good morning may please the court my clients are eight malaki police officers and to milwaukee police sergeants their claim for you today is that they maintain that they are entitled to the defense of qualified immunity and their for the protection from the risks associated with going to trial be heard you're right this is not a case of excessive force this is not a case of wrongful arrest this is a case involving the allegation that these officers and sergeants failed to provide necessary medical care and specifically access to necessary medical care to a pretrial to t d who was in their custody mr williams was that person mr williams was taken into custody and he was still at the scene of his arrest and he was at the scene within fifteen minutes of being taken into custody when he collapsed and died according to the medical examiner he died from a sudden onset sickle cell crisis in any event the opposition that confessed to as far as  fact that in analyzing the cause of death the medical examiner and the person from the armed forces medical examiners office looked at blood samples and the blood samples indicated circling our medical examiner and the thoroughly mr williams and throughout his blood system that that by process of elimination was the only cause of death that he could determine the testimony in the inquest by the armed services medical examiner's office focused on that blood sample and their conclusion that it was undetermined was based upon the fact certainty that the cause of death was in fact sickle cell or sudden onset sickle cell crisis however they offered no other possible cause of death and did not conclude that it was something like a heart attack and asthma attack a stroke something of that nature in this particular case the officers assert that there was no clearly established case law which put them on notice that in their circumstance that they faced on that date and by and by them in each of the ten individual officers and sergeants there was no clearly established case law which indicated or established that they were required to provide access to medical care to mr williams given what they knew at the time and given their totality of circumstances this prin court has not yet ruled on the specific constitutional guidelines to be applied in analyzing this type of situation and with regard to circuit courts this court in the ninth circuit applies a fourth amendment objectively reasonable standard the that on this particular issue as it relates to provision medical care i'm sorry i'm not aware of that decision i looked at it as of last month and there was a petition for review looking at asking the court to take on this issue and make a decision between the fourth and and that petition had been a night i apologize i'm not aware of a subsequent decision but in any of that this case happened back in two thousand and eleven of the subject matter of these events and so therefore it's the case law that applied prior to that which  applied a reasonable no standard rather than an objective reasonable a standard which was which is the standard in the circuit and if you look at page fifty of the district court's opinion after going through the facts in exquisite detail the district judge said and i'm quoting and arrestees right to objectively reasonable medical attention has been established and so least two thousand and seven how can you say that the district court didn't apply an objective reasonable standard when it's specifically quoted in the opinion itself the right that the core referred to was a very vague and ambiguous right it was not specifically defined by the factual circumstances of this particular case he went on the next sentence says that he says no police officer could ever reasonably conclude that deliberately ignoring and restes genuine and severe medical emergency would satisfy the williams factors and there's been no definition in the case  circuit or any circuit or by the supreme court that the circumstances that were faced by the joaquim officers and sergeants in this matter put them on notice that what they were observing objectively amounted to a significant or serious medical condition have you have you looked at the video i have looked at the video and i've also isn't that disturb you that this man was in the back seat of the car in obvious to distress and the officers were basically ignoring him or even making fun of him not only they were not making fun of them i beg to differ with that well i heard one of the i heard one of them say you're just you're just fooling around or something like that well and based on the perspective of the police officers given what they knew regarding that sequence of events it was not unreasonable for them to reach that conclusion at no time that night mr williams indicate that he suffered from a medical condition keeping in mind he's still at the scene of his arrest so any camp three that's the only message he says in the car one point i'm die isn't that enough according to the situation you've got to say well i think with the florida case that was the case where the woman was taken into custody and was complaining of pain in again she thought she had had a heart attack and i think for aspirin the officers did not initially respond to that and provide her with any kind of emergency medical care or access to it now or ever the aspirant time passed subsequently they did call an ambulance in that case the court determined that the officers were entitled to judgment and then how about the how about the you know the word  corrected it but in that case i believe that was the case involving the person who had a diagnosed medical condition who had been medically screen prior to coming in to their location of incarceration and the jail personnel were made aware of the fact that this person did have a condition did rely on medical medication to treat that condition and that person was not provided with access to the medication so in that particular case the officers were not given qualified immunity or summary judgment but in our particular case this all started with an individual who was observed by officers in the act what they believed to be committing an armed robbery was an evening dark evening a couple rightest recorder the officers were actually following another vehicle that was driving dangerously they observed mr williams approach this couple wearing a asked with the joker smile on it having his face he had his hand under a shirt with an object it appeared that he had a gun concealed under a shirt and the officers believe that they were observing an armed robbery and process they stopped the squad car and this is officers kind of times don't mr williams looked at them literally jumped out of his shoes and ran he ran for two hundred fifty to three hundred yards that's the equivalent of two to three football fields on a warm july night the obvious or sound him subsequently many into custody without incident there was a point time when he was being taken into custody when he made a statement that he could not breathe at that point time officer to cio any was implying what's called a three point stabilization technique so he had and he and mr williams  handcuffing when he heard the statement about not being able to breathe he took the weight off and hit that knee and ultimately mr williams was stood up in that particular situation it was not unreasonable for their officer to chiapas or cope to not call for an ambulance simply man parents who had apparently attempted an armed robbery with what was thought to be a gun others are talking about the illness the condition of the diff of the of the arrestee what to discharge and well sergeant paul responded to the scene he did not know anything there was no again mr williams was still at the scene of his arrest he hadn't been medically screened he did not indicate he suffered from it from any particular medical problem so sergeant paul knew that this was a man on a warm night who had just won two hundred fifty three hundred yards jumping at least one fence in the process he was out of breath he was sweating officer klein who had pursued him also was out of breath also was sweating it was perceived that in context this was a statement that was indicating the man was out of breath now that he was in the to mr williams to ask him what was happening what was going on he did not receive a response he gave mr williams a stern rub in response to that is a sergeant in the sergeant at mr williams opened his eyes and said hey i was just playing those people were my friends and then he continued to  obligation to do or not do something new somewhat less than which charges i can follow that are there orders that point so i'm worried about keeping the patrol officers on the hook and picking the sergeant off ok so i think you have a little conflict of interest to be very frank at representing both well and i i mean i just think that's my own that's what i'm worried about i worried about whether these people are similarly situated you know had situation in the sense that all the personnel on scene had the same kind of american heart association and red cross training what they were observing that in context yes there was a statement being made but what they were observing what had previously current of them did not suggested and one guy's got three strikes  obviously in charge of the situation actually was proactive in doing some practice sterner rob ok now my point is if i'm a patrol officer standing there it seems to me and i have a procedural question yes that's been bothering me the the plaintiff here and in their brief raises a number of quest a number of cases which indicates that the finding by a district court of contested facts to preclude summary judgment is not reviewable in this court they cite whitlock  heroes and of course they all come from the johnson case you don't even respond to that argument in your brief can you respond to that now well i think i did respond in the in the sense that i talked about in these types of situations a kind of review court me not except that type of fact but the district court concluded that there were contested facts that preclude summary judgment in those cases stand for the proposition that like any other motion in the at that any other decision denying summary judgment and letting the case go forward is on reviewable and if you don't you don't respond you don't even cite any of those cases in in your in your brief but in the court's decision what it held to be and it's difficult to evaluate that decision because the court has not and analyzed from the perspective of each of those ten officers and over what they do or what they should have known it focuses on the determination of whether or not mr williams was in fact having a serious medical condition what was in the officers head judge that mueller wrote a fifty eight page decision half of which goes through each of those facts in exquisite detail with regard to each of the officers in question and then concludes that there's too many contested facts across a death the location of the officers what each officer heard and what and what mr williams said they were there was conflicting testimony about that his condition before he was put in the car and of course what the officers observed when he was in the car when we can see for ourselves from the video what was happening he says he's are all contested facts what they saw and what they should have done about what they saw and what they heard so it isn't that the prototypical denial of s this is after discovery remember this particular discovery qualified immunity and those cases say qualified immunity or not those decisions are not reviewable but with regard to the family rocky tory with the fact ultimate determination and a cause of death by medical examiners there is no indication whatsoever that any officer knew or understood that night given what they experienced in the totality of circumstances that mr williams was experiencing a medical a serious medical condition such that he was going to die from it there's just no indication of whatsoever that whether he was talking he was saying i can't breathe and he was talking and for some witnesses and the judges conclusion the district court judges concluded and he was yelling those words loudly he was walking he was conscious was not exhibiting anybody who was on the verge of death until he was in the squad car and while we have that video that video is not from the perspective of any officer that was a camera that was in the squad car there were two different officers that were in that squad car at different points in time officer was the first officer with mr williams officer there or there were officers all around the squad car there was a man sitting right in front of mr williams as he was dying who could have looked in the camera and and could have turned around and didn't i'm not saying that they did anything wrong i'm just saying that these are questions that would ordinarily be put to a jury isn't that right but even given the list factual assertions it was still objectively reasonable for the officers to engage in the actions or inactions that they did it can't be said that no other law enforcement officer in those circumstances that night again at the scene of a rat and arrest without a medical screening having a person who is saying i can't breathe we get the person has just run three hundred yards jumping fences it's a hot night he's sweating the officers are breathing heavy and sweating and when the officer in the squad car officer klein is asking him what's your name sir what's your name the response he gets not my name is derek williams to get the response i can't breathe the officer asks that for a time isn't that the cold point he can't even give his name because he can't breathe but he was making all sorts of statements so he was talking therefore he was breathing and that's consistent with american heart association training and the red cross training when they evaluate the e b c's of someone for purposes of determining if there's a serious medical condition what is the airway and the breathing and the circulation he was seated up he was standing he was walking he was talking he was not unconscious he did not lose his his  and he was making that statement so what they have heard like we're trying you know real looking at what is objectively reasonable for a police officer on scene that night knowing what these officers knew given their training and application to this set of circumstances that was  very unique not paralleled in any case law so these officers made their best decisions based upon what they did then in their new and there was no case law telling them that in this type of situation it was a constitutional violation for them not to call for an ambulance at that point in time as soon as they recognize that mr williams was unconscious or had fallen in the backseat or was slumped over in the back seat obviously or blackwell that immediately engaged his training checked the data sternum rob checked  experiencing a medical emergency he was dead by that he is dead right now he was dead by then oh i'm sorry he and that i would i was still in yes he was pronounced dead by the e m t shortly thereafter but i don't think they have a recess that hated him to the point where he was breathing again or ha may please the court my name is ben nelson i represent the plaintiffs of holies i'd like to address the jurisdictional issue first the defendants unabashedly rely on their version of the facts in arguing for qualified immunity and  doing so and by presenting their case to the court in this fashion they have deprived this court of jurisdiction under johnson versus jones and it's progeny they greatly minimize derek williams complains that he can't breathe and his numerous physical signs of distress and they fail to take any of the reasonable inferences and players favor their argument for qualified immunity is based on the assertion that each of the officers reasonably believed it was was was faking it and was playing games as opposed to actually being in medical distress the problem with that argument from a jurisdictional perspective is that it's based on a disputed fact the district court specifically found that each of these officers was well aware that derrick williams was suffering a medical emergency and that they failed to do anything about it until it was too late that the defendants in this procedural posture are required to accept that factual finding for purposes of this appeal in order for this court to have jurisdiction their refusal their own willingness to accept that fact deprives  position i'm sorry that's the position of your opponent trying their position is that the officers reasonably believe that he was faking it but that's a direct if we take the facts facts most favorable to the plaintiff in this situation do we have appellate jurisdiction i don't think so because i think that it depends on the way that they present their appeal and it depends on what facts they are qualified immunity argument is based on and because they've chosen to base their argument undisputed facts they've deprived this court of jurisdiction i think that gucci years versus kerman case is instructive on that point because in that case that was a fourth amendment false arrest calls and the appellant's the officers in that case decided to present their appeal based on six undisputed facts the court decided that actually one of the six undisputed facts was disputed and the court entertained the idea of setting aside the disputed fact and focusing on the undisputed facts but in the end decided that it could not do that and it dismissed that appeal for want of jurisdiction because that one disputed fact formed the basis of their qualified immunity argument in this case there are numerous disputed facts that form the basis that they are qualified in new york human most importantly of which is  this assertion that each of the officers reasonably believed that he was faking it which is in direct contrast to the district court's finding and under johnson versus jones they have to accept that fine an order for th jurisdiction plaintiff's version of the facts is that derek williams began to complain that he couldn't breathe immediately upon being taken into custody and handcuffed and you can hear the complaint on the audio recording from  defendant issue when he's dispatch call and when the inference is taken in plaintiff's favor and you can hear his tone of voice this is a man who is desperately complaining that he can't breathe it's not somebody who is complaining that he's out of breath from running we're entitled to that inference and he's complaining that he can't breathe over and over again from the time that they handcuff him through dragging him around the house he falls face first onto the ground dragging them all the way to the squad car when they throw him in the squad car and in addition to his his company's repeated complaints that he can for you during that time period he's exhibiting numerous signs of physical distress his body repeatedly goes limp he is unresponsive at times and he's sweating profusely and breathing heavily and after they throw him i'm in the squad car we see from the horrific video how he's acting in the backseat of a squad car and that is clearly somebody who  in medical distress and we're entitled to the inference that the way that he appears on that video and the way that he's pleading and begging and crying out and the way that he's obviously having trouble breathing is the way that he appeared before he was thrown in the plaintiffs evidence establishes and this is what the district court found that each of the officers had notice of his medical emergency his his his need for medical help and to judge ripples point about the sergeants versus the patrol officers the standard is the williams versus rodriguez factors and the district court found in our evidence shows that each officer both of the sergeants and all of the patrol officers were on notice of deron williams serious medical condition and they each failed to do anything about it and the defendants were required to accept those facts for purposes of their appeal and their own willingness to do so deprives this court of jurisdiction they pleaded the themselves out of court essentially if the court were to find jurisdiction and reach the merits of this appeal it should affirm the district court's denial of qualified immunity and i'd like to address the clearly established prong because that's where they focus their argument and i think they've all but conceded the constitutional violation problem by not really substantively addressing the williams versus rodriguez factors in any real way but as to the clearly established wrong it can be satisfied in at least two ways the first way is by citing to a closely analogous case demonstrating that the conduct  way to establish the clearly established prong is by demonstrating that the violation is so obvious that a reasonable officer would know the what he's doing violates the constitution and that's the hope vs pelzer line of cases united states versus lynyrd and that's the line of cases that recognizes that the clearly established problem can be satisfied even in novel circumstances and that general statements of the law and certain circumstance stances can satisfy the clearly established problem plaintiffs in this case have satisfied the clearly established prong and both ways the district court used the second method the obviousness method and it found that when the facts and the inferences are taken in the plaintiff's favor they establish that each of these officers were well aware they knew that he was in medical distress and they intentionally did nothing about it until it was too late and the district court found that that is such an obvious and agree just violation that it's unnecessary to cite a closely analogous case and that analysis is in line with hope versus pelzer and it's also in line with three recent decisions from this court from two thousand and seventeen that we cited in our brief the state of perry versus wenzel the state of ryan clark versus walker and or allow ski versus morkie county all three of those cases involve government officials who deliberately ignored the serious medical needs of an individual in their custody the perry case was a fourth amendment case the other two cases were eighth amendment cases in all three of those cases this court found that it was unnecessary to cite a closely analogous case to satisfy the clearly established wrong because the conduct of the defendants was so obviously a violation of the plaintiff's constitutional rights because in those cases as in this case when the facts when the credited those defendants knew that the individual was suffering a medical emergency and did nothing about it so the district court's analysis is in line with hope it's in line with those three cases and it's correct and we've satisfied the prong under the obviousness method we've also satisfied the prong under the closely analogous case method and that's through again your state of perry case like i said before the estate of perry case was  fourth amendment claim it involved milwaukee police officers who deliberately ignored the cries for help in the complaints that he couldn't breathe of this man james perry and his physical signs of distress until he died in their custody and this court found that in two thousand and ten which was the the the data the perry case that the right was clearly established the right under the fourth amendment under the facts are always different qualified immunity is a great challenge because of that it's i'm sure you're aware but in perry they were they had instructions from the hospital and little a little different background as far as knowledge of the officers treatment the officers and perry were under the impression that because perry had received medical treatment that he was cleared and had to to be transported to the jail in this case they're confronted with a person who is in in clear medical distress as the district court found and they did nothing about it and i think that the perry case would qualify as a closely analogous case in that sense of the stab wishing  that prong of qualified immunity but when when you put to the two together you have the obviousness from hope versus pelzer and you have the closely analogous case of the state a period i think there's no question but that the  mean it or is it because of the videos shows a substantial burden time is that is that the focus of it i mean if they looked at him and initially he made some climb then stop we would have a different case i don't think it's the delay i think as judge gettleman pointed out by that by the time officer blake well decided to check mr williams vital signs mr williams was already dead  d officer blake well even at that point he checked mr williams vital signs he didn't feel a pulse he still doesn't call for paramedics he moves at a snail's pace he walks up to the the car in front of his car knocks on the window looking for a sergeant and then he comes back to the to the squad car new checks mr williams again he still doesn't call for paramedics he yells for some other officer to come over finally that officer who who is not a defendant in this case boy calls for paramedics so i think this isn't the delay in medical care case i think it's a complete refusal and deliberate failure to provide any medical care throughout this these circumstances leading up to the medical dead i would like to address the defendant's argument that the district court failed to conduct and individualized analysis of each defendant and judge gettleman touched on this this is a fifty eight page a very detailed opinion he sets out the facts and extensively at the beginning of the opinion and he does address each of these officers individually he most importantly he finds that the plaintiff's evidence shows that each of these officers and the sergeants who were there were present in the back yard as mr williams was being handcuffed or right after he but we're also entitled to it more importantly because that's what the district court found the district court found that they knew that they were well aware that he was suffering that there was that there was a jury question as he found that there was a jury question as to that he found that if plaintiff's evidence is credited that's what what it establishes and they're stuck with that finding but their refusal to accept that for purposes of their appeal that deprives this court of jurisdiction but in terms going back to the individual ised analysis argument to the extent that this court were to find that somehow the the district court's opinion was an individual as enough johnson versus jones instructs that you can review the record to determine what facts the the district court assumed in making its conclusion and we put this in our summary judgment brief below and it's clearly in this brief that pages fifteen to twenty one we have a whole section broken down by each officer as to how each one of them was on notice of mr williams serious medical need and that's what the district court relied upon in reaching that determination so we would ask that this court dismiss this appeal for want of jurisdiction first district court determine that there is a jury question as to what the officers are thinking it made that determination when there is no evidence no record no affirmative evidence which even suggests that any of these officers knew that mr williams was dying and intentionally made a decision not to call an ambulance for the man that particular aspect many of the intent of the officers is not something that applies when it comes to an object of reasonable test the object a reasonable t test goes to the information that was present at the scene the knowledge that the officers had that was undisputed in this case and that many many pages of judge tattlers decision he does go on and talk about the things that were aware or made available to the officers that they were aware of the statements made by was dubious to williams not only that he couldn't breathe but also that he was just playing with those people they were his friends the fact that he didn't have any type of gun he was making other statements his flight from the officers hiding behind the table to table covering his face early in the evening with the attempted robbery situation hiding his identity his refusal to give his name he was able to talk in your reply brief that this record didn't even address those issues that's not correct is it the district court did not apply those facts to each of the individual officers in that they are circumstance i mean it's clear that they were there was a lot that happened in this fifteen minutes but not every officer sergeant was present for everything during that year you know at answering my question you say in your reply brief that the district court did not consider the fact that he had a mascot i'm reading from the district court's opinion where he does just that the judge talked about that he went through each of these officers where they were what they might have heard he didn't make any findings he just said that there is contested evidence about this there were witnesses who said that they heard mr williams shouting from the moment he was taken into custody but it's not clear where those witnesses were they are right next door in nearby that's when the army trials are all about but it's uncontested that to the officers who took mr williams into custody at about the time he had they were handcuffing him and taking into custody there were many officers that responded to the scene we have officer tim officer of the tier officer quest we have officer thomas who were there got to the yard had heard the call knew about the attempted robbery on the flight get there and sees that this gentleman is being taken into custody by other officers some say they didn't hear i can't breathe but even if they heard i can't breathe those officers who only responded briefly to that yard were well within reason as an object of reasonable ness and concluding that the officers who were touching mr williams and attending to him were taking into consideration the information that mr williams was stating along with their observations of mr williams and evaluating whether in actually needed medical care there is no case law that would indicate that those officers who are only briefly at the yard and then left to go back and find evidence that they were unreasonable objectively by not calling for an ambulance in those circumstances those officers were entitled to qualified immunity regarding officers colin officers and they took mr williams into custody with little resistance they stood him up they walked him out of the squad car and yes they heard those statements but they were fully aware of the flight of the distance that was run of the evening the heat of the evening and so in the estimation this individual was not experiencing an emergency medical situation such that they were required to immediately call him call for him medical care there again there was no evaluation there was no type of medical screening the guy was just taking it to the officers custody and then the last officers that had contact with mr williams were officer client officer like well who were the two officers that were in the squad car and officer kline as we discussed and as the judge he was the guy who chased after mr williams he was the officer who himself was breathing heavy and sweating and hot so here's somebody i think i can't repeat after they refused to give their name but they're making other statements there yelling they're moving around it was not objective leon reasonable for that office r to not conclude that it was constitutionally unsound for him not to call an ambulance at that point time and yes you know it's difficult watching that videotape but again that's monday morning quarterbacking the officers didn't see that videotape and that came at the end of these events that videotape doesn't show us the entire sequence of events the training of these officers their backgrounds and also we have to take into consideration the fact that their totality of circumstances to be of value weighted from their perspective  about jurisdiction i believe that the undisputed facts in this case when analyzed from the perspective of the individual officers from their circumstance supports giving them qualified immunity because the knowledge that they had  about what was going on is not addressed in any case law this is a very unique situation there is no case that indicates that in their situation knowing what they knew at the time that it was constitutionally unsound for them to not immediately call and the issue that seems to be a question of fact that the judge the lower court judge talks about is the issue of the intent of the officers and again from an object of really most reasonable a standard i don't believe that the intent is a significant factor it's w another officer in the same situation knowing what they knew about the flight about the hiding etc etc have been objectively unreasonable in not concluding that this was a medical emergency which required calling an e m t what's my argument is in the everyday practice of police officers out there in the field when you've got somebody in your custody for fifteen minutes he's not been medically screened he's not been cleared medically he's not even been interviewed yet they are police officers they are not doctors who can diagnose medical conditions that given their training given their experience it was not objective leon reasonable for them to have a conduct or engage in the conduct that they did on that evening and i don't think that any case law suggests otherwise and so we ask that the