fifteen however mr hill's men's death was not only tragic but unnecessary he was in the middle of a mental health crisis he was delusional experiencing suicidal ideation and it was not safe for him to be a law but the real tragedy here is that plaintiffs and thereby resolving actual disputes they can only be resolved by a jury plaintiffs have presented facts to support the defendant's affirmative acts were reckless and deliberately indifferent and increased the risk of harm to mr  that somebody from committing suicide if they were there just is never been a case to that effect in our court and and for purposes of quality qualified immunity that seems to bring you  position i would respectfully disagree in two thousand and thirteen it was clearly established this state actors violate the th amendment when their affirmative acts increase the danger to which they are deliberately indifferent and that's exactly what happened here because you know levels on a generality matter and qualified immunity analysis we want to start someone really high level generality because the more general rule the more the less guidance it provides the official in the moment and so i mean i understand your point but mr hard to see how there was specific guidance in this very difficult situation the focus is on the contrast of the right itself and here i think it's clear that the constitutional question at issue was beyond that which is what this court said was required recently in right  euclid in determining whether a right was clearly established we asked whether the president's placed the constitutional question beyond and here the constitutional question is the on debate there is no dispute between any of the parties or the district court as to what elements apply in this case a state created danger claim regardless of what the foreseeable injury ends up being is satisfied when you have an affirmative act that increases the risk of suicide a specific risk to that individual as opposed to a general risk to the public but if i mean the rule itself discounts to terms of harm by rd parts right that the rule itself it well in this though the cases that have specifically dealt with officers responding to an i was on call concerning someone at risk of suicide they've showed us exactly what elements to apply and another set of these almost don't apply it's the same standard that applies in any other case regardless of exactly what andrea so in what the court said was that you have to show that they increased the risk at the plant for kill themselves and that law enforcement knowingly and unreasonably opted for a course of conduct that entailed a substantially greater total risk than the available alternatives and here they were choosing between alternatives for what to do and they specifically put him at rest of a known danger they were directly told this will put him at risk do not leave him alone he will commit suicide as he is left alone and that's exactly what they did and that's an awful lot like the constitution as a fount of tort law you know they can't significantly increase the risk and i mean believe me i mean what happened here i mean at least i read your brief and your view of the case and it is distressing it truly is that somebody is like sitting in their cruiser for nine minutes while this  going on but the constitution isn't like you know a catch all provision to make sure that you know every right has a remedy it just is a state law has a role and i mean i this i mean the court has told us the constitution is not a not a fount of tort law it's what it looks like here i would disagree and actually that brings me around to to the state law claims not the state law about affirmative lee acting and increasing the danger and those affirmative acts are not required for a state court so what happened with the state claim i mean all you have to do is show the guy was the defendant was reckless write something to wrong standard because the district court treated is equivalent to deliberate indifference and that is simply not true the recklessness standard according to the supreme court of ohio is the nd restatement of torts definition which specifically says united states supreme court was dealing with was what is the standard of deliberate efforts and i specifically compare the differences between objective tort recklessness and subjective criminal recklessness and i chose the higher standard so this is clearly a lower standard and the report clearly erred in resolving them together in addition as you raised the the actions that can impose liability on a a state tour are a lot broader than you have and sta created danger any omission is going to be enough as long as it was reckless so you're looking at a much broader range of conduct by the defendant deputies for that indigenous give us a quick summary of why you think object it's an objective standard for recklessness under state law just just real quick walk us through why you think it's met on your view of the facts oh  his statement could be taken as a suicide threat she specifically told them he is not safe by himself do not leave him alone he will kill himself if he is alone and then they isolate him  addition it's clear under the facts most favorable to plaintiff that she did have access to the guns there was only an obstacle she had hidden them not locked them away and because of that all he needed was an opportunity to let their someone there whether it was the defendant deputies whether it was his wife with no one there he had exactly the opportunity he needed to go and find it and that's exactly what so a j easily find that they were reckless to his risk of suicide when they chose to isolate him in his home taking away aid that was currently there it was potentially available in the form of the a mass not staying themselves  what did she tell the it's not the the record is disputed there is evidence that they were quote hit that she tried to hide did she tell them that there was a gun hidden in the room where m concerned he would kill him i believe so i believe the conversation when she told him he would kill himself she was speaking to both of them outside and then deputy grigori returned inside greatly so topless men before then leaving so there's nothing in the record miss d holzman told the officer that there was a gun hidden in the room where mr holzman was not in the specific room but i don't see any reason why that level of specificity be necessary they were in the home and isolating him in the hall he had full good it's not possible under your theory of liability it's not possible as a matter of law that the officers could by virtue of their interview  mr that there is not a serious risk of suicide not of the summary judgment stage in fact defendant gregory then went and relayed the information that he was suicidal to mobile crisis way and with respect to officer walsh i'm struggling to see how he would have been reckless here she ok she has shows you how much i know but then i records gregory's there but gregory wasn't doing anything if if there was any basis to believe that the greater he did acting out quickly and had this under control and was making sure that she was safe and maybe that would be different but she well we now accepting all the facts in favor of plaintiff as we must at this stage is that she knew he was at risk of suicide and that she along with defendant gregory isolated correspond in this case yeah i think even aside from that the district court erred by resolving or fetched buttes and so even regardless of this other issue that that was denied and some discriminatory reason i mean i don't really because it's a failure to accommodate we don't need a discriminatory reason just a failure to accommodate ok there isn't any case anywhere i'm aware of that applies t that other circuits have but the district court didn't find that it didn't apply and i think the best view of that is not that it doesn't apply but that that just goes to what is reasonable and what a reasonable accommodation would be in a officers would not have been on notice that anything that they did in this type of situation would have violated a constitutional right so states that have to bring this claim  all kinds of serious obstacles to that claim but what about you know the state law claims and why wasn't it why couldn't the jury find that officer gregory in  if that is the relevant standard but even with that standard why i could major find notwithstanding any they don't have to take the defendant's word for why couldn't they find that given well if he believes that mr shiels man was at risk of suicide which would indicate a base he should have been in the house with him he would have had a probable cause to take him jury argument i mean you have to show as a matter of law that you know no rational jury on this record could find that officer gregory you know acted recklessly and i'm struggling to see that i mean the jury you know this all just jury argument i mean you know mr mrs holzman's testimony alone arguably would let a jury conclude that he was conscious of a of unknown and obvious rests but you see i mean that is exactly the kind of argument one would make to a jury it assumes that there is this sort of curve perfect logical consistency in all of the defendant's actions and people particularly in situations like this that's not always true i mean there could be incoherencies dissonance hits within his own thinking it's an argument that hey you know maybe that is what he  thought i'm struggling to see how as a matter of law that ties the jury's hands notwithstanding all of the testimony of the seedings wife that you know oh you know he's not reckless but i could be wrong that's why we're having this conversation this and various cases have indicated that when you're looking at the same act for a state law and a qualified immunity that you can look at those two lines of qualif continuously quoted is from andersen which as a more recent supreme court case however the haste o'toole which has why we couldn't operate has not been over that same standard they said a standard can prove in recklessness is high and they were talking about so it's appropriate to our summary judgment in those cases when the conduct does not indicate a disposition have to per doesn't seem to work basically what the plaintiffs are saying is that because mr children had a disability which was a mental health issue he was denied services of a mental health assessment which just doesn't seem to make sense there's a service specifically for disability it doesn't make sense that they were denied that disability but for what it refers to is that there was a service particularly they are available that could have done some mental health i know six the record is mixed on whether there was really very much more by could do but it was a service that was available for both mental health and regular health that he that this defendant was the deceased was denied because gregory sent them disagree and plaintiffs have greatly distorted the facts in this case e m s is not is not able to provide a mental health suicide assessment they're not able to determine if an individual is a danger to themselves or others what the state m from the that position the plaintiffs have used to say that they are able to provide a service  has one of the empty set and we can assess someone's mental state we can assess their physical attributes and we can make arrest recommendations and when asked about doing that not all  man you know he says to the extent they won't answer questions correctly for example the st question we always ask is their name do they know who they are do they know where they are do they understand the time the day of the date and to date understand what's going around going on around them this is not an assessment that they are able to do to determine if somebody has to sidle ideations or if they are suicidal two hour hole or was scar specific requests of the service is that he not be left alone period here's a service they do some of our you i shan't do not leave my however when deputy gregory got to the scene he determined that nobody was injured it's protocol and they expected to be called off you know we can have e m s individual sitting with citizens  which could take their time away from other individuals that are that need their medical services you know this never been done and that's also posing a duty out to the state that's just not has never been done before requiring them to sit with an individual as you know it to be somewhat ridiculous and go down a slippery slope though so we call them to babysit our children when we have an emergency you know it it doesn't follow that she called somebody to set with him and would be rendering medical care speaking with him about the possibility of being suicidal  st i don't believe that she did request an emergency medical team and if she had that would have not ben the start of the m s what a provided what is available is mobile crisis which it was suicide i was did contact the service and was in the process of relaying information to them and getting them out there to provide that service so he wasn't denied any services that the mental health  defense counsel suggests that anderson is the case to look at me absolutely crazy when anderson says is the reckless reckless conduct is the nd restatement definition but then the wording they use is a short form of it it's a really long definition and they do something shorter so it's the language that i quoted and that she quoted are both accurate but where the language captures the objective part is this so it's  reckless conduct is characterized by the conscious disregard or indifference to a known or obvious risk and obvious risk is where it takes up that longer definition that says no owner should have known so anderson is absolutely the case to look to that is good case talking about wantonness not recklessness so that is incorrect under andersen and in fact wants in the us no longer requires perversity either anderson cites to the definition of wantonness from a case called arguing over the value of it is not appropriate for summary judgment  effect would have been it's about the denial and they denied a service and that's what's important their e m s don't necessarily need to come in and stay there and maybe the problem was that they were denied but what the defendants the individual defendants needed to do was either if they were going to remove sources of aid then they needed to either stay themselves or not remove that they could overturn tend to the same situation and that would be a