that it the cases don't stand for the proposition that there has to be a threat to security that is a factor in consideration and weighing whether it was a subjective intent to harm but there have been cases including cockrell the sparks and been if you parker that are cited in our brief that say that a court that a deputy or detention officer can use force to maintain or restore discipline or to of quell a disturbance so to speak is that you just think that the inmate is looking at you funny i assume you don't think that you can walk cockrell if i understood the facts correctly is that the inmate had attempted suicide they needed to move that inmate into the drunk tank so they needed to move cockerel out of the truck take they cockrell could go into a close to sell tell him to shut the hell up and shut him down then our deputy could push him back from an open  resisting i don't think this is a resistance case your honor and i would go back to the point of the courts have held so for instance in in he wasn't resisting anything and it was found to be an acceptable to go in and shove him down and so part of my argument on that would be if kind of comes back to my point which i would like to get to about the extent of the injury so you know we agree that it st glance it would appear that this factor cuts against us because plaintiff was and unfortunately very injured  however the district court acknowledged in based on this court's precedent that the extent of injury may be outweighed by the officers inability to reasonably anticipate the severity of the injury in cockrell the court said there was no way no way that a deputy would have foreseen that a simple push would result in as much injury as the plaintiff unfortunately suffered which was a broken hip a broken wrist and no lacerated  ear i would compare for instance the resistance cases where someone is handcuffed and then they are punched the officer knows that when they punch them that's going to hurt them when an officer shoots at a suspect he knows that if  successful that suspects going to suffer pain if he pepper spray said he knows he's going to suffer pain in this case the district court acknowledged and plaintiff conceded in their brief that our deputy may not have known what is what is your position about what it was that justified this use of force again going back to i believe that when the proper and this is key when the proper deference is given to what a reasonable officer because that risk of threat to security supposed to be perceived from what a reasonable officer in those circumstances would have thought when it's looked at through those eyes i realize the plaintiff is saying i didn't actually exert any pressure on the door i just touched it but he acknowledges that our detention officer saw his hand on the door saying that they may they may touch the door that touched an open door and that's what justified the push right yes ok however even if there was not a threat to security say that there was not a threat to security the united states supreme court has said that it's the question is often if this one point that will sit down is malicious and sadistic and i have got to come back to that point yet today but i want to end my time now with that isn't that the georgia standard rather than the standard we look standard which is the one that operates today is higher then whether it was unreasonable or unnecessary and it's higher than whether it was deliberately indifferent to if the inmate would suffer injury has to be an intent to cause harm to the deputy and with it to the inmate and with it being on forseeable that that level of injury would happen i just don't see how we get to the level of the shock the conscience malicious  you good morning judges may please the court we are asking the court to affirm the district court because we believe the district court got it right and got it right for the right reasons the court watched the video and found this attack gratuitous unprovoked and malicious and the district court reviewed reads a lengthy disciplinary history and found that a reasonable jury could find that the command staff defendants here were deliberately indifferent in failing to take any meaningful efforts to discipline supervise or training read and i'd like to begin like opposing counsel with  supervisory defendants and i'd like to focus on the qualified immunity iness so in qualified immunity there are three ways to really establish law there's case on all fours there's broad statement of law and there's obvious clarity the district court below got it right in these qualified immunity analysis in under supervisory liability that there is a broad statement of law sufficient here to put supervisors i notice as to what behavior is prescribed  that after these repeated incidents the the go to the command staff was to give him a verbal reprimand you have the initial two excessive force and incidents one the st is it's not on video and so it's not founded the  founded where he puts guy in the hospital he had slams are restrained and made into a concrete ground and the guy has to go get stitches just a verbal reprimand there don't do it again after the nd incident of excessive force or he again slams are restrained inmates head into the ground while that inmate is chained to other inmates there there is a verbal reprimand an informal counseling and i think that it would be helpful to do discovery in this case to see what informal counseling means and i suspect it doesn't mean very much  but more to the point there is the campaign of inmate abuse from the year before the incident here where again the only response is a verbal reprimand and that's more than fifteen complaints by inmates about various types of inmate abuse we have complaints of religious of abuse where reid is going in telling some somebody get your qur'an out of here and telling him his his religion is using profanity you have four inmates who are saying that he's in there calling them the n word you have cruel language to inmates in front of other inmates he's calling them the b word the and word demoralizing people talking about their children and inmates says he talked about mike to ceased father talked about my girlfriend talked about my mother and you also have a lot of instances of abusive behavior he sends an inmate to a new cell without the inmate being able to take a socks or his underwear with him just to be nasty you have him saying an inmate can't use an inmate has a medical  prescribe double bedroll because he has a herniated disk read takes one of those better rolls away you have an inmate asking for hygiene products as he hadn't been able to wash in seven days or hadn't been able to change clothes in seven days read responses get the f out of my face this is a ca t and there's more than fifteen allegations this is the year before the incident here and the only response by the command staff is a verbal reprimand i think at that point we don't have any meaningful response to a campaign of inmate abuse and i think that we also have at that point  a jailer who has a demonstrated history of violence against inmates you know we're talking about two actual assaults against inmates slamming in a restrained inmates head into a concrete ground on video that's in the background then you've got this campaign of abuse i think liable because they should have known that this city manager might do something like this and there the background is of sexual harassment there's no violent history there and there's no criminal history there but in that case before the city manager was hired there were articles faxes and mail warning of prior sexual harassment the city manager was a known womanizer is nickname was the penis and two employees complained about his sexual harassment so in that never been reprimanded at all i'd have to reread the case to see exactly what the response was to those two new allegations of sexual harassment i think they were probably ongoing at the time i've got that i've got a question for you about the actual incident and the officer involved it his circumstances and i think that the fact that this was an open handed move by reed does all of the counties heavy lifting for them in their briefing you know and i think that's too formalistic a distinction to make you know in their briefs the county talks about how an open handed shove is a light amount of force this was not a light amount of force you know looking at the video as he steps into this if we're not talking about he's flat footed and he just pushes somebody back he opens that door steps right into it he's my client across  i think that if we are just looking at the open versus close handed a push versus versus a punch i think that elevates form over function and i think that on a real level that this was a severe use of force and i would point the court to i provided a supplemental case that came out since our briefing here robinson versus lambert where there's a pretrial detainees who is shoved hard onto a desk and his shoulder pops and there are the court doesn't do analysis that well it's a shove on to a desk so it's a light amount of force the court there acknowledges that shoving somebody hard down on to a desk is not a light amount of force and so i think that that's one very real distinction between our case and coc obviously in cockrell you know the difference is what is the jailer looking to accomplish here what is the justification for the use of force which you know were miles away from cochran on our facts you know in our facts i take great issue with the characterization of the door being opened by the county that door was closed that door just hadn't been latched yet my client's not putting any pressure on it and if you watch the video you know read opens the door let's another inmate and my client so obviously we're going to twelve b and so the evidence is what we allege in our complaint we spell it out pretty clearly in the complaint i think that the door was that the latch had struck the strike plate and all and it just needed to be pushed another you know millimeter and then it's closed so the door wasn't latch but the door was closed and my client is not putting any pressure i got his hand up as the doors closing in his face you know he he's standing there with his hand up in the doors closing you know and so i don't think that on those fact justification for any force because there is no threat at that point there is no disturbance and so there is obviously a long line of cases hadley versus gutierrez you know the robinson case that i just mentioned we side we have a strong side of them in our brief that an officer is not allowed or a jailer is not allowed to use force winds when there is not a resisting individual or once the any justification for the use of force has ceased you know the line of cases where you have an inmate who was resisting stops resisting and then forces continuing to be used here to the extent that putting his hand created any theoretical justification for the use of force by the time read reopens the doors that's gone there's no justification for him to open the door back up and he's my client process so it's like kingsley abrogated our malicious and statistics standard your opposing counsel said that we should apply that standard since that was and play at the time of these events do you agree or disagree with that she's right  ed that said you know it is the same factors that is analyzed you know that are analyzed in these cases and i think that walking through the factors preaching in the district court correctly held i mean that the district court applied the standard on that point and correctly held that this was gratuitous unprovoked and malicious and that you know the weight of authority supported denial of qualified immunity to and that clearly established already that well i think the district court got it right i mean i the district court you know in a footnote notes that you know viewing this video that anybody would find this to be malicious sadistic and unprovoked attack and i think that i mean i think that a juror could find specific rule here is that you can't use force once the need for it has subsided and this court said in robinson versus lambert and that is a a a new case that is a case that is after these recent u s supreme court cases that i'm publishing i don't recall whether that's unpublished or not but that is the right approach to take regardless of whether that's published or unpublished that this line of cases still is narrow really articulated enough but i've another response for your honor and that's that i'm not sure that that line of cases necessarily should be applied in the context of a custody all excessive force bear in mind that the five us supreme court cases that i've found that take this issue on are th amendment cases you know we're talking about police  shootings and in those cases in the white case specifically relied on by the county the u s supreme court says that in an objective reasonable innocent alice's we need to be able to give officers on the street the ability to make split nd decisions here on the qualified immunity analysis as the county points out and as we've discussed the standard is higher and so if we meet the standard here if we meet a malicious and sadistic standard here then by its very nature we have satisfied the qualified immunity element  in other words those those cases are in apis it because we have a higher standard here and we even see that in the history of cases from this court where pre kingsley if a claim is if a successful claim is made out that there is excessive liability or that there is excessive force in the context of a custom incident we don't even do qualified immunity analysis the mere fact of finding that the malicious and sadistic standard has been met is enough to establish qualified immunity do you think there's any daylight between th standard and the actual malice or with intent or the actual intent to cause injury standard that applies for georgia officials i will admit judge that i haven't dug into the specifics on i haven't read all the cases on both and so i had i wouldn't i don't know the answer that question i can imagine that there is i don't remember seeing any case law that there ought to be but i don't know for certain  i also just i would like to point out for your honour's going back to the supervisory liability point i did provide two additional cases that i had cited in my brief that are other cases where we've got x by subordinates and a subordinate  want to sims versus adams th circuit case from one thousand nine hundred and seventy six where there is an officer who is under investigation for two acts of violence against african americans and then commits a rd act and in that rd act the supervisors  allowed to be held liable because they were to pending complaints against that officer and so we know that two pending complaints are enough to establish supervisory liability and then there's also the parker versus williams case and that's where a chief jailer  is accused of kidnapping and raping a detainee and in that case that chief jailer was hired despite a nineteen years a sporadic history over one thousand years of some warning signs one was a charge of indecent exposure for nine years prior and then there were three prior mental health hospitalizations and i think that it sounds like there might be a diagnosis on the schizophrenia spectrum somewhere and then a history of drug abuse can you p cases finding supervisory liability for failure to adequately discipline and officer or employee rather than failure to discipline at all and judge i can't that's not a specific point that i was looking to in my research if i'm able to find some authority that if i'm able to find some authority may i file it just a brief supplemental application for supplemental authority be fine thank you judge and for those reasons we ask that this court affirm the district court factors are the same the ultimate question that's being answered is that it's to do the facts related to those factors under kingsley would be does that show that it was brief quote defendant read may not have subjectively anticipated this specific result and quote but that reid was quote responsible for reasonably anticipating the consequences of his actions and it is not in forseeable that throwing a vulnerable older man across the room with a concrete floor could result in serious injury i would encourage you to consider this again based on the high standard the shock the conscience malicious and sadistic if he didn't intend or for see that that level of injury would happen then all that he intended was to push him back with no anticipation of the severe harm so what was the purpose of his push that there was no malicious and sadistic intent for the very purpose of causing harm when he didn't anticipate that there was going to be any harm even isn't obviously be more minor harm but isn't you know push is a battery and criminal law right you push does solve all harm even if the person and doesn't surprisingly think that he was going to break his hip it's ok to just shove them across the room that's what harm is and pushing against somebody and shoving them across the room isn't that h yes that may be a harm but it would be outweighed in a situation like this with the prison context the volatile prison environment the deference we're supposed to give to prison officials because in my last couple minutes i'll just say that mike one of my concerns with this case on a broader scale is that if jailers can't push an inmate back from a door that has not even by plaintiff's facts completely closed he can't push it they said i had to close it just hadn't been latched so when an alternative happened to latch the door would have been easier to push the door instead of the guy yes but again the t and twenty hindsight the split nd decision in that moment he reacted by underpaying opening the door stepping through and pushing the guy across the room where he fell and broke his h way but our our contention would be that our perspective of the video is that that is not what it shows our perspective of the videos that it shows that it was the plaintiffs touched that very opened and the deputy will be in recess for ten minutes