good morning and you may proceed counsel with your argument thank you my name is jack batson and i represent the plaintiff deceiving in this case this case ask us to address the issue of whether the th circuit should adopt the kingsley standard of objective reasonableness as to conditions in systems cases we believe that that would be the correct thing to do because kingsley itself relied upon bell which was a conditions case also kingsley came about in the context of assaults on detainees by guards this is a case where the conditions and systems caused an assault on the plaintiff by detainees so they're both assault cases and the only difference kingsley is a condition case and there's a there's a big difference in kingsley the assault is by the state actor himself and in our case the is by another person and you're trying to hold the state liable and so in that layer even if we were to apply kingsley which was a th amendment issue  of arrest two prisons situations of custody which is i think a kind of a big leap in the st place but even if we were going to do that seems to me it's very different to say we're going to eliminate a subjective requirement when your liability is not for something you did in under in that context you might say you intended the natural consequence of your action and that might negate the need for intent here it is not your action that you're being held responsible for it is the resulting action of an assault by someone else in the so all of a sudden i think intent becomes more important that you intended that other action by someone else and enabled it by your or your jail conditions right let's st address the fact that what's happening in our case is we're having corporal punishment assaults being levied by detainees our constitution allows for only one kind of corporal punishment and that's the death intended that there be a death here the issue is whether they are either objective lee and reasonable to substantial risks of harm but the outcome is absolutely foreseeable in the present context this is a case in which all the people who are asked about it it's obvious that fights occur in prisons it's obvious that when a fight occurs serious and substantial injury can occur that the number one reason number one rule of prison and jail administration is to prevent the attack and stop assaults for nearly what was clearly established law would have put the supervisory defendants on notice that the things that you are correlating with violated the constitution one thing you to do is apply kingsley here but we've got circuit cases public circuit cases where we've refused to do that we haven't addressed  and did not apply it to medical indifference claim in dang the sheriff and so i want to know what it is that would have put the supervisors on notice st you claim that the jails must have some procedure for classifying inmates they had some method maybe it wasn't good enough but i'm not sure you can point to any case holding that the jail subject of class was cation system was constitutionally inadequate  any case that would have put them on notice that their procedure for class of farming inmates was constitutionally defective the issue there is a much more practical one in that you go back to the history of classification in and of itself classification has not only do you look at the paper record but both of our experts testified that absolutely you have to have a face to face interview the fact that this county did not have a face to face interview it was absolutely shocking every place i've ever ever else been there's a face to face interview so they were they were constrained by their conditions because they couldn't they were they in effect had created a system where no individual jailer would have subjective knowledge of the dangerous of the detainee about to be put in the cell with the other detainee and that isn't the reason we have to impose an unreasonable or an objective and reasonableness standard because that way it promotes the constitutional protection of the detainees from the corporal punishment the subjective standard allows for creating a system whereby people can turn a blind eye to it or just by the by the mere system itself it's fragmented and they don't have intent they don't know of or have the power to correct the situation you used or the word or but the question isn't under kingsley whether there should be an objective or a subjective the question is whether this should be a objective and subjective or only and objective i think that plus the point that my colleague mentioned that the supreme that the th circuit on a couple of occasions has simply the klein the invitation to adopt kingsley to the circumstances so i guess you have to address those cases to those are those those medical cases are different because you have situations in which jailers are not medical people jailers and in the in the context of use of force  jailers are there to prevent assaults there's there's a right but the question it seems to me that you have to come to grips with is whether there was something that was clearly established that fairly put them on notice and we've never apply kingsley excess of force standard maybe we should maybe we will but i don't think we have ever applied kingsley to a conditions case like this the issue is not is that correct or do i have that wrong that's correct the issue here is not that issue for ever the constitution has said that the state when it puts people in prisons has a duty to prevent assaults on other detainees that duty status that that high order of abstraction that as clear as a abstract i say ok so certain because as an abstract matter we've said the supreme court of the united states has said double selling in and of itself is not unconstitutional so what would have put them there we've got what i'm getting at is it you complain about the following things the classification of the inmates the hourly checks the double selling all the inmates you say and the how the prison was designed and constructed that's at the heart of what you say is wrong here and i'm just trying to find out what w put these folks on notice that the way they double celled the way they classified the way they did our leech checks and the way they designed the president was constitutionally defective and they sure should have known that on the front end because it is they all testified to a person that it is obvious that detainees fight it is obvious that when a fight agencies bell in buzzer that was available that yes there was and that that fact puts them on notice why why do we have this emergency bells because we know there will be fights in the likely to yield a terrible result and therefore they should not have they should have had some system in place to avoid this problem they should have had a system whereby a correctional officer sits down with the person talks to them about their record maybe examine some circumstance whole problem really boils down to what they didn't do on the front end when they stuck these two guys together in the cell correct everything else standing alone would have been ok or at least they would have been put on notice that it was not well in in the it in the combination that they have there with those solid front doors they know that they have a substantial risk of harm to any two people inside that cell when those doors are shut because the guards cannot see in there to detect a privilege so not a not that's not enough to go in every hour they've got to have a glass window sufficient that at all times they can see and know i think our expert testified that round should have been about every fifteen minutes the critical thing that both experts agreed upon was this up front pre screening right is this person so that's  is there an allegation yet our our expert said that you could tell number one from the frequency of the arrests for the disruption and assault kind of things in his young age that this guy had some problems and they were not wet been in the paper record they looked at know that that would have been the beginning of the conversation where you ask him what happened why did you get in the disruption with this person that they had to call the law so they knew then you don't need to go over his criminal record with him face to face to adequately assess i'm just trying to understand your possessions and part of the reason is if you lied to the medical people about being assaultive a correctional officer who has access to the criminal record can tell that this guy is lying about this that or the other thing which is a nother reason to not trust them because that the issue for a correctional officer is this you're not guaranteeing that there won't be a risk when you put two people in this cell but what you're trying to do is eliminate the substantial risk created by someone who is disruptive and when the so your main claim is they should have had the face to face interview that isn't the main claim that's that is that is it's part of the conditions record that they're merging see bell was not working that the emergency bell played no role in this but but it does matter i don't know that it's outcome determinative that there was a bell and it was never asked is that correct and if you look at the goodman case the goodman case shows us how effective the bell the bugs are bell situation was both our expert at least testified that guard should have contact with what's going on inside that cell whether it's visual or auditory because that's the only way you can tell whether there's going to be a fight now there are panama last question  out last night that this death was two thousand and twelve and kingsley wasn't even out they are at the time so i'm not sure we can do anything about that there's a constitutional error in how the district court decided the case the district court decided the case based on we had to show that the conditions were intended to punish the supreme court has never held that the conditions were intended right that you cannot rely on kingsley is the only point that church is making and you agree with that i agree with i don't know i don't know if kingsley is not retroactive when it comes to conditions cases i don't know that i haven't researched that because i don't may please the court elise sabs of are here on behalf of the apple leads the district court's ruling granting summary judgment to the supervisory defendants former sheriff kim kim bro garland watkins robert soule and samuel smith should be affirmed based on the doctrine of qualified immunity similarly the summary judgment for the favor of clayton county should be affirmed based on the appellant's inability to present evidence to meet the high burden of proof the court mentioned nam dang there's also another case in two thousand and seventeen white v cochran which was a conditions case in that case the jail had a sewage leak in a mate's had to shower while standing in sewage and surrounded by mold in that case the court specifically addressed kingsley and also reiterated what the court held in nam day that this case kingsley dealt with excessive force by correctional officers against in we you could not your honor because we're dealing with the issue of qualified immunity an individual defendant and kingsley had never been made retroactive by any court and that's what i mean where it was certainly not by our court by the supreme court of georgia or by the supreme court of the united states that is correct in the suit and by the absence of its retro activity it could not be considered that is my understanding your honor because the case had to be in in existence at the time that these supervisor defended its violated clearly established law all of the facts of those cases are distinguishable from this case they involve full pins with twelve plus inmates where there's no classification systems whatsoever where inmates are being housed with other murderers where there was only one jail or on duty where inmates had access to weapons the list goes on and on those cases are clearly distinguishable and judge thrash was proper and distinguishing those cases in his order i want to talk now moving away from clearly established law to the constitutional violations that are alleged here as the court knows in order to overcome qualified about they come clean about for things classification double selling lack of continuous observation into the cells because there are no video cameras and the jail they contend understaffed the easiest one to dispose of is the double selling the united states supreme court and this circuit has addressed double selling and it is an ok thing for a jail to be double sell that does not violate constitution from a classification standpoint i think it's important that i discuss how the classification process works at the clayton county jail there are two aspects to it the health threat health department does a face to face interview and it was done in this case with brooks and he had no physical or mental health issues no history of violent behavior no disturbances in mood or behavior and he scored low on the suicide screening test so he was entered into general population where where was the earlier proven disruption involving brooks was that in this prison or a different prison or what it was in a different jail your honor was in the henry county jail the record is clear that no one at the clayton county jail had any knowledge about that incident nor did they have access the henry county jail records under our classification system what the clayton county intake officer looks at is what are the charges this person is brought into and also based on this person's criminal history there are current charges in the clayton county jail history let's fill out this classification chart and determine whether they should be classified as medium or maximum security in this case mr brooks was nineteen years old he was brought in on nonviolent misdemeanor charges it's undisputed that the intake officer to check his criminal history and check his clayton county jail history which revealed no violent felonies no past problems at the clayton county jail he was a pretrial inmate and that he had no escape history so they selected him as medium security rather than maximum security that's the classification process now that was done by the face to face review by the medical people or was that done by someone else that is done by that is not done by the face to face interview that are done so it will take me through it a little bit more slowly sure what that face to face and then what else happens and by whom the face as reflected in this record short of the face to face interviews come up conducted by correct health to determine whether the inmate should be placed in general population or in the medical infirmary the classification process completed by the clayton county intake office or does not involve face to face it involves a review of the records of the president before you get to that what do the face to face people do they interview the inmate coming in and this is correct health was no longer a party in this action or they do is they in make the interview at the inmate in the interview the inmate ask him do you have any record of any violent history no and then they go through a series of tests to diagnose whether this person has mental health issues or not what tests do they go through they go through a suicide screening test it's called a sad person's test and then they they go they ask the interviewer whether there's any mood or behavior problems so that's correct help clayton county intake officer as we know from the evidence in the case what happens beyond the face to face who does what in the normal course of events sure beyond the face to face the clayton county classification officer then must make a determination if since this person is going to be in general population whether or not this inmate should be classified medium security or maximum security in order to do so they look at several factors number one but what's the difference if they classify him medium as opposed to maximum security that's not in the record your honor i'm not sure about that in so nevertheless that determination needs to be made by the correction officer in making that determination to look at the criminal charge that this person was brought into they get the g c i see report of this person's criminal history record they look at that then they also look at what's called the clayton county jail j c screen to determine whether or not this inmate had ever had any issues in the clayton county jail based on all of that information they fill out what's called a classification believe he had but there is what i'm absolutely certain of is he had no prior discipline history the clay county jail they look at whether he had any felonies yes or no did he have any past problems at the clayton county jail yes or no is he a pretrial inmate is he a pretrial detainees or is he been adjudicated guilty and is going to be confined here yes or no they look at does he have risk of escape history yes or no they take this object  classification shri which tells them whether this to put them in medium or whether put them in maximum this was a nineteen year old child who was brought in and that that decision tree that's been saying and has been approved by classification system and as far as you know that would brazil that that's means is fairly widely used that is correct your honor and for purposes of liability in this case what we know is there's no cases that have ever held that that system that classification system is unconstitutional now what the appellant's would have wanted to done was well the classification system should have been better there should have been in a face to face interview you should have considered his face to face by the correctional officer in addition to the how far officer correct there should have been this face to face interview and you guys should have considered that you had a misdemeanor constitutional requirement that a face to face interview be had at the clayton county jail as far as the misdemeanor goes under this classification chart that they do not address misdemeanor convictions and it makes sense because you do not want to put as they would suggest someone who had a misdemeanor charge with convicted prisoners in maximum security jail who have been convicted of rape and murder you can agree just crimes would go on and on this one thousand year old should not have been housed in maximum security with with people who have when they are housed in masks some security they put in individual cells no your honor they're done that the jail was designed for double selling  that's the classification process there is no constitutional requirement that a face to face interview be had and there is nothing that says that this object of classification system which is used by the national of correctional institutions isn't constitutional turning to deliberate indifference even if there were issues with all of these the classification double selling the staffing they must still show deliberate indifference as the court has alluded to did the individual supervisory defendants each one of them know that these conditions were causing inmate on inmate fights and then did they deliberately disregard these risks there is no evidence of that and for that reason the cape the qualified immunity can be granted either by establishing an absence of a constitutional violation or their failure to establish a violation of clea established law as far as the mo nel claim i'll just touch on that briefly again there is nothing to show that any of the conditions at the prison at the jail were unconstitutional there's also no evidence that the county knew that any of the jail conditions were causing inmate on inmate assaults and did nothing to prevent it and there's no moving force behind any of the county's customs or policies that lead to any constitut deprivations by mr jobs if there are no questions for me to answer i'm complete i have nothing else to say thank you thank you i asked that the district court's ruling be a firm thank you first there was no what was done in medical was never conveyed or used by the correctional officers they did medical people asserted hipaa and said no this is medical information we're not going to give it to you anyway our experts both tested their expert and our expert testified a face to face interview with access to criminal record is necessary when you're going to double cell people that's the purpose of what i take it if  the medical people in the face to face he was suicidal or had suicidal ideations they would have done something they would have been better and medical or something does the record reflect how they would respond if they checked positive suicidal or checked positive guy seems violent place during our interview or something like that do we know do we have an answer to what happens you say at face to face people don't communicate with the classification officer so what's the value of the face to face just to decide whether to put him in a medical unit or not the face to face in the medical is for medical reasons if the person is commendable and meet their standard medical immediate tate they notify the classification people of that they would they would take the person in and handle the medical emergency the way it needed to be handled which would probably be to isolate them and then take them to do and thirteen which takes them to the georgia regional or someplace like that so medical the medical even they wouldn't speak let a classification people argue they would not communicate to the classification officer let me finish my question please they would not communicate with the classification officer what they found if they found some serious mental health problem i assumed that they would do that so that they would not in danger anyone else however is there anything in the record that tells us what they do or don't tell the classification officer the general principle that they said was we do not reveal any of the medical medical and analysis that we do with the guy to the correctional people there's a there's a difference between what medical is doing and what correctional people are doing where they have to make the decision about who's going to be housed with whom and it's been it's been clear since jones we diamond in fifteen i would if i would have thought that if they had concerns  detainee was suicidal that would be something that would necessarily keep him in the hospital for the whole pretrial proceeding or i just sort of thought they'd put him in some cell with a suicide watch have classification folks do not when there's any communication no communication they do nothing that's relevant and for the detail of the level that the classification people do that's the whole point of  case is that medical had no input and considered no correctional obligations about analyzing whether someone is a substantial risk to the person you're going to be put in a locked cell with where the state has the duty and they are of supreme court case that the state has a duty of forethought obligatory forethought for the welfare of the prisoner because you're locked in you're under the control of the state you can't leave that does this matter where standard of of interrogation that come from the jurors association or the justice department does it talk about any communication between a medical exam information and that and when and if that should be conveyed to the the staffing or the selling decision people i can tell you directly what my expert says about that and that is that our expert says that medical information should absolutely be made available to correctional people well that's would you act my question was what the this national standard that apparently a lot of jails use does that address the the the issue here for us is knowing that the is the national standard and using that term loosely but this reported by israel does it deal with when a medical examiner earth should convey information to the sell decision people i don't think it says when i think that the issue is you set up your jail so that you do not subject people to substantial risks and my point how can we get a copy of this of this national standard is it in the evidence is that or in the record there are there are some standards in there but i don't remember that particular point being addressed because the way the process works according to my expert in according to usual conditions is safety st correctional decisions  and to the extent and i believe there's an exception in hipaa that they can convey information to correctional people to protect the safety of others but the point here is that when you're making a housing decision just because someone might have an immense tool in mental problem does not necessarily mean that that's a something that it may wax and wane when they're doing the medical information thing but it's a correctional officer has to make a call and they did their dishes a do nothing case everybody else has a correctional officer evaluating whether you put people whether it's safe to put somebody in a locked double cell especially these lock themselves there are experts at it are experts at it they did not do that why did they not do that because they had nowhere to put him even if they did it they would have what then the national standards are in the record if they are where would they be with the expert depositions are there are standard that they are s o p s and there are some standards that we probably close to our experts affidavit ok we might guess thank you i didn't mean to shut you up right for a minute if you have a final sentence or so y to feel for him i did i wanted to tell you what i asked officer marsh about whether they ever do any investigation about any of these salts that come up and do you ever get down to the root cause and the response was no we don't look at that because there isn't anything we can do about it anyway and yet our experts are saying everybody does a face to face to try to sort out before you put somebody in a cell with somebody else do you have any case law at the appellate level federal poll level this as a face to face is constitutionally required i think that we had a footnote about failure to separate that's not my question and certainly if we have these certainly if you had a case you would not put it in a footnote jones be diamond th circuit should be a i put by put cases in footnotes when i do it string classification policy that's not my question my question is whether there's one that says you have to have a face to face that's what a classification is that's what they do that's what classification is you take the guy's record and you sit down with him in you evaluate him and say is this guy safe to put here or there then that becomes then that becomes the housing decision that's what classification is i think is going to interview i think we've got your case