thank you good morning honors me please the court where the underlying facts what an officer saw what an officer was told what an officer heard were those underlying facts or under spewed the ultimate fact what that officer knew what was obvious to that officer is a question of law for the court that is our position in connection with with the claim of stiction that is our position connection with the in connection with our position that the judge wrongfully the nice summary judgment the reason we say that it's a question of law for the court connection with the existence of probable cause with those facts or under spirited requisitioners a question of law from the court so in significantly whether the court said in that case is judges or rather than juries determine what limits the constitution places on official misconduct so the jury doesn't decide what the constitution requires it's up to the judge with to decide what the constitution requires when facts are disputed and while this may be a th amendment claim the standard is generally objective reasonable this a reasonable man standard so we think that the case law holding that when the facts when disputed probable cause or reasonableness of force is a question of law for the core that that seems a proposition applies in this particular case  because knowledge is a question of law for the court the facts are undisputed and this horror has jurisdiction not as far as the facts being under spewed it i would like to address eleven aspect of those facts in particular the plaintiff in his response brief and the court below as well fail to recognize that what occurred outside the medical cell in a half hearted attempt or could not take a pulse ox there it is undisputed and the plaintiff has admitted that when carter was dragged out of the cell into the medical unit right out of the cell the nurse was bent over tending to carter and that had occurred for approximately five minutes while the other officers stood around and watched what the nurse was  doing now the plaintiff claims that a factual dispute may exist because some officers describe carter as being some officers described him as appearing intoxicated we will accept those characterizations but keep in mind that the officers observations are the same thing that the nurse saw so if the nurse if the officers feel that the nurse is not alarmed or that the nurse is appropriately tending to this individual however they characterize what they observed is does does not raise it is that and i would simply point is all discussed later officers because they didn't they did not receive any training in what seizures were and what caused the seizures and how serious it was is that because they lacked training there it was not obvious to them that the what the nurse was doing or not do we was inadequate this or credit or should we draw the line between starting where do we draw the line between when it's clear that a medical professionals treatment i so inadequate that a correctional officer has to do something that might conflict with her advice or direction what's the i think i think we draw the line at the i'll call it obviousness to a lay person because that's what correction when i use the term lay person i used the term a person not medically trained or person not having some peculiar knowledge for example a person if a person is a diabetic they may have some on what you know i'm symptoms of a adverse sugar low but i'm talking about a reasonable person and we draw the line on obviousness for example a person is bleeding out in a nurse does nothing there a way person would recognize something is required a person has a compound fracture with a bone sticking out of a layperson would know you better do something about it and splint and splint that's work that's where i would draw the line on what a reasonably untrained person should know or in fact does all and if based upon the obvious of of of what of the conditions that they're serving with the lay person look at this and call an ambulance with the lay person take the person to a hospital we submit that only in the most egregious cases only  cases of the ilk that i just mentioned those two examples and the reason i say that is if you look at the cases that this court has decided if you look at kin versus kramer where an individual was writing on the floor if you look at hayes where a person is complaining of pain and there's obvious symptoms where your logical conditions that would be obvious to the officers that this pain is not pain if you look at those types of situations you look at even under those situations which i would say burdick regis they have at least set a line if you will and you look at those types of situations that have confronted the officers i would say that it's got to be more egregious than that it's got to be something where all i can say is you know big maybe we maybe we will for we look at the courts definition of pornography i know it when i see it maybe that's the maybe that's the best guideline that your honor can have here i know what a lay person would recognize that something more is required and that's what's the what's the touchstone here is was the nurse should nurse and was obvious to the nurse did we know that what the nurse was doing was not sufficient it's undisputed that she took a pulse ox it's undisputed that she was bent over tending to him for five minutes before they left it's undisputed that she said he's fine it's undisputed that she told the officers that dr great saw him last night it's undisputed that she said his symptoms or his blood re his readings are better than mine gave him a shot of insulin after consulting with the doctor and she told collins i'm going to be talking to the doctor and see what i should be doing she came back and gave him a shot she did not have a problem where indicate that car should be taken back to medical so it was not obvious to the officers that what she was doing and what she was omitting was not placing this individual's life in jeopardy so you know  plainest counsel talks about well officer waller who was in the who is in the triad carter was taken there thought he was sick well that officer lawler believed is is an important in this case he didn't know any of the background he didn't know what the nurse said he didn't know that she took a pulse ox he didn't know that she was that his vitals were fired so what waller may have said or may have thought is unimportant in this case and your honors we can go to basics now that's very strong language to specificity is that a clearly established most unusual right cannot be defined in general terms or here we now have law that's fine thank you precisely based upon counsel's factual arguments counsel has suggested that these issues are undisputed that this f unit or even when he was in is out of solitary confinement there is also no evidence that the nurse ever took his blood pressure and the the officers have tested that  a diabetic then receiving a diabetic meal in addition to that knowledge the officers had awareness based upon the testimony of officer waller brenda waller that any of the officers would have known that a reading of five hundred will be greater was was eight a serious medical condition when issues but that's different than knowing that he's a diabetic well no that is a right that is a different is there any evidence that nurse bates had failed to properly treat patients in the past there was evidence but there was no evidence that any of the defendant officers maybe had that awareness ok there is evidence in the record that there were multiple complaints from family f a medical judgment by a medical professional and when a correctional officer should step in and i disregard that judgment i accept the i accept the defendants and witnesses they said it out of their own mouth off the page was a defendant in this case said it was obvious to him that he was sick it was obvious to him dead he should have stayed in the medical unit instead of being dragged and dumped into solitary confinement out of view a big deal cam he was one hundred percent sure it was sick this is all works he testified that he felt that mr karr should have been transferred transported to the hospital officer brandon waller questioned the officers as they bought mr carter to the solitary confinement cell and that's why he was being brought there because he obviously was sick and he obviously needed medical attention  i would like to interject a minute waller what point did he encountered if you know i'm sure jeff she encountered him approximately maybe fifteen minutes after the was he just an observer that helped me passing by well he he was he was assigned to the correctional officer who was assigned to the deadlock here so from my understanding based upon the testimony he gave the transporting there was an inmate who was convulsing foaming at the mouth had turned blue didn't react to smelling salts and then nurse said that he was just faking it and the officers didn't do anything and we found that the officers were entitled to qualified immunity because they were entitled to rely on the nurses medical judgment how do you distinguish this case from the facts there which some might argue the medical condition was even more serious or obvious than here the the court in in king found that cain did not present any evidence that  the that the officers were were aware that they came was being improperly treated that is that is the distinction between this case the the she said well i guess i would go if if you want me to and this is after the obvious awareness that he was very sick in a place them into a solitary confinement cell out of  camera view so that's number one secondly after he registers a five hundred and there's awareness based upon all the so wallace testimony that all the officers would have known that that was a serious medical condition in addition to the obviousness of his condition they'd left him in a cell and this is something that still makes no sense and i don't think i don't i don't think the opposition can really explain t did the officers did not intervene and put him in a worse condition in keene the officers didn't have any reason any indicators to believe that he was being improperly treated it was there was no adjustment based too soon to even say listen i understand maybe i had a different perspective while he was in the medical unit but listen i don't you know now i change my mind let's get him out of the solitary confinement cell at a certain point for the protection of pretrial detainees who have rights but something has to kick me if you know something has to kick in when it's obvious that somebody has a serious medical condition when it's action this is the commanding officer of the jail on this particular day and so these options were on the table for these officers they were knew that the nurse was not doing her job she was not in some you know frequent tinsel more he should have went to the hospital and saw this man die right so these these facts were not present in keene they they all witnessed a certain manifestation  symptoms and the the the the medical providers see it he'll be fine but they didn't do anything to put him in a worse condition and shut off my clock none of the officers received any training beyond basic beyond basic st aid and c p r none of the officers were diabetic none of your officers recognized the significance or  fifteen or so corporal austin herself was a type one diabetic corporal austin herself the evidence shows did in fact experience ketoacidosis at one time so she had peculiar knowledge more knowledge than any of the defendants and this particular  which viewed into the day area which had a button where he could communicate to the to the trot officer and where he was observed every half hour as is required by the general regulations there is no evidence that  to properly treated an ace in the past nor is there any evidence that the officers in fact the officers affirmatively stated as far as they're aware she never mistreated or failed to properly and mr medical care to any of the prisoners came your honor if you look at kane this case king screams that the judge should be reversed in this case after the nurse came in and saw those inmates forming at the mouth in seizures she accused him of faking in fact one of the correctional officers said quote come on you big baby get off close quote that's what the officer saw in that case she was still awake they were not held liable as result of that then she came back an hour and a half later and found the same thing experiencing seizures the officers still were held as a matter of law your honor not to have acted unconstitutionally that's the st prong of the of the qualified immunity argument they were found not to have acted unconstitutionally the nd prong in this case is the plaintiff's byrd to come forward with some case to put the defendants on notice that what they that their actions in this case one constitution what he did is has been frequently condemned by the courts to argue based upon a generality well they're entitled to medical care you have to do you have to foot meat on the bones of that argument you have to say more than that they're tied with medical care you have to show that under the constitutional relevant facts in this case these officers knew that that nurse bates was not failing to properly was failing to properly treat individuals so we have two reasons for this case to be reversed one based upon kenyan the other cases we've cited the officers did not act unconstitutionally and it was not obvious to them that the nurse was in the parlance true enough and secondly the  ambulance put him in a squad car we were ready to put him in the squad car we came at about one thousand one hundred and thirty five with the wheelchair and found him on response when i say we that was one of the correctional officers officer