i am going to address the issues related to the summary judgment and mr benjamin is going to address the post trial issues we're going to split our time six minutes i'll take six minutes mr benjamin will have five minutes and we will reserve four minutes for a vote on your honor's kristen maxwell bruce died of airway obstruction and blood loss her injuries were according to the san diego county medical examiner her injuries were treatable they were repairable and they were survivable according to the medical examiner took a minimum of one hour for mismatched as well bruce to die of her injuries in the course of that hour the defendant paramedics from the two agencies the alpine fire department and the v a his fire department they failed to comply with four mandatory at least four mandatory protocols and these protocols that were in place at the time set the standard of care for the paramedics they for the first thing they failed to do is they failed to contact the base hospital and that was required here on  was required by the protocol specifically when in this case when a patient met trauma criteria which the defendant immediately knew kristen met the trauma criteria they were required to contact the base hospital if they were going to provide a lesser advanced life saving skills which they did they were required to contact the base hospital so the standard as i understand it is of gross negligence is failure to provide care or in extreme departure from the ordinary standard of conduct and the argument as i understand it is that failure to comply with your protocol may be is and diligence maybe not provide scant care you may do something but it still may be and this is where the or comes in it may be a extreme departure from the standard of care and with regard to the standard of care the failure to comply with the say extreme departure from the ordinary standard of care in this misunderstand that i don't think an expert is allowed to say it's gross negligence he can say that in his opinion that it was below the standard of care and the question of whether or not it's an extreme departure whether the multiple failures to abide by the standard of care are extreme departure is generally a question for a jury and in this case the district court found that as a matter of law no reasonable jury could ever find that for deviation from for mandatory what you're authority for it's the behavior being characterized as gross negligence the legal authority here on  would be the california supreme court the santa barbara case where the california supreme court said it's generally a question for the jury i think also in the chavez versus twenty four hour fitness case that was a case that actually reversed a grant of summary judgment on the issue of gross negligence and in those cases apply the standard that i want of of scant care of even scant care which is what the district court focused on or an extreme departure from the standard of c and here we have the four protocols that weren't complied with what's as at the protocols define the standard of care so in other words i suppose a the county could adopt a very high hospital when they were required to another reason why they should have contacted the base hospital is when they're faced with a situation where they they need to mansur's and again dr dunford said this is a situation beyond their control and that should have caused  issue right that was the issue with the maxwell mr maxwell being rapper's braden and that right yes thank you i understand ok and then in addition to failing to contact the base hospital there was a failure to maintain  airway i mean it was mandatory in the protocols that her airway be protected and instead she was laid flat on her back she was duct taped to a back board and she was never released even as in the words of the defendant even as she was struggling to breathe she was grabbing at her collar and blood according to them blood was pouring from her mouth and never untaped or or sattar up there is still to this day an unexplained and really inexplic delay from in the ambulance departing from the maxwell house it didn't depart until twenty two minutes after the transporting ambulance arrived and again dr dunford who is the v a haas paramedics expert he testified in his deposition and at trial that there's a ten minute standard that gunshot the standard is that gunshot victim should be taken from the scene within ten minutes and in this case it was twenty two minutes so there is an unexplained delay there is as i understand it the reason that this assessment is necessary legally speaking is because the paramedics are entitled to a statutory protection so that  they are only liable for gross negligence so in order to make that decision you have to look at the totality of their involvement with this particular situation this particular  patient so when you cite the departures from certain protocols and so forth it's misleading if you don't evaluate them in the context of everything they did because maybe they i  saying this for purposes of this question so maybe they tripped up on some things they didn't call the base operator the base hospital and so forth but when you consider what they were doing and in the totality isn't the district judge entitled to say no reasonable jury could conclude that the total totality of the facts could be viewed by a reasonable jury is gross negligence and therefore the paramedics are entitled to the protections of the statute well when we say totality of the facts we have to look at the totality of the four separate breaches of the protocols the unexplained delay the failure to sidor up and on tape or and i think into the summary judgment standard and into the gross negligence standard the district court would have to look at those six issues and say you're right you're correct that the the paramedics can't be held liable for just negligence it has to be gross negligence but in order to grant summary judgment the look at all six issues and say there's no reasonable jury they could find that this constitutes gross negligence and our position is that a reasonable jury could easily find that one or two of these violations constitutes gross negligence could certainly find that violation of all six of these issues six for the standards and the two other issues the delay in the filling time tape a reasonable jury certainly could find that either that constitutes an extreme departure from the standard of care or constitute when you leave someone who's bleeding from her mouth and struggling to breathe and you leave her taped to a back board flat on her back grasping at the collar and fail to do something it's true that there were no facts in controversy with respect to the summary judgment there were facts in controversy your honor i think that the defendants dispute that any of these or any of these protocols were mandatory they claim that in fact they made three they made attempts to into bait when and when really the protocol says visualizing attempting to visualize the airway is not an attempt into bait but the defendant say no it counts as an attempt to intimidate and we did it the protocol say you have to use this emergency rescue device when you can't visualize your way they have a device that you're trying to use to calm you tube the defendant say no it was really contra indicated because there was a throat injury in the there was no throat injury so that's another dispute so there were there were lots of disputed facts in addition to the dispute you know about the real disputes as to what the protocol say let alone whether or not they were violated so there were many disputed facts it was sufficient that a jury could find that this constituted an extreme departure from the standard of care we think the district court aired and ok you've used you want to use six minutes here well past that why don't we pretend that you just use six minutes so if you put nine minutes on the clock start with the detention of jim maxwell obviously we have a twenty thirteen decision by this court on the fact that you cannot detain someone simply because they are witness to a crime jim maxwell was right that's not w that decision are you talking about the interlocutory order yes it said for a long period of time and it put some other factual circumstances into it it didn't say you can't change somebody under those circumstances you just mentioned well your honor it at the maxwell and that occurred a couple hours after the shooting so the shooting was shortly before midnight we have the shooting happen we have the family in the house the ventra brought out of the house the grandfather and m maxwell and the kids are placed into the motor home jim maxwell has moved the top of the driveway all the events concerning the ambulance occur that all occupy some time finally a couple hours after the shooting is when the events relevant to the detention yes your honor and at risk of reading a bit of trial transcript there's multiple examples that show that that's actually not how the testimony was out or right because we're now it's went out looking out for a trial or judge and this matter of well it doesn't matter because the actual testimony when the court looks at those sites and looks at the complete transcript will show that the defendants actually conceded that this eerie or this is the property in this the house and what happens is the concessions made only physical evidence the only actual crime scene if you talk about preserving physical evidence is inside that house and so for example definition of the person who actually committed the whelp the first use for simply by telling him to stop it holds out his hand and so on the question was  there's a couple questions starting on page sixteen eighty eight continuing to top a sixty nine and the excerpt record it says and further down the report you said you didn't want him to enter the crime scene now again this is the deput search shows that point and strung up tape the mobile home is on the driveway but of course it's separate from the house and what he said was i think at that point the crime scene in my head was knowing the items of evidence and location of the shooting occurred question the house answer correct so in looking at the particular deputy who actually gave the order that what we contend is the unlawful order to jim maxwell the actual testimony at trial was admitting he entered the crime scene to be the house when we look at sergeant canard and he's a mean one who the defendant you lie and say well he thought it was the the crime scene they said some of his earlier testimony claiming that was all the you know james going to walk down the driveway headed back towards the crime scene i turned and asked sergeant nabil what my parameters were with james i was instructed to not allow him back to the house and prevent him from having contact with other witnesses including his wife is that does that first recollection of what happened answer yes ok so the actual instructions once his recollection is refreshed as he was supposed to keep him other house with him wasn't trying in the house he's trying to get his wife in keep him separate from his wife that's the constitutional violation as this court said it's twenty thirteen home inside the crime scene area so are you saying he recanted that testimony i'm saying under cross examination he admitted that his actual instructions to canady were based on don't let him in the house and don't let him speak to kay and i would further state your honor that jim was in that yellow tape to it's undisputed that jim was in that outer perimeter what ever you want to call it where sergeant so i would definitely use i had strung up that tape there on the driveway the driver was not the entire event if that order turns out to be lawful do you agree that the efforts to enforce it were not excessive i mean if the order was lawful then was the force that was used to part of the analysis that we can do here it's our position of course that there's a constitutional violation once the unlawful order is given there's then the question of whether or not the force at some point became excessive to enforce that order up and tell a county o a if you mendez case we could simply point to billington and say you provoked the act we can no longer say that and we do concede that however i want to make sure the court is aware that in pages nine to ten of the slip opinion in the supreme court's decision it does say you can still  proximate damages flowing from the original constitutional violation so if we are correct that there was a constitutional violation when the order was given to jim that in fact we can still have proximate damages from any of the excessive force that that and shown in testimony is that they were trying to keep the two members of the family separate or had no other valid reason because it's not about the crime scene the crime scene is the house so your answer is no you have other grounds besides i well i think you know at the top order demonstrates what the original rationale they gave was unconstitutional and then they they attempted to put a new rationale and of the crime scene and my point would simply be that the record does not actually support them on the crime scene if that there were and that's why i would encourage the court given the limited time here to look at the excerpt of record sites from both sides very carefully and see what was actually established about where the crime scene was and i think it's quite clear that the crime scene the true crime scene was in the was trying to see his wife and that's why it's a constitutional violation because they tried to stop him from seeing his wife outside the crime scene this is not a crime scene manners constitutional right to see why i need to advance that will further in a law review article or something a constitutional due process right it's reflected in the twenty thirteen opinion to keep family members to be able to see each other talk to each other and communicate and that is interfered with when the government says you can't go tell your wife that your daughter has died and i do are you going to split argument among yourselves how to try to keep mine down to four minutes then jackson will take a minute and then the rest will belong to the medical  the as i understand it the essence of the appellant's argument is that there was no right to use any force on jim maxwell because the order to not enter the crime scene or the order to stop an unlawful order yesterday i didn't have a chance to write a letter to bring the court's attention to this but yesterday there was a decision by another panel of this court schaefer versus santa barbara county which dealt with virtually the identical issue in which a plaintive who had his argument was well i didn't violate one forty eight penal code one forty eight because and therefore they had no right to use force on me and in that case the jury had found excessive force and the panel reversed the excessive force verdict in that case on grounds of qualify the community because of lack of clearly establish law that there was a violation under the circumstances now in this case the plaintiffs contend that it was an unlawful order and they relied largely upon a statement in that penal code section one forty eight does not make it a crime however to resist on lawful orders that is that is supposedly based on california law and it misstates california law if you look at that statement and you look at the site for it and you trace it all the way back that's just not what california law provides where that comes from is a case years ago a criminal case in which the issue was is the officer discharging his correct duty when he uses excessive force and can you be convicted of one forty eight if the officer if you're resisting excessive force by the officer and that's really a different california law says the opposite you do not have a self help remedy under california law to resist what you consider to be an unlawful order now that statement not so much what mr maxwell considered to be the question is was in fact on lawful right and the the the order was to keep him from the crime scene the inner perimeter of the crime scene the most restricted part of the crime scene that's where he was going into he was not going into the house which i think is the most restrictive he was headed for the mobile home where his wife was you could make an argument that the most restricted spot is the room in which the shooting took place but it was you headed there on your not nor was he headed to the house right but he was with then the bright line here is the yellow tape across the driveway that was it was boston well he had been brought out from there and then he brought went back into there he had been brought back up to the street which technically was part of the outer perimeter of the crime scene it was also marked off with yellow tape but the parameter is what they were most trying to protect and the reason they were trying to protect keep mr maxwell out was because of his emotional state at that time he had just pushed a uniformed officer around and accuse him of killing his wife he was angry he was associating the shooting with the officers there and sort of forgetting that was his son in law who shot his daughter so it was his emotional state that made it imperative to  you gave her the gun meaning the sheriff's department because he killed his daughter he killed his daughter with the sheriff's department gun so that's what that's what the immediate impetus was to keep mr maxwell out of the crime scene say you're going to have to shoot me actually if it you to you could have to shoot me first but it was not a calm situation and the thing that distinguishes cases like the headwaters case that had to do with can use force on  on somebody who isn't otherwise acting out they said the headwaters the the people on to force which use were not acting out in any way they were nonviolent passive protesters they weren't doing anything then the officers in this case we have a man who's already used force against two deputies by the time he gets pepper spray and again the purpose is keep him out of the most restricted area just to keep that orderly whether he would have done anything we don't know but up until that time the plaintiffs are correct up until that time mr maxwell had been inside the inner perimeter but he had been under supervision the whole time all of the family members were under supervision while they were in the in the perimeter and then they all did with they were asked to do the whole time and nobody created the problem the whole time except with mr maxwell and i don't i mean this is a criticism of mr maxwell because it was understandable that he was upset but when he started to act out the deputy in charge the sergeant in charge decided that he needed to be excluded until the call no and this was evidence that was presented at trial yes or that yes jury resolved presumably the jury saw photographs of the crime scene tape they saw photographs of where the maxwells r v was at the bottom of the driveway they it was well documented with photographs and i see them well over my time that i don't want to begin the my opponent's time thank good morning joe could tell i represent to share jeffrey jackson in the one minute that i have i just want to point out that the party with the burden of proving that jackson prevented medics from leaving the scene when they were together on sea for a total of twenty one minutes lays with the plight of the plaintiff did not convince the jury this disputed factual issue was submitted to the jury in different determine adversely to the party with the burden of proof at this stage in the proceeding that finding that conclusion and the district court's assessment of that verdict is given great deference after four weeks of evidence the match looked produced no direct evidence of the way i something that he wouldn't allow did that he did not want the ambulance to leave well there was no evidence that he wanted to leave and that's exactly what happened to trial there was never any pretty evidence except jackson statement at the depraving on  you know you to it fair enough it bears emphasizing and repeating of course the standard here qualified immunity exists for my clients mister felber under the health and safety code sections they are immune and last they act in a grossly negligent manner or not in good faith a good face not even an issue here so it's really focusing on gross negligence you know it seems pretty unfortunate maybe even as i understand the sequence of events she joking she can't breathe and before she is strapped down on several occasions it's clear that she's having trouble breathing and she needs to sit back up and they do that and then they put her down on the board and she dies that doesn't make any sense to me and done that when it was clear that she was having breathing problems and the breathing problems were ameliorated when she said back up well i i don't see the record that way of the six paramedics who testified they are consistent in stating that she tolerated the back board well and didn't start experiencing breathing difficulties until she reached the back of the ambulance many many minutes later and it was at that point that the six emergency medical technicians one was a driver there was i think four holding the back board were tilting her to the side to drain blood and that's when my client mr avi attempted to enter bait he in fact when the plaintiff's make it appear as though they were ignorant or not cognizant of the of the airway issue the record is clear that that is not the case in fact mr avi testified that when he initially arrived at the scene he saw and received the information and looked at the wound and there well sometimes things happen and it's you can't blame certainly that the gunshot wound to the neck and throat area and head area is the cause of death in fact their own expert testified to that coles testified at deposition and this is that page twenty seven zero eight of the record question do you believe that the actual gunshot wound itself was the cause of kristen's death answer yes the gun her death and i'll also add that they quote the city of santa barbara case that was a case in which the california supreme court held that prospective waivers of gross negligence would not be honored that they were against public policy and the the defendant in that case supported by ameco us argued wait a second if you don't allow us to enforce these prospective waivers of of gross negligence we're just going to be thrown into this to the standard of gross negligence and we'll never get summary judgment granted it'll it'll it'll just be it'll just be we're off to trial and all these cases in the california supreme court wanted to emphasize and i quote we emphasize the importance of maintaining a distinction between ordinary and gross negligence and of granting summary judgment on the basis of that distinction of that distinction in appropriate circumstances here there were no despite counsel's repeated assertions there were no violations of protocol none in fact there was a small army of paramedics attempting to help this woman for from alpine into from v a house if this isn't a case and they were providing attentive care even their own expert dr  attempting to save this woman repeatedly if this isn't a case for summary judgment what is she shot in the head and neck that's an obvious risk of spinal injury doctors say cols again their own expert states in his report at page twenty forty six quote patients with penetrating trauma to the head and neck are at obvious risk for a spinal cord injury close quote and as a result any and he reaffirmed that it is deposition that given her her she was an obvious risk for spinal injury under the policy fifty one of the four that's at page twenty eighty five of the record there is a standing order to provide immobilisation of the neck that's the protocol they follow the protocol it becomes optional only if for me five conditions are present and documented one of those conditions is there's no competing pain here the poor lady had a shot out job and teeth shattered clearly there's competing pain because that factor is there they have to follow the protocol of immobilizing the spine they don't get to choose this is the protocol if so they did not follow the standard of care on them the attempt sales admitted that this utilizing the air way under this condition is quote difficult or impossible why didn't they call the base hospital well that's a good question your honor the according to the protocol you contact the base hospital when you have a question regarding care a question regarding care and as judge houston stated in his ruling on the motion for summary judgment at page eleven lines ten through twelve quote there is no evidence indicating that the responders differed in their views concerning the proper standard of care being administered such that contact with the base hospital might be required close quote that's what it was all six of these people knew what to do get her on a back board get her to the back of the ambulance try to entertain if you can you can't visualize which is according to their own expert difficult or impossible speeder off and then this this complaint about the combi to the blind the blind device that one clearly is counter indicated because of the injury to the esophagus in the neck area if you attempt to use a commie tube in that situation it is worse than ineffective you can damage the neck area and thus preclude a later surgical tracheotomy thereby a women aiding her best and only hope of being of surviving so they're following the protocol again the protocol i think we have the point ok there's someone over there who's looking at  and bob glen paramedic ross engineer how and fire him and need our fire truck engine seventeen is exactly that it's a fire truck it's not a transport vehicle that some protocol eight o five this is a square peg round hole case and i don't mean that to sound disrespectful at all it's certainly a tragedy but this is not one of those cases of gross negligence there's no want of even scant care or extremely parcher from the standard of care which is clearly required under the eastburn case we've talk now about the city of santa barbara case and there are some pretty excitable language in that case i'd like to code that says intentionally performing an act so unreasonable and dangerous that one knows it's highly probable will result in harm that's not what happened here alpine fire responded at ten fifty nine within three minutes all of this occurred a medical exam she was oriented conscious oriented in response of pressure to the neck and face was applied her blood pressure was to and to bait her right away from the point that attempts were made and to bait her c p r was started and she was sectioned repeatedly from the point she left the premises to the point she got to the airway c p r continued suctioning continued and there was a second attempt at an intimation this is not gross negligence these emergency responders are entitled to qualified immunity this is the appropriate case for a motion for summary judgment lastly here on ars i want to just run through their own experts testimony dr cycles at nine e r two for one he says quote these emergency personnel were trying to provide care to this patient and quote that meets the standard he also says this was a prompt appropriate initial and secondary examination and care protocol including quick response times immediately taking of the vitals monitoring the e k g respiration polson oxygen level of and also slowing the bleeding and calling f air that's nine e r twenty four hundred three twenty four o six he also concedes that the ceasefire in precautions were pro forget although he calls him conservative but he doesn't say it was a breach in standard care very briefly are it's a disputed issue as the court alluded to whether or not kristen tolerated being laid on the back on the back or while all of the depth all of the paramedics said she was never she never sat up when they later down all of the deputies testified to the opposite is that her father they said that every time they later down they had she couldn't breathe they had to sit or up so there's a disputed issue of fact about whether or not she tolerated well we know that when she was in the back of the ambulance according to the paramedics she was grasping at her collar trying to get out of it so that's a disputed issue of fact second dr kammen and dr cycle's both testified that while the gunshot wound the gunshot was the mechanism of injury cause of death was a combination of obstructed airway and blood loss dr sacco's said and quoting he said there were several deviations from the standard of care that contributed to the death sacco said wow that's a concern when you have a gunshot wound to the to the jaw it should have been clear to anybody looking at her that there was no a soft a geo injury and moreover you don't place emphasis over some potential injury to the to the a softer guess when she can't breathe you have to use you have to open the airway because you're going to die immediately from that and you're not going to place emphasis over some potential nonexistent they didn't cite a single protocol in there and their brief they didn't even acknowledge that the protocols provide the standard of care the protocol for contacting the base hospital at a t r two zero believe it's two zero one four clearly  you have to contact the base hospital notch when you had questions but when you have a trauma patient which she was when you're going to provide emergency advanced life saving skills which they did and when you're going to transport an emergency patient which they obviously were multiple deviation from the standard of care a reasonable jury could find that these multiple deviations were gross negligence and we believe the district court erred when he granted summ potential for whether or not any further alter cation was a constitutional violation flowing from that would damages flowing from that this is constitutional violation when you keep men from calling his wife the death of their child there was also statement made about crossing the tape or the lake it was very clear from the record that mr maxwell was within the tape he was on the driveway the tape was at the top of the driveways within the tape there's no tape to cross between him and his wife you think both sides as as we're all aware both sides counsel and bench this is a this is an agonizing case and we're very sorry for what occurred maxwell versus county san diego scimitar for decision thank you and we're