morning on it's my neighbor's morris hello i'm representing the sheriff's department defendants appellants we are dividing our time so that the sheriff's will take half the fifteen minutes and the lakeside in san the first issue i'd like to talk about is the first issue in our brief which is lack of into an individualized analysis as to each of our twelve defendant a palace this is problematical not only for attorneys because it means we have to guess that with debris falling on an interlocutory appeal like ok as to this defendant what exactly did the district court have in mind why did they think this person was plainly incompetent or knowingly violated the law it's also a problem for the court because of the pellet court has to try to figure out what the district court may have intended it's also a problem for people who administer law enforcement departments sheriffs police chiefs because any any person who is in charge of other law enforcement officers is going to want to know that the people under their command are not plainly incompetent or knowingly violating a law suit so the district court found that there were questions of fact that precluded making a finding of qualified immunity for everybody right and reading the facts of this case seems like there were a series of different incidences in disputed facts surrounding each of the incidences any one of which could  to excessive force allegation or claim so i and may it may be that there's disputed backs are such that you can't identify which individuals until the evidence actually comes in and we have finding of fact when the door opens with the least according to the district court's opinion or ruling the door opens at the time that the that the time that the two deputies and first go in on want to handcuff mr fountain that's when everything goes bad everything that happens after that somehow goes somehow is pinpointed back to that one incident so the question becomes would clearly establish law provides  when deputies or law enforcement officers are in close quarters with somebody who is acting irrationally and they don't have any way of knowing what he might do except that he thinks that people are trying to kill him or harm him ca they handcuff that person for their safety and where is a clearly established law saying they can't do that mcafee there's a preliminary argument that in looking at your brief in one of the heavy rains you talk about there me that before you can even get into whether on the district erred on this qualified immunity analysis we have to decide see what the district courts say about each officer that was sued and that did not happen here is that correct that is absolutely correct and that that's a big all the other issues are to a certain extent guesswork on our part so instead of doing guesswork right that's you know we're not we're not to colombo up here it seems to me maybe the better course in this case would be simply to send it back to do nothing more in this case send this case back to the district court site some of these cases that we cited to the parties and say just report you need to give us an individual eyes discussion of why as each officer that's been sued in this case is that the relief effect i mean i know you radical matter what you have suggested is the certainly i've read all the cases that went out in the e mail and they all seem to say about the same thing which is a district court fails to do an individualized assessment of each defend being said and the other thing that would be nice is if the district court had some guidance on really you need to rule on objections when people object based upon rule fifty six  and in this case we not only had reports that at best should be considered like declarations in which case they should be under personal knowledge and they should be under penalty of perjury but even beyond that we've got the d because they're expert opinions and so there needs to be the expert needs to show his homework just like an appellate opinion an appellate opinion doesn't say i'm a federal judge and it's my opinion that this should be the way it is you show your homework you do because the issue is not whether the whether the evidence is substantial enough the issue is admissibility of evidence admissibility of evidence is always going to be a judge question a dog a question as a gatekeeper question which is a judge question by the jury question and because it's a purely legal question it's the type of question that you should be considering on appeal and it would seem even if we get before we get to the evidentiary question for us to determine whether we have jurisdiction in this case we morning please the court leader roy starker amar who today on behalf of my clients in the city of sente defendants and my colleagues clients lakeside fire protection and their plans given the short amount of time court didn't rule on the fourteenth amendment loss of familial so ca should claim so those were some other aspects that the district court didn't cover but my goal today in the short amount of time that i have is to try to convince this cour that it should just reverse at least to my clients and the lakeside people on the issue of qualified immunity and the reason being is that there is really no need to remain on this case for a determination of what each individual paramedic did to answer the question of whether the law was clearly established at the time in april two thousand and fifteen under any factual scenario that's fairly presented b undisputed evidence the law was not clearly established plaintiff below didn't meet the burden of proof to cite a case so clearly established law didn't do it here to this court and frankly can never do it because really with respect to the paramedics and the fourteenth amendment it is really essentially a question of first impression the supreme court has never addressed the issue this court has never addressed your address the issue there certainly is no consensus of cases placing the matter beyond debate such that all reasonable paramedics would know two things one that paramedic defendants even have a fourteen of them and obligation to provide medical care and to whether the particular conduct in this case or really any conduct would violate the fourteenth amendment so again under any factual scenario i think that can be drawn from the record this court really cannot say that these paramedic defense w plainly incompetent or knowingly violated the law if i remember the district court's order this of course cited three cases there was a case called alexander which involve the police storming the house of a mentally ill man there was a case dior lee which involved a man shot in the face of the beanbag and there's a case called mcguckin which is a prisoner not receiving adequate medical care was there any cases that i missed involving paramedics well the first year are the first two cases that you mentioned  cited that involve paramedics and the fourteenth amendment but they're all under vastly different different circumstances remember this is this circumstances paramedics are whole to the scene to take or to provide medical care to somebody who is in the custody of the shares it's not like it's not a situation where the paramedics have taken institutionalized or imprisoned or incarcerated or any other sort of personal restrain the liberty that the due process clause is intended to protect government abuse the power of government overreaching that that's not what paramedics do and the paramedic cases that you just mentioned which i which specifically to avoid what happened in this case this appeal is about whether or not those violations assuming that these defendants violated those protocols along with other misconduct was sufficient to put those defendants on notice  that their actions at the time violated lucky found seize fourteenth amendment right to be free from deliberate indifference to those three sets of defendants you have the initial deputies that responded collins and crawl you have the protocols and insisting on handcuffing and restraining an individual even though there was no basis to believe he was armed or posed a threat the backup deputies arrived violated their protocols and violently restraining an individual  without paying attention to whether or not he could breathe they also repeatedly left him in prone positions they put the restraints to tight which didn't allow him to it attain full title full title volume breaths and they didn't adequately monitor him all of those protocols were designed to specifically avoid what happened in this case the paramedics as well when they arrived violated their specific protocols to give lucky patients unlucky situation high flow oxygen which would have avoided what happened in this case and to only transport an individual in law enforcement restraints if those restraints are such that the individual can straightness abdomen and attain full title volume breaths in unless the the court has any specific questions i'd like to address a couple of points raised by the previous i do have a question for  the kind of breakdown you gave us by class of person involved you mentioned the initial deputies the backup deputies in the paramedics did the district court ever go through the analysis you just described in its order  with regard to qualified immunity the backup deputies i think we agree that there was not an individual ised analysis i think the district court believed that this case as we contend is just right with disputes of material fact but you still have to go through and explain as to each officer don't you know you can imagine a case where let's say there's a riot situation and there are one hundred police officers and a plaintiff sues one hundred police officers they just get past summary judgment they just say wow there's a lot of facts here this is complicated and not do an individualized analysis for each officer well the issue on appeal your honor to address your concern is that i think believe the court has in front of it what is necessary to do this analysis why should we be the ones doing it i mean you've seen the authority we provided to the parties and all these other circuits say no you send it back when it happens why should we do that here well i i did i disagree your honor there were three cases that actually did the review themselves and each three of those cases i believe it was s m pollard and paul's the court believed it had in front of it what was necessary to do that individualized analysis in this case i am question whether we even had jurisdiction because that's our first argument your honor under johnson and the case of the followed after it that these appeals should be limited to purely legal questions and if disputes a material fact exists like the district court found in this case with regard to both  immunity is inappropriate but if you know and if any authority that would permit us to do that if there's not an individualized breakdown of each officer to make that determination no i'm not aware of any authority well of beyond the three cases whether the district work can do it or we can do it but you agree that all the cases say there must be an individualized breakdown yes or we'd agree with and so right now we don't have that correct what the court has is all the truly at issue this appeal is the second prong of qualified immunity right but i but we don't have that done asked each officer for example we're trying to figure out if it was clearly established to a particular officer that analysis has not been done officer bias or paramedic by paramedic that has not your honor but given that the court has to assume plaintiff's version of the facts and draw all inferences in plaintiff's favor the court has in front of what what it needs to conduct that analysis as we laid out in our in our answering brief with regard to the back of deputies specifically the excerpt record cites regarding what each one of these individuals did their participation in the violation of lucky's constitutional rights so in terms of the cases we cite you would want to go down i think i understand your are you saying look it wasn't done but it can still be done by this court we don't have to send it back to district court to do that that's your position yes your honor and actually i would go a step further i think sending it down to the district court would be would there be no difference in sending it to the district court to do this analysis is going to reach the same result we believe we've showed sufficient facts or created a sufficient sputum material fact regarding each one of these these defendants with regard to the clearly established pro that the obviousness of the serious medical need that lucky faced and violating their own protocol actually in being deliberate and different we don't think that we we think that qualified immunity is not appropriate even though there isn't a case exactly on point and secondly it's our understanding that a case exactly on point is it necessary and to the extent that that's still good law what we've tried to do is create a body of relevant case law  that defines the contours of this right sufficiently that these paramedic defendants would have known at the time that their conduct and being deliberately indifferent to lucky's serious medical needs violated the fourteenth amendment and  really cited three categories of cases to address your honor's concern about whether or not any cases specifically involve medics there are three cases out of circuit cases two from the sixth circuit and one from the third dealing specifically with paramedics holding that paramedics may be held liable for deliberate indifference to the serious medical needs of their patients in their care and custody under the fourteenth amendment that philip's case we've been as a core we've been whacked by the supreme court more than once for we're line on kind of general statements of excessive force or deliberate indifference do you have anything more specific than just paramedics are held to trial detainee who was found unconscious when they arrived although the individual had regained consciousness the paramedic failed to follow their own protocol observed signs of post cardiac arrest and felt the following protocol the court found that paramedic could be held liable for deliberate indifference under the fourteenth amendment but in addition to that we have these two categories of cases the exception to the normal rule that you can't but there's no duty affirmative duty to provide medical care under the special relationship except exception and the creation of danger exception under the special relationship exception when state actors restrain an individual such that they're no longer able to  care for themselves they have an affirmative duty not to be deliberately indifferent to their serious medical needs in the creation of danger exception when state actors place an individual in a more dangerous situation than they found  him you can also be held liable for deliberate indifference to serious medical teams so all of these cases taken together we believe show that individuals in the defendant's shoes at the time the paramedics shoes would have known that given lucky's obvious signs of cardio pulmonary distress given their protocols that were designed specifically to avoid what happened here from happening that this that would have put them on notice that there are actions violated lucky's constitutional rights with regard to the paramedic or the i'm sorry the backup deputies clearly established cases we believe restraints on too tightly to the point where he couldn't he couldn't breathe they then carried him out by the cord which they're not supposed to do and dropped him on his face in the driveway and left him for up to another five minutes in the  description of all of the events that happened here i think kind of highlight for me how we've got what seventeen defendants here fourteen for fourteen fourteen individuals they all participated to some degree but different degrees would you agree with that yes but your putting them in three categories it looks like maybe the district court put them into categories does not all seem like what we really need to do is have somebody go through and conduct an individualized analysis first to even determine what clearly established right was applied to which defendant i think that i do think that that analysis is appropriate but i think that this court is best situated to do that given the fully developed record we think that this issue is ripe for this court to resolve and you know in short your honor to it to address your point our our contention in this case is essentially that given the way mr founts he was restrained this this was a case of slowest fixie ation there were any number of things that could have happened from the point at which the hard time restraints were placed on him and tell he went into cardiac arrest and younger ones that could have avoided what happened if any of these these defendants had followed their protocol for instance putting high flow oxygen masks on would have been enough to save them if they had placed the spit salk on them and would have been able to actually see what he went into cardiac arrest probably would have been up to save them so each of these individuals while they did have varying degrees of interaction with mr found see we're all very much responsible for the for the constitutional violation and his autumn of death and of the court doesn't have any further questions thank you cou nurse i would like to briefly address judge ward laws concern about jurisdiction and we to the extent we could figure out exactly what were the disputed facts in this case we simply look to what the district court identified in that order and that's why we quoted the order in our brief if we accept the district court identification of the spew the facts and say even on the district court's assumptions there's no clear established law that's been violated then this court does have jurisdiction the court cannot determine a factual dispute but as long as the appellant the officer claiming qualified immunity is willing to accept the district court's identification of what the officer did that then this court has jurisdiction because it's a pure question of law and that's the situation we're facing in this case we quoted what the district court said the district court essentially said that the trouble started when they tried to handcuff mr found and the district court then went into a provocation discussion despite the mendez a painting from the supreme court which essentially relegated provocation to a very low order of importance and without even coming up to the level that the former bill that the former authority in billington with required which is that the provocation has to be an independent constitutional violation simply do well we could argue about that but which important is what the district court identified write that and then trying to think how i would if i were having to conduct this individualized analysis from this record i think i would want some help from the parties have which are sure of it what would we're dealing with out is what the district court gave us so if we have that individual ised analysis we'd be in a much better position today  qualified they're not all entitled to it but certainly that's true for some of them who are basically just there unless unless they do know they're there might be an exception of a district court order to calais for example some sort of  three times i don't know who taste him but i mean we do we we have found that to be excessive force but it's certainly in the record who pays to or who pays mr found and it was more than one officer and it was more than there all interesting issues of whether those type of these violate a clearly established law under the circumstances that they were facing and if we had that individual eyes analysis we'd be in the much better position to determine whether the