his full share of the writing work he is a member of this panel and has every bit as much authority to decide these cases judge newsome and then he sat with us in the past and we always this case happened because of tragic set of events that took place on april the sixteenth two thousand and fourteen arthur green an elderly man was driving home from a gas station when he began to experience a hypoglycemic episode mr green had type one diabetes with diabetes you can have high blood sugar which is hyperglycemia or low blood sugar due to insulin which is hypoglycemic it's insulin it is the blood sugar was very low use experiencing a hypoglycemic episode and that causes symptoms such as confusion dizziness and inability to follow commands approximately twenty nine million americans suffer from diabetes a person notice a witness noticed mr green driving erratically slowly he drove up on occur she called police and told them that she believed mr green was experiencing a medical emergency and needed help the police were called an officer portman arrived at the scene he saw at that point that mr green's pickup truck was up on a curb he flashed a siren and then mr green slowly took off back into the lane of traffic slowly collided into two vehicles pretty much familiar with the allegations that some about the evidence shows course there is no evidence to obesity correct  allegation that smith knew that are was informed of that is there believe there is an allegation of that yes let me too that it would be in  well as the defendant portman it's in paragraph eighty two which states that defendant portman had actual and or constructive notice by virtue of the behavior or lack of physical evidence of intoxication that deceived had a serious medical need and understand that's what i'm asking about i'm asking if the caller to the dispatcher's statement had been if you but don't take any more time ok but certainly it was alleged just to portland not that not that the caller knew it was diabetes just that you seem to be having a medical one of my condition and so we've brought it several different claims in this case let me tell you trouble i'm trying to use your time most efficiently for my concerns one troubling thing for your case is the short amount of time that a louse between the stop it and it for forty portman approaching the car and observing the deceit it and is call five minutes later  you're basically saying that as i understand the gist of your complaint or part of the line is that portman didn't recognize it soon enough and didn't act soon enough five minutes is awfully fast for a car in the wrong line on a road bike that any officer approaching the car and even if he didn't act a recognize it fast enough that sounds to me more like negligence than deliberate indifference you've got to have some time to be deliberately indifferent is what i'm suggesting to you answer my concerns first of all we allege that he did know it from the lack of evidence of intoxication from his face which he said was droopy he said he had a blank stare and an inability to communicate ok those are the facts and you you wouldn't be up here saying well he knew he was drunk well it was alleged that he knew in the court is bound to take that allegation is true and then if you know he's not intoxicated but yet he's looking like this acting like this is the only reasonable i'm not sure we're more bound to take a conclusion that he knew that i mean how do you know he knew it back in you prove he knew it all you can prove is he was informed of this he saw how going to how could i prove that he didn't know and it's hard to get inside somebody's head when you're drafting a complaint and prove what he knew or didn't know you know all we can do is tell you the facts of what he observed what information he had and i believe at the motion to dismiss stage the court should give the plaintiff the benefit of the doubt and accept these he did another key fact is that the keys removed were removed from the ignition so he was no longer a threat of trying to escape or or take off in the vehicle and then he tried to pull him out and it's alleged in the complaint that he that mr greene pulled back and fell back into the truck he just wasn't able to get him out i think is kind of more accurate and then then there was nothing going on for like two minutes where officer portman is standing there at the door waiting for backup there was no  any resistance no trying to get away he just kept saying over and over again i didn't do anything wrong i didn't do anything wrong that's all there is of the two minutes where nothing is happening so for your deliberate indifference claimed you have to show not only write that there is subjective knowledge but also than a deliberate you know sort of plan to do nothing in the face of that subjective knowledge right and so on and on the latter piece of it do i have the timeline right that the stop is at four forty at four forty two they see as legs for forty four they call for help and for what fifty two the help arrives and in the meantime they are trying to help him i wouldn't i wouldn't know i wouldn't say that at four forty correct so you're talking about for portman five minutes at most until he all for help and for matthew tom a three minute correct but when somebody is on your back with their full weight and somebody else is pushing your legs up against your back and you're in a hypoglycemic state with very low blood sugar and you can't breathe for two minutes that's enough to kill you and so minutes matter very much even though it's not a lot of minutes when you can burry think that's a lot of minutes and so i don't think you can just look at it like oh well you can't be deliberately indifferent in five minutes yes you can if you know the person is having a medical issue you've been told that you have all this evidence that he is and yet instead of trying to help him you forcibly pull him out of the vehicle throw him on the ground and then suffocate him that's deliberately indifferent and i can ask you what may be sort of the ultimate question for this issue because this is this is an officer suit deliberate a different piece of this is an officer suit so you get qualified immunity and play even if we were to sort of grant everything you've said to this point what what are the what's the case law that would have that would put the officers on notice here i didn't really see any effort even in the brief to point us to materially similar cases well if you're referring to the to the excessive force claim there's a number of cases you don't have to have a case directly like with to deliberate indifference and to excessive force right though those are both officer claims that let me address the excessive force cases versus city of riviera beach to a f third nineteen where an officer had as his dog bite the person who was not resisting that was found to be clearly excessive smith versus maddox where the officer broke the person's arm who was not resisting that was found to be clearly excessive and leave versus ferraro where a person who was not resisting had her head slammed against drunk it's our position that the act while he was not resisting while he was handcuffed of continuing to put force on his body and deprive him of the oxygen was clearly excessive in those cases a by just very briefly is it your position that those cases would apply as well to  the deliberate indifference claim the excessive force cases sort of yes i mean the excessive force has diabetes aspect in it too so that in some ways there combined but but in terms of is there a case from this from the eleventh circuit that says if you know that somebody has diabetes you can't take them down no there's not but you don't have to have a specific case if if it's clearly excessive and given the prevalence of diabetes and we did allege a number of times that we were aware of when the these two officers had encountered people with suffering similar behavior or  symptoms that's only two of the many officers on the force you know we believe that this is the case that the court finds that if you know these factors and you still take the person down you still you know slam on the ground you still put your weight on their back in the unit up suffocating and that this is the case where the court should find that that's clearly excessive  for training is so obvious that you don't have to show a prior violation we believe this is the case that the supreme court in canton did recognize that there would be cases where the need for training is so obvious that you don't have to show a prior constitutional violation we believe that this is that case and so the other side says about that point well the so obvious cases have been limited either by design private practice to force cases do you have any any cases outside the force context in which we have applied this a lobbyist exception no no but there's no limitation on the new applying it in given the prevalence of diabetes given the obvious need for training and the huge risks that people face if there isn't adequate training we believe that this is the case where this exception should be  applied the city of tampa should be required to have training on how to handle with diabetes the training is widely available from the american diabetes association and it would have prevented this case from happening and so that's where that this it's an unfortunate circumstance we probably could say that a lot tragic circumstance but what ultimately this complaint does not do is show that the only conclusion the anthony portman could have come to was that mr green was medically impaired clearly he got a nine one one call indicating erratic driving just the fact that someone thought it was the driving was bad enough and it was important enough to call the city for assistance says it was probably pretty bad at that point at that point he knows that he's going to a call and probably end all calls were officers are encountering unpredictable or erratically driving this probably always the forethought that it could be impaired medical impairment it could be chemical impairment alcohol impairment or it could be both because there's always the possibility that the consumption of illegal substances and or alcohol could bring on the hypoglycemic epic episode and so what does an officer force to do basically officers are charged with enforcing the laws of florida and in this particular instance anthony portman not only hears the nine one one call about the bad driving but essentially observes and we've been talking about the curve incident but not only as mr green on the wrong side of the road he's up on the curb on the wrong side of the road so it's not just seeing him on the right side and then he's on the curb he's actually on the wrong side of the road he comes down off the embankment and apparently attempts to or it appears that he's going to follow the officer turning on his lights and he does not do that and pulls off albeit slowly but still in the wrong lanes of traffic and impacting other citizens who are doing lawful things the vehicles yes or he did hit two vehicles that were traveling in the bound rightfully in the northbound lane as he was travelling in the south but these officers know that this officer the first officer observed this accident happened and called in so he actually observed mr green pull away from him and then impact those two cars again low impact but still traffic to correct traffic crashes if you will that this officer is observing so the plaintiff is basically want the complaint or want your honest to take it that the complaint shows that this officer had knowledge but this complaint does not show that the only conclusion that one has or portman could have come to is that this guy was medically impaired everything that they point to whether it be his inability to answer simple questions whether it be his slurred speech his driving actions all of those things are also equally consistent with criminal conduct which in florida is prohibited under the driving under the influence statute it's prohibited under the reckless statute and on top of that an officer who's there a loan at that point tried to take control of the situation and what the complaint says is that he tried once to ask mr green to step out peacefully without  going hands on he did not come out you ask him twice to come out he does not do so and that the officer then tries to again take control of the situation which is what we say that there are supposed to do is get control of a situation and then mr gr in even though it's his medical condition that is causing the issue he does in fact resist not it's not violent resistance where he's punching or kicking at the officer but pulling away from a police officer who just try take you out of the vehicle pulling away from him is in fact a sign of resistance and that obviously is how officer portman interpreted it such that backup was called and then when that backup arrived the first thing they did was try to take control of mr green it's interesting that the complaint talks about the struggle so although there are these timeframes it's clear that the complaint says that off our officer smith doesn't even make his observation about mr green's modeled legs or the thing that gives him the idea that he possibly has diabetes he makes that observation while they're in the midst of the struggle and then clearly the timeline shows that after that observation is made and he passes that information on to officer portman and others shortly within that time frame there is a call for the medical assistance from the tampa fire rescue so ultimately this complaint does not show that any officer had any actual subjective knowledge that mr green was suffering from diabetes or any other serious medical condition because there were alternate it or alternative conclusions about what was causing his behavior it's are the position the defense's position that just because officer portman did not interpret the clues as the plaintiff feels that they should have it would have been fortunate if they had if he had but he did not it was evidence that he might have the prob was it discovered leg or something else the the more definite information about what might have been his problem would have come from the modeled skin which would have been observed by only one officer which is officer smith during the course of the struggle to take mr green into custody before that all of the clues that the complaint talked about are also consistent with people who are impaired by alcohol of illegal drugs also asphalt any number of things that could cause the symptoms that mr green was exhibiting and so the question really is for the court whether or not the conclusion is that any officer who doesn't come to the right conclusion if a person is is doing something criminal but also has a medical issue whether or not that officer should be faced with the possibility of being held liable for not for his judgment not leading him necessarily to the conclusion that may have saved the person that he's come in contact with and that's really the essence of what we've been arguing is obviously mr green was hypoglycemic that's a dangerous condition it the trajectory of that position continues regardless of anybody's interference and for these officers to then be placed into that that trajectory and then held liable for failing to save him that is the essence of what we've been arguing is that we did not contribute to his death or kill mr green his diabetes did that but these officers should not be held person with this unknown condition and then men being held responsible for not being able to address it so your contention is that the deliberate indifference clock so to speak that judge barnes and i were asking about begins  to tick not at four forty at the stop when the evidence department is ambiguous whether it might be a medical issue as alleged to the dispatcher or it might be an impairment issue from outward appearances but instead with the with smith's recognition of the modeled skin on the legs and at that point they realize oh no this guy this guy may have a diabetic episode and we need to help him and at that point the deliberate indifference clot begins to tick that would be my position because that would be the first definitive not even definitive but at least real clue that this there may be a more serious medical condition underline the criminal conduct that they're dealing with and we don't know from the allegations when that was mr greene to the ground in the prone position would have occurred as soon as officer smith arrived on scene at four forty two and according to the complaint officer portman never had an opportunity to explain to officer smith maybe what he had been observing of mr green or anything that mr green said so there would have been no ability or a guess the time frame to have that conversation immediately when he arrives on scene officer portman and mr green are inside the cabin of or  the passenger compartment of the car and officer smith immediately steps in to assist officer portman and there after sometime after four forty two but again before forty five or forty five is when o excuse me smith noticed the legs during the struggle also we don't have a time for when officers myth noticed it but a fair and forensic that what  happened what is as easy as you want ran to the car he warned the other officers and if you look at paragraph thirty nine at approximately four forty four pm four minutes into the incident defendant portman finally not green might be having a diabetic issue i mean smith says he may be having a medical issue or men recognizes he might be having a diabetic issue portman had stated before four forty four pm he might be having a medical issue i'm sorry smith had stated that if that was the time smith stated it before four forty four pm then portman wouldn't have any event basically within because what we're talking about is basically him being being able to converse and being able to physically move his body and things like that and that's another issue the complaint seems to indicate you know that he does indicate that he becomes unresponsive and he stops breathing but clearly that's not what was happening before because he was struggling because obviously our officer smith noted that he did not have control of his legs and he needed to leave the struggle in order to get something to control the legs means that mr greene still have full use of his body in order to resist the number of officers that were trying to take him into because custody and or control has moved his resistan movements and to get him to be compliant so that is a situation that it's almost like we're asking officers to parse out part of their brains in a way instead of dealing with the immediate issue of there has been a criminal thing we need to get control of that basically they should also in their minds be thinking could this be something else could there be some liability that i'll face if i don't get it right and that's just the burden the defense really believes that should not be placed on police officers in the face of all other things that they deal with on a regular basis in addition to that i the defense also believes that it's a slippery slope so we start here with the prevalence of diabetes then we also need to address heart attacks we also need to address seizures we also need to address any number of medical conditions that may cause criminal behavior or mimic criminal behavior and then placing an officer in the position who's not a paramedic who's not a doctor who's not their primary function and goal are as police officers are not medical is not medical training or read up medical recognition placing them in that position of being the front line of if you don't get it right then you are constitutionally like you have your behaviors constitution constitutionally deficient and you yourself a purse liable for what happens that person and the defense believes that this case does not is not the right case for setting that particular kind of precedent and we would ask that you honour's affirm the decision that was made by honorable mary scriven down at the district court level and keep the officer scuse me continue the office is qualified immunity which is warranted in this case and also the claims against the city  i didn't address those specifically but those cases also those claims also rise and fall on whether on the not the officers having the actual knowledge that mr green was suffering from a serious medical condition certainly no one can say that from a deliberate indifference standpoint plaintiff is really arguing that what comic says comic says that just because there is better training that may assist officers and doing their jobs  more or better training is not the test for whether or not a city then becomes constitutionally liable for not training at officers in this particular subject here it's clear from the way the complaint is laid out and also in our response that there were no prior similar incidents that is unfortunately this is unfortunate tragic isolated incident but it doesn't rise to the level of municipal indifference that someone purposely decided that people were dying or that constitutional things were happening surrounding people with diabetes and that someone within the city city's police department and or the city's administration deliberately decided not to do anything to assist officers and  to address your honor's question the only allegation was that portman specifically knew about the dispatch call but there is an allegation that he did know that he did know yes that's in  six motions and qualified immunity case and take a hard look at him you kind of have to everybody and let the litigation sort of my own but if you're one of the folks who is not the central actor and you get that's not much of a  lation so we have to look at each one individually i do think there's deliberate indifference on his part as well because once he once they had him on the ground and they had him handcuffed they continued to apply for so where he couldn't breathe and you see him struggling you see mccain can't breathe but you keep doing it that's deliberate indifference you know this case was decided on a motion to the house and my question was whether he had been told yet that someone else suspected decision was having a diabetic issue and before he knows the legs and paragraph thirty i went back through defendant's portman and smith had no discussion as to where the mr green was having a medical issue and there's no allegation of that so the first time he noticed it was a disk of legs and he immediately warned the other officers but yet that's what's alleged yes i know but they're there your allegations and not the defendant yes but the problem with that is soon as he notices it he shouts the warning three minutes later the colleague less than three minutes later because he was restraining the plaintiff for a while it took some time and we're asked to find that was deliberate indifference it's very difficult today for smith well they don't stop the suffocating him they don't stop you know putting their weight on his back they don't take his handcuffs off they don't start c p r that that's where we find the deliberate end here's my concern you're saying that we can't view it is day it has to be each individual and but i've taken up enough to take another two minutes are on top now let's take diabetes out of the equation we have an individual who was stopped asked to get out of his car there was they try one officer tries to pull him out he falls back in the car the officer then waits until backup arrives at that point there's no resistance what do they he's not a risk to flee the keys are no longer in the ignition he's not responsive he's droopy face he's still in the truck so the question is have we alleged go ahead well it's maybe ok to pull him out yet to get him out of the vehicle yes but to pull him out and slam him on the ground and put your weight on his back and push his legs up against him and we've alleged there's a policy of the city of tampa that says that if you if you place your weight on somebody's back you run the risk of x i see ation so they know that this is a risk is that excessive given the person is just sitting in their vehicle they've got all of these symptoms and then when you look at the case law that says a person who was previously resisting and in the case i'm talking about is the smith versus maddox but is now on the ground it is no longer resisting and then you break his arm that's clearly excessive well when a person sitting in a vehicle no longer resisting you pull him out place your weight on him push his legs up back against him and ultimately suffocate him it's hard to say that that's not also clearly excessive under that set of facts no that's setting aside the diabetes and all the other stuff but just that set of facts on the motion to dismiss is sufficient core should not of great of the motion to dismiss on the excessive force claims and one other point we've heard a lot about the subjective knowledge of the officers and that they didn't know they could have been this it could have been that that's no where is that alleged it's only alleged that they did that that they did have actual notice and so it was inappropriate for the court to grant the motion to dismiss that would have been more appropriately decided on a motion for summary judgment ask a procedural question on that point can you explain to me why is it exactly do i understand correctly that discovery proceeded and concluded and then there was a an order granting the motion to dismiss sort of what discovery did conclude but it did not conclude before the deadline to him in the complaint so the allegations in the complaint in the minute complaint were done prior to the expiration of the discovery  and we ask that the courts this shouldn't be reverse thank you