it please the court my name is there and i represent the defendant appellants the individual you took a police officers in regards to subpoena with the court's permission i would like to reserve one minute for rebuttal thank you and three points out like to discuss with the court today that all involve the qualified immunity question involving the plaintiff's fourteenth amendment substantive due process rights specifically the substantive due process right to be free from state created danger those points are first that there was no actual constitutional violation meaning the fourteenth amendment was not violated second there is no clearly established law in regards to a nine for one's arrest these victims of being able to sue the police officer that affected that arrest these arrests and third the given that the law is far from clearly established the officers actions of taking the nine for want to rest to the hospital telling them if you release them please give us a call we would like to if he's not committed we would like to press charges on him or certainly objectively objective we reasonable entitling them to qualify immunity so moving to my first contention there was no actual constitutional violation in particular here we're talking about a state created danger theory now this court has essentially said a state created danger theory breaks down into a century three parts you need affirmative action which enhances the risk and the actor needs to the action needs to be a conscious disregard and deliberate indifference that's what they talk about and needs to shock your conscience the action has to be sue back now let's look at this case if we look at this case specifically and the type of theory the plaintiffs are prosecuting here is that there needs to be an explicit or implicit prior assurance to paul from the police officers that he could break the law and act with impunity now let's look at the only a for but of action they did here what they did was they went to the home the effected a nine for want rest of paul meaning they secured him in handcuffs they had to physically remove him and restrain him put him in the back of the patrol car where the ambulance subsequently transported him to the hospital at which point custody of paul was turned over to the hospital and he was at that point in their custody in care those are the only affirmative access police officers did and this court has held there is a seizure it's a use of force under the fourth amendment to secure somebody in handcuffs and its use of force to put him in the car moreover if you look at the recent hourman decision from this court talking about the created danger danger claims they ruled that a warrant arrest is an affirmative act which does not communicate it communicates the opposite it says your conduct is unacceptable for society that's exactly what these police officers did here it was a nine four want to arrest which is a civil confinement under the law not a criminal custodial rest i can see that much but it still arrest and it communicates to paul certainly that his behavior was unacceptable and would not be empowered moreover there's a little bit of an issue here and regards to the plaintiffs the arguing the breeze heavily that due to the police department should stand guard over pabon below when he was at the emergency room and there should have been a follow up phone call again i highlight this is key these are passive failures that this court has said both lewis and going all the way back to the civil mentally disturbed person arrests the and transports that person to a hospital the custody switches at that point to the hospital yes so  they would have no authority to go in and arrest him when the doctor say c c let's say hypothetically on the opposite say they take him to the hospital the doctor says yes paul needs to be involuntary committed so you get into the nine thirty nine part of the mental hygiene code so at that point the officer has no worth and that confinement lasts that can last up to several weeks your honor and then i think it's fifteen days and then you can you can get into the you know where you have extensions exactly so it could be at what point does the the officers do determining that that's the major point here moreover i'm moving to my conscious sacking point i'd like to bring up with if we look that the officers left their phone number with the hospital to be called if paul was not committed and that number was never called those allegations are in the complaint it makes it very very clear that that's the facts of these this case now i would argue that in society in general when somebody gives you the phone number the the connotation is there is that they're expecting a call back they are certainly not washing their hands of the situation as the district court said that indifference conscious shocking behavior additionally on magic and it talks about the competing constitutional rights that in a police officer faces and if there is that competing of constitutional rights the decision that office makes by definition is not conscious shockey and we know two things we know the officers use forth on force on paul right so the fourth amendment claim they have to worry about not using excessive force on paul additionally there's also a claim for deliberate indifference to serious medical needs right because we know that paul is completely out of touch with reality he says he is in need of medical attention that's that's the plaintiff's main main contention against the hospitals that they should have never discharged them they should have committed him so clearly the officers were under a duty to effect the nine for one arrest first which is the proper police procedure because then you know you take him to the physician physician the fishes and says no he's ok he's got the mental state and you're probably moving closer to being able to bring your probable cause to file the actual criminal charges and the doctor says no we're going to commit you there's certainly no mens rea you there so you're not suggesting that the officers did not have probable cause to effect a criminal arrest or you i guess it would need to have a doctor's opinion before they would have probable cause to arrest him for assault well let me let me clarify that at this point given the representations that were made by michael barr below and the acts that paul had engaged in i would say at that point it was questionable whether or not there was probable cause to criminally arrest paul bungalow and the officers  to employ you're saying that if they had arrested him but at any rate isn't isn't your point really that it's a reasonable choice they have various options that they could follow in dealing with a case like like this certainly there are cases where people are criminally arrested and are then brought to a hospital because they need immediate medical attention and the police do stand guard because in that context the officer has made an arrest and the police department assumes responsibility even if the person is being treated but what you're telling us is there's another way to go in the case of mentally disturbed persons and that's equally available option for state intervention sure absolutely that's why are you in my argument is the best  practice is to go with the nine for want to rest first because that gets the medical attention to paul and indeed you don't even have the burden of showing that it is the best practice that's not the is right that's not the issue that's just my argument between right the question is this actually before supreme court's decision starting with alcan and going all the up to this year to white versus poly where it talks about you need particulary in the case law of the facts of the case such that the police officer than knows what to do and if you look at wish by the time the events in this lawsuit occurred the fourteenth amendment says nor shall any state state deprive any person of life liberty or property without due process of what you think this is the level of generality which is not correct it's  totally unhelpful to an officer and if you think of it this way is the court has a pint and gonzales with its objective reasonable analysis the more generalized the clearly external blish law is the wider the scope of what is objective  reasonable for an officer to engage in is in it as is the case here right because in this case there was a nine for one statute on the books that's what the police officers did they took them to the hospital and they left their phone number to be called upon his release really reasonable behavior and for these reasons i would argue that the district court's decision on the motion to dismiss should be reversed i see my time is expired if the minutes rebuttal yes thank you  plaintiff in this case the defendants are not entitled to qualified unity the defendants in this case violated the constitutional rights to be free from bodily harms to have their bodily and tegra need to have personal security under the state created danger exception the defendants assisted in creating or increasing the dangers to the deceit and by their acts their acts were both the defendants have a right to take him into custody we don't dispute that they had that right with then you know no excuse me section nine point four one gives the officer the authority to remove the person to a hospital and that's exactly what they did and then at that point it gives the hospital director the ability to retain the person for fifteen days that's section nine point three nine and i'm having trouble understanding why this is anything different than the officers arresting somebody criminally and then after the person is arraigned he's turned over to the corrections officers and the police don't stand around waiting to see if the corrections officers will negligently let him go after he's incarcerated why isn't this the same sort of thing they turned him over to the doctors and now the doctors have custody and they specifically tell the doctor by the way if you want to let him go let us know it's different your honor in that in the criminal sense that you referred to there right they said we are taking this person into custody now with a doctor where as didn't know he was brought to the emergency room there was no admission into him and i am forty once explicitly says that they can take him into custody i personally appears to be mentally ill and bring him to the hospital pending hold him in a safe and comfortable place i take it that's more or less what they did when they stuck him in the back of the police car waiting for the ambulance when they put him in the ambulance that's an alternative they could take him if there's no hospital bed available or something like that they're allowed to keep him in a safe and secure place pending the admission to the hospital or they can take him to the hospital there's two alternatives they take him to the hasbara but when they still have custody of him it's not saying there's no admission here there's no he's just put into the emergency room well as i understand i guess i understand your point you're saying is in effect it's what sounds to me like it's negligent to leave him in the custody of the doctors until the doctors make some affirmative decision but how is that comparable to cases like oaken where i mean i think there's a certain rhetoric that says it has to be affirmative it seems to me that also is very passive it's a very different kind of passive they show up repeatedly at the domestic violence calls and pal around with the guy and never arrested and never take him into custody and never do anything to talk sports and then his wife gets  views further and i think ultimately killed in that case what hal is this comparable they didn't just say show up at the place and chat with paul and say guess come down a little bit and go away they affirmative y arrest him how is that affirmatively encouraging him to do what every feeling immune ok and as opposed to in this case here they actually saw a problem or had done they actually saw how he had viciously beaten the da and how he had assaulted committed acts of domestic violence and his family members so they actually witness saw that when they brought him to the hospital they knew this is questionable whether they even told  hospital what happened upon them a lot about his prior history of mental mental health issues whether or not he was taking any of his medications it's the officers really not doing their job and just saying ok he's here he's out of our hands let's leave him here or walk away without knowing that the hospital was doing anything when we got back to my earlier question he could have been there for fifteen days right if he was in it at all if yes well look the police don't make the decision whether to admit somebody or whether to admit them just for observation or whether to observe them to decide who they need to be held for observation when the police go to the hospital they don't know if they set up an encampment where they would have to be there for three hours or for fifteen days that doesn't sound very reasonable your honor they still have a duty once they bring somebody there to make sure that that person is treated and make some determination of them not just let them wait and wait and waiting room or just sit there and see if anything can happen what is the source of law that makes it clear to the officer that assume the sooner that i happen to agree with you that that's what the law should say that where is there a source of law either in the new york statutes or in the constitutional decision by anybody that says that want to police bring please bring somebody to a hospital under section one point four one they have to do what you would like to say they have to do i don't think there is exploits that written law and saying exactly what the procedures are but common sense says and i think any reasonable person would know that you don't let somebody who is homicidal with a sock come in and it's a domestic violence dropping off of them up at the hospital and utterly and completely immobilized and in the hands of medical professionals they did leave under those circumstances however they had no idea if he was just going to be let out of the restraints he was being restrained because at that time he was being volatile and you suppose they just hadn't responded to the nine one one call at all are you suggesting that because they had probable cause to make an arrest they are obligated to make a criminal arrest not if they had not responded but i think they were obligated and domestic violence laws once they were there and saw the physical acts of domestic violence their obligation to do something under state law to make an arrest that is correct they dropped him off at a place where he would get attention and then left him pinioned on a bed where he could do no harm and in the hands of medical professionals who know a lot is once he was out of his restraints what she was subsequently out of his restraints he could have just left that which is ultimately what happened the hospital at the defendants had a duty to stand guard there they have a duty to watch over that once they took  into their custody even though the brought him to the hospital doesn't relieve them of any and all of their responsibilities especially in the facts and circumstances in this case and once again you are going to there is nothing anywhere in the war that says that the officers of that responsibility you're saying that's just common sense your honor we have not found any written procedure or law that says that they must sit there and stay there with somebody once they bring him in it's common sense that they would stay there until the person has been examined or until there's been some determination or admission the hospital doesn't take him as a patient for that fifteen days until they make that determination until they've had an examination of him and here clearly there was no examination there was no admission he was literally able just to walk out the door attached to the bed presumably knowing your honor he was ultimately released from those this was a single incident there's no allegation in the complaint that these police officers were familiar with paul that they knew we had mental problems and is that there were repeated times where they had just let him go secondly there was some discussion as to the domestic violence law the mandatory arrest law what's alleged in the complaint is that the probable cause for an animal cruelty charge that is not that is not a mandatory arrest law under the new york state domestic violence law the only possible one there could be would be harass which michael bomba most pacifically said in his supporting deposition which is in the complaint which is essentially an affidavit saying he didn't want to press charges against paul so probable cause was evaporated for that which would have been a mandatory arrest and finally  's counsel argued that the information given to the hospital was an adequate again that's a passive failure on behalf of the defendants not actionable under state created danger and lastly it's sort of it's not good law to say that the hospital is supposed to rely on what the police officer who is not the medical professionals opinion was of what facts they knew the hospital should be making their own assessment of paul that's the whole idea of the nine for one statute is to get them get the individual to the hands of a professional mental health care provider that being said i'm over my time lester's any other questions nothing further thank you both will reserve decision the final case on calendar united states