to walk into the jail that morning before eight o'clock they were unable to boogie mccullough's in the ledger he was not responding to questions the only medical attention they something different about mr hearts out they've my point mr hackett said the reason they were doing it for is because usually we know that it would put them in the deep thoughts and let him sleep it off for a couple of hours they're ok we can get a million questions we can put him through the bookie but that the first couple of hours it's plain that in the daytime say oh mr parks i was not improving his he is unable to he is not conscious that they are there he makes no movement they realize he can't walk up to him or even though the hours earlier he had walked in the jail he can't walk anymore so they go and get a wheelchair and put him in a strap a minute because he's sliding out of the wheelchair but doesn't know that show i mean there may be negligence here it's obviously a tragic situation that there may be negligence there may well be recklessness but the constitutional standard is deliberate indifference which basically means either you want to hop the person to be harmed or you just don't care i mean that's what indifferent is i don't care if he gets worse  condition worsens but here they're monitoring him they got permission for his mother and sister to come visit him then they got permission for them to go bring a doctor to him which up unfortunately passed away before that doctor arrived but they  him water and as you just said they put him in a wheelchair to bring him out there and they were in the process of putting weaker restraints on him so when you look at all that conduct sure in retrospect they should have done what they should have what they should have let him go to a doctor we all know that now but given all that was those things they did to try to help him how can you say it was the situation where they just didn't care what happened i would draw apparently up to the case oh point two thousand and three  stuck it in there but it wasn't touch it they never heard about it but back to the question you raise it's more than negligence if you look at the parallel factual situation in allston  johnson but in this case they had good reason to believe that he had he was known under the influence of some kind of drug test because the day before they had seen him out in the past and would you know so and he he was apparently pretty under the influence of various drugs and that's what this guy looked like and so what why were they deliberately and different in believing that initially that might  but i mean around at this a this timeframe of eleven forty that you've been focusing on is around the time that the family arrived and so then they're interacting with the family they're talking about should we bring a doctor should we do this should we do that and they're off trying to get a doctor says stuff is happening it's not like oh this guy's long on the floor let's just leave him lying on the floor for the next several hours things are happening again we know not the things that should happen but it's not like they're ignoring him they're dealing with the family they're trying talking about the family's going to go get dr stevens they're doing all of that and then while the family's off getting the doctor he deteriorates further they do call the ambulance and by then it's too late so i mean i absolutely would be apoplectic if i were the family member in this situation so i completely understand how they feel but that's not the legal standard the what the family would want the legal standard is whether they show deliberate in is there evidence of deliberate indifference in all this and isn't all this cases where somebody was collapsed on the floor for hours and the jailers just ignored the person this isn't that cases it well because they pulled him up they put him in the wheelchair they brought him out to the family all of that happened in roughly this time frame  absolutely nothing in the way of providing him any sort of medical attention other than that sleep it off in the day they had him in a monitor detox i mean weren't they they live through the camera and monitor detox they're not just sleep i have seen where they leave him in a cell and nobody checks on him for hours this is a monitored by camera detox cell that's for this purpose and then around this time that you say things are deteriorating is when the family showed up they bring him out there they put him in they strap in the wheelchair they bring him out they have this dialogue about the doctor and all of that so again that's not just ignoring him it's a maybe not what they should have done but it's not ignoring him but of the  medical person to say and i mean again if it's my loved one your loved one you going to do everything you can for the person no question about that that's not the standard the standard is whether this conduct shown by the video taking the evidence as the best case for you all best legal case for you all shows evidence of deliberate indifference versus negligence stupidity and all of those other things and that's the hard part is a very hard standard i completely completely understand the family's dismay with this and disgust and devastation with this all of which i think is fair and justified but this legal standards we have a really high negligence but then there became a point in time when they said their failure to collin ambulance for almost two hours rattus as to the level of deliberate indifference and with the information that the hack in had the information that he's he tails david smith this man is so much worse off than he was when i brought him in earlier later that moment and that's what bridge the point where it was no longer negligence it was deliberate indifference as the fifth circuit spoke about in allston they jensen and  the reviewing the lab results after he was done we know that but did the deputies know because people camped in the woods for weeks they take water with him so do we not do did the deputies now on the day of the event water they were tunnel state see and head discussion with him with mr hackett that at the noon stays in the mother where they are he's been in the woods for two nights and these days he's they had will focus on the constitutional standards here and on the record on appeal not what may have been in the record not what was twenty twenty hindsight many months later but what happened at the time and the constitutional standard by which judge that the constitution in this this is in response to requests from the earlier it was put to the down to the constitution is designed to deal with depravations of wrongs not errors in judgment there may have been error in judgment here looking back on it that may be the case but the question for purposes of this court and the question below for judge stare it was was that deliberate indifference or a violation of the fourteenth amendment rights and  as a component part of that was qualified immunity available to these officers these are different standards in looking through the cases sometimes it's confusing to look at the standards it is to me at least but the deliberate indifference standard goes to the violation of the sport at the moment right and then the objective standard objective reasonable this goes to the qualified immunity not much has been talked about on qualified immunity but it's very important and judge stare down that to be the case in addition to the fact that there was no no deliberate indifference and that the standard is not i don't think anyone doubts that and to demonstrate deliberate indifference the test is a little bit of a tongue twister than we brought me and he don't belong here but here's the thing about it that's deputy johnny happy johnny back it is the person who first of all it's been minimized what happened on monday october the nineteenth you know all this focus is on the twenty it's going to be remembered in the court to answer questions about this mr martin i was turned over to his mother own october nineteenth this very same day deputy acting and did deputy hackett know that she did not bring did not say he had gotten a lot worse that is not in this record a lot of things and so that's what's so important to focus on here the by the time hand detective hack came back from being out on patrol let's think about what if mr hardtalk you've been brought into the jail he was able to walk in on his own power he was brought what in the form of a sandwich g s and a snack at eleven says he looked terrible and here's the thing you have davis had not seen him on october nineteenth the day before miss more talk had the mother he was covered in scratches the day before from running through the under the influence of drugs or alcohol i don't talk to them and here is what is so interesting about all of the initial pleadings in the case right on up to the present we did not know on the defense side of this case two hours after he became unconscious this kid why didn't they even if they didn't initially why didn't they once he falls on the floor at eleven ten or whatever call nine one one let the let the e r guy show up and say he doesn't need to go to the emergency room or he doesn't need to go to let the medical guys do the had personal experience with that in my family somebody falls down the empties come to get him up they put him in the chair they look at him he's ok they don't take it so it's not a matter of they would have automatically taken him to the hospital but if they had concluded he needed to go then they would have taken him and then the r until he was coding essentially at the very very end it so i don't under i don't understand that i don't understand not calling nine one one once he's on the ground all i can say is that deputy hackett was deposed and he said that the facts that i've spoken over earlier where mr hart's i guess able to speak with josh or he is able to tell the undersheriff that he to prescription he is able to speak and if that point that just the deputy sheriff did not believe that it was necessary to call nine one one again that could be one hindsight that could be an error in judgment but was it deliberately indifferent not according to the fifth circuit because hospital i mean people who have committed heinous crimes and are then themselves shot these mass killers who then are shot they get taken to be are and they get treated when they just shot thirty people there's not been hard socks accused of it's anywhere remotely close to that so whatever he's done that pulls him in jail which could be intoxicated where it is is not such a heinous crime is these and yet but nonetheless those people are taken to the e r given treatment and he was not why not intensive investigation that needs to be done of the record on appeal and the record on appeal shows that mr hartzog was able to speak again during the same time frame that he is supposedly after he is seen on the video on the floor after that time frame he is talking to josh earle he is talking to the undersheriff they're denying that he did anything besides take prescription medication those conversations are still happening now again they are not happening the most actually own point of any of the cases that have been cited including the boot camp case as it's called but the allison versus ones in the case is extremely  because what happens in that case when is the same general thing that your honor is asking about here what about this lady she did the deceit it goes of all things to her date for the victim impact statement for having previously received a dui she showed up drunk and so she was taken to the hot to the jail and she is throughout the almost exact same time period that we're dealing with here a period of about five to six hours she can't be roused at times she is clearly intoxicated and what the what this court has said is that it seems subjectively reasonable again going to the qualified immunity standard to allow an intoxicated inmate to sleep it off with periodic monitoring here there was periodically monica there can be no that's not a disputed fact there was a period of monitoring by video and then again this time period when the nine one one call is not made the deputy sheriff is physically present with this report on that during that time and the jailer is physically present with him that entire time from the time the mother and sister come until the time when one is called this is not a situation where the deliberate indifference is manifest in fact after the deputy hackett called the  have here allowing someone who is intoxicated to sleep at all that's what these deputies thought was happening and they it turned out they were wrong but were they deliberately indifferent there is no record evidence that they were deliberately indifferent to and the court below found that that was not the case number one that there was no violation of the fourteenth amendment and then secondly that actions were objected to leave reasonable and so i have time left but that concludes my argument that they try to fact i would say that the testimony before him about his condition and the fact that he died shortly after we don't believe those statements that were at the evidence says to be viewed in the light most favorable to my clients and insofar as the so called conversations where he lives