judges of the court of appeals good morning my name is tom girard and i'll be arguing this morning on behalf of the defendant christopher bel air your honor as i like to spend a few minutes i have arguing the claim of due process violation based you did in your memorandum i saw that so that may be sufficient but the district court did not decide anything in this case on the basis of qualified immunity it's not even mentioned in her decision i know that so what do we do that how  objective lee reasonable it doesn't say the words qualified immunity but it does state the i mean that's qualified immunity clear and simple and we did brief it so i think qualified immunity is here  in order for us to appeal your denial and the excessive force claim we need a decision a qualified immunity otherwise we had to wait to the end of the case no we didn't move to reconsider we but we did bring the interlocutory appeal and the issue is that the district court is required to consider qualified immunity i mean that's an immunity from suit it's not an immunity from liability so i think we're here and particularly in a case that is this important because what our district court did with respect to this process due claim is go completely outside uniform law that says that in order to have a process violation for denial of medical attention you have to have a pretrial detainee a person has to be detained never been a first of all he was detained right there's no question he was in the custody of the police at the time of the law as does occur while the traffic ticket was being written he has he was in the custody and then what they decided to do was to cut him loose and leave him intoxicated too intoxicated to drive to walk a mile home in a snowstorm he didn't he didn't get arrested for dui he didn't have no that's an interesting thing but they did impound his car why did they impound his car because he had no driver's license and they had and he knew in fact never had them have to do with the fact that he was too drunk to drive well he didn't get do you know why so the point is i think maybe he could not a reasonable jury think that one of the reasons he did not get a dui was that if he got a dui they would probably have to take a men and if they took him in all the other police officers would see that he had a busted lip well i don't we're talking about the read there's a fourth amendment claim that may or may not be argued to the jury and then we'll all get that that day in court but the point is look where that this judge has gone with the due process protections that has never been applied to someone who's been given a traffic ticket and  late but the court did not apply a failure to give medical attention the court decided that the evidence and the pleading the evidence to which the pleadings could be deemed to conform showed a state created dangerous situation where the police exposed him to considerable danger when they did not have to the state created danger this is the other piece the court is going to fire a field state created danger exception has never been applied to a situation where someone has not then suffered a subsequent harm after having contact with the police it always is a scenario where you have contact with the police you then are left and then you have something happen to you an injury by a third person or you get hurt on your own and then the look back it gets traced back to the police saying the police material hoes are much harder cases aren't they and in those cases there was found to be a state created danger on the theory that by not arresting someone by not arresting a domestic violence offender the police sort of indirectly encourage that person and that strikes me as a much harder case than for example if the police took close position and decided to drop him off by the edge of a cliff right if they if they created danger much more directly then in those cases that the court struggled with to find a theory to hold people liable if those are cases of state created danger why would not it be a much more obvious case of state created danger when the police put somebody deliberately into a dangerous situation directly not not it's not going to be that because they didn't arrest some guy who later attacks him while he's walking home it's not that kind of thing it's that they put him in a dangerous situation when they obviously didn't have to they could take him into the station put him in the drunk tank they could driven him home but instead they deliberately put him in a situation where he's lucky survive getting home they let him walk home is what they did and the reason why this is an exception to the to the shiny rule is the general rule on the scope of where that's a well it's not protecting somebody from third parties this is not a kid dish any case this is not a case where the argument is the police should have given him protection against somebody who mugged him this is a case about the police putting somebody in a situation that's dangerous to his health they chose to do that alone and was sexually assaulted in another person tumbled down a hill and got it right why isn't it your co counsel is arguing this point because this point applies to the other guy's right well and merrily your guy your guy's got a problem about he is alleged to have punched the guy when he was in custody not resisting it's that or it's actually so you're kind of conceding that that's not there's no qualified immunity there are no i'm here for qualified immunity that's the point but that whereas the qualified immunity about that because in order for where  it's because the law at the time of day has to be clearly established such that every reasonable police officer would know that if i let this man why would the i'm sorry i'm asking you do you have any argument at all why your client has qualified immunity from the claim that he punched this guy in the mouth while he's standing there blubbering and drunk and apologizing for his poor driving that's the fourth amendment claim and i'm talking now about the due process but you know what i mean is long since over and you started out by saying you want to spend your few minutes talking about this other claim i'm wondering is there any argument that you have all that your client should have qualified immunity or any other defense that's relevant on this appeal to that charge to the to the fourth amendment rights i'm limited by the fact that you're honest would have to agree that you looked at the video and it was no there was no issue of fact he didn't punch them in that's the only way i could get qualified immunity from and you looked at the video and you didn't see the guy's head back over the car you know well i i think that i think we're in scott versus harris testimony i think we have a colorful argument the better argument is a you have a colorful argument it's a factual argument that goes to the jury it's not something that you even get an interlocutory appeal about because the question is how would a jury read that video and maybe a jury will read the video differently than i did that's possible is perfectly possible you'll have a good argument there but i don't see how you have any argument that you are that you can prevail on qualified immunity on i mean this is not a tape on him big you asleep shows there was no punch that's for sure and it's a problem the due process is a clear qualified immunity just no precedent for show any type of cause of action was there argument on the summary judgment motions i don't think there was no oral argument was not a surprise to you two were that come from it was a it was a shock not only because it hasn't been pled and it was in any brief but also because the dish cases do not apply to the kind of facts we have its origin is in the fact that there's the due process has a limit of protection and there is no protection from some harm that happens after you leave gets hit by a car walking down the highway right after being in the car because there's but then she said i'm recognizing the cause of action but only nominal damages would apply she did say that she said because because there's no evidence of any any cause of action i'll speak for everyone on my side of the v you know all the defendants were startled and shocked because it was an argued and it doesn't apply there is no case law in this country the you can find where someone was not hurt and then said but i could have been so you've know you probably i know you have a presentation make but i'm curious about this procedural aspect mr conrad is on your three clients and that is you didn't move on the basis of qualified immunity there's some language about but now  applying to these officers i saw that and i saw nothing in your motion or in your memorandum or in the court's decision about qualified immunity for you or three police officers how how how did we hear today that it's  well again two to echo brother counsel i believe it was incumbent upon the district court to address the immunity issue in the summary judgment decision on going on the court to address something that you don't ask it was referenced in our brief it certainly wasn't that the primary focus of our motion the primary focus of our motion to dress the standards of qualified immunity you dressed liability we did at the summary judgment face correct as a different is a different community altogether and it's based on different standards and correct and it doesn't apply to the individual defendants anyway as it applies to the city in the official capacity as if it it they were soon their official capacity and the threat defendants in their official capacity so the thrust of the summary judgment was directed not at necessarily the immunity issues but it was directed at the failure of the plaintiffs to be able to establish the key elements of his claim per his own testimony that you weren't asking the judge to give you summary judgment on the basis of qualified immunity and it certainly wasn't the thrust of our motion weren't asking for id i don't recall that being addressed in the motion but the primary thrust of the motion as i indicated was the fact that the plaintiff through his own testimony was unable to establish any of the the elements of the one count that was brought against my clients and that one count was deliberate indifference to medical needs do we have the authority to address that in the absence of a district court decision in other words can we there are some cases that say court reviews the uncontroverted facts below at the summary judgment face in fact we rely on nothing but plaintiff's own testimony plaintiff himself and i think the key quote in this case plaintiff sworn testimony was quote it's not a big injury unquote and that was that was his way of referring to this split lip he claims to have received at the hands of mr bell air he acknowledges that he left the scene of his own accord in just to address some of the points that were made earlier complaint in this case the one that's that appendix page sixteen it should be the only one that's in the appendix your motion addresses this idea that they are only sued in their official capacity tangentially the thrust of the motion is as to the elements of the claim which per the plaintiff's own testimony he cannot establish argument here is that the district court erred by invoking a cause of action that the the plaintiffs had  appeal is triggered by the immunity issue and then this court has which immunity issue the through the quality issue that you did not raise in the district court that is correct leave rogers for the plaintiff ellie good morning the late senator daniel patrick moynihan once stated that you are entitled to your own opinion but you in our are not entitled to your own facts the defendant's appeal in this case is soley generated by their generation of facts which of the circumstances police officer blair is about six foot three my client is about my height officer blair is a well built physically fit person he appears to be person punches a police officer in full uniform carrying a gun surrounded by three of the police officers in uniform carrying a gun that when that person is punched he's going to have a physical injury blair didn't punch him to just give me a tap on the shoulder and say you know you shouldn't be doing this that is the point yes yeah i thought the question was about what did the other officers for example do or for that matter of bel air that inflicted some injury on your client beyond the punch by having him walk slow because well maybe they were like he walked home in the snow went to bed got up the next morning looked in the mirror saw you qualify for a serious medical injury in this case but the other officers did nothing and in fact on the indifference to the medical care during the police department's internal event investigation police officer madore admitted that it was not routine for three officers much less for to be standing with somebody who stopped for a traffic stop and he admitted that the police officers had a duty of care to arrange transportation for mr chalco to get home he admitted that there are the admit that there was a duty of care arising under the constitution or did he admit that there was a duty of care arising as would be relevant in the internal proceeding from the policies and procedures of the police department there was a duty of care from the from the policies and procedures of the police department that he and the other officers did not take mr ch medical needs stemming from that lunch correct that's not the theory that the district court ruled on is that the district court reject the theory of deliberate indifference to medical needs and in effect create a will recognize a different cause of action of putting a person in danger by having him walk drunk home through the snow i don't believe so but i will rest with your honor that you sued these officers in their official capacities that's incorrect ok and he said on the summons that said something about official capacity is that i would have to look at the summons i didn't look at the summons in preparation for being an did not and they didn't bother to present that important document to us at them theory that they wanted to argue and it's not in the complaint not in the complaint and you feel contempt compensatory and punitive damages against them yes  i have a few other remarks i don't think what do you say about the issue of qualified immunity with respect to the two different   i'm sorry i just have a minute please the force for excessive claims i believe survives because the conduct had to have been excessive and outrageous the conduct had to have been not under the color of law there was no legal reason for mr blair first of all there was no legal reason even show up at the scene because there were three officers already at the scene they didn't give my client a breathalyzer they didn't do any field sobriety test my client was completely apologetic noncombat he didn't have a gun so why mr blair decided to remain at the scene of the crime and then harangue my client and break him and then finally punch him that has that's never been quickly upon his arrival at the scene after exited the vehicle punched my client and if the police had taken my client to a hospital for some medical attention which i am sure i would bet my life on in the course of their police training they are taught if somebody claims they were you need to take them you know for some follow up medical care but the reason they didn't do that is a maybe they were feeling lazy that night maybe  a police off and if he had been taken to the hospital for any medical attention the medical personnel would have said to him how did you get this injury looks like you were punched it didn't look like you fell on the sidewalk or slipped in the snow so the the conduct of the police officers was outrageous was just outrageous and unnecessary what the what office and the door and officer h done was to field test the the plaintiff they should have given him a breathalyzer they should have put him in a police car they should have driven him to the police station they should have let him sleep there for the rest of the night arrested him for what we don't know if he was if if the amount of alcohol he consumed rose to the level of intoxication we don't know that because there's no proof of that  i mean everything they did just goes against standards of decent conduct and i would ask that your honor as a firm judge bryant's decision thank you rebuttal that the trial court has done three things that justify reversal the first is extended due process protections for denial of medical needs to persons who are able to help themselves not trial detainees that's never been done they extended the state created danger exception to just cheney to scenarios where there's no subsequent injury so think about the limits limitless claims that will result if due process now one compass is scenarios where you put me in danger but i didn't get hurt that could be any and every time someone's in a traffic stop and they're allowed to leave will be involved in that but more most importantly there's no analysis of qualified immunity anywhere if you don't have the right to appeal there was no you didn't ask for qualified immunity there's interlocutory appeal for qualified immunity you know i did we did well who asked officers to ask for it are entitled to be protected from having a trial if the that the that the motion did not ask for qualified you know that is paragraph three of my motion is it's no liability on the constitutional issue for excessive force that's one no liability for the constitutional issue for  e process that's two and three that as to one into all of our actions we're objective lee reasonable and therefore we're entitled to judgment and that's our qualified immunity claim and way way way way to point three is all of your actions were reasonable under the circumstances that's your qualified immunity claim yes that's exactly right and then and then it's followed up in the brief with with pages and pages and pages there's nothing that says you need to say that talk about qualified immunity soley in the anyway it's just that's why i judge ronnie was obviously more diligent than i and up the right on the record but i didn't i was kind of taking for granted i guess that if you're arguing qualified immunity here  your your notice of motion on a fifty seven is that right yes your honor a fifty seven paragraph three where does it say that you seek c summary judgment on the basis of qualified officer bel air isn't titled a judgment as a matter of law as to the plaintiff's claims of excessive force and deliberate indifference to medical needs as his conduct under the circumstances presented was objectively reasonable sounds to me like saying that it wasn't excessive was reasonable and it wasn't deliberate indifference because deliberate indifference requires recklessness with respect to a serious medical need and if their conduct was reasonable then they didn't do that those are the arguments in paragraphs one and two this is the qualified immunity paragraph there's no case law that says you need to say the word qualified and immunity that sometimes becomes confusing what i guess the point is your principal argument is your brief made clear what the point was made it clear and my counsel my opposing counsel does not dispute that that we raise qualified immunity at summary judgment so that as a thank are the plaintiff's own admissions in his sworn testimony the excerpts of which i believe have been presented to the court mr chalco testified at his deposition that after this alleged punch  there was no blood apparent at the scene he did not complain to anyone of any injury at the scene he did not request any medical attention at the scene and he conceded essentially that unless someone had actually seen this a d punch take place there was no objective indication to any third party that he would have been injured at all he he then testified that he walked home he washed up he went to bed he got up the next day decision in this case and then turn to