you may proceed and please the court i reserve three minutes for rebuttal in may this case is not a summary judgment case there were three findings of fact by the district court that should have been reserved for the jury was kordell drummond in custody when he was held at his grandmother's yard at gun point bleeding when the officers interfering with his own ability to hold his leg and prevent that blood from coming out and was the safety situation so severe that the interference that the officers engaged in was reasonable and therefore it was ok to let him bleed for six minutes until the e m s got there and it was ok for a little bit off because they were just call to the place and what time of day was it it's made it's like one o'clock in the morning out there in the dark right there's a guy who has just had a gun right and they don't know where the gun is he may have it  just shot himself in the leg right with it and so they are unclear as to what they ought to do in this situation right no no no what if you were there what would you do well they've got the area secure they're holding him at gun point he's bleeding profusely and he's got that death rattle saying i'm going to die and they're starting they're believing him they don't c they don't put on their gloves all the ambulance they do call the ambulance and else would you have i sent my brother officer as they did to go find the gun they believed him when he said i don't have the gun anymore and sure enough by the time the mt got there they found the gun they got him secured with at gun point and at that point there's an officer with gloves in his car who either could have come over and help put pressure on the wound or they at least could have they should not have ordered him to lie down in such a way that he's then laid back not holding his leg is he not holding his leg that's and that's why he had to try the case about way i read it and tell me where i'm wrong there's some question about us set nupur certain down but i didn't see anything where it said take your hands away and he did a good point that that's what the trials that's one of the big issues in the trial be dealt with you've got a better some evidence  somebody is there anything in the record that says let go and he did yes gramma gale lewis it's a very hard she's standing there watching and she says when the e m t got there he's lying back with his hands like this and before then even hundreds saying the same body say the officers told him to do that oh yes one hundred said the officers yelling at him get down get down that's different from take your hands away that's why i'm saying that when it was impossible to hold his leg in this in the manner in which it would really interfere with the bleeding while he's lying down and jason his uncle also heard that get down and saw his hands at his side but the biggest thing  that he was unconscious when they got there and if he's unconscious he's now holding his leg in a way that's going to prevent the bleeding and of course he does die from bleeding to death and he got there with them about how  was predictable and everybody had to posed said you know we know it would be about the length of time and they all knew the bleeding you can bleed out in six minutes and that's why this is such an important issue because he was in stiddy hit the geese got a gun on him and he's being told to lie back and so if you're going to take that sort of control over the situation as an officer and then not give him that sort of emergency first aid which would be putting pressure on the wound then he's going to die and that's what happened and so the issue is was the law clearly established that a person in custody is deserving of that level of medical care and the judge said well he's not really in custody because here are three cases that say when a person's unconscious then the officer's actions don't matter they get really placing him right about custody you are saying you would automatically get a trial right if you're correct given the rest of the contested facts yes that because everything that happens to a person in custody is a state created danger i mean because the underlying doctrine here right is to shany state created danger obviously he created the danger initially by shooting himself the question then is what happens there after right did they prevent him from getting care that's correct so and i'm not saying that i mean there may well be scenarios where everything that happened doesn't trigger a federal lawsuit but in this case on these facts where they're watching him bleed and you know where they're there they have notice that this is serious i mean not only are they watching i mean they tell the m s to step it up but they're also in a situation where gramma looks at the officer and says what are you going to do because she can tell that he's really believe not the bloods pouring that france have to overcome a qualified immunity standard here the there is no qualified immunity because the law was clearly established at the time but my question is do you have to show that qualified immunity does not  it's not present here yes and in order to do that you have to show that the law the constitutional law is clearly established that in this situation the officers should will but the i mean i'm just we've got to i want to be in the real world and that's what you're saying when you first said let's look at this in the officers perspective and i'm that's fine i'm not saying the opposite shouldn't take him into custody they don't know where the gun is that's fine that they hold him at gunpoint but at that point they are now in charge of the situation if they had chosen not to take him into custody grama would have put a turn to get on him grama would if you can it can have a catch twenty two here you can't say on the one hand but on turn above the above the bleed and our expert says that that would where was the break i thought he shot himself five yes right so that right right around his waist at the top of the leg she would have put the turner kit and our expert says that that would have increased his chance of survival by over fifty percent you say that at the time to the officers or did she only say that in the deposition no she didn't say it at the time to the officers let me ask let me ask you this about the gun because we went back and forth initially you said he said i don't have it and the officers believed him and then later you said they were still looking for the gun why did they why do you say they believed him as opposed to you know they sent somebody to look but at the same time they thought it was possible that it was under him and even a bleeding man can can shoot again ok i want to try this but you know for but we need to debated  too i said they believed him because number one one of the officers put his gun away and went and looked for it so you retrace that there were others still holding their guns where there was one other still holding and there was a third and they did not cuffed him they did not cuffed cordell drum they only waited and they didn't you know they they didn't take any additional measures if they really thought he was armed at the time they would have cuffed him so that he couldn't reach for a gun somebody that says that i mean i'm you know i'm not an officer but as between get noppawan a guy who may have a gun under him and keeping him at gunpoint at some distance i'm not sure which is the well safer thing but our expert in what will stablish a trial and what the record already establishes is that they knew the next thing that was going to happen is e m s was going to approach him and they owe a duty to e m s to make sure that the scene secure and they actually called d m s and said the scene secure so they didn't stay g m s like they would normally do they let him ask come right up to this man so they didn't really think that he was going to shoot anybody and what we're really dealing with is a person that was bleeding profusely and a lot to get back to your question the law was clearly established at that time under the jones case that you have a duty to provide emergency medical care even while you're waiting on e m s in fact there was one defendant in jones there were nine defendants and jones and then a jones was beaten up by some cincinnati cops he's then lying there on the ground there's one defendant in particular sergeant who comes up and says this guy's not breathing and calls e m s but he's still denied summary jeff qualified immunity because he doesn't roll them over he doesn't do some basic things that you're supposed to do with positional while you're waiting for e m s so even though that's not identical that's the kind of law that under our qualified immunity jurisprudence gives the defendants fair warning if you're relying on cases you're lying this these off should have known what to do under clearly established was yes that clearly established is what jones versus city of cincinnati what i'm also relying on is just the basic notion of a duty to give medical care which is going to stablish for a long time to people in custody and i'm and i fair warning in this case prior law did give fair warning and tracing the lie kopi pelter does the notion that well you know you can look at the general rules and hope the pope so they had an alabama prison regulation here we had a springfield township jail regulation which said if you've got a bleeding prisoner you're supposed to put pressure on the wound that he was in custody then what should we do with remand and give the family a trial district judge would tell the district there are also other defenses here for example the immunity defense qualified immunity defense as well and or as i know the district judge and ruled on that right well know the district judge did say that the officers had qualified immunity and i thought she did it incorrectly in the sense that she failed to apply it clearly established law and i'm both the shany state created danger exception and on the private rescue exception no what i would say is you reverse your direct that there ought to be a trial the trial is on whether the officers were deliberately indifferent care at all while they were holding him in custody i'm not i'm not challenging the fact that they held him in custody that's ok it's just that if you're going to take charge then you have to give emergency medical care thank you counting your time f clear that every reasonable official would have understood that what he is doing violates that right to have this record actually explicitly rule on the qualified immunity yes defense district court ten ruled that there was qualified immunity and what the district court ruled was it's doubtful that he was in custody because his own injuries incapacitated himself but even assuming he was in custody what the officers did was not deliberately indifferent and did not violate clearly established law so that's how the court got to the fact that there was qualified immunity the court did not deal with the issue of municipal liability in so far as whether act any policy or custom of springfield township was a moving force behind this alleged constitutional violation ition to the custody issue we need to you're saying we need to reach in addition the qualified immunity  question of the case if we should think that there was a custody right in what else well it's our view you if if the court finds that there was custody which we would dispute we say there's no custody because his injuries are stand there he's on the ground and they're all point to good at him and tell the import to do is print kind of hard to say you know that there was no custody and that he could move anyway i mean he was he shot himself he was lying on the ground there their duty adat point is to secure the scene but out to to answer your question the first question is is a clearly established law that the officers have to do more than just summon first  it's clearly established we're talking about the same time well no we're not in the we're not talking about the same time there's a couple of differences first in jones the officers injured the person themselves i mean the officers committed the literally created that danger right and in general is what the court said is the police savagely beat maced and handcuffed plaintiff they knew he had stopped breathing and this was on a motion to dismiss the officers delayed calling for medical aid and then when a step further and did not remove the handcuffs which delayed the administration of aid and hastened his death i would suggest to the court a thorough reading of all the six circuit cases including s which was decided after this incident in sco sorry the court said reasonable officers would have known based on this circuit's precedent that the obligation to provide adequate medical care to an injured detainee is not discharged merely by calling for existence but is extends to ensuring the medical responders are able to access the victim without an reasonable delay now the only cases that say that the police officers have any obligation are the cases where the police officers have injured the person themselves if a police officer comes upon you and you energy are still injured yourself then i can just sit there and watch him down i would say yes i would say that's the lawyer to cheney but that's not what happened in this case but i say that's the law understood cheney they have no obligation but if they've taken him into custody or if they've taken them into custody if you find they've taken them into custody what the obligation is is to summon first aid and secure the scene so that the first responders do not have to stay somewhere else that's what we in both to be a hue of the importance of the time frame is that it gives the officers the opportunity to consider the probable cause that the probable circumstances what might occur and it from their ability to deliberate it places upon in the burden to do something that's that discussion in both of those cases talks about the fact that whether or not shocks the conscience or deliberate indifference is going to be the standard that used to judge their conduct but owens be clearly says that you can do the police can discharge their duty to the prisoner or to the person  injured by the police by summoning assistance jones says the same thing once because ari says and what john says is if the police summon assistance they have to do what they can to secure the scene so that the first eight people can get there quickly now in this case first answer question from the previous that was asked to the appellants counsel the police officers testified they didn't believe the person when he said he didn't have the god they didn't believe cordell  and when he said he no longer had the gun that's why they were looking for the police officers obligation at that point is to secure the scene the emergency station is only a couple miles away they don't know how long it's going to take them the the officers the first call it was it one thirteen or one twelve at once well they there's a call that the plaintiff is shooting his gun into the ground the officers arrive on the scene about one fifteen i mean they're the right away they walk up to cornell drummond say to ask him are you the one who was shooting he got off or you know nothing about it he goes running away that's when he shoots himself well in the end that's somewhere between one fifteen and one sixteen at one sixteen the officers immediately call for first aid immediately they didn't they didn't hurt him they didn't even know if that point time exactly what happened they immediately call for first aid that's one sixteen the first day people are coming for a couple miles away they don't know how long it's going to take a couple minutes later sergeant robert shows up on the scene sees what's happening gets on the mike right away and says step it up get here quicker in t's they don't know when he's coming w gail lewis and mr drummond come up to the officers while they're on the scene they said you know they're talking what's going on the officers think the mts are going to be there any minute their job is to keep the scene secure so the empties can get empties could come in one of the things that's also going on at this time were that you know it's one sixty one eighty one twenty when they're waiting for the e m t these people are coming out of their houses or milling about they're shouting the officers looking for a gun they don't know exactly what's going shots in the neighborhood right and they gave the address right so they then immediately go out there so that what the plan is the fellow and he runs off and mistakenly shoot yourself in the far right the he runs away he shoots himself so at one sixteen they call that they call the school who the police do know i take it that if they take someone into custody if they take someone into custody they then have added our position is even if you find that he was in custody six circle law says that it's the obligation of the police officers to summon first aid and to make sure that the scene is secure so that the from the first responders can get there and a mystery to them what about the positional asphyxia cases where they say you know you should roll him over well that's what the jones case said and they said in that case they should have taken the head off so that the first responders could have gotten there are more quickly it could have gotten to a woman and treated them right away but that that's what they said in joe's so they made it more difficult for the first responders to do what they wanted them to do in our case all our officers did was stay with him talk to him tell the first eight people that step it up they didn't do anything to make it more difficult they didn't hurt him they didn't know they were in the positional asphyxia cases the officers are sitting on top of the guy are officers all three of the officers testified they didn't know exactly what the injuries were they didn't know how serious the injuries were they could see he was bleeding they didn't feel comfortable treating him or doing anything with him because they didn't know the extent of the injury or even where he had shot himself they thought the squad was going to be there any minute so from their viewpoint not looking at it in twenty twenty hindsight from their viewpoint they did what was reasonable they called the squad they told the squad to step it up they did their best to keep the scene secure and when the squad arrived a squad got right to it they didn't know it was going to take six minutes they didn't know how long it was going to take but they thought it was going to be soon what is the justification for letting his family knowing that he's on the ground believing that letting his family tragedy administer aid to what is the reason well they didn't say that they wanted to administer aid and they didn't know that our officers didn't know who they were you could use they had a flashlight they could see the circumstance there and they could they were even family people who wanted to try to give couldn't they didn't say they want to give aid in the the law is that officers don't know whether they're in any way qualified to give aid they don't have any obligation to let them our officers didn't know anything about their qualifications didn't know who they were didn't know where the gun was at that point i mean the officers are trying to keep the scene secured they're not going to just let anybody from the neighborhood come up and start going hands on with cornell drummond who's lying on the ground that's that would not be keeping the scene secure who knows there's no evidence that the people who came up or relatives or seeking to give him a i don't think so your honor and they also there's no evidence that our officers knew anything at all about their qualifications to give aid i mean well what's the my under what did the officers either hear by their testimony or what did the other people say when i asked your adversary he said that there are various things that were said at deposition but what's your understanding of the record somebody said what happened and they gave him an answer did anybody say i'm a nurse or let me add him with the turn of kit or anything of that sort nobody said anything like that what else is your understanding of what was said by the people are saying what happened officers are saying stay back to life squads we've called the life squad they're on their way that's what the officers are saying when the officers expect the life squad to arrive at any minute they don't know the qualifications of the people there even hunter said in her deposition on page sixty five that he was holding his leg in the officers were saying lie down and she saw it for about two minutes now it you know if you're always told i mean common knowledge is if someone is injured don't move and tell him to stay still you know that's the officers are doing they're not going to let somebody from the neighborhood come up and just roll him over or do something to him works take a scarf off and wrap it around his waist officers heard what the people say they said on the scene i think that's what i'm focusing on the testimony is is that the people say what happened you know what's going on the officer said stay back you know and then you know the life god has blood has been called and you know the point has been made that there are some material issues of fact here or there the issues of fact are not material the fact of the matter is is that the six circuit law not players trying to cite some cases that happened after this to show that we  is a question a lot i mean the facts are not in dispute he was he shot himself he's lying on the ground the officers hold the gun on there's no can there's no dispute about those facts if the court finds as a matter of law that that's custody then the issue is then what's the duty of the police officers our position is if the court finds its custody it's a do the police officers to summon aid and to secure the scene and that's what exactly what they did under the circumstances of this case as i said  their actions did not so chill the you know the society they what they weren't so reckless and so stanley causing a risk that they were chilling to society qualified immunity standard as every reasonable officer would have known given all of these circumstances that the only right choice was to go in and grab his leg that's correct and the judge back with who had an opportunity to review this inner chamber and look at all the law on th they did not have that obligation and that's the same thing the police officer scholar's this case on the same colors of this case read to some extent is that it seems clear to me that he knew that the guy was custody and for the district judge to say the person was not in custody koehler's the rest of the holdings of the district judge i said you know what i mean i understand what you're saying your honor but i think what the judge actually said was that it was doubtful that he was in custody but even if he was in custody what the officers did did not rise to the level of deliberate indifference you know thank you counsel thank you best case you have for saying that the law was clear that what the police officers idiot here oh amounts to a state created danger the law was clear that if he was in custody the law was clearly established that they had a duty to put pressure on us and the state created mangers the fact that he's in custody that they have restricted the flow of people to him because if he wasn't in custody they would have let grandma come up to him and deal with them they would have let uncle they wouldn't put oncle in the car in the police car evidence that they knew this was graham this was a relative and that person wanted to administer aid is there evidence of where there is evidence that these were people very concerned about him graham actually looked at the officer and said what are you going to do and he also you know these are law abiding citizens i mean they they're told by the officer to get away they're going to fight with the officer and say you know i'm going to put the turner kit on him but but to get back to your question the law was clearly established at that time under jones and sergeant bateson that calling e m s is not enough if you know that the time could well be before you mass gets dead that this man's going to die in the john situation they had a duty to roll him over not just to take the cuffs off but to roll him over and they ended up you know doing astronomer been doing some vitals and things that ultimately got the officer off when they did their actual trial or factual analysis jones is actually very helpful because it's a two thousand and eight decision pleadings only that said bateson doesn't get qualified immunity because it doesn't look like he did anything and then there's a two thousand and twelve decision the game qualified immunity because lo and behold when they did the facts he did more than just call the m s that's that's exactly where we're at these officers did nothing they didn't put pressure on the wound there was a clear duty and need to put pressure on the wood and they didn't let anyone else do it either has to know what they don't they're not person health care how ovation goes to know what to do well if if this man was in custody in the jail they had a clear regulation that said you've got to put pressure on a bleed if you're in the jail to that custody in the jungle in the safety of a facility controlled by the officers is distinct from the situation here and that's why we're trying to look to the cases that are out player in the reality of what's going on and that's why i'm asking you to give me you think jones i think jones's is directly on point and what's helpful about jones is that there are nine officers here there's three so if we we re going one on one i mean i'd be here because then you'd only have they were power to begin with and in the midst of the six minutes roberts roberts comes he was not there at the beginning and at one point you had  officer holding the gun on him while the other police officer goes and looks to see if there is in fact a gun out there and when roberts is there you have the help you need to put pressure on the wound and possibly save his life and