minutes for buttle if i can thank you for your before i get to the to the fact to the legal issues i just want to recap for the court a few of the factual issues relative to this case on wednesday morning september twenty first two thousand and eleven brandon gillespie murdered his cellmate jeffrey horvath on the mental health floor of the wayne county of the wayne county jail this murder happened sometime between seven forty five in the morning and nine o'clock in the morning when nurse wims was making her rounds medication rounds discovered something was wrong in the cell alerted deputies stenson to to that fact and dep the stenson comes out of the duty station opens the cell and finds mr horvath dead it must be noted that at this point in time mr gillespie had only been in the jail for thirty six hours prior to coming into the jail a day and a half earlier he'd never had any contact with the wayne county jail we had no medical records on him the only medical records within the possession and control of wayne county were those that had been prepared in the proceeding hours leading up to this event so we had no medical records with respect to the individual offense i just want to point to a few key facts larry cameron is a social worker he did an examination of branding gillespie on the evening before the murder about six thirty pm he interviewed mr gillespie about his mental health history he reviewed the medical records that had been generated and created by a nurse we're now at thomas and looked at what she observed of him he also made his own independent observations as to mood affectation and so he made his own independent observations at no time and this is undisputed at no time during his interview does larry cameron say he's homicidal assaultive or any type of threat or risk to other inmates he makes no such indication there's no activity the engages in where it looks like he's a homicidal threatening any anyone and so that's undisputed and there's no real there's no record in this record that shows that he had any evidence before his interview that showed said he needs mental health treatment while he's at the wayne county jail at that point he had to make a decision does he get that mental health on the in the general population or does he go to the mental health ward where there's a twenty four hour supervision by the mental health staff and there's increased security grounds and checks by the deputies could also recommended this guy to be put in his own cell it could have he could have but it was a discretionary decision and generally you only house inmates alone if they are assaulted and  making some indication the result of this guy had gillespie had assaulted someone the day before all or came in with that charge there's no question about that he came and what had they he knew that he self reported he had bipolar disorder and schizophrenia did and then on his medication for six days it had been hospitalized six times in the path asked absolutely at over twenty three hundred incidents of mental problems in the last eleven years encounters he had encounters and i guess i just want to clarify for the record what those encounters were and just point the court back to and i hope that you'll take a look at this then encounters and there was an affidavit in this record of gary hermann it's a record in three forty one seventeen pages four fifty six to four fifty seven those encounters could be things such as community living support family training and counseling fiscal in a meter a services housing assistance transportation so there were a whole host  of services that are encounters and and there's no are so many but twenty three hundred is astounding i mean if they're even five or ten that are a pretty serious that still some planted well there's no there's no there's no evidence in this record that any encounter least forty percent of the inmates at the wayne county jail receive some tort some sort of metal health treatment were probably the largest mental health treatment center in the state of michigan that wayne county jail so again twenty three hundred there's been no testimony and no evidence that twenty three hundred encounters is a is is is some evidence of a dangerousness or solve the behavior and the plaintiffs have not come forward in response to the county's summary judgment motion exultant somebody with a knife the day before that the evidence that hey this guy could be dangerous again again what you have to look at is the respond this though of the response of larry cameron was it you have to look at  not that he doesn't look or he doesn't do this further investigation which which in the absence of of and under barbour in the absence of evidence that there's a high likelihood that the person is going to has to make some discretionary some discretionary decisions unless of course they can point to a constitutional duty that anybody who comes in with an assault charge necessarily has a constitutional right to be housed alone that that is the only way to discharge the duty to keep prisoner say and that's the ultimate question is could a reasonable juror find that cameron was deliberately indifferent to the risk of harm posed by gillespie to a fellow inmate in that the ultimate question we've got the well i think i think it's not the end i think that is that is the that is the question but the standard is not the general the general proposition is usually applied to officers failure to protect from risk of harm it is for medical professionals and so looking at that you have to look at objective lee was his was cameron's response objectively reasonable under the circumstances so when you have someone who comes in is a social worker he's an adult and a professional that's correct that's correct and so alternately what he does is he says he needs mental health services these can instead of instead of in the general population i'm going to assign him to the secure ward to recommended that he be housed alone he could have he could have again but where there is no evidence statements activity or anything like that where where he's assaultive i think it's reasonable that he says i'm going to put him on the secure floor but i'm going to make the recommendation not be house alone and again it's the standard is reasonable is a response not a perfect response under let me tell me some about stints and he's the guy the did have a discussion with mr horvath at seven forty in the morning he called him out of his cell for prearranged medical appointment mr hornbeck comes totally out of a sell off of the ward out to the duty station now he's talking to outside in the hall and he says let me go back into my cell let me be excused from my medical appointment because i'm going to be out here tomorrow i'm going to be out here in a few days so clearly if mr horn didn't know that he was in screaming and banging well let me tell you about it and let me tell you about that because there are specific there were there were there were inmate witness statements there were there were people on the ward inmates on the ward who said i didn't hear a thing there was the inmate directly say something and he says deputy i hear thumping around here all the time the guy in the cell next door did not know what was going on he did not know mr else horvath the lesson he says i'm going to kill you if you don't stay out of this right now and there's that but again it's i becomes a factual issue for a jury well again even if even assuming that that's true even assuming there's the split the plaintiff said there's a splashing on the floor there's the i hear let me out let me all the time and i don't mean i don't know i don't know it's something that is i mean that's how far is the duty station from cell fourteen probably about sixty feet and again there is there's a photograph and i would ask that you that you look at that there's a photograph in the record it shows the distance there is no line of sight from the duty station into the cell self i think he was in fourteen there's no line of sight you can see the front of the bars you can't see back into the cell it is the duty objectively perceived what was going on there's no evidence well the question is you know if other people said they heard banging noise and yell for let me out it and he admits he does hear sounds from the war that is not now how do you account for that and there's not a ten minute gap and i would ask you to look at the i would ask you to look at the at the at their reports carefully on all the reports and again the obvious these reports are written after the fact and so there's reports by stinson that he says at approximately eight fifty so there were so the reports say between eight fifty and at approximately nine o'clock now the plaintiffs go to great lengths to kind of try to x exploit that to say well they waited ten minutes well you know these reports are written after the fact and so now you have to recreate ok what happened what just happened and so you have some people are saying well it was eight fifty know other people saying approximately nine o'clock well that is approximately nine o'clock but there is no dispute that once people understand what has gone on and they can account for horrible they rush into there and they open up to sell many facts at some point stenson has to call another deputy down so that hey you can let me in and so again you can't you can't fault that deputy for any type of delay along those lines where where you actually need another seventh birthday argue in the civil case in front of six circuit is an irony i just felt i had to mention to my happy birthday well thank you very much i must tell you i heard the same argument from mr thomas in front of judge hood that he made in front of you and i said judge you and i say to you those arguments are terrific if there were three more people besides you three and we had a jury they're all factual arguments stenson isn't really libel williams isn't really libel what he wanted cameron to doom twenty three hundred know we're arguing about facts that's why we have juries what a judge would find on what did she say in her opinion her opinion makes fact findings as to every single thing that arc issues for a jury to decide here under the wilson versus i think it's the act which is the last name for it to be free from inmate an inmate violence there's not any doubt the judge had applied farmer versus browning to discuss the object of in the subject the progress of the case and talk about the fact the farmer case talks about the fact that very rarely do you find in a police officer or jail deputy situation people coming forward saying you know you're right i did it it was my fault i didn't do what i was supposed to why i know what  jury has the right as judge would clearly found to consider the circumstances and circumstantial evidence and then all the arguments of counsel when we see what the jury does so to begin with i didn't hear anything from from m thomas about why judgment should be reversed all i heard were fact arguments and in fact in his rebuttal argument at the trial court level judge it interrupted and said aren't you agreeing with fishman here you're saying with this fact and that fact this fact and that  the the opinion cites case law where it needs to be cited it makes findings about every defendant including the county that are things that could be decided by a jury there are factual disputes there's no doubt about it and i'm submitting to you there's no basis for the court to turn around and say well judge wood was wrong and i haven't heard anything from mr thomas today that says why was the judge wrong and i can't i'm kind of that's kind of where i am and i welcome not i don't mind questions anytime you want but i really welcome whatever questions there would be about the issue what is the county presented to say that she was wrong  subjective proof of his knowledge that would put him on notice that there was a risk of harm or about as i understand it since and didn't even know that horrify have had a roommate or a cellmate judge you get it right in the head when you when you were talking  thomas i agree with that and the whole encounter outside whether he's going to go to the doctor or he's going to go home on a day that's all irrelevant there is evidence for purposes of the summary judgment motion that there was a lot of noise it doesn't have anything to do with whether he knew or bad had a roommate or whatever he's a deputy in the wayne county jail when there's a loud noise and some of the things that you referred to that in the record you're supposed to do something you're supposed to get i do your station or call somebody and go see about it and that's the fact question they may be able to argue we got twenty six witnesses that said nobody made any noise at all but for right now on the record that we have right now we've got evidence in the record that there were all this noise that well and that's our position it's not what he knew beforehand we're not saying that whatever it is get me out here let me out that's enough to cause him to have to come out and see about it and it's a question of fact whether that constitutes deliberate indifference and that's something that you know we're not going to decide here judge should wasn't supposed to decide either but she did make findings in her opinion about the things that you mention the noise the rattling of the bars i'd let me out let me out i'll kill you i mean she mentioned him she referenced them and that sufficient i say to get past some but whether a ten minute gap or not from the time that you know that's a great question and you know i thought when mr thomas answered your question and started to give us an explanation that to me is going to be one of the big questions of fact is there a ten minute gap when at all the deps will be able to come in and say whatever they say nurse williams will say whatever she says and we'll present whatever we have but i don't think that ten minute gap for right now for purposes of summary judgment matters it's another question of fact and  that's i just don't know haase to say that it's something that will have to come out and we'll find out in a journal or perhaps perhaps it comes out in a way that's completely favorable to the defense at the trial and then judgments as i'm granted summary judgment is off distancing because now i've heard all of these other facts and i don't find that there was maybe a ten minute gap will be very significant to her but for right now for what we have right now you know we can't say i gather as to nurse williams you would say well  know that she was aware of anything except that there were people that say well they were aware of stuff and she was on the ward i would say this it's essentially the same discussion with respect or it's the noise factor and the banging and whatever it was that went on and what we have right now is knows but for here for right here there's nothing about judge who's opinion uses the example i think it's the scott case with forget scott versus who but scott versus somebody where they talk about blatantly false evidence being considered down at the trial level  that's the only time that the appellate court supposed to really turn around her facts and of course in that case they had a video guy claimed he was driving perfect and they had a video i think they said in the opinion they reference it to a hollywood car chase well that's blatantly false evidence we don't have anything like that here all we have is a different things that different people say i don't want to talk briefly about the county nine hundred eighty three cases with deliberate indifference as the subject of the hardest thing of these cases is everybody wants to argue negligence what should have been done what a reasonable person should have been done that's actually what you were arguing mostly but here you actually have to have evidence that they subjectively the defendant's subjectively knew of the risk of harm and failed to act and might my question is i mean you say that's a jury question routinely i mean negligence normally is a jury question but subjective knowledge of the risk of harm may or may not be talking about stenson in williams that's the two you're concerned with i would say that when something is subjective and i think that's what that farmer takes recognize subjective means it's not obvious subjective means what's in somebody's mind so you're deliberately indifferent as opposed to negligently precisely i think you're kind of confusing the two you're saying he should have they should have done this they should have done that that at a point in time and maybe the ten minutes will become a big deal when there's a trial and a point in time they were on notice that something bad was happening and they deliberately they were deliberately indifferent we can argue based and what's in the record right now and judge would talk about that in her opinion what's in the record right now if it turns out to be true and right now this is the record that they're banging on the on the buyers and they're screaming but let me out and he's saying with all the other things that we have contained in the brief if those things are proven and right now that's the evidence then i believe we could make a very strong argument and they became deliberately indifferent even if they only became deliberately indifferent the minute they heard that that's why it doesn't matter to me and i don't think it should matter to you the one with an f or whatever the case is it talks about deliberate indifference being subjective and you can get it from circumstantial evidence and we have that here that's all i'm saying if i if i gave you the impression i thought it was the negligence case or that was the question that i apologize because i don't always the hardest element of proof i agree with it because you have the objective the subjective you certainly have the there's no doubt about that subjective component is there enough for a jury a reasonable jury to conclude based upon all the evidence or is the jury basically a lot left to guess or without a basis to discredit the testimony and i think i think what you just said if you were the trial judge in this case like judge will be assuming that the case goes then she may make that finding after she's or tough ammonia qualified immunity we have a role of here qualified immunity is one of the functions is to prevent the defendants to have been going through the trial process and we have kind of a gate keeper function qualified cases so they don't have to go through the expense of regular trials and other claims but i understand that but from what i understand about the law from what i understand at this stage with denial of a summary judgment motion before the trial starts i facts in the light was right already which is you and she gave and she gave an interpretation of it and she said that therefore she believed it was a question of fact as to whether or not stanford and williams were deliberately indifferent so that's really all i can say i think  igers the county i just want to emphasize what her ruling was and her ruling was that the larry cameron's testimony really standing  enough to hold the county and because larry cameron his deposition said something very interesting he could have said i didn't i stopped i looked at the mh when i saw the twenty three hundred some contacts i saw all the other things i talked and i didn't do it because i didn't feel like it and he could have taken all the weight himself but he didn't say that what he said was and what the judge based her ruling keeping the county in and was i didn't go any further because the policy is you don't have to go any further wrong but he said that it was their policy that you didn't have to go any further and judge would found that to be a de facto policy of the county and that that contributed to what eventually happened to mr corbett and i kind of think that seem pretty pretty correct to me that's he put it on the county himself nobody made it was his deposition and once he said that i think she was correct for purposes of summary judgment to say that that leaves the county in because it is a de facto policy telling them don't go further and then those questions you're asking mr thomas about what they were awful lot of things about mr gillespie's feet are gone a little bit further maybe we can own a little bit more right and he chose not to but he chose not to based on the policy the county and i got done just as i sense the clock got done so that's pretty good thank you thank you ron as i like to just briefly respond with respect to wayne county in the minnesota policy larry cameron did not say that the policy that wayne county policy said i don't have to review medical records and he did not say the wayne county policy says i don't very limited access to the system he can input that hey look on such and such a day i did a mental stat examination but what he cannot do is go further and look at records he does not have that capability and i would just ask the court of the record and ninety nine through ninety five that's it says explicitly that in the policies that that if an inmate is in the jail previously and that inmate has a previous mental health record that the medical professional is to consult those records three or four times in the policy it says that so he never testified that it was wayne county policy not to review the mh when records or any mental health records what he said was for purposes of him completing his portion of the intake he did not have to go beyond confirming that mr gillespie was a consumer in the image when system that's all he said in and i would just direct judge the district court judge said that wayne county had a defacto policy of not requiring review of the minutes of the men of past medical medical records that was blatantly contradicted by the record and that's why  nation that was her conclusion that that was her conclusion she said that defendo defendant wayne county had a de facto policy defacto policy of not requiring a review of readily available prior mental health records including the image when record that was that was her determination that was the course of her mission judge wright in view of the facts most viral apply and if there's a genuine issue material fact as to whether they had that policy  well i think what she said was whether there's an issue of fact as whether that there needed to be further investigation and again in the absence of objective information that there honor again i would request and certainly it's been fully briefed in the briefs judge i just asked the court to look at the specific legal determination as to the as to the district court's legal determination and we' asked that that that her decision be reversed thank you all right thank you