s roger holmes and joseph if i may this case really comes down to two separate issues one is denial of access to medical care and one is an allegation of excessive force and if i may i'd like to start with the denial of access to  medical care because i think it is a simpler issue to address first the sixth circuit has previously held in the napier case which i referred to in my briefing that nor to prove it now access to medical care claim when the medical care was delayed and this case the medical care was delayed there is no dispute that mr moore be to receive medical care at the cleveland city jail and approximately seven fifty pm which is about twenty four minutes after the  success of force incidents happened in that case in order to prove your claim you must both an object of and subjective component in order to show the objective component you must produce evidence in the record that the delay in receiving medical care substantially aggravated the illness or injury to the party claiming the violation and there is no evidence in the record regarding the the way in his receipt of medical care causing any sort of aggravation to the injuries that mr moore beetle claims let alone substantial aggravation and as i said before this court has require that in napier which i believe the two thousand and one case if you don't have any questions on that i can move on to the excessive force issues before it thank you when it comes to excessive force there are three different portions that we have to deal with and to take them chronologically it's that simple is i'm i'm sorry i think the simplest way you first involves my client roger holmes when he entered mr moore beatles cell and he asked and this is shown on video that i'm sure everybody has seen  get out of the cell safely and while it may not be pretty i believe that it is objectively reasonable for a corrections officer who's dealing with somebody who's obviously been arrested no determination of guilt or anything of that nature but it's it's reasonable to believe that they were arrested because of some sort of malfeasance and he felt that he was threatened he testified to that and whether he was right or wrong under qualified immunity it's whether he was objective or reasonable and i believe that he was exactly reasonable in a single of to move mr moore beat up out of the way so we could safely get out of the cell and also it it i'm sorry i'm searching for what kind of thing though the juries are asked to do figure out whether the shove was necessary under the circumstances or across the line it can be your honor when there isn't sort of a clear clear case along this in terms of how use of force has been upheld to be reasonable in other situations and we believe that i'm sorry i believe that i've cited to a number of cases in my briefing where greater uses of force were held to be objectively reasonable by courts and therefore because of that since it is clearly a lesser force it is not it is not proper to be a jury question it should be a legal question so one case that i would point to right away is and it's i think one of my strongest cases in this matter even though i'm forty it's not out of the circuit that j b extra  emerson case which is the eleventh circuit in that case there was a fourteen year old who was not convicted of a crime and in fact was in a program for juvenile delinquents where he again was not considered a convict or anything of that nature and what he did was he put himself in a situation where the corrections officer believed he was about to be spit on now being spit on is a big part of the second allegation of excessive force in this case but i think  that the provocation is somewhat irrelevant in terms of when you compare it to the force that was used in the j b case again we're talking about a fourteen year old child here the corrections officer apply a chokehold and this was caught on video and the choke hold was held onto the complainant plaintiff j b for nineteen to twenty seconds and the eleventh circuit upheld that as a matter of law that was not excessive force given the circumstances that the corrections officer believed he was going to be spit on and in the video it showed that prior to this chokehold being applied j b s interaction with amerson the corrections officer was  actually rather mundane call him no real prior fighting before the choke hold was a plot and i think that the j b case actually can be applied to not only the initial shock but also obviously to the second portion where my  your honor when we get to the third part of the brief there are that's yes or no two issues we claim that there is not sufficient evidence that he was tasered but we further claim that a c internal report internal  interest the city of cleveland not a party it's a city of cleveland's record moreover it's not a business record in that it's not merely counting or something of that matter but actually taking statements and then it's providing them not merely for the fact that they were sad the business records that fall into that exception have statements and not just numbers i promise you that's true on but this is clear hearsay under rule eight zero one they are statements that are being put forward that are on sworn and they are being put forward to provide the truth of the matter asserted now if somebody in a business records say a meeting made some statements and they were recorded as part of say a meeting minutes that would not be a business record that would meet the hearsay exception because it's not testimony these are specifically statements of this or this person who said this in the report where did they get the information this was after an investigation i take it your honor i have no idea where they got the information because they never testified i don't know who this person is i've never met them i've never met any of the people who have made their statements yes or testimonies neither here nor there there has been a trial no but they could have given deposition they could have given a declaration an affidavit or some other manner of testimony that has the  used there must be a report the i a e a you report that is being referenced is not that report that is a different report it is an investigation that was taken that was taken place due to the complaints of the deceiving mr more beat up so it was used i understand your question i believe your honor and i'm quite familiar with the taser policies in the city of cleveland and yes anytime either a corrections officer or a police officer uses a taser they're required to write what is called a form one and a form one details why a person chose to use force and all of the events surrounding it so yes that record must be made and it would be made by the individual who used the taser so in that case yes it could be an admission against interest because it's the actual party making the statement but in this case officers holmes and rauscher only made very limited statements in the i investigation i don't necessarily dispute their admissibility and moreover officers homes around or testified about their statements in  deposition so that would even supersede the you report and be direct testimony offered under oath clearly admissible however these other statements from the i you report are clearly inadmissible because they are the direct definition of federal of evidence at all one eight two which i wrote on my tab just so i knew that i was able to work clearly give me a good six circuit case to look at to show that when individuals in a police department or city or sued over excessive force and you have an internal report about it and it contains a damaging admission about one of the individual defendants that that's not admissible to the hearsay were shot while i do believe i have a case for you i disagree with the characterization that's damaging in mission all the state's first communication first and then we'll talk about what i'm missing your honor anderson and if if you permit me what i'm missing i had about the admission or not i believe that none of the statements that state that it was a taser usage constituted missions because they were all made by non parties who are not  allegedly were witnesses to this case if you look in my brief i go through it in the reply brief specifically there's a man of perjury or statement i'm sorry your honor if i may just page i just what is it there's that  residual hearsay exception eight zero seven you know if it has indicators of trustworthiness and so forth i don't believe there are any this client the classic case it's this is the city's own investigators and if you want to go to the finality of the report the city's own investigators find that there's no been no grounds for believing the was tasered it's pieces within the report that disagree with the city's own investigators that are pointed out to say that he was tasered the investigation ultimately concluded there was no tasering and no violation of the department's use of course for use of force policies so to the extent that may be the finale would be part of the seven exception the finale of the report actually supports my client that they look at cannot be your honor i'm actually not arguing that i'm merely taking judge sutton's point and trying to explain how yes if we're going to just let the reporting for the finale that's fine but the finale supports us there's no one dish of these people were telling the truth when they made the statements and i some of them were even in prison some of them were i'm sorry not prison in jail or other people who had been arrested for crimes i see that my time is up and i yield to my colleague mr meek thank you thank you cell jimmy passed away about a month after these incidents we haven't tried to establish a correlation between these incidences and his death just for the record but it does go to show you the circumstances of the day his death go d job pretty significantly how disturbed jimmy was jimmy got out of a car at night laid down in the middle of a road and was run over by a car he was off his medication he was prone to in fact prone isn't the right word he was completely unable to control impulses behavior when he was not medicated properly a month earlier he had gone to his girl fax girlfriend's house to return some property there was some kind of dispute nothing nothing confort nothing physical but some kind of dispute going on her father who is a cleveland police officer told to leave he was again off his medication he had been in the hospital entire night before with an i v with the flu and he had taken his medication and several days he was or the the father called the police had him arrested and jailed he was in jail at about one o'clock the entire time he's in jail he's demanding his medication begging for his medication he's telling everybody who will listen i have to read syndrome having resided this order i'm bipolar i need my medication i can't control myself nobody listens they listen they don't hear they don't seem to care you'll get your medication when you get it they say you not having your medication is not what about the fact you seem to calm down quite a bit after ibuprofen and benadryl his behavior was a radical the entire time you know he doesn't that reality suggests that maybe it wasn't that serious a problem of those two things would calm him down i think it did he would calm down periodic lead it could be caused by the medication just mr holmes into the cell that he is he's actually sitting on his mat by you know by himself on about quietly and to say that he was calm probably isn't the right description you know he might have been physically calm he was sitting on this mat but he was still very agitated you know he had there's no there's no audio with this video of course you know he's prone to these verbal outburst s he's prone to say things that he normally wouldn't say there's there's very little question if it any question at all that he suffered from these conditions none i think in very little question if any  that he required medication to manage them what's the evidence that gives you a tribal issue a fact in the medical needs part well there's the medical need him if you talk about the the time after i mean there's two different claims here and i'm asking about the medical one you have assessed excessive force and you have failure to provide medication and attention to his medical needs and it seems like it's a speed pacing thing and i just curious what you think the evidence is that would allow a jury for to rule for you on that claim there the officers were deliberately indifferent to his medical needs says that he is the key point and that's a great conclusion what's the evidence shows that that  he the officers knew that he needed medication you know they did testify that they knew that he in medicaid gave him some they gave him so many seem to get better they didn't get him if you're calling that a red erratic but they gave him some they gave him they gave medication that didn't treat those disorders that you mother medicate right but the officers don't have authority to do prescription drugs right ok so explain how how do we you know masking don't you i mean the nurse shows up at five thirty the the it's seven thirty before the incident happens and then after that he does get his medication and at that point he does come down in fact i think is that the gap between five thirty and seven thirty is to be the point the there's a gap between the time of admission and seven thirty it's act it's extremely important the five for the seven thirty point but there's also the gap before that as well you know but if you medication are you claiming that there was a problem that that was a denial during that period that first period they did deny him medical care during that period yes they they still if they knew that he needed the medication they still didn't provide in the medication long twelve or whatever he came in until five thirty when the nurse got there what are you saying about the not the medication during that period i have to believe that there was a way that he could have gotten his medication whether by you know somebody to that there's a way and having the record demonstrate those are two different things but you really focusing on the five thirty to seventy three correct well until the time we got his medication seven thirty was it was a time of the incident to get his medication until after that ok but yeah when what's your estimate of after that when was it i honestly don't recall you know when when he got his medication it was sometime after that not not too far after that as i understand  at that point i think it was mr holmes said that you know it was like a light switch went off it was a completely different person so if he got his meds everything was fine i don't recall  you're contending that these officers these defendants should have taken their client to the emergency room they did not make that we did not make that can i don't i don't think it was this if they can't prescribe m questions of law and not fact in all the facts have to be viewed in the apple ease most favorable light you have a video here right we do with we're allowed to read look at the video absolutely  and view the video in my client's most favorable light what's your sense of what the video shows the video shows my client sitting on the floor in his cell in a paper suit alone in a highly visible area with many people walking around not through not presenting any threat to himself and impossible to have to be a threat to anybody else there's nobody else there in the cell there's no reason for the officers to go into the  their excuses were to calm him down he's sitting on the floor their excuses were your excuse was to protect him he's on suicide watch he's not doing anything he's sitting there quietly in a paper suit there's no reason whatsoever to get into the  they decide to russia they russian you the video shows him just without warning even testified there's no warning given we didn't warn him they just got tired of it and they went in and they get in there and they know this person has these disorders they know this that the officers hit him twice in the face you know mugging or slapping or punching how we want to term it doesn't matter he's hit in the face twice you can see that on the video you can see that in the video you can see that the video quality of the video it is there's not a closeup of his face there's no audio so you can't hear it but again you know there's been you have the evidence from the officers saying ok girl and tried to spit and you have no other evidence except for  own statement saying no i didn't i didn't try to spit out in the middle you know you have witnesses none of whom say he tried spitting at the officers so all you have is a self serving testimony of the officer saying he gurgled so we punched him in the face twice and then we dropped him to the floor and then we piled on top of him in a week brandished our taser and now we get to a point where we disagree of course with with with jack that what happened with that tas you know jimmy says he was he was tasered the witnesses said he was tasered were several witnesses say he was tasered the officers say they activated they brandished inactivated of those witnesses is that all through the internal report in terms of whether this is evidence we can consider your honor i know you heard you heard that what's your take on that whole point present sense impressions business records you have eyewitnesses to this who relayed their impressions of this in these reports but why not to post them just to experiment i understand that it is expensive that that is a consideration as well that we feel we don't need to depose them we have we have their statements when they have these these business records statements of the present sense impressions if they are allowed to use that part of the report of a allowed to put in the final conclusions i would say the nation how i would say the report as a whole is admissible yes and that would include the conclusions the conclusions are however are or is an interpretation of the facts i mean what they're saying is that there's no evidence that the taser was fired and there's no report as to the taser being fired evidence you know shows in my client's most favorable light that they there was no reason to go into the cell they decided to go into the cell anyway they punch him twice they drop into the floor they pile on top of him and they drive stun him on the floor and then they leave and then they leave that's all there is to it there's no reason for any of this force there's no reason they never needed to go into that cell and he wasn't a threat to himself he wasn't a threat to anybody else there's no reason to be there anything that happened in that  own doing and there's no way that at that point he wasn't seeking medical attention you would say he was still in the medical i mean wasn't constantly at every moment asking i knew my meds and my meds constantly but over the course of the time there yes i mean he had made and they offered him the officers testified in a deposition to yeah we knew that he needed his meds and there was no question that he had these disorders and i did need to mads they knew that he was in that cage in this condition they were in and for the sake of protecting  the evidence they need to be viewed in my client's most most favorable light in that light there is no gurgle or spit and therefore there is no reason for him to be i'm back for my final three very brief i'd like to address the timeframe between five thirty to seven fifty it was seven fifty when he finally saw the nurse he was not the only inmate in the jail and the nurse makes the determination of what order inmates are seen based on their conditions and nothing to do with neither my client's homes nor rauscher and so that fact that mr moore bit wasn't the first person seen when the nurse got in that was seen in some order was completely the call of the only medical professional the facility the nurs nurses their only option is the hospital is that is that the way it works that would be my understanding your honor and i have no idea nor do my clients why there wasn't a nurse on duty that it's not something that they can control is they're usually supposed to be a nurse twenty four hours my understanding is yes obviously the whoever was responsible for the staffing is not a party in this case or as to the issue of going in the cell there's the records are played with the test one of my clients the reason they want to sell is mr moore be to continue to threaten her himself and was going to say had said he was going to smash his head against the wall which was not padded he had been doing that earlier on and the unfortunate reality of mr moore beat us fate is that his tendency to self harm was a very real concern which is why my clients and of the cell to begin with you can't enter a cell instantly as a locked jail cell so they had to act quickly in terms of that plan backfired a little bit well it did because first he tried to spit on them and while the video doesn't show person can hit their head against a wall in an instant i keep my head against this thing and half a second you guys would be quite shocked i'm sure but that is the reality and you can cause serious damage to yourself at that point the liabilities which is it's he was screaming i'm go hurt myself i'm going to hurt myself why didn't you go in there and save him why didn't you go there in there and stop they have a responsibility it's a very difficult situation and that's why qualified immunity exists to allow the government agent discretion on these close call could smash his head against a wall i like to just quickly reference in our brief that we did make a number of arguments that assuming he were tasered it still was not excessive force i believe that the hagans case in the cockrell case of the strongest ones thank you very much all right