under the th amendment and the u s supreme court's kingsley factors this includes claims for confinement an unvented in adequately cool spaces for an extended period of time here mr patel was put into a metal compartment in the back of  police van and very hot conditions for a total of two hours of minutes including fifty two minutes alone at the lowndes county facility mr patel's claims are clearly established in the facts support his case going to a jury patel's th amendment failure to provide medical care for k account focuses on whether smith was deliberately different to patel's up vs medical needs this court need go no further in its recent hand a decision where the court reiterated that it has quote made clear that officers act and an officer acts with deliberate indifference when the officer fails to provide medical treatment to a prisoner that has fallen unconscious here patel full is found unconscious twice immunity under the state law class while a to be expressed terms of the lanier county sheriff's office policy it says that no detainee should be left alone in a transportation vehicle for those reasons which on the discussion more details the district which is relevant here one thing i'm curious about though is how do we determine when they have been found on ventilated you know sort of space claim is an excessive force claim and when it might be a conditions of confinement claim because i mean if you were a detainee and you said i've been in this cell that is on ventilated and nasty and filled with rat then we wouldn't call that an excessive force claim would we i mean wouldn't that be a conditions of confinement claim even though you were a detainee how do you sort of separate the two universes sure and i think you separate the two universes by looking back at the case on and what you analyze these things under  obviously you've got a th amendment th amendment th amendment type claims and what you look at is the status of the person who's being who is being the complaint in that case well but even if you're i mean i get it that you've got to arrest these detainees unconstitutional conditions of confinement right and i would think if you were a detainee in pretrial detention but in a cell and that cell was nasty and on ventilated and infested with rats that would be a conditions of confine albeit brought under the th amendment am i wrong about that would that be an excessive force claim i mean i think it could be standard under both when you look back at the bell versus wolfish case that talks about analyzing these things due process in the th amendment it of the manner in which he was confined and here you've got somebody who is being placed in a hot van for a particular period of time and that force that is exerted against him is the keep that is in the van i mean i think that you know  it's a it's certainly i mean i understand what you're saying but i think that you could analyze it under either rubric but when you look at the constitutional analysis it is up being the same and what you look at is you know are you are you applying a and is that force necessary at all in a nasty rat infested sale is that is that is that force or is that conditions necessary at all and you look at it as you talked about in the pianist a case because you're not going to have any punishment because any punishment definitely time is unconstitutional and you look at whether or not it was necessary and are the conditions necessary in order to effect some  and here to tell had bonded out he was in civilian clothes there was no reason for him to have been in this van in the st place and yet he goes through a two and a half hour to hour and seven minute or deal passes out twice and is the constitutional violation clearly established yes it's clearly established as clearly established by fellow versus wolfish by the chambre case by the group or case recently out of this court and if you look at every single case that is cited cited by us and by my opponents in my come up in the context of the th amendment it might come under the context of the th amendment but what it says is that the law is clearly established and when you look at conditions of confinement cases and they analyze that under just missed it in the briefs i didn't see that you sort of pushed through to argue that the law was clearly established we didn't review and i think we point that out in both our reply brief in our in our initial grief that the law is in fact clearly established we made that point as summary judgment and in the law is clearly established and we cited what that clearly established law is and we did it at oral argument and we pointed to the gruber case we pointed to the chandler case we pointed to all of the other cases then you have got again and again and again where the courts have said that when you are put in severe conditions for an extended period of time that is a constitutional violation now you can have a you're going to have a continuum  i have another question let judge carnes go to my questions a little more practical and whatever number we put on the end then about how we characterize it you keep saying it's clearly established but you know the supreme court has been clear we don't deal with great generalities in deciding these things we look to the particular facts to see is what this officer did specifically is this the kind of thing that was clear that the law's clear would have alert maybe five or ten minutes it was hot it was uncomfortable here it's much more severe and he was in the sally port of fifteen minutes but how do we come back and say the law is clearly established that these under these particular facts that the officer did not act and checks of really reasonable in other words it's not really a negligent standard it's also standard that puts nost on alerts and can you give me the rule because we live in the south they're going to some people get in cars you know and it's got to be hot in the air may not be working and it might be five minutes and maybe twenty eight maybe fifty what line can we draw on this court to learn officers that if you exceed that line then then now you're in constitutional difficulty ok i think there's in five may answer there are twenty two issues one is the law clearly established into the facts support the constitutional violation again when you go prisoners or detainees exposure to hot uncomfortable temperatures is not per se unconstitutional there is a point at which exposure to extreme heat without adequate cooling or ventilation can give rise to a constitutional claim when the health and safety risks associated to closure the high temperatures in the guidance that were given is that you look at the severity and length of exposure in here the severity and length of exposure moon we look at cases some cases that the other side site says fifteen minutes is not enough but if you get what if you're us if you're this court tell me what principle you would articulate to separate the separate out these different factual scenario so we can know how to rule absolutely so the st thing is not it's an objective standards declare it a sentence i want to rule what is our principle going to be i think that the principle would be that if you have excessively hot temperatures which you have here which is now know that i can put the degree of the temperature on it but certainly ninety degrees case law that seems to indicate it if you look at something that is the i think that the cases that they cite the most that they say is not unreasonable is forty five but i don't think you had an injury in that case and so it's something that is more than that and i think we as reasonable preschool we're not going to have we're not there's going to be a you know five minutes in a hot car is not going to be it but when you are in ninety degree heat in georgia and in the middle of october and you pass out twice then for two and a half hours i think we are all going to be shocked by that and we've got me ask you this if you know i know i'm not dark to you it's hard to derive a principle is another what you would suggest we come at it to look at after the fact that if there in fact injuries we now know that there's a real problem if it's the st case we've had here where rilling of physical injuries that you know after the fact that's not maybe maybe helpful to the officer but after the fact there was no cost violation but the existence of the kind of injuries you're talking about would then lend and then for us that that the conditions were unconstitutional do you think the minute the existence of injuries is something we should factor into our test i think it certainly is a factor that they can go in there but i think even offer a henri if you look at the fact that is that injuries likely to occur is important because if you look at somebody being put in a ninety degree metal compartment  ventilated for two hours and seven minutes yes an injury is likely going to occur the fact that the injury then in fact doesn't her is proof that yes that that that that was an unreasonable condition but i think that even if you're looking at it beforehand you can say that that i have reasonable person and we often resort to reasonable person standards we say a reasonable person and a reasonable jury would believe that this constitutional violation that under these facts the constitution is violated and that's how we look at most of our qualified immunity cases we've got the clearly established law and then under these facts that a reasonable jury come to this conclusion than an objective really reasonable officer by a lay of the constitution and i think that's the standard and that's the standard that's been repeated in the cases well one last question it as you can see we we don't have any published cases about hot cars we're about to embark on a different area where whatever we can have a real that we don't know we don't know ten minutes is too long maybe a refill officer would know that ten minutes is too long is this going to require us to have medical scientific testimony at trial have to so that we can when it's something too long and when it's not too long is that the pap e c s going down and you did have medical testimony correct i may have testimony we did have expert testimony in this case and i think that you know some point in time there is going to be a line where you say that that our knowledge as lawyers and judges are not sufficient to answer the question that it is going to have to go to the evidence that that's in a case i think that the cases that the other side cites which you're seventeen minutes twenty minutes you know basically the judges in those cases say well it's kind of walking around knowledge that you're probably not going to get injured in that period of time but if it's more than that you're likely are and then the facts are going to have to be gay or should the judges have dividing line i don't know but i think there is a some point time you say ok seventeen minutes most people are going to say no if it's thirty minutes or forty five minutes maybe that's when we start needing medical testimony but that's going to be a facts and circumstances test thank may have please the court this is paul troubled and i have the honor of representing deputy smith who is properly granted summary judgment below to judge lawson in this case with his usual syncs pragmatic and precedent following self when he found the deputy smith is entitled to qualified immunity from suit with regard to the excessive force claim because st and foremost this is not an excessive force case the court didn't say that this was the conditions of confinement case it said it should have been pl as one and counsel for the appellant specifically waived any confinement claim at the argument so they weren't putting it and they were arguing it secondly the district court did not and granting summary judgment to deputy smith on the deliberate indifference to serious medical needs case because in this case even if there was a serious medical need which we argue there was not plaintiff is not proven that deputy smith was deliberately indifferent to that name and finally the district court correctly found a deputy smith is entitled  the state law qualified immunity what used to be a referred to as official immunity because it's clear he was undertaking a discretionary law enforcement function when this incident occurred and he did so with out actual malice which is what georg pursued the wrong avenue for one thing a free claim here and it should have been the conditions of confinement as judge lawson correctly pointed out there's just no evidence of any application of force in this case it just doesn't fit into this circuit precedent at about the two minute mark and censure on the issue i want to just pursue with you the same question that i was pursuing with your friend on the other side so you seem very sure that this should have been a conditions of confinement claim because you say there was no application of force setting the case before yours can't be an excessive force case because i don't know there's no sort of physical touching or something i don't really understand that i mean i'm having a hard time distinguishing between what really is excessive force case and what really is the conditions case but i don't think it's as obvious as saying well sort of everybody can see that there was no force an issue here what do you mean by that well in those cases that i've read some some district court and some amendment matter if it's in if in fact the same thing is happening you either shove an arrestee into an on ventilated car and turn the off or you shove a pretrial detainee into an uninsulated car and turn the a off for the team same time the temperature is the same everything's the same why should one claimant have access to an excessive force claim under whatever and the other claimant be you know sort of be shunted off to the conditions of confinement when i just don't understand that you only have the conditions of confinement claim that is that your position based on what i've read yes ok that seems weird to me but maybe you're right ok very well jail under this particular condo maybe certainly by the time they've taken this around the world tour of south georgia and when he comes back at the end of the land scanning visit and he passed out and he continues to rid to excessive force and all the things we've been talking about the st argument in this argument what is your best argument as to why well i guess the twenty something else what about the clearly established you have not interesting lay as a defendant you've not discussed that much at all is your argument that if it was a constitutional violation it was clearly established what your position on that well i mean as you pointed out and your perspective on the scene that the smith on the scene which is why you have to view this to leave him in that sally forth rather than leave him outside in the van he left him in a shaded clothes with other other law enforcement agencies cars coming in how about that shown in the video to pick up the detainee he had to pick up and then leave i mean it's much more reasonable for them to do that and leave him parked in front land county jail in the su me cases that get close to this from the perspective of the reasonable officer on the scene not would not with the benefit of any hindsight was what deputy smith did with objective objective leave reasonable to carry out the duties that he had to carry out that day banging on the window with another officer he didn't know from what jurisdiction right next to him who he says just ignored him i mean there are other people there if someone is actually banging and trying to get help and screaming i think it would be noticed and liberate indifference to medical needs but as far as the excessive heat part he still drives him now back to learn their town here somewhere and i gather the evidence is there still wasn't getting back to him don't you have a problem with this  leg of the trip in terms of now the officers on notice there's a problem it's hot and he's taking the steps to alleviate the heat much less address medical conditions well i don't think so your arm calls from the officers point of view you know he gave  well i know ma'am because he didn't even see it as a as a medical passed out he was still sitting up in the back seat of the van and he said hey man i mean you know rub to start him and he looked at him at a conversation and checked his viles and also wasn't fast things like according to deputy smith you do reckon with the procedural posture here right yes or your brief tells its own story at this at this juncture are we obliged to accept mr patel unconscious i mean you knew that they what he looked like at that point but and he presented expert testimony i think if there is the weakest argument we have is whether or not there was a serious medical need not think what if you read dr nesbitt's deposition carefully he he says heat stroke is a quote serious medical condition from page to a depo but that he did not suffer a patel did not suffer a heat stroke and then dr neza goes on to to say yes he may have needed some medical attention but he he never opines that this was a serious medical need now obviously he there's an expert that says there was medical attention needed and we disagree with that but what the doctor that they have he says there is basically a heat related illness most likely a combination of he can cope i don't know with and some heat exhaustion right yes and dr nesbitt never says that's a serious medical condition but what dr nesbitt never does nor does anyone ever do is upon is to whether  deputy smith inferred that that was a serious medical issue and then deliberately disregarded it and continued on his course of conduct nobody you know in the campbell versus psych decision that deals with expert testimony and whether or not the government official have the subjective intent to to deliberately disregard the medical made in that that that analysis is very much what we have here there judge lawson elevated the testimony of lieutenant quayle are over the plain language of the policy i just wondered what your thoughts were about about that that i perceive is a problem with lawson's or the well the the policy is catching the subject transporting arrested persons and it deals with searching searching those people you arrest for weapons you've got a situation you don't have here and also the policy was in artfully drafted in one and they are interchanging arrestee and detainee but no when you read the policy of the whole the only evidence in the record is this doesn't apply to detainee and there is there is no evidence to contradict how the county appl fine self that day he has to decide how he's going to transform a five and the most secure way to do that day was to pull in the south for like he did walk out the detainees that he needed to swap out and keep going just because there are some thank you very briefly on the only failure to render medical care this court hanna said our court has made clear that a prison official acts with deliberate indifference when the official fails to provide adequate medical treatment for a prisoner that an unconscious this court has said that when you come across a prisoner or a detainee that is unconscious and smith came across patel unconscious twice that that is indicative of a deliberate indifference to a serious medical issue under the object of portion of the of that test the objective portion says that you can have physicians saying that you need the care or that you are in such bad shape that a lay person could tell that you need immediate care the evidence in the record shows in the district court doesn't quote any of this is that britney grant said that when she got in that van she was shocked to see a human being had been left like that that patel was passed out had mucus coming out of his nose was visibly shaking was in severe distress and she testified to that smith was an e m t he was e m t trained he knew when you saw a person a condition like this that that person needed medical care and lieutenant cherry who also was e m t trained in testified said that e m t trained person would know this and when you look at the caseload the subjective elements say that if you look at the facts and a reasonable person can  from the facts that there is a harm there is a serious medical need and you've been put on that that hannah says when you come across some it's unconscious you better call a doctor then that is a then that is something that violates that constitutional norm and in this case he didn't give any medical care didn't get him water didn't go right inside laos county where the testimony is that a nurse was the evidence is overwhelming and the only evidence that they have to the contrary smith's self serving statements with and that's because those terms are understood under law to have different meanings and the in a sheriff's office that is responsible for transporting and moving around detainees and arresting people restes is going to understand that clear law and so their policy expressively says that they want to change their policy they can but they have not changed their policy and smith violated the ministerial function of not following it and that is in part what caused  and then just very briefly going back to the clearly established when you look at the clearly established for the excessive force case and we cite these cases in our brief groover versus broward saunders versus sheriff of brevard everything goes back to hope versus p for purchase versus t for every single case that they cite also says that the law is clearly established you then analyze the you analyze the severity and the extreme conditions which they are