number one seven seven zero three seven right jeffers thank you your honor i'm devon peterson i'll be arguing this morning on behalf of state trooper joe jefferson obviously my time with counsel steven garry's who represents the county jail trust employees may please the court in the course of curing out their duties law enforcement officers often encounter motorists who've been involved in accidents many times when the officer arrives the motorist will deny my back hurts and this raises the question under what circumstances are law enforcement officers constitutionally required to seek medical care for such motorists and so you you represent jeffers yes that's in this raises the question under under what circumstances are officers required to seek medical attention for motorists in that in in such a situation and time officers you're talking about officer jeffers circuit how at the time of the backs of this case there were no cases at all dealing with this issue even if you know broad sense and certainly there were no cases  facts squarely govern the unique facts that we have in our case such as required in order for the law to be clearly established as this court has recognized in and the number of other case cited officer arriving at the scene is not in a good samaritan type situation where you have no responsibility other than what common law may impose in your case the at the point were the officer arrives basically he's the only hope if somebody is injured that there would be a call for help that's i'm not sure that's a key issue in this case but i thought that's not quite correct as a matter of the others stand by citizens who came to the accident scene who couldn't hold it was a busy highway there was a what point does the fourteenth amendment kick in at all and certainly on the negligence standard it kicks in immediately and so the officer because he's an officer when he's there he's got a duty under state tort law for affirmatively denying the plaintiff's ability to seek medical attention then he's in a situation like in some of the cases plaintiff sites where you have professional medical  officer if i'm thinking correctly i think it's where the arresting officer is handcuffs the individual and they complain that they've had recent neck surgery and they want to be hand cupped in front r a psychiatric episode and where the plaintiff reports that psychiatric episode to the officer and pleads with him for assistance with that psychiatric episode in such case the officer  will be elavil for a constitutional violation well i thought i don't i don't know the facts are quite that specific as far as the officer causing the psychiatric episode this person had o c d and they were suffering a panic attack and they tried to tell the officer that he ignores the police but the fact is the officer as we have here is we've already found that there was deliberate indifference here to his medical needs in essentially that's exactly what the court found there symptoms of a head injury has to plead their case essentially in saying i think i have a head injury that's why i'm so dizzy that's why i mean it so i mean it is a case of not really have to be that specific that the that the plaintiff has to plead their case when we've already found that there was deliberate indifference we can certainly argue about what the trooper should have done and whether he was neck injury or not but the degree of specificity that we do need it is critical that we look at each material fact in one o motorcycle that crashed it is apparent that there was an accident but you do raise an excellent point that i do need to address and that farmers is brennan standard where we're looking at circumstantial evidence to look at the state of mind of the defendant and that can create an issue that's strictly on the problem one deliberate indifference test that's strictly something that the first panel is dealt with we're on here today is a completely different test here we're on  subjective state of mind of the defendant but we do not look at that to prevent summary judgment on the second prong on the second prong the only thing we look at is not whether there are back questions about the state of mind we look at the willis what did he tell them they'll of willis tell me that chap had been in an accident no he didn't he didn't report that he he he did not believe that mr rife was injured established at the time of this incident we believe that it wasn't clearly established in this case dell us and our dell and willis had no information about an accident they encountered a man who had been arrested for public intoxication and they believed him to be intoxicated in fact they went through the medical questionnaire and the evaluation that they go through with all in may what are the facts actual is trans life according to the testimony your honor the trooper told them the charge and the location of the arrest and then they process the inmate into that jail including changing him out into in the jail clothes the cases that were  cited by plaintiff's counsel in his brief and even by the district court our do not create clearly established law that would be relevant in this case the three cases that the district court found the first time was the garcia vs salt lake case that was an official capacity claim in specifically with regard to that official capacity claim against the into t the court found that the county had a policy of admitting to joe unconscious persons suspected of being intoxicated coupled with evidence of gross deficiencies in the liberty and difference in staffing and procedure to monitor such persons totally different situation what was what was moving in groning obvious well the testimony is that that didn't occur to lee was placed in the cell mr and i may have already found the constitutional violation the facts been determined and we can't question those now well the brute and you are questioning and we don't have jurisdiction the review i believe is the no vote your honor respectfully yes on legal issue but i'm saying if you're still challenging facts which is kind of sounds like you had that he told mr may in the jail cell was abdominal pain stomach pain there is no president in the tenth circuit or supreme court that says its stomach pain is a serious medical issue that requires emergen care nothing we were unable to find anything and certainly plaintiff's counsel hasn't cited anything of that nature well the problem is a problem struggling with his that there's already been a finding that they were these two individuals your clients were the liberally indifferent to his medical needs and so so now you're asking us to make a distinction or to suggest that the law would make a distinction between stomach pain and chest pain with respect to deliberate indifference  the law is not clearly established if you're complaining of chest pain they can take no what take no action but you see what i'm saying it's like this as not sharing our ocular arrives we can get here i think that there's not been a finding that there was deliberate indifference the finding was that there was an issue of fact regarding whether or not willis and dell acted deliberately and different there was there's not been a finding that they acted deliberately and different but that there was a question of fact which is different which would be a jury question now the question is wasn't there just but there's a finding that the facts as found by the district court stablished deliberate indifference the first problem the subject right right and that's why i'm saying so question you're asking us to make a distinction on the clearly established prom based on the fact that there's never been a case while there's been cases where there's been chest pain that was ignored there's not been cases where stomach pain was ignored well certainly because chest pain is completely different chest pain is indicative of a cardiac condition which is dire which is completely different a cardiac event could lead to immediate death a stomach pain that there could be a plethora and when these jailers specifically encountered mr rife they believed him to be intoxicated which is common to have people who have stomach pain intoxication and so it was completely in the realm of if you could wind your honor we believe that the level of generality that the court found that there was that the right was clearly established in the district court was in error and that there is no specific case that finds otherwise  what we're addressing in this appeal versus the first appeal is the second prong of the qualified immunity as it's already been decided by a previous panel that there were sufficient facts in the summary judgment record that a reasonable jury could find deliberate indifference on the part of these defendants trooper jefferson and officers dale and willis so part of what i heard going to trip or jefferson first part of what i heard mr peterson arguing is that you know we could say that that may be true for jefferson was negligent well again that the issue of the first prong and deliberate indifference is is is not before the court the issue is really what's become sort of a hot hot button issue over the last couple years with the civil rights lawyers is and it's always been a question but it's become more focused over the last couple of years and that is what level of specificity do you have to have from a prior precedent for a right to be clearly established and i would i would say that even after white versus you have statements ranging from the prior case does not have to have identical facts to we know that we can't have a at a high level of generality but then in white versus poly there's still the the statement that general and this is a quote from pages five fifty two of white versus poly general statements of law are not inherently incapable of giving fair and clear warning to the officer if in light of the preexisting law the unlawfulness was apparent that they the defendants didn't sufficiently raise the issue that they're raising now on appeal below it was with respect to will listen and dale they really didn't address it clearly established well once they once they raise a qualified me an right and that's you have to establish the two prongs that you're that's that's true i guess part of what i struggle with sometimes there is to what extent do they do they have to raise the argument even to trigger we're here and what race is this specifically in garcia that you seem to rely on primarily clearly isn't helpful since that was an isp allergies liability an issue there in the court was very clear that they were talking about the combined acts of numerous employees so what other cases besides garcia are you relying on for either jefferson what part of what part of what we're arguing is under under sufficient notice that it's clearly established and i would say with respect to jefferson that that that that applies and that's based on that's based on the general statements law and then these these ten evidentiary items that the court noted in the the initial decision well it seems to me that your in your argument you're we'll yes i think that i think that there is i think you know here and you can see that you have a much weaker case against the letter to i would i don't know if it's a much weaker but i would say that i would say that certainly the case against  i would argue that that that type of pain severe pain coupled with his his aff act that he was he was out of it he really at one point one of the officer says if he didn't really even seem like he knew where he was you put those things together and i think that the instant case law what's your best case that that was clearly that they at that case unconscious inmate who was put in a in a holding cell in the nobody checked on him there was no medical personnel similar to the situation here where they basically just kind of although knowing something's clearly very wrong at least circumstantially they just kind of leave him lying there and we have a bad medical outcome as as a the prior appeal it was determined that there were sufficient facts that a reasonable jury could find that they were deliberately indifferent based on his based on  he he was clearly in pain and needed medical attention so that that has been decided the other cases that we cite to our which i think were at least there was an inference about these cases in does that all of a sudden become a judicial determination that there has been there is a deliberate difference as well just check it is this is here for us before us on summary judgment that's right that's right question how does a determination that there's enough facts to submitted to the jury on that point somehow become converted into a judicial determination that there has been well i medical issue  and different but or whether we had here a serious condition so serious that the prior cases give them notice that they should have done something else right because the deliberative differs alone does not make a fairly established k that's that's right and i that's absolutely true and and with respect to da those are sufficient to put dale and well let me drive her to the ridiculous but what if he's nodding or groaning about her broken toe which is very very painful least mine  is never enough to satisfy the attention i mean potentially don't get you know get attention for a broken toe specially depending on the the severity of it it could it could cause serious problems so i think i think that that would be a situation that would be what you can't ignore that isn't that why am i lying i think isn't that why the ceylon case in particular is distinct because you had some clarity there because the the the individual  actually was saying i mean medical help right having i think that was just pains case and in the in the other case that i cited it was it was the same thing believe where the individual is saying i've had next surgery please don't do this you're going to injure me don't don't handcuff me and back and maybe that is the distinction and you know as the appellant suggests that we don't have present in the case law which is it's clear when an individual is telling you not just moaning groaning or saying my stomach hurts but here's what's going on and you please help me and i guess all and maybe that's what makes it clearly established my only response that would be will or you case of cases the counselor excused