owner timothy codes on behalf of the city of santa maria the santa maria police department in andrew grice we've had the benefit opening in a reply brief twenty eight j letter i think the case is fairly straightforward it's been a long  calendar i see the laws gotten better for the defendants on the clearly established law prong of qualified immunity the supreme court's decision white vs poly which is continue that steady drumbeat of having a case with very specific pertinent facts in order law cited here by the point if they would put a reasonable officer on notice at the time specifically officer bryce that he was being deliberately indifferent to the needs of your point of using the of the former and otherwise what he should have known was that he could do this as long as he wasn't deliberately as long as he didn't actually know about the danger so he could do it because he didn't know about the danger but now he didn't have to know about the danger he just had to be reasonable but is that really going to influence anybody's behavior the question is what he do well i think he has to go under the former standard which was essentially farmer versus closely or something to that and so then he gets off the phone he says well should i go right over there or should i go to my paperwork first well i don't really know for sure whether he's really dangerous so therefore i can go to my paperwork where the standard was that of a strange no i don't think so not under load the governing law at the time the con case which is a good example of the court and i qualified immunity because the officers had actual knowledge of this person was trying to commit suicide and was actively would be put on notice that the particular conduct that he was engaging in is causing a constitutional violation and officer bryce may well if someone had been actively suicidal as you had in the khan case if a person had voiced clear ideation had in fact attempted suicide member again con the person raft the seat belt around their neck in the back of a paddy wagon when they extricate the person they say kill me or i'm going to kill myself then the obvious don't tell anyone about that that's the state of the law that was governing officer bryce's conduct and that would certainly not tell him that highly a quizzical statements from a mother that two weeks earlier my son was acting possibly in a way that self harm was taken away seen by medical professionals who then determined that he was not a risk a suicidal risk and released him fifty didn't hold him on fifty one fifty that that somehow compelled him to act immediately to run back and check on h are would have to know that equivocal statements would be sufficient under the law as it existed then to subject him to liability and i know why plaintiff wants to shift that and say look at castro look at post the trouble they have is in the supreme court has repeatedly said this from andersen versus creating the very outset of this clearly established law inquiry to white versus poly to the well as b case that was only issued a few weeks ago that you look at the law at the time the violation occurred and survey any of those cases deal with a shift in the mental health mental state nothing action but the mental state that deals with what the law can you know what if any of the cases you're talking about deal with that kind of a change in  violation at all that applying whether you precast rosalee pretty castro there is no subjective knowledge or subjective belief that he's suicidal well what first of all we don't need to do that to decide to correct that is correct and of clearly established law but on the merits it's an odd situation i will acknowledge that but they did not get out on the absence of clearly established law they got out on the merits but there's also i suppose there  are other possibilities with regard to failure to train someone well not without underlying constitutional violation by someone i mean that's the city of kandahar versus here is a case we cite that no reply brief this course decision and quinten university of downey somebody the qualified immunity standard extends to the officers the state of the law that's correct that's correct and one of them the state question i think the state any question should be resolved in favor of the defendants as well because i think it's so closely tailored to what we're talking about in terms of the obvious danger or risk to mr horton that the officer was aware of here is not i mean it's just not obvious it's most equivocal information that officer bryce had when you talk about ignoring a serious medical need it's a requirement for imminent intervention and medical intervention and then we cite the lucas case which reversed a jury verdict on the fate of fact that the officer didn't have sufficient knowledge that the person in jail was going to commit suicide that he general knowledge that he was drunk and possibly incapacitated wasn't enough to say you've got to find a doctor immediately and you've got to do something and i think we have the same situation here  don't believe so i think what his mother was telling him is not a factual question i think we state her own testimony that she said two weeks earlier he was taken in and mental professionals ultimately held that he was not a risk to himself that he was not suicidal i don't think under existing case law that that tells an officer that this person is in need of imminent medical intervention it just doesn't and i don't think there's analogous case law that they have cited under the california statute that would support liability here and it's also true that he apparently had talked to the original officer in a way that made that person concerned no i don't sharon takes him back bryce then comes back they both speak to him but even the other stuff information given it isn't enough to say there was an imminent need for medical care or medical intervention this just isn't an obvious suicide type case that's why i think it's illness in part that's because california law recognizes just how difficult these types of determinations are and so i would submit that under the governing on the statute there's no liability in rape forty five point six either the court appearing for shane horton i'd like to begin if i could with the question of the court's jurisdiction over them and now claims against the municipality the general rule in the circuit under swint is that a court cannot bootstrap jurisdiction over a premature menow appeal on to a proper you properly qualified immunity appeal brought by the individual defendant just got back in session and we also got that yes so if we don't reach the constitutionality issue that he said that well but even if a court does reach the constitutionality issue the fact that individual defendants may not have committed any constitutional violation does not mean that the municipality is free of liability and that case law is very are independent of any liability by there's no liability for any officer in this case it's just that you don't have standing i disagree your honor we have standing to sue the municipality for its unlawful customs and practices that are the moving force behind the constitutional violation there's a prostitution violation but if no officer has been found to have violated the constitution so that's a big step here that's different from immunity but  officer violated the constitution how is it that you get to go against the city for violating constitutional rights well your honor because the case law in the ninth circuit holds that you don't need any liability of an individual officer  but you need a constitutional violation you need a constitutional violation which can be brought about as a result of the municipalities conduct independent of any liability or give me an example of how well  i guess the best i could do for us for example on our failure to train theory of liability that district court denied summary judgment on our theory of liability against against the municipalities for failure to adequately train in suicide detection and prevention and that means that somebody can train your people to do things constitutionally so if somebody did something unconstitutional well know not to do anything unconstitutional then violation then how can the municipality the liable for not training people make sure the people which hang off the bell your honor i think that question is directly addressed unfairly versus lumen on page nine seventeen where the court talks about city of canton liability for failure to train and specifically says the supreme court recognized that a city could be held independently liable even though no individual defendants were sued and then goes on to  constitutional violation it goes on to say quote even more to the point in hopkins versus and citation we held that a city could be liable under section one thousand nine hundred three for improper training or improper procedure even if the individual officer charged with violating the plaintiff's constitutional rights was exonerated and i think this is consistent with your honor's decision in gibson where you set out the two different routes to liability gibson does not require any particular violation or commission of a constitutional violation by an individual it's the municipality's policies practices or procedures themselves that give rise to the constitutional violation so if the municipality fail to train these officers adequately to detect suicide risks the municipality can be liable for that even though the inadequately trained officers if you still have to demonstrate in some way that the person's constitutional rights were violated right by the party by the municipal practice yes because something happened to him and should have happened correct so what is the constitutional violation the cost you should train to be a family you should train somebody not to do something that's unconstitutional well the basic constitution is something that is the basic constitutional right of course is the fourteenth american fourteenth amendment right to adequate care for serious medical needs which under this court's precedents includes a heightened risk of suicide and so the municipalit policies gave rise to a violation of that constitutional right because in order to safeguard that right you've got to train people in suicide detection and prevention almost like causation is there's no constitutional injury  have any right to appeal at all at this point i'll we have an interlocutory appeal on qualified immunity well is that the answer may be that you still may be appealing these determinations with regard to all these individuals who were held not live on therefore we can't assume that the propriety of those decisions and they may in fact turn out to be a problem well i think that is true and in fact if you look at the decision decision the basis for those to sit for that decision has been completely undermined by by tast roe what the district court held is those individual defendants including officer right and with respect to that the court found insufficient evidence of deliberate indifference to the medical needs well we now know i mean that was the correct standard the time of the court's judgment but it's no longer the correct standard under castro so  yes just briefly the other we really have three related municipal customs and policies that were relying on one is the failure to train on suicide detection and prevention which the court denied summary judgment on the other is the failure to develop written policies and procedures to identify and evaluate all mentally disordered in my mates as required under the telephone regulation the court also denied summary judgment on that claim  you that's california that's a california law correct and the third and these are all related to one another and the third is the actual pervasive and widespread custom and practice of not removing belts from from inmates  before placing them in temporary holding cells now the court granted summary judgment on that to the extent it was based on a policy of giving officers discretion but in fact what we're alleging is that it was a pervasive practice of simply not putting belts on so those are the i just to be clear i don't think we were as clear as we could have been in our briefing about what exactly the municipal policies are that we contend impose liability it's not regard i making that argument as well your honor but i'm also making them regardless argument i think if you look at fairly if you and i know gibson is your opinion there's no reason that you need to prevail today on that argument you have you did have an opportunity to appeal the dismissal of officer snyder correct that is sufficient to preserve your claim your money all claim all right so you can make that argument to the district court later on all right and then if you lose there then you c back to us yes ok so in the my littles about offshore yes officer price i'm sorry yes i'm sorry yes so the question is whether the contours of this right were sufficiently well established that a different but in terms of the governing principles khan first identified heightened suicide risk as a serious medical need within the met the meaning of the fourteenth amendment that with the failure to warn case that the terrorists off warning failure i don't see it as a failure to warn case i know it was a failure to tell people that they were releasing him back into the back into the public it wasn't a failure to say he is in imminent danger because it was days later that he did so he wasn't it wasn't imminent right and  but i think in terms of the governing principles the court says the court establishes the criteria for a violation of this right that there has to be a serious medical need and at that time a deliberate indifference which the court defined and making strange statements then and this and that was not just that my morning but over over a period of sometimes occur i think she did say had been recently i could be wrong about it and it was because because it was seated at the computer table in the garage when they pull the garage up and he is calm addresses the officers questions was polite yeah in fact officer officer bryce said he was strangely calm and it caused him to wonder about his mental state to some extent but that wouldn't tell you that would tell you that he was suicidal yeah so let me continue and i think we'll get there i'm giving you the totality i get it is and in the conversation in the interview room that officer bryce had with mr horton officer bryce form the impression that there may be mental issues going on and also that horton's view of reality may be skewed that officer bryce is testimony and then finally this is the most important of course is the information that mrs horton stated to officer brice and there we have a conflict in the evidence but we have to accept but there's no there's nothing that she says that says my son is going to threat to himself right now and especially we know that because officer bryce was listening to the conversation from horton side he's is on the phone with his mother he can't hear what the mother says no no i'm talking about officer bryce is subsequent conversation with the mother that's right but she doesn't but she can't she doesn't tell him anything about horton immediate mental state oh i think she does rice doesn't know because she can tell him what happened two weeks ago but being but being suicidal two weeks ago does not mean he's imminently suicidal well she says i feel he i mean i she says i told officer bryce i thought he was suicidal that he was suffering depression from depression that he hadn't been himself and that was depression and he was really worried that something else was going to happen and that just two weeks earlier he held the knife all of those are good reasons that you'd want to get him into see a doctor it doesn't it doesn't suggest that the very at the very moment that we're on this telephone conversation that he is over attempting to take his life well i think when you add to that the fact that only that  she did tell him that only two weeks earlier he held a knife to his throat he tried to cut his rib but broke a window trying to cut his wrist with the last that's not that's not imminence that well i think when you put it together with the entire picture it at least gives enough there was nothing in his conversation with her that is horton's conversation with his mother right that suggested that your for example he didn't say either come and bail me out or i'm going to cut my wrists no he didn't say that but i mean it's a saint you could say the same thing about the con case the officers and that a monk case he doesn't he just comes off for a couple of days right a failure to let his family know that they were releasing him so that they could get the medical care that he needed well i think because he doesn't take his life for a couple of days it wasn't imminent it it turned out to be eventual but it wasn't imminent right it wasn't imminent but the the court still held that even though it wasn't imminent that the transporting dr that would have told if  read khon that would have told him that he shouldn't have released horton without advising his family that they were relieved that he was releasing him and that's that's the problem i don't i don't i mean i thought that the holding in common was about the transporting officials failure to communicate to the jail personnel that that khan had you know wrapped the seatbelt around her neck during the transportation i didn't read it the way you're reading it and perhaps i'm i misread it but i didn't see it as a terrorist off warning of the family i thought it was about notifying it possible i am thinking of another case but i thought that was called i've read several of these there was another one that i might have been thinking about but at any rate our position is that all all of the sum total of the evidence that was known to officer bryce at the time would have put every isn't a ball officer on notice of the fact that it violated mr horton's constitutional rights to leave him alone and attended unwatched