when it fail to recognize this twenty five year old federal government directive ass control the supreme court's at the rule in hope versus pelzer defendants are not entitle to immunity if they have fair unclear warning that their conduct violates the rights of citizens that warning can come from many sources including reports from the department of justice as was the case and hope here we have a very specific rule limit down over twenty years ago you mean and hope there well your honor now and hope that's the example that we're using to show this is what you can use whenever there's nothing else on point especially when there's nothing else on point to show what was clearly established department of justice recor and that were used to show what was clearly established lawful and that's what we are given the trial court there is a department of justice report from one thousand and five that lays out exactly what to do in this particular factual scenario and that's on the record at the  absolutely it is undisputed that the the decision in this case mr gilbert was placed in a prone position handcuffed and had his leg shot and the defendant did not put him on his side or the defendants also cited a journal article written by a professor at valdosta state university folks to your honor's i'm sorry to use that term all the time so i mean no offense but the district court was just confused this is a federal government directive from over twenty years ago and it's being compared to a report by a sociology professor at valdosta it just doesn't make any sense and there was no authority cited by the district court or the defendants that  associate professor their report has the same effect on the rule of law that the federal government does in the department of justice you know i hate to do this but as i was reading this i was kind of struck and essentially questions well you know this secured facility where there's just no excuse to allow officers to keep a person on their stomach like that whenever there's a directive on point that says otherwise i think you're out i just i just don't think that that the anal to is going to chain because the the rule is the same if there is a fair and clear warning that the defendants are are not supposed to do something that means they're not entitled to qualified immunity and so that's where the there really is no difference other than the fact that yes here it you're not out in the field you're not having these rapidly changing or unknowable circumstances these folks knew exactly what was going up yeah i get that but in jackson bachmann we said that we'd have to analyze w who's actually a punishment being imposed and if there's no punishment imposed there's no constitutional court there that's the question and i agree with you together and that's another part that's really the nd part of where the argument goes is because on the facts there's no excuse for what that what happened here this was absolutely a punishment for this man's behavior and that's that's where we got into trouble because the court you know you'll notice that in the court of the lower court's ruling considered in the factual section and that's not how this works we don't have to say that it was undisputed that this man was being punished for his activities we just have to show that there is evidence and the evidence in this case from the plainest point of view as the court must take it violent about this man and his crimes were not even remotely violent mr gilbert was then taken to the police station and put into a holding cell and around an hour later he began yelling which based on the testimony from the plaintiff point of view quote aggravated officers who entered him hisself to quote make him be quiet because he would not quote shut up the district court took the opposite position its stated its decision was based on the officers responding to mr gilbert attempting suicide now i understand this there's two sides to every story the player street view and the defendant's view and the defendants will have their their turn at trial to say this is why we acted this way but at this point of the of the proceedings we have to take the plaintiff's point of view and then apply that to the law and in this case there we have the testimony of these folks and i just want to apologize but i'm just going to quote what it was but there was a curse word in it they said hansen as two thirds of this panel already know because that that's how you you wrote the opinion judge sheppard that case actually helps us that case well you did not have the benefit of the d o j report you still ended up getting it right because in that case after the officers handcuff the suspect they got him on his side right they put it pillow underneath of his arm and they put it placed him on a side so he wasn't lying flat that actually complied with the d o j report so we don't see hanssen as being an impediment to reversal at all and the final one is ryan that case is by far too dissimilar even the defendant's expert than i thought because the hanssen case says in so many words that there is no robust consensus about prolonged prone restraint and counsel what often his argument was saying this is a case of st impression difficult for me to see how a case of st compression can lead to the conclusion that the defendant officers violated a clearly established constitutional right when they attempted to protect the late mr gilbert f himself and in the process triggered an unfortunate result that was attributable and i had met the medical evidence is not that is not undisputed but it is undisputed that he was high on meth and had a very serious heart disease but i would like to mention judge eriksson's comment about the th in the th amendments i don't think the supreme court is as definitively told us which amendment applies when you have an arrestee who is in custody and not in the field but in a in a cell i'd rather than attempting to come to some conclusion commented all force that causes death is not excessive force is not unconstitutional excessive force and this is a situation where the classic situation that this report has repeatedly said that you cannot look at this at a high degree of generality you have to look at the facts and circumstances that the officers were confronted with and i would like to emphasize that a number of these officers were not even in the cell when mr gilbert ended up in the prone position on the floor they responded to his apparent suicide attempt which none of the plaintiff's witnesses the the other arrestees in the area could see mr macphail understandably quotes the colorful language of one of the other arrestees but that's his opinion about what was happening the undisputed evidence is that these officers responded to mr gilbert cell when they saw evidence indications that he was attempting suicide and they went in to try to stop that and in the process they really had no choice but to attempt to restrain him and in the process there was a lot of flailing and a lot of difficulty in restraining him and so i would submit that certainly the officers who initially responded initially handcuffed him and mischel got him in a position where he was bent over the concrete bench and then left applied no unreasonable excessive force they were attempting to respond to the situation as it was unfolding they had no no yes of his intoxication on math they had no certainly had no notice of his heart disease and in fact he had denied drug usage when he was booked in so the officers i think responded reasonably and  later responded with the shackles but after mr gilbert was on the floor officer whacked or did not apply any force to him there were other officers officer anita and officer lemons and some other officers responded who held him down while they were repeated calls for emergency medical services because the objective was to get him in a position where they could transfer him for medical treatment so i would submit that  s case falls at the st stage of the qualified immunity analysis as far as the individual officers are concerned there was no unreasonable unconstitutional excessive force i think that the there was physical policy custom and failure to train well in any event but you know the claims i know what i'm talking get your out of i forget which count but the court seemed to say because she had ruled qualified immunity for the officers individually question was about to say i understand that the nd prong is you know whether it was clear whether the officers and should have known or knew that they were violating it can  no liability on the part of the officers but the immunity issue was not addressed in heller and in los angeles the heller i submit that if the officers are immune to the city cannot be liable because the problem you run because there is no responded out superior or so brown vs county commissioners as that the conduct of the municipality has to be the moving force in the constitutional violation and if the officers cannot hard to conceptualize i mean maybe it doesn't apply here but if the city has a policy to hold people prone on their stomachs indefinitely and say they had that affirmative policy and we were to say that's on reasonable force would that be a moan l even though they have qualified immunity because we've never said it before why couldn't the city be liable for having caused an unconstitutional use of force alternatively do you have a view on what the policies were customs and whether they yes indeed whether they caused any of this yes indeed your honor you know there is certainly no nothing in the record that supports the proposition that  its officers to apply force to a prone restraint individual for prolonged periods the city's use of force policy is is a policy that requires observation of constitutional standard in the sense that excessive force is not the the amount of force to be applied is only that amount that is required to achieve the appropriate objective of causing the arrestee or the prisoner  authority and there is certainly no written policy that says you know we don't care about the justice department guidelines when you've got a really prisoner holding down a dowse resulting from prolonged chrome restraint in the city police department there that you know as far as we can tell this is as far as the record is concerned this is the st incident that could have been brought to the city's attention and so there is no deliberate indifference and there certainly is no express policy authorizing prone restraint to the point of unconsciousness and and in fact the police officers conduct here as i indicated i think was entirely reasonable the supreme court case your honour's it says very clearly even in novel factual circumstances a person can be on notice that their conduct violates clearly established law that the supreme court saying that in the same case that they use the department of justice guidelines so this court does not need to have ruled on this set of circumstances to find a clearly established violation the nd thing is your honour's most of what you just heard was just that the defendants version of the facts if we're talking about