well i'd like to reserve for months for the know all right this is a case on appeal from a lower court who decided there was no qualified immunity for several corrections officers treatment cannot be generalized it has to be specific we have to look at the case with syphilis and in this case the courts have also held that there is no clearly established right to medical treatment for an intoxicated detaining the we are saying that the corrections officers oh are title to qualified immunity because there was no clearly established constitutional requirement to take this drug person to jail also i'm sorry to further medical treatment outside the jail well the both alcohol and drugs that there's something about saying his saying that he was had been taking rocks it's just sort of a question of severely intoxicated and he's not clear what medical care when he came here and he was severely intoxicated and the jailers inquired as to have you taken something else he's finally admitted three roxy's they got the medical staff to come down and evaluate this person the medical person sad when you say medical staff you're just talking about this one person who was the l p m correct john she came down  do you mean  is the sixth circuit has held that just because you're intoxicated does not give you a right to medical treatment unless you have some something else some exceptional thing that would warrant further medical treatment notice no constitutional right to medical treatment because you're intoxicated it's reasonable to believe that if you put this person in the drunk tank he would sleep it off kendal so how about this i mean i think what supports your argument is the fact that they officers consulted the nurse and they're allowed to rely on medical advice they're not doctors or nurses themselves so in one sense they do that they put him in the south they observe him every twenty minutes but you might say given the seriousness of his condition it was unusual not to walk into this in the words you just looking through the window how do you know the person he was intoxicated and absurd even every twenty five minutes did not make not rise to the level of the constitutional lation they have the plaintiff has not shown any cases that would show to the corrections officers that they can't i have extremely intoxicated person who is probably who has taken drugs is someone that you should know you need to send out to further medical treatment and again they told us that the records show whether the officers could tell whether he was breathing through this yes a window they had they heard him snoring they began looking through  this was not a clearly established right that this person should have been given further medical treatment therefore there could have been a constitutional violation mom was was there objective evidence that this was categorically different from someone who was just really drunk not to the officers and not to the medical staff not just where the medical staff  with but that's sort of a question of fact two is not and i'm not trying to get into jail policy or procedure but all you can comment on that as well if you want to but but well the sheet of whether the medical staff they have more training more information on these people and it was it's reasonable under the circumstances should govern this court's review in a case of this procedural posture permeating this entire case and as judge clay has written several recent opinions of this nature that  a case that comes up on of the not of the qualified immunity can only be reviewed for pure questions of law and we believe as we've stated in our original motion to dismiss and have restated in our  response brief believe that the county's position and the individual offers officers position are stating nothing more than factual questions that have already been determined by the district court at this point now on a given the procedural posture of this case prejudgment those are premature for this court's review now if they would stay as the district court drew some inferences from the record as to what the reasonable facts questions of facts can be reviewed to the extent that they are so egregiously wrong or they can be demonstrated through something pointed to in the record as actually factually erroneous in their city what's it mean when the court of appeals as opposed to provide novo review of a summary judgment ruling doesn't that mean we're allowed to look at the ref record draw the inference obviously in your favor but then the question of law at that point is whether they when it's a matter of law are not that's the question of law so what am i missing but your honor as from another opinion i could point to certain types of questions of law and give you examples of the difference distinguishable difference between a question of l on a question of fact the doctrinal framework for a deliberate indifference type of case of course focuses on the objective nature of whether this was an objective serious medical condition and then the subjective knowledge of the individual officers of whether they knew that this that there was a serious risk of a medical condition and that they disregarded that risk those are both factual determinations on the other hand there are certain types of legal questions as judge rogers actually articulated in his opinion in mckinney v lexington fayette urban county government where the district court in its analysis of the individual officers in that particular case was questioned whether that was actually individualized enough to be the proper type of review that is than example of a legal question that would be important or or  that distinguishes this case from a case where somebody arrives really drunk and passed out of the factual points that would distinguish it or meaning first and foremost i would say that i would question the contention that a legal opinion should state that intoxicated person as a matter of law is not entitled to medical care constitutionally entitled to medical care but also yes or i thought the just provide context for my say that this case versus every other that's the point he's asking us and they have a doctor or a nurse give advice to the officers and the officers follow that advice so that's that's the point he's asking yes well the difference between a intoxicated person in any other case first and foremost would be just being intoxicated on what showing up to a jail  intoxicated on alcohol or are you on tech newtok skated on three different or three opiates which you then convey that knowledge to the observation strained straining lee convey that of knowledge to those at the jail but then also then you're saying that the officers need to know the different effects of all the things you can get in these days no your honor i'm pointing out the difficulty in fashioning a rule rodgers trying to see whether as a matter of law you can say that these people did something wrong if from their perspective it's something that happens frequently which is somebody comes in so intoxicated that they're totally out of it or whatever and they're in the context of alcohol we sort of know what that means means put them in there and let him sleep it off people die sometimes from d t s and so forth  we get cases like that as well would be problematic i guess i'm saying is if we said well in this case they were required to do more even though they checked with the l p m and even though there's no real reason i know of why they should know the difference between this or that kind of opioid or whatever it is that they're on to that point your honor i would say and we and we've considered it in our brief actually that following the advice or re lying on the advice of a medical professional or in this case someone with some medical training you know that is a factual question and to what level and how long can you then rely on that you know advice of that medical professional does that have been i i mean this is a classic case of the night that they dry out those that absolve you of all responsibility to continue checking and does it absolve you of all subjective knowledge under the check every twenty minutes so your point has to be that they needed to go in right isn't that your isn't that the essence of the case that was the deliberate indifference not going into the cell that is one essence of the case your honor actually this case says a number of legal theories that we believe would be viable legal theories that indeed is one that is a strong point yes i agree and what is your straw if there's a lot of them what's your strongest one but we're i would take the position that of the mill run of the pill mill i don't know ordinary frequently occurring case where somebody comes in highly intoxicated and these days unfortunately it's not just liquor but all kinds of other stuff there where one might think that normally you can let him sleep it off we know that sometimes that's not enough is it a constitutional rule that you've got to do more every time that happens or is there something special about this case which would distinguish it from  but when they enter the jail in every jail has its own policies and i would depend upon the size of that particular area in this one happens to be a rural area but the the types of policies that they have a didn't dictate what those officers would see and what their responsibilities would be given the written policies that they were under they would see a person in a serious medical need and if it's a person who admit we see the clearly established actual legal question be framed is not whether or not specifically they are required to give medical care to an intoxicated person but whether or not a person in a serious medical condition is entitled to medical care and i believe they answer that is yes and then the question then becomes was this a serious medical condition which is a factual determination that must be determined on a fact intensive inquiry on a case by case basis and then you know i believe your honor asking what of this particular case would make this a serious medical condition that these officers as objective knowledge was worthy of medical care constitutionally worthy of medical care and the ones i would articulate are first and foremost they the arrival at the jail with the you know inability to even express themselves now of course that is a common occurrence but i'm trying to give you the totality of th claims or at least knows a lot about them as i seem you do you see what i don't understand so the idea behind your johnson versus jones is we won before the district court and we want to say there's no jurisdiction at the court of appeals let's just march to trial  that's the idea behind it in one sense you can see how that's very powerful because you you won't lose at the court of appeals they don't get to touch the merits it goes back to the trial court and you have here you can go to a jury trial the part of never understood about it in today's panel is a good illustration of this is a very representative panel of the court why don't you want to hear from us now whether it's a trial reasons a tribal issue a fact or not if you get a ruling from us that this case just like the district court said has a material triable issue of fact that as to go to a jury is there any ground for the officers of the county to appeal if you win at the jury trial the case is over you've got a real legal ruling from this court that there was a material trouble shoot back suitable for a jury when you invoke these jurisdictional arguments you deprive yourself of a ruling early in the case now i said earlier represented panel the reason i said that is if it turns to represent a panel this court is going to say there's not a triable issue fact don't you want to know that sooner rather than later you're going to spend a lot of time setting up a big loss so i forget the doctrine of johnson versus jones as a pure practical matter i'm absolute baffled by why you don't want the rulings from us because if it's a bad ruling i get it but she it's going to come eventually and if it's a good ruling it's an awesome ruling because you have also really been following the doctrine framework that would i have read in this court's recent opinion are but you're not required to invoke johnson versus jones there's no rule out there that says attorneys will be disbarred if they don't argue johnson versus tones i don't have to do it this is that this is the teacher choice there are factual issues in this case either we know what happened and what they knew how much information they had right yes and i believe the factual issues as articulate by the district not a big mean it's not a big as articulated by the district court but they're not really challenging them are they the factual determination or yes i think at base they have attempted to in the same way under this this particular doctrine where you get an automatic appeal by stating actual factual issues the underlying issue that they have essentially raised is whether or not this amounts to a serious medical condition doesn't toxic ation itself and should be a fact intensive inquiry and because of that each case must be reviewed on a case by case basis it's not worthy of a sweeping legal doctrine that intoxication itself is not worthy constitutional protection in this case  involves the showing up at the jail with that level of intoxication that you are unable to communicate that you have then eventually when you can't communicate you communicate to them that you've taken three roxy which is well known to be a very strong opiate and an undisclosed amount of vodka and then after that point you know the continued monitoring shows no movement where some prior cases deli cases we've shown movement even at least in the cell this one doesn't even show that so all of that in its totality we would submit would be enough to distinguish it from the mere intoxication case and again because it is a factual determination those facts and i understand your point but we would ask the jurisdictional limitation at this juncture be adhered to so that we would then proceed to trial on those issues have given a fair and clear warning to officers about what the law requires and then whether it be would be clear to a reasonable officer his conduct was on the situation he confronted they have cited no cases