morning your honour's running mate please the court my name is jennifer meyer i'm an assistant director of law for the city of cleveland and i represent the sole remaining defendant in this case sergeant brian carney of the clean police department and i would like to reserve five minutes rebuttal please provide competent significant probative evidence that sergeant carney was not entitled to qualified immunity and instead shockingly the manufactured their own incorrect timeline of events without any supporting evidence and the district court erred when it's a nice summary judgment based on qualified immunity first i would like to touch on the fact that the echo he claims that sergeant carney acted with deliber indifference to is to deceiving collins serious medical need there's three requirements for a serious medical need that sergeant carney must been aware of facts in which the inference could be drawn that a substantial risk of serious harm existed that he must have drawn that influence and that he disregarded that risk but right from a pelleas own brief he states that sergeant kearney made the assumption that mr carlin was driving under the influence of alcohol administered field sobriety tests and arrested him that's from page fifteen so right there the appellee admitted that sergeant curry did not perceive any facts that she was suffering from a stroke and that he decided to ignore the fact that he was suffering from a stroke and arrest him instead one problem you got is carving claims the arrest of khalid koser collin smelled of alcohol yes that is correct we know that's totally falls well we know that he was he did not have any alcohol or drugs in his system from a blood test he came from working at the cleveland brown stadium he was coming directly from the clean brown stain his only few blocks we haven't done discovery in this case because we filed a motion  it is possible that he could have had beer on him from working at the brown stadium i don't know exactly why but sergeant carr had no evidence of that in the record no not at this not at this juncture but i mean it's not out of the realm of possibility that we're just trying to decide though is your man a title that qualified immunity is a matter of law or whether disputed facts require a jury that's what we're up against here yes we are but the thing is is that the employee is crying to create this time certified to administer the field sobriety tests and the breathalyzer so he goes to the scene he does the field sobriety tests and he he doesn't it stagnates test and he did i believe the one give him the breathalyzer test twenty one fifteen hours even though the ticket says twenty fifteen hours and that's because it was daylight savings time and nobody changed the clock on the breathalyzer but it would be it's it's not even i'm we know from the evidence that's in the record is that sergeant carney asked for the institutional guards to call nine one one and then he called himself again to make sure that they were on their way because they were taking a little bit of time that's in that's in the record from the law while i was there the gap between fifteen and a quarter to ten i don't know if that's how long it took for e m s to actually arrive on scene or when or when they were actually called from from the information in the record and you talk about information in the record i assume that your argument relies as the a state's version of the facts because as i read your brief seems to me to carney says he relies on the states for another fact but then he starts articulating some of his versions of the facts which are in conflict of various points with the state's working well these are i'm assuming that your argument today is premised on those facts that are argued by the estate that's correct except not the ones that are beyond common sense for example the apple he claims that the accident occurred at twenty two hours eight zero two eight zero two hours i know i just wrote it that way from the report of the eight so eight o two that the x and occurred however that's actually the time that the two officers received the call to arrive on the scene so their timeline is almost all convoluted they're trying to say all that you know sergeant carney didn't have enough time to actually do these field sobriety tests he must have lied about them because the accident happened it eight o two and then he was arrested at eight fifteen let's not true the accident happened before then because the officers who arrived on scene to transport mr collon to the  i believe the biggest problem here is what the district court relied on was that hospital referral form it's a handwritten form and the epilogue is attached to their response brief and said that they came up with a story out of nowhere cari must have called this lieutenant l c a who is a jail lieutenant not an employee of the clean place department and said mr callan has some sort of serious medical injury or or harm but i'm just going to ignore because the referral form it's handwritten that e m s was called twenty one forty three and i believe eight at eight o'clock eight o two or eight fifteen he was in need of medical attention for working them for purposes of doing them on one leg yes yes well he was walking at that time he was just staggering according to the  according to the alcohol influence form he fell over a bit staggered he was walking he even walked under his own power from the police car up to c p u the booking unit so it wasn't until after the breathalyzer that according to the deposition testimony that he needed medical attention that it was apparent that he needed medical attention so if there is a name or questions i'm going to reserve the rest my time thank morning your honour's justin gold on behalf of the state of mr coll as you heard in appellant's argument as within their brief this is a case based on facts and we're not here under jurisdiction of this court is argued in our brief because of that fact twenty eight u s c twelve ninety one limits the appellate court's jurisdiction to only final decisions and we address this in our brief the denial of qualified immunity is only a final appealable decision to the extent that it turns on issues of law the defendant or the appellant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in light most favorable to the  roger as you can tell based on the arguments of the appellant and their brief that is simply not the case here this whole case hinges on facts inches on one side's arguments of the facts and the other side's arguments of the facts and we have a plethora of disagreement here a lot of reasons why mr collins rights were violated his constitutional rights were violated there was a deliberate indifference to his medical needs in the oath on the which is not disputed here he did have a stroke now we have the signs and symptoms that are relatively similar but we have this crucial document in this case referenced as are you thirty one ten page idea for seventy seven which is the city of cleveland referral of prisoner for hospital service for the main document that the district court relied upon or that the judge solomon oliver relied upon the trial court's decision in that it is noted the form was filled out at eight fifteen at the time of mr collins arrest listing the badge number of appellant carney now this document is very crucial in this case in that one of the the main component of the deliberate indifference to a medical need is in fact the subjective element and whether or not that subjective element was met and mr carney the defense sergeant carney the defendant appellant recognized that medical need so i thought ms miers argument was that as to this particular document it was blatantly wrong i guess in terms of time that that sergeant or officer carney could not have executed this form an eight fifteen it was apparently done at some later point may be at the police station or a booking desk or something along those lines and there is no indication that carney even signed this is signed by someone identified as elisa yes your honor and in deposition testimony we traced the custody of mr carro sergeant carney and officer thompson were the only two people that were in custody of mr column that entire time now the badge number on the hospital referral prisoner for hospital service form is mr carney we believe and this is a disputed fact that this information was relayed to lieutenant filled out the form by mr card now what this form shows us is that this was a this forms filled out at eight fifteen the time of his arrest but in mass did not arrive until twenty until nine forty five which is written on exactly the same form now if the form was filled out at the time that yes was called why are the numbers different why does it say the top of the form e m s at approximately twenty one forty three or nine forty three pm but the form is filled out at ten fifteen on that day we believe that the officer knew at that time at eight fifteen at the time of his arrest that there was a substantial need for medical care that was ignored your interpretation of this record is that at the time of arrest at eight fifteen officer carney called in the permission and it was then this form was written and signed by the police at the booking fission potentially and we have some serious credibility's with officer carney now with your arrest itself there are certain so bratty tests that were discussed there's a sign signature on that form that officer thompson witnessed those so bright he tests officer carney test the opponent testified that if you signed that form that officer thompson signed that form he was there to witness those tests officer thompson testified in his deposition and was relayed in the brief that he was not there and that he did not witness the test the timing of the arrest is highly suspect they're saying that in their argument that the accident could not have happened twenty zero two or eight o two pm but that is the time of the crash written on the crash report all of these numbers all these times are taken from documents that the provided that the appellant filled out and now they're arguing that these times are simply not the case to the to match their argument that there was not a deliberate indifference to a medical name so your argument is that  a carny knew that mr collon faced a substantial risk of harm as of fifteen p yes your honor what is the evidence to support that he knew in connection with this particular form what is it because his badge numbers on here yes your honor and that the form was filled out by someone who was not in the not in the presence of mr collins and never had custody of mr collin therefore they did not have the fill this out back at the station perhaps is that the theory that is the disputed fact your honor and we believe that because we are arguing here disputed facts the jurisdiction isn't even appropriate because we are on facts and not law that the situation should be remanded for trial to judge solomon oliver so that these issues can be adjudicated you concede i gather it's not enough for you to show that officer carney or sergeant carney should have known that your man had a stroke yes the you have to actually show for a constitutional law elation that he knew there was a serious need of medical attention he did he was deliberately indifferent well your honor according to farmer versus brennan we don't need to prove that the officer acted with the purpose to ignored yes yes acted with deliberate indifference towards and we have this through the facts of the arrest and through his detainment we have officer corley who testified that immediately upon his arrival to the station he needed a wheelchair within the first five minutes that is disputed by mr by appellant sergeant carney who says that this was more towards the nine fifteen time when he needed the wheelchair he arrived at the station at approximately eight forty seven an officer corley the booking agent who booked him immediately upon getting there said that she turned around to do some paperwork and when she turned back mr collin was unable to stand and being placed in a wheelchair that also gives the inference that he was rolled into the blood now to help testing room where he could not provide any sample whatsoever was not given a second chance was not instructed to blow harder is a possibility that he was wheeled into the blood alcohol testing room in a wheelchair suffering from a stroke the tube was placed in his mouth and he could not blow through the tube because he was having the stroke he did not smell of alcohol and that is clear your honor by the record which you stated earlier officer thompson who had mr collin in custody for thirty minutes between eight fifteen and eight forty five in his squad car after mr carney did the so called so right tests mr thompson stated that he never smelled alcohol whatsoever on mr collins during any of those thirty minutes that he was in the squad car he also stated that he was not hopping swaying or needing a balance as mr as the appellant sergeant carney wrote on his alcohol the texan form which mr thompson signed as a witness which he did not there are serious timeline problems here there are there are there is enough evidence enough factual issues genuine issues of material fact that lead to a question for the jury and once again these are genuine issues of material fact that show us that this case should not be here based on a jurisdictional basis we believe that what the what judge solomon oliver did in the trial court and what he based his decision on is correct that this referral of prisoner for hospital service form the timing that's indicated on the form leads to this genuine issue of material fact as to what time the appellant knew that mr collins needed medical help even if we take their argument at its face even if as we don't have to as the pelley take vera facts is true there is still a half hour waiting period if they say that this form was wrong because of daylight savings in this form was filled out at twenty was deprived of a of a medical need while in custody and because of the question of fact as to whether or not the subjective component is there qualified immunity can't be established because we have this genuine issue of material fact as to whether or not he subjectively recognized the need for medical care because that situation exists qualified immunity can't be held in this situation because we have the genuine issue of material fact this appeal shouldn't be here based here not really directly before us but i mean ultimately i guess it would have to be in your honor when someone suffers from a stroke they have a very short window in order to be given what's called t p a i v therapy what it is is a blood thinner that breaks the clot essentially mr collin was deprived of that time he was held in custody for almost two hours by the time he got to the hospital the doctors did not have time to assess his condition and give him this this this drug that he needed to survive we believe that the causation element is here because when you suffer from a stroke time is of the essence he cannot be held needing this medical attention because time is of the essence he needs to get to the hospital the the minute it  discovered that he needs medical care so this i v therapy can be given and we believe that that is the cause the answer to the causation argument in that because he was deprived of this medical need for this window of time that we believe that the facts prove was there that he was deprived of this ability for this therapy and deprived you know the possibility of survival or survival he did die approximately forty five days later after this after it was too late to give him the therapy when he arrived and it's noted in the medical records that he's already exceeded the window in which to be given that therapy we believe that the facts here there are so many issues of disputed fact the smell the  fact that the defense appellant says he smelled of alcohol yet the other officer testified he did not the fact that the appellant so they needed support hopping in swaying the other officer said he did not we have the referral of prisoner for hospital service form which is direct evidence of an acknowledgement of a medical need of at least a half hour before m s was called at nine forty five we have the problems with the alcohol detection report in which mr thompson signed yet admitted in deposition that he did not witness any of these  have the blood alcohol content testing done at nine fifteen with an insufficient sample with no second chance to no second chance to blow and no offer of the of the details of the sergeant the  an opportunity to blow harder we also have the photographic evidence that you can see the side of his face drooping when he's in the wheelchair which was given to him according to officer coralie at approximately eight forty five an hour before e call we have all of these all of these issues here that we believe establishes the subjective component that officer carney knew that something was wrong we don't have to prove that he knew he was having a stroke appellants arguments are misplaced in that we don't expect him to be a doctor he doesn't need to know exactly what's wrong he just has to make the inference that there is a substantial harm that can occur if this person does not get medical care which we are he is  yes it is your honor and we believe that there are enough facts here in the evidence that we can prove it especially as i started this argument this this case doesn't belong here because of jurisdictional problems there are so many questions and genuine issues of material fact that it's not a legal appeal stated in the law they have to be here on the law not the facts and it has to be very very narrow the court's jurisdiction is very very narrow and addition to that and i see my time is almost up all leave with us there is one aspect of the appeal that was not addressed by appellants in those of the state law issues we had we stated that a state actor acted with recklessness malice and wanton misconduct or judge oliver said and if you'll let me finish i see my time is up judge oliver said that is also denied on summary judgment the state law claims must proceed his decision on the state law claims was never appealed so even if the court finds jurisdiction even if a court finds that sergeant carney is entitled to qualified immunity that we believe the case still needs to be remanded because state law his decision on the state law claims was never appealed ok tha again the employees taking liberties with the evidence that's in the record i just heard counsel state that officer thompson stated that he did not see mr collins sway he did not see and mr counselor that's not true it's in his affidavit and it's also in his deposition testimony that he did see mr collins sway and stagger so evill is taking great liberties with what's in the record and picking and choosing what he wants i want to discuss this the hospital referral form now we filed for a motion for summary judgment based on qualified immunity and the epilate did not respond for nine months so for nine months they could have gone and talked to lieutenant l c o they could have got an affidavit from her to see if she actually wrote this who wrote this piece of paper it is not properly in the evidence before us we don't know who wrote it we don't know what the reason was for and i'm getting to show that is creating their own genuine issue of material fact the very first time in their opposition brief they stated that sergeant cari called lieutenant and gave her this information they made this up they don't have any phone records to substantiate that they don't have any now they're saying sergeant curry wrote it and they ignore the fact that in his deposition testimony he stated that sergeant price did he has never seen this piece of paper before until that deposition so he obviously couldn't have wrote it but this war for all forms we don't know why it was written who wrote it where they got the information from granted mr cohen was in the possession of sergeant carney then officer thompson and thompson and officers small smith and then over to the booking window and then there were many players i mean the a pelleas soon twelve some people in this case claiming that all these individuals were involved at some point with mr cullen so it's possible that somebody else gave this information to lieutenant also you know that wrote this piece of form it's not properly before this court and shouldn't have been the reason why sergeant carney was denied a qualified immunity also i want to point out that own documents from the neurologist that treated sir that treated mr callan stated that he did not know whether mr collon was drugged intoxicated so we're asking that sergeant carney would know more than a train neurologist i understand that counsel said we're not trying to make it today that he should be more he should know more than a trainer ologist but he actually is from their own documents says that they did not know he was drugged intoxicated until they ran the tests and from the evidence of swing staggering he could have been drugged intoxicated also i want to touch briefly on officer thompson signing the breathalyzer for it's a the b a c form also it has the first part of the form has what the field sobriety test for and then the very very much appreciate the case will be submitted and you may call the next