good morning your honors ma'am please the court i am bobbie palmer representing deputy sure in this particular action as the court has already determined i'm sure this is a case  home i'm sure the court has already determined and based upon looking at the briefs that the mother of the young child vengefully found him  d essentially after the child was cut down from the tree after several minutes neighbors arrived to the same trying to assess the situation and he in fact reasonably believes that this child is already deceased how could he reasonably believe that if he didn't even if he again this is on summary judgment so we have to accept the facts contrary to your position how did he didn't even examine the the deceit and anthony well how could there possibly be a reasonable determination that he's deceased well your honor the other witnesses if you look at the evidence in totality and even in the light favorable to the pla said that there was a pulse detected and he dismissed that and said well that's because you're doing c p r so we've got i mean it he i don't know how this case would turn out on a on a trial but i'm just look at the summary judgment standard and it's just hard for me to see how you could conclude that it was a reasonable determination that this this or that anthony was did was deceased well there are other witnesses including a woman by the name of christina attempts and who called nine hundred and eleven she thought the child was deceased the paramedic who came on the sane and this is been deceased but the question but you but you that this had the evidence to the contrary and now an affirmative on summary judgment we really worry about the evidence that's contrary to your position whether i think what's important for purposes of out immunity analysis one looks at the what the facts were from the standpoint of the defendant and the defendant i believe reasonably believed that the trial was deceased and from there the issue it before this court is whether or not gregory barca's let's keep in mind it's undisputed that once deputy sure told the bystanders to stop c p r because he believed the child was deceased the paramedic was already coming on to the same and they passed each other coming out of the bush so to speak so with regard to was acting out of his discretionary authority and in fact they conceded that he was an ns so did the appellant concede that may risk let me get you to than recklessness even though that is favorable to you is it not true that the next level of culpability that the plaintiff would have to prove is intent to cause then the district go it's judgment denying qualified immunity would be a farmed and probably and strat suggesting to the district to let that on rate man before the j and well even if you know he has not raised the issue ysaye there's no intent but the law is clear that if a officer states a reason which could be pretextual that a jury could then infer that there was a culpable intent and the reasons that the officer asserted here of taking control of a crime scene seems to me that there's enough evidence on a summary judgment that a dream i disagree with that number one because it was no crime scene number two because it was there was a lot of anguish and concern but there was no threats of violence or anybody fleeing or shooting anybody or hurting anybody and so the anguish is completely understandable with the circumstances so under that doctrine that you could infer a couple intent from a false profession of intent a statement that i'm investigating a crime scene which it was no crime and and trying to get control of it and it was nobody threatening anybody or trying to flee that that might be enough evidence to get past summary judgment again not saying it's enough evidence to win but what's wrong and twenty hindsight not knowing what the relationship is between the bystanders and the trial there are two knives in the in the for sanity of it nobody is holding those knives they're just on the ground and if you wanted to do an investigation he could have asked one of those nice for and somebody quickly would have said we cut him down in fact he probably could have inferred that because he could see that the rope been cut so nobody was picking him up or making any aggressive move to i don't see that that advances any evidence of threat well your honor we have argued in our brief that it was a chaotic situation and was were distraught and obviously and that is how did the miss get addressed reasonably or unreasonably or in any way within the law by refusing to allow efforts to try to bring this boyle save his life well your honor this is an issue neither raised by the now or a trial that this this deputy had some intent to harm a child he never met that he believed was deceased or this but i want you to finish it out your honor i was just going to say that now whether or not as the court knows whether or not debbie's voucher violated some standard of care or purposes of a state law negligence claim is not what we're here for this case the issue is with this case and the facts thereof rise to the level of circuit on a very similar facts the child was even fourteen in that case with very similar cacs facts this particular jurist this this circuit determined that that deputy was entitled to qualified immunity and i would assert your honour's that with all due respect to the district court the pot immunity that rationale is still valid today and the district court simply would not have simply did not even consider hamilton at all when in fact it is the case the one case that has a very similar facts and this this deputy in this situation should have qualified immunity if the collins good morning may it please the court my name is tracy conlon and along with carlos alaska's we represent jolene waldron who is the mother of anthony barr and also the personal representative of the estate in that having listened to the appellants arguments there's a couple factual things i'd like to clear up st off he said that there were other witnesses who believe that anthony was deceased and he mentioned christina timson if you listen to the nine hundred and eleven tapes she repeatedly tells the nine  dispatcher that she thinks the boy may be dead but she can't see him because he's under this large libo tree and his and her husband who was the st one to cut the kid down and do c p r would not let her back there so she couldn't see the kid she was making assumptions based on what she understood the facts to be and there were plenty of other people who testified that they did think he had the potential to survive this incident because he was warm to the touch when mr t  st cut him down mr timson thought he felt a light flutter plus a pulse that was weak but he thought it was a pulse nonetheless but because he wasn't one hundred percent sure he went ahead and began compressions did he say he felt the po that they would when they were doing c p r they would start taking a pulse while doing compressions but then when they would stop doing compressions he would feel a weak pulse and that's why they did not stop doing compressions because they were concerned this person that anthony did not have a return of spontaneous circulation so they felt they could not stop can can you address the the the elephant in the room in this case which is the clearly established law yes i mean there's yes there's plenty of law about the conduct in a custodial setting which is jails usually and i suppose the argument you're making is this was also a custodial setting because this officers bigger took just as much control of the environment is people in the jail would have theirs also so that would be one argument i suppose the nd argument is that ok outside the jail there has to be a plus and certainly there's a limit for a good forty suggesting a plus being the arbitrator so let's focus on the plus ok i can see two possible pluses and i wonder if you have others or if you agree or disagree one plus would be a reckless standard rather than simply a gross negligence standard or that or an indifference standard of reckless indifference or or i guess the other plus there would be to go beyond that to say  establish the clearly established law but only two of them apply in this case the st one is that there would be a general principle stated in in the case law that would give fair warning to government officials in this position that what they were doing was constitutional violation and then the other way would be the conduct is so egregious and so out of the realm of reasonableness that you don't need case law to tell you that cutting off somebody's c p r is g cause them that substantial risk of serious injury or own most the certainty of substantial serious bodily injury and so we think this case fits into either one primarily the egregiousness standard because we think we meet the shocking the conscience standard to establish that there was a constitutional violation in the st place and as this court said in gilmore it can the court can when determining whether there is a constitutional violation can look  sr courts and that's why we cited to you the ross opinion out of the th circuit and the middle districts opinion in olson because those cases are also every bit as actually similar as the hamilton case and i want to address the hamilton case briefly before because i think there's a couple problems with the hamilton case st off the hamilton case came out in before i mean sorry hamilton was analyzed on the basis of a different standard that was probably yelling then but it seems to me that the fact that the every reasonable officer would know is informed by our decisions so i don't think in other words assume those get training along this line and their training would include hamilton and hamilton's decision is very clear the raid before that  reckless rescue attempt or reckless interference with the bystanders rescue attempt is not clearly established is not a clearly in this case i don't think so your honor for a couple reasons number one is because the law in this circuit seems to have a ball and it's evolved to the point where and it may be because of that special relationship special damages test it is seems to have evolved into the situation where in non custodial cases what we're looking for is arbitrary or conscious shocking behavior then what l the court said well you know you deliberate indifference of the extreme risk of a serious injury sear or death could also give rise but they said that at the very least in so they were saying that's the lowest bar and that in that case the facts wouldn't even get over that bar and subsequently indo versus  buying into this consciousness are the shocks the conscience and arbitrary test which is sort of what judge ito is getting at is that it's recklessness plus this case we think we have you've got some case law not a whole lot in the noncustodial setting but we've applied substantive due process in the noncustodial setting but i come back to the issue raised by judge anderson that i need help with the question here when we ask whether the law was clearly established is whether it fairly would have put this officer on notice that what he was doing violates the constitution whether it's substantive due process access of force under the th amendment you gotta notify him there's this this great fiction in the law where we impute to the officer a detailed analysis of the case law that's all law there are sound reasons for doing it but i'm concerned that maybe we're going a little far here when we're saying we expect this officer who we presume to have read hamilton would have been able factually it's pretty close i think there are a factual differences he stops the c p r in amman and then allows it to come back when the woman comes back with the c are presumably he touched the woman himself or as in this case we accept the facts that the defendant did not wri do or say anything other than on multiple occasions keep all help away in the face of grievous risk and danger but if you read the milton could not and office you know it's close i'm not sure maybe sixty one way half a dozen the other and if that's the case how would it have clearly put the officer on notice that he couldn't do what he did here oh we're not relying on hamilton to say the law is clearly the stablished and we certainly and neither did judge corrigan the district court no you're looking at it is an obvious clarity case i understand that but the point the judge anderson is making and if you're not looking at is an obvious clarity case and i'm not sure you know we're looking at it because we've got a case that's factually real close there are distinctions which we've pointed out but it's close to non custodial c p r comes out of a poll drowning and the officer says stay away leave the victim alone and that passes constitutional muster how do we get around that i think we can around say the officer clearly was put on notice that what he did here violated the constitution well ok there's two things i have to say about that number one is you're right there are some very distinguishable facts hamilton actually rolled her eyes and at one point he did assess her he tried to find a pulse on her he believed the paramedics were one minute away they got lost there were some issues with that but i also think because the whole analysis of that case as i read it turn entirely on the fact that the police officer did not specifically put hamilton in peril he didn't throw her in the pool you know he came along when somebody is doing c p r she appeared to be rallying i guess is part of the issue here so he felt safe in saying let's just wait for the didn't he but her didn't he put her in peril by stopping the seas c p r when we know because of medical fact that the one thing you cannot do is stop the c p r yeah i mean it's a it's a diff and didn't he put her in peril by doing that well i mean the argument in that case was not necessarily because she did have signs of being coming back after the c p r was initially begun that she was rolling her eyes she apparently answered not answered verbal e two or name but she answered with hughes that she understood that somebody was talking to her that is part of sting which will from anthony makes the case even harder for you sufficiently strong that they didn't need to do compressions any longer he would have a subjective understanding at that point or belief that the risk was not as severe as the risk in our case anthony never really showed any signs of rallying and everybody kept telling him we feel a weak pulse but that's why we need to do c p r and we need to do this and he had had c p r training just two years before this incident so he would have been told as the internal investigation told him he would have heard at that c p r training you never stop c p r until either the people become overly exhausted and can't continue or the paramedics and some qualified medical personnel arrived is there any other distinction between hamilton and this that would make it clear that he would be on notice he can't do what he did well i have a problem with hamilton because i think in part it may be bad law it came out after collins and it was still applying a test that collins did away with and so i i understand where you're coming from and thinking that it's helpful here and that if he had read this but at the same time if you read the subsequent case law like what ellen do and the other non custodial cases he would have had to come to a different conclusion the problem with those cases is that there are actually really different from what you have here this is non custodial stop and c p r hamilton was non custodial evidence that the conduct here shocks the conscience right certainly plenty of that i just don't know how to get around and the cop who read hamilton wouldn't come away with the sense that maybe i can do this i don't know i think that would seem a little hard for him to justify given the fact and i understand he's not a legal scholar but i mean i think that you're dealing with the situation word there was this strange test of special relationship in special danger that basically exonerated an officer if the officer didn't put the person in the situation to require the rest and that no longer applies here and so here we have a situation purposes of this question and i think it's clear we're this is a hard case and we're not at all sure but assume for the purposes of this question that because of hamilton it cannot be clearly established in this circuit unless it is more than a reckless rescue attempt or an appearance with than that is there any level of culpability between that recklessness an intent to cause harm yes one of the cases i am sorry i'm not calling out the name right now but there was a case that talked about that distinction between recklessness or even mere negligence and intentional harm and they said well you know those two polls are easy if it's negligence qualified immunity if it's intent to harm no qualified immunity but it's the closer case in the middle that is so difficult yes but i'm asking that question because it seems to me the supreme go it's lewis decision suggests that the next level of culpability from recklessness is intent to cause harm i didn't see it is going quite that far i think it's saying that's clear if there's an intent and you can show an absolute intent to cause harm yes but we can also assume some subjective motives based on the obviousness of the problem right so here it's so obvious that if this kid does not get c p r easy they're going to have a severe brain injury or he's going to die can a jury hear on this fact pattern taking every fact in your favor drawing every inference in your favor fairly conclude that this officer at i would say yes i mean he's trained in c p r he's he knows the rules about c p r he was an e m t i mean to tell you the truth i can't wrap my head around it i don't understand why he would do this like who would do this it's not reasonable he says he didn't do it but let's assume that i did do it isn't the only plausible explanation that he screwed up he wanted to control the scene he acted precipitously he acted quickly acted recklessly but the last thing in his mind was to see this poor guy i think i mean this is what's interesting between the interplay between what l and  right because what l it's said you know at least a reckless disregard of the extreme risk of serious injury and then indo it seemed to me is though and then they said well it could be higher or it could be a substantial certainty of injury and that would be enough to deny qualified immunity argument spoils down to this given what he knew he had to know that the boy would certainly established law would have put this officer on notice or is it your argument that you don't need a little case on point because this is an obvious clarity case well i would start out with the obvious clarity but also i think that because of the way he took control of the scene and because he did it in a way that he admitted that it had no law enforcement purpose either to you know stop the c p r or try and put the crime scene over the victim's life all those th and ate them in cases are sufficiently analogous and in hope the supreme court said we don't need materially in fundamentally similar facts in fact we can have clearly established law even under very novel factual circumstances right but is that up because it's a novel is this are you arguing this is like levy ferraro you know the case i'm talking a guess busts woman for honking horn downtown miami polls are out of the car cops are there's no risk of flight no danger and then he takes her to the back of the car and smashes her head against the trunk we hold on ambiguously he couldn't do it we don't need a case on point no sentient police officer could believe that he could do that is that what this case is that's what i think this case is and i think that in this i think there's sufficient evidence of that thorny declares him dead and i mean he did not have that authority to begin with so yes we think that this is a case that i ask you let me ask you this ok if you had to articulate a level of culpability between the recklessness one been quoting out of one and intent to cause harm that i get from lewis what you tr to articulate i don't say it is the substantial certainty of the risk of serious medical injury or personal injury or death and it's the substantial certainty it's like cut to the chase there was intent here yes why who knows motive or is are unclear but intent is clear that's your argument pretty much yes thank you we would ask that you affirm the district court's decision thank you thank you very much most par five minutes went to the sane and did not have any favor notice from the case law that he is presumed to know about that what he was doing was hamilton this court stated it would take much creativity and imagination to glean from the factually distinguishable cases upon which the a clearly established rule of law that an unsuccessful negligent or reckless rescue attempt or interference with a bystander's rescue attempt amounts to a constitutional violation that's what this court said and nine hundred and ninety six that reasoning stands even today for purposes of an analysis of whether this officer had qualified immunity with regard to obvious clarity this court in one thousand nine hundred and six dollars and hamilton said nothing about obvious clarity this court did not base right it's a large chain lucky but the point is that the law changed substantially after that and before the conduct at issue in this case and he didn't need to address obvious clarity because the court there had an easier way to get rid of  is that case there in that it wasn't state created danger and so and that test that easy out isn't available anymore of i think that that diminishes the president there because the court relied on for its holding a a fairly clear exception to liability which isn't available anymore but any reasonable officer in the position of knowing what he knew at the time could not read hamilton and come away with it that what he was doing was unconstitutional i think hamilton is just so close disc ace factually but what about all the cases after hamilton there are other cases that have been cited by the district we have waddell davis hill deal those cases involve much more egre situations was and then that comes down to your very answer says then the test comes down to agree just says and because this is on summary judgment how agree just could a jury find this when the test is a balancing test the the risk of going forward with c p r versus the danger of not going forward i mean it's not that he was beating the guy over a head with a skillet or something but on balancing test eve got a risk if you don't do something it is just horrific compared to almost no risk of continuing the c p r so even so to me the obviousness has to be on how far the teeter totter is tilted and there's really no weight on the on the argument for stopping c p r and there's tremendous weight on the other side even if you assume a constitutional violation in this circuit would still be in top of the coffin and immunity if the law was not clearly established our position is reading hamilton it was not clearly established and it's not obvious clarity by taking agree just situations in custodial cases and trying to apply it in him but you'd given what he knew by background and training could not a reasonable j that he acted intentionally he faced an obvious profound and grievous risk of the death or extraordinary harm  r was stopped he knew that or at least there's enough evidence from which a jury could find that and yet he said no not once not twice but even when the e m t truck came he allowed only one e the driver to come up and kept the others away even assuming argue when though he read hamilton and he concluded that negligence was an unarmed recklessness wasn't enough wouldn't he have to know that he couldn't act intentionally in this way i don't know what the motive as i meant it may be it never happened and  jury might believe your client who says i didn't proceed that way i check to myself and came away with the conclusion but i have to accept the facts at this point the way the plaintiff has presented them and here are was why is not obvious class an obvious clarity case not that there's a case on point but it had to be clear to any sentient officer that and this whole issue about whether or not deputies bunch or intended to harm this child by temporarily stopping c p r this is never been the qualified immunity analysis after the defendant established that he was asking with the within is his discretionary authority the burden shifts to the appellate to determine that that qualified immunity is not affordable to this deputy and i still contend that even if deputy sponsors actions were deemed unconstitutional he is entitled to qualified immunity on the plaintiff's nine hundred and eighty three dollars due process claim because the law was not clearly established so as to put him on notice that what he was doing was unconstitutional and furthermore i believe that the in custody cases do not provide obvious clarity despite sure that his actions were unconstitutional one final thing just in response to something that counsel for app which is a militia florida case it is important to note that it is clear in the th circuit that for purposes of a qualified immunity analysis those cases that would have placed the deputy on notice must come from the th circuit the united states supreme court or the highest court of this of the state of florida  ross being from the th circuit and a middle district case would not have provided the requisite notice and clearly established for purposes of a qualified immunity now office that what reverse the dish of course denial of summary judgment based upon arguments thank you if you have another questions thank you thank you very much go to be in recess until tomorrow