my name is jay morell i represent the remaining sheriff's office defendants share of hail captain eddings and her to his deputy in this case is about the district court's decision to deny evolution to dismiss based on qualified immunity with respect to three thousand nine hundred eighty three claims excessive force claim against deputy duke into supervisory liability claims against share of hail captain addicts one for excessive force the other for deliberate indifference to serious medical needs like to start by talking about the excessive force claim against deputy did that claim only involves deputy duke second use of his taser in the appellate brief it talks about the first use of the  not being a constitutional violations are only analyzing the second use of the taser can i can i get the the time line straight on the second use of the taser so do i understand correctly hits on the left side of the respond to the order the complaint did not say he would not respond to the order of the weather did not could not i mean was he still resisting at that point whether it's didn't or couldn't was he was a resisting when he did not obey an order to roll over to be and over a roughly three minute span of time beginning when deputy duke did not see the inmate on the video monitor and ending when the nursing staff is called three minutes later after the second so it's a tense uncertain rapidly evolving situation something that's not clearly over until the second although all of the activity that you describe happens prefer states right once these days the first time there's no more activity except him wearing him self and then not responding to the order to roll over to be and go off and the order to be roll roll over to be handcuffed is done after what he had just done with respect to their attempts to physically grab him and then do you think especially at know what's alleged in the the point it does not allege the deputy duke knew that he could not respond to that order the complaint does not allege again that he could not respond so we're factoring based on what deputy duke knew according to the complaint was that he did not respond to the order so the second tasing is done in an effort to get him to comply with that order and again it's happening in a very rapid succession the district court looked at it from the standpoint that it was clearly established that you could not use continuous use of force on an inmate who had clearly stopped resisting change the resistance was not clearly over when the second tasing was done because he still unrestrained and the effort to get him to roll over to be strained had not been complied with the case law that talks about the clearly established not being able to use continuous force on an inmate who's clearly stopped resisting deals with situations where inmates had stopped resisting minutes before the force was used or in situations where the suspect or inmate had not resisted at any point during the encounter with log force but that's not what we have going on here that's not what these allegations say we have an unbroken chain of events that happens in very rapid succession and no case has been cited and i'm not aware of any case from the eleventh circuit which has held that that use of force compressed into roughly an eight second time frame is somehow unconstitutional when you have an inmate who is not restrained and who in the effort to get him to roll over to be restrained is not complied with the spring hendrickson talked about how force is only excessive if it's an objective leon reason what it listed factors that can be used to determine whether or not that force is objective leon reasonable the district court and the point if they did not analyzed the force under those factors we did in our brief and it's submitted what we are left with is a tense uncertain situation where the deputy is having to make split second judgments and kings recognizes that recognizes that law enforcement is going to have to make a split second judgement in a situation when viewed with the twenty twenty vision of hindsight might look different than it looked on the scene well you know this and sudden certain  got a inmate who after that point runs away he is a danger at that point he's a security situation at that point it's a situation that is not resolved and certainly tried to get on top of an inmate at that point with a taser in your hand could lead to a whole host of horribles leading to injury not only to the inmate but to the deputies themselves that is a situation that is classically tense  go was laying on the ground right correct and right on his side your honor that means he can still kick he can still fight he is not restrained and that is the security issue and that is the should i'm sure i'd be on bothered by the fact that the man himself i mean it just seems to me that is pretty powerful evidence that he has lost control of his ability to do much of anything  a fact that obviously is alleged but it's also alleged that he did not become unresponsive i e unable to respond until after the second tasing were based on allegations at this point were deputy duke is not allege have known that he could not respond to that order and again a situation that ongoing and deputy duke may have made a mistake in his recognition of what was going on but qualified immunity still covers the mistaken judgment let me ask you about  in any aspect of what happened to this particular inmate they are sued a supervisory officials based on policies or customs interacted at the birmingham jail with the slight difference that with respect to the deliberate indifference claim there's also an allegation that the portable deferrable lighter was not kept with pads as to the policies and custom allegations the allegations or that the jail had it out of what policies regarding use of force and adequate policies regarding medical care but the complaint doesn't contain any allegations about what happened to any other inmate in any other situation except for this inmate and this situation and the eleventh circuit has said that to show a policy or custom you must show persistent widespread practice that's not shown here because there's no allegation about any other inmate no allegation about any prior conduct no allegation of any facts which would show sheriff hale and  policies were inadequate and that those inadequate policies were leading to constitutional violations as to the issue about the deportable diprivan later point of cites no case and i am not aware of any case that has held that having an in operable piece of medical equipment has been clearly established to be a constitutional violation i'm not aware of one that has found it to be a constitutional violation period beyond that the complaint clearly alleges that after mr hinkle was taste nursing status the next day he was transferred to downtown facility which is in birmingham but there are three claims the excessive force claim the supervisory claim against sheriff failing the captain that was run in the jail and then and pretty transparent with your opponent about the thing about his case that the but this case that bothers me from his perspective thing that bothers me about a from your perspective is that we were charged under kingsley with looking at six different factors right balancing six factors to determine whether or not this force was excessive and it is a little hard for me to get my head around the notion that a deputy deputy duke in the context of an involving situation however  rapidly or not but an evolving situation are we supposed to imagine that he sort of works his way through the six factors and determines that yeah excessive for a force is appropriate here or isn't it just seems a little issues i would offer if you were to lay your hand on that camera there and i took a hammer and hit your finger then i'll wait eight seconds and i hit your finger again with a hammer does that constitute an unbroken chain of events i say no in this case did he do a half naked inmate who had on a pair of underwear and had a shower curtain in his hand he tell used it as a result of that first hazing he became incapacitated your innate it on himself was laying on the floor not moving he couldn't respond he didn't respond so we taste him again how did he respond he had lost control of his faculties so your point as to my kingsley question is sort of nevermind the six factors the doctrine this is one of those sort of an opinion in fields versus city of aventura addresses the very similar issue where a police officer tasered an individual the individual becomes incapacitated on the ground the police officer approaches him after the guy has given and he's laying on the ground not resisting he tasered him again in the court held in that case that tasering an individual who is not resisting is not protected by qualified immunity and that's in the that police officer or if the sheriff eight seconds later to strike him again or spray in the it or shooting mcgee it so do you let me ask you this because i was going to ask your adversary the same question we've got cases i was looking at a excessive force but i think i heard him say sort of an anticipation in imagining that i might be asking that question to say yeah but those cases where the guy is nonresistant for minutes it's not just eight seconds he says those are cases where the guy i don't know i don't remember the facts of the case but he's out compliant for minutes and this is different because here you know exactly what is long the dramatic pause here but it's not as long as minutes when you say  inmate that is not resisting and we think it's a clear case that was he resisting by simply physically was the observation that was being made by the deputy he had lost control of his good p r after he got taste did he have the ability to move he have the ability to even understand what's when he was tasered there's a five second cycle he stays for five seconds electricity sent through his body then there's an eight second pause until he's tasting it so from the beginning of the first days to the beginning of the there's another way that you can show it and as through a causal connection between the supervisors actions in the constitutional deprivation now i'm referring to matthew to be crosby now the cosseted the casual connection rule can be established when it's alleged  supervisors customer policy result in deliberate indifference to constitutional rights and that's out of the matthews we crosby case here the district court f that so i thought for custom or policy liability you had to show incidents not involving this specific person like it's not like a lot of stuff that happened in this guy it's like this is happened before to other people and thus these people the  supervisors were on notice and it seems like here all of the allegations are about your guy well we believe the motion to dismiss stage your honor that the causal connection argument that we made and the way that we endings is relatively weak it's all in one paragraph on page five that's that he didn't do an extensive analysis at all on that point enough to show that that that's was the policy yes or not to give any medication i suppose but rather than these specific items the policy would have to be we just don't medica resulting from that one that we'll read as a result of his meeting with hail to him a trip to lane he began having some type of episode and i think that the allegations are that he began being but to further the rule is an official act with deliberate indifference when he intentionally delays providing an inmate with access to medical treatment that inmate has a life threatening condition or an urgent medical condition that would be exacerbated by  that's from the bozeman b or him case here we know mr michael suffered from alcoholism we know he was on medication for depression that tripoli he began exhibiting delusional behavior immediately before this event to an inmate going through alcohol withdrawal was a deliberate indifference to a serious medical need and he clearly established a constitutional issue but i think we have to point  briefly your arse the comparison was made or attempted to be made between the event involving deputy duke and certain other cases i think phil's day in lee and pearson in phil's it was a situation where there was no alleged resistance at all at any point during the encounter during danley that was the situation where an inmate was pepper sprayed the pepper spray was found to be constitutional problems leading the inmate i guess blast of pepper spray the inmate passes out for five minutes he wakes up he tells the guard i'm having trouble breathing engine so here the guard responds by popping him again with another sixty second blast of pepper spray a totally different situation of what's alleged to have happened here in terms of the policies at the jail the allegation was not that there was a policy of not providing care for alcohol that were talked about in medication compl decision to deny those things was based on inadequate jail or training and officers making treatment decisions or other inadequacies in the policy there was no firm a day of policy alleged to prohibit those things which gets us back to you have to be able to show at least in terms of the causal connection more than just this particular incident you've got to show that it was occurring at least with some degree of regularity so i have a question about that even though even though i'm the one that sort of threw the stink bomb in the room how exactly would the plaintiffs be able to make that showing in a complaint without discovery i mean how could you even allege that consist of the eleven unless it was just word of mouth kind of grapevine at this point i don't think you can make that allegation but of course the way the case will unfold there are multiple defendants in this case some of them not been  some of whom are still in the case after the case is ongoing you can certainly see a subpoena request to the sheriff's office for information no i guess what i mean is that you wonder if case a twenty six and in part  you're saying i'm a supervisor liability claims it was right that we won because the plaintiffs couldn't show because of the policy that this happened a bunch of times before it's not just their guy and i'm just wondering how would they know to allege multiple incidents without discovery well certainly discovery investigation that appears to happen in the cases where there or allegations of allegations of multiple complaints or they're basing it all on previous work but at this point your honor we think the sheriff defendants or entitled to qualified immunity based on these allegations that is your course decision should be reversed