officers on notice that their conduct violated the fourth amendment there was no fair warning from a circuit court decision or the supreme court to the effect that the conduct here was a violation of the constitution that's the basis for the appeal and i might also point out the district court in my view incorrectly evaluated the qualified immunity determination based upon whether the officers themselves believe should have made for qualified immunity purposes most of the briefing in your discussion so far has focused on step two of the qualified immunity analysis i see a problem at step one about whether even accepting these facts like well qualified immunity has two parts and you have raised a qualified immunity and we have jurisdiction to decide legal questions and there are two in a qualified immunity analysis whether the first is whether the facts  taken in the plaintiff's faith her establish a constitutional violation and then the second question is whether it's clearly established on on that objective test that you've just mentioned and because this is a fourth amendment claim it is also an objective test it's not a of qualified immunity and but i have some difficulty with with that step one about whether we even have the best version of the plaintiff's facts taking everything the plaintiffs say is true  that we have an objectively unreasonable seizure going on here and i agree completely and the reason i am suggesting that the court instance and doesn't apply to legal questions only applies to disputes about facts historical wrecks and so taking the plainest facts you know the district court concluded that there was enough evidence by virtue of the fact that way of answering to raga tori's and deposition testimony that that occurred because mr martin lived for six months and he gave an account to his sister while in the hospital i was confused by why they said that it was disputed is not disputed and why is that important well it would certainly be important in a deliberate indifference case but we don't have that but it's still important insofar as that and the directive resembles inquiry and as to why he was my he was put in this cell what it'll probably left there if you will temporarily as opposed to being put in a drunk tank why is meant if you lost that fact do you think you would loose i actually think that even if you even if they hadn't said that at the mattress you know there certainly are a number of other facts i was just wondering how important that fact was to you but i think it's an important fact because it shows that we didn't direct him to get on the upper mean he was assigned to the cell temporarily with the with the plan to transfer the ice detainees out and put him in the drunk tank he was he had been arrested for driving while intoxicated there were limited opportunities th  as to work to house him he did make the remark as per the court i disagreed but he made the remark well i'm too drunk to get on the upper bunk so accepting that as a fact then i think it's it's important to show well we we try to accommodate him because accommodation and we're talking about the fourth amendment here which is typically not the amendment we use for jail cases but because we are stuck with the fourth amendment analysis here we have to look at what was the nature of the problem the plaintiff happened how did we react how did we accommodate if we did we accommodate well yeah we said well three put the man on the floor lie there and then we move you to the drunk so i think it's amendment under clearly established law and i suggest to the court there's no circuit court case that so hell even the district court concedes as much he says the court appeared to rely on the obvious so called obvious the exceptions i take issue with that sap that exceptions application in this case i also question whether there is an obvious the exceptional of life i side of the court with the most recent supreme court case that michael sutherland and along with my colleague mary jane a point in danny kent we're representing the state of danny joe mark based upon the inquiries of the court and i think we need to clear up some confusion according to the national institutes of health damage omar and suffered severe impairment that's a medical problem because of his alcohol consumption with his blood alcohol point one six mark would have the following problems according to the national institute of health or any other public website such as its center for disease control he would have severe problems with memory court nation attention reaction time and balance would be carroll so what is the issue he has a medical problem he is severely impaired because of his alcohol consumption the jailers know that because they are making a conscious decision about where to place them but they make a calculated risk for their convenience not for the benefit of the individual who is suffering from severe impairment that's the way he and i  describe a severe impairment so the questions i have heard from the panel here suggest that he's a reasonable person but he's got a choice or you have to do is make the right choice but that's the problem with somebody who's severely impaired they don't make the right choices if you go back to the record he was stopped by state trooper brown why christie couldn't drive the car he dropped went off the road so it helps that they took hot away from him because now we can't hurt himself or anyone else with the car but the rest of the problem is still there so when he's presented to the jail any jail he has to be treated with the knowledge that he is severely impaired which means they place him they have to have a suitable placement for him which does not allow him to hurt itself so we deposed everybody and clipping the sheriff even and the deputies and they all agreed that they had a duty which is the stand we're talking about they had a constitutional duty to protect any inmate who is presented for custody to protect them from from in a safe environment and that means several things that means proper placement and needs monitoring so you have the video but we also have and this wasn't mentioned we also have the jail walk and the jail walk requires as does a statue that the jail officers make a round every hour or so so according to the jail log which i assume is supposed to be an accurate business record and if it wasn't there should be some penalties not criminal charges at one twenty eight advised offender martin to take the matter of a top up and to sleep on the floor suit him not being able to get on the top bunk now if you look at the if you looked at diagram you can barely get the mattress in or you'd have to tuck it under the bottom up and of mr gould who was in there because of a cancer serious cancer operation and had to be monitored  case he was in pain or suffering or had some consequence of an infection or some other consequence because that surgery they were monitoring people in that cell for that reason they were special in vegas not just regular people so he's put in there at one twenty eight according to the log at one thirty eight so accurate over ten conducts a watch tower tour that means he poked his eyeball up to the people and looked him that would have suggested that he now knows that mr martin has not followed his advice and he's gone to the top bunk now they don't mention  medical need his the barely impaired from alcohol ok in the middle of earth as margaret case which judge posner broke he assumed which i think correctly they sued the wrong people and they they could attribute to the correctional officer that he knew that mr miller had a tumor but had you know he would have had an obligation then to at least go back and see why he was now assigned to a top up because generally speaking they know clearer medical problem at the correctional officer known a clear medical problem then he would have to have responded that way reasonably but sort of the mark of the mill versus murray case there were two falls before the the ultimate fall that caused the injury that  they took him away from in the hospital and that that the jailers knew of two previous falls ignored them kept keeping him going the whole lot and go back to a top bulk and it was on the third fall they finally took action that's not the there's no reason why they couldn't get intermingled well that may be true but it doesn't go to the question of whether there was a clearly established constitutional duty eat at the officers violated here i think it does judge if i may be if i  say so because a clearly established standard means that if you are aware of a medical problem you have to act reasonably putting a impaired person who can't make good judgment calls and lack ordination in a cell and then give them the opportunity by analogy if i may it's like telling somebody who is suicidal clearly suicidal to step into the cell with a dangling electric cord and say don't pay attention i'll be back in thirty minutes now the reason a person says well thirty minutes i could wait i would have to commit suicide thirty minutes but they don't they commit suicide and so in the case of clark versus walker that's what they found is that they clearly violated the established law a be established law to protect somebody who had known medical problems the other alternative they could have put it in a padded cell but they said no we may have it and inmate that's going to act as if we're saving that like yeah that's for their convenience what about mr martin what about mr martin had a history of alcoholism it wasn't like he was an unknown person they all said that they had some experience with him so i suppose the police officer who stopped him stupor brown says i got it  subjective call one point six you don't look drunk to may take the car on home for thirty minutes drive you won't be in trouble that's what you're asking as i understand from your questions to be the law and that is simply not the law the obvious there's no evidence that these officers knew what his b c was well he you know he was pulled he was arrested because the car was off the road right they didn't there's no evidence that they knew the results of his yes there is evidence of that the that he may and she says point one six one but there's no evidence that they saw that well let me see if i get this right they don't have to look at anything and they don't have to test anything and they just have to take their own subjective reliance on their his appearance i don't think so judge the booking process requires them to take into account that person's condition they go through the question here is if you remember the questionnaires to see what his problems were and he says i'm drunk ok how drunk all you have to do is look at the the document and i think you're supposed to take our position the evidence is every man is part of the arrest record you take supposed to take the plan determining whether or not there is a qualified immunity issue and then he goes on in his reply brief and less thirteen items and says these are uncontested thirteen we only agree with for the others are challenged that's really raised the concept or the jurisdictional issue you can't you can't say if this is a clearly established law on these very specific facts that you can say as a  reason reasonable person which is a standard here a reasonable person who is well trained would be put on notice see i'm running out of time and i wish i could address that some more questions if you have but that's the argument we make we would ask you to rea pina logical reasons as to why the why the officers chose to temporarily house mr martin in this cell is to go as opposed to the other options may not have been the best decision with hindsight but that doesn't mean there was clearly establish