a deliberate indifference to a serious medical need and there are really three issues here that i'd like to talk about this morning obviously they're all in our briefs on the first is that plaintiffs up apple is simply failed to plead th that we would see a failure to sorry we would see a deliberate indifference claim we thought it was specific to a recording that was captured of a different officer saying in response to mr brown statement that he cannot breathe who gives a fuck we never invision and that there is there would be an issue regarding what was happening once mr brown was already in the back of the police own car counsel for apple easy has pointed to an e mail that was sent to me after the close of discovery after the close of expert discovery stating very generally that they were looking at fourth and fourteenth amendment violations for all of the officers but if you're talking about a pleading that e mail as i point out my briefing doesn't meet the ball twamley standard it's a simple these defendants on lawfully harm me is the statement that they made at bats and they made it so late in the game that we wouldn't have an opportunity to properly defend ourselves in a deliberate indifference to a serious medical in the claim one of the things we could have and i likely would have done they make no specific statements in the recitation of the facts regarding merit rusnak or sattler doing anything or failing to do anything that would constitute deliberate indifference to a serious medical need that's the first issue i'd like to talk about this month the second and this is the most brief to discuss is i believe the court did apply the wrong standard i believe that while the court points out and looked at the amount of time from one pm mass was called two e m s arrived in saying that was enough time for them to deliberate on mr brown's condition i submit that mr brown did not show serious medical need and you can look at the testimony of rusnak sattler and marat until they could all the officers could already hear the sirens of the e m s ambulance of time is about a minute to a minute and a half is from the point of time were really showed serious medical distress to where the ambulance arrive five six seven cleveland police officers so saying i can't breathe is no more it is similar to a flea in criminals and i didn't do it it was simply something that given the context there was absolutely no reason to give that statement any credence he was viciously fighting off the officers for many minutes after that statement was made and that vicious fighting continued not only through when they finally got him into the back of  zone car once he was in the back of the vehicle he was kicking up the windows he was screaming he was snarling he was still fighting there was nothing about that statement at this point time would have been five ten fifteen minutes before to give it any credence and so i don't believe that that that the right believe it the wrong stand was applied here finally i believe that the court the district court did misapplied the law here  they looked at o m b and they looked at jones both cases against the city of cincinnati so right from here in this neighborhood at the deliberate indifference standard and i believe that what the court said is merely calling it a mass may not be enough for to avoid a deliberate indifference a serious medical need but they didn't merely call e m s these officers did other affirmative acts that they may not have been perfect but these are not doctors these are not nurses they're just doing the best that they cook what they did amongst other things as they attempted to monitor and speak to mr brown they checked his pupils for dilation they rolled down the windows of the vehicles expressly to get him more air which is what you would do if someone is you believe ever in trouble this is absolutely distinguishes the men and distinguishes this case from both owens be in jones which are both very callous cases were based on the allegations as they were arrived at this circuit were that the officers beat somebody this is both o in jones and then were not only in different but were basically joking around about their serious medically in this case the officers were affirmatively acting in an attempt to help mr brown and so i think that there was just a missed application of the law here as sooty deliberate indifference standard based on the actions of my clients i got through that pretty quick i guess the question you know you are giving us one view of the facts and isn't there a fact issue you're complaining that the district judge wrongfully denied qualified immunity right and this matter yes so if there is a fact issue of viewing the facts in the light they want your clients versus viewing the facts the light favorable to the plaintiff here why why do we even have jurisdiction there's no fact this year but you've given us the facts in the light most favorable to your client there's no testimony on the record from this portion of the event other than the testimony of my clients and then after the emmaus arrive the testimony  be arguing next this specific issue this deliberate indifference claim all comes out of after he was mr brown was taken into custody in the back of his own car the two witnesses who view that events if you look at their declaration are completely silent as everything that happened after mr brown took off running because it was two streets away they didn't follow it but in terms of his being taken into custody isn't there some discrepancy about the use of the taser on him after he was taken into custody or in the together and certainly are part of one narrative however as i understand it the only use of the taser that's being challenged and again that's not this appeal that's the next appeal where i'm acting as the apple e that we're going to deal with but the only use the with that well there were multiple scenes around and that's the first thing you have to you have to remember i agree with you of course it's one continuous event but the two the two declarations that were provided those people only viewed the very beginning of this they never sal and that's the three people that this appeal is about this appeal is not about anyone who used the taser this appeal is not about anyone who allegedly struck mr brown in the back car this appeals not dealing with that we'll deal with that in about twenty minutes this appeal is simply about the deliberate indifference to a serious medical need against only officers merrit  rusnak and sergeant seller and there are those two people who submitted declarations are completely silent as to anything that those three people that the reason being they want on the scene this foot chase went i believe two blocks away from where the original stop happened so there is no version of events other than the version of events test of any of these three officers involved in the initial stop of now none of these three officers  your honor the key i believe is that the district court will the first of all it never should have gotten there because they feel depleted in addition the district court did misapplied the law down the undisputed fact this does not meet deliberate indifference to a serious medical need to look at brown it wasn't perfect but they're not doctors they're not nurses you know they're going to talk about c p r there is no there is no case out there that requires officers to give c p r but i can discuss that my rebuttal time i see him out like thank you it's time to be half of rodney brown's state i'm here with his mother and members of the rodney brown family and there are serious disputed facts with respect to the medical care that was not given to mr brown while he was in the cruiser and we know this because first we have these officers taking mr brown to the curbside before he m s gets there kind of an unusual move to to move this man and they propped him up e m s actually says that the man was propped up against one of their legs and officer resnick says mr brown was still breathing th a m s says not only was he not breathing but he was in cardiac arrest he was in for a rest they never brought him back he was dead why isn't this just the officers not knowing how to deal with somebody who is a medical situation having medical difficulties that's what the trial should be about but if they're going to lie and they're going to say he was lying i was breathing when  s s he's not breathing we have to get to a jury to discuss this and that's what the trial has to be about and then let's back up from that serious discrepancy we have fifteen minutes before mr brown saying i are that it went into but i'm not filing a lawsuit over the wrestling match that occurred between the tasing and putting him in the cruiser i understand that once he ran and the officers tried to restrain him they used a certain amount of force that we're not going to challenge but at go ahead that's fine your complaint it's not there i mean i  understand that and we did not plead deliberate indifference to a serious medical need in the amended complaint it was one of those claims that you discover through discovery i mean we took depositions i took the m s deposition and i realize that we have a pretty dramatic difference of opinion here about what happened and including all the indicia in the car including the fact that mr brown was granting  that he was saying i can't breathe that he was mumbling that he was that he that the struggle that mr bass voice is talking about could well have been his gasping for breath and  did send a very detailed e mail because i know jack we've been litigating cases against each other for a while and i knew he had his motion coming up and i said in very clearly with respect to the remaining individual defendants we are alleging that they violated fourth and fourteenth amendments by failing to monitor and basic first aid to brown after they had noticed that brown was having trouble breathing you're right i should have put it into a formal motion i offered to put it into a motion when i realized that he was going to make a deal out of it the court this is an abuse of discretion standard they had notice that they were seeing the same set of facts unfold that i was saying we discovered it we learned  and that's a month before his motion practice if he wanted to go get an expert we could have dealt with it then he can't wait until now and say oh i never had a chance to get an expert i mean we know how to do this stuff we've been litigate i've been doing this thirty nine years there's a way to do this that everybody gets their day in court and it's not an abuse of discretion for the court to say all right he had enough notice i'm going to go ahead and this claim to go forward and if he wants to bring it up again when we go back he can bring it up again if he wants to do some additional discovery or something on the claim but the point is that what we learned is that there are dramatic facts that make this an important issue that should be litigated i mean officer resnick understood that this man was not able to breathe in the car and he even looked inside the car and he says his pupils were fixed and i know he thinks a lot of people a restaurant drugs and so he doesn't make a big deal out of it but the facts is this man had no drugs on board he had a marijuana metabolite that was a very low showed old  under ohio law that was way below the level that would even allow anyone to prosecute him for operating a vehicle under the influence there were no drugs on board he was having trouble breathing because of the tasing officers are on the hook because they saw hard this developing and they knew he was no longer arrest they open the door to the car he uses that as an example of other good care that they were trying to give him i use it as an example the thing they were on notice that he's no longer a serious risk he's a man that's dying and we ought to you know we have something going on here i mean he's opened the door of the car is opening the windows to the car and he doesn't even tell the mass that this man's becoming a nine pretty there and he does become a nine breeder sattler says but he looked at him he was unresponsive resnick says when he took him out of the car he was under a sponsor and then they say well his eyes were classy what do you think they should have told him asked right away we have a nine breather we have this is this is seriously developing because remember they only call the m s because they have a protocol and the p says if you take somebody you got to call you mess so you mascot's a call that says we case somebody ok we'll come and check it out and they they classified that bravo which was a low level classification under the  protocol and we would say that if you see somebody who's a nun breather and he did become and i'm breather some point his eyes are fixated he's dying his eyes are glassy they should have told the m s step it up we was that when you see these situations developing you either do the medical care yourself or at least get instruction from me a mess or kick their butt a bit and call mom and say hey you got to get here and none of that happened deliberate indifference or serious medical need simply because you don't provide c p r because we haven't accomplished that as a precedent yet and there is some precedent from other circuits that i've cited but this is a to t of the circumstances argument they yes they didn't do c p r and some i know how to do it so that would be great and i'll be able to tell that to the jury but they also didn't tell e m s that this man is slipping this man's in serious trouble you know should we do c p r or should we you know do you have advice for should we move him you know there's no dialogue going on and we're you know this is two thousand and ten i mean we can do better than simply call him on a protocol and then wait and there's a serious question don't forget that none of these officers gave a statement until after they all met in some sort of informal debriefing session where they talked about the incident and that's got to go before the jury because what's going on if this was so this is classified as a homicide by the coroner worst where is another homicide that you investigate by letting the suspects meet and chatted up since the only real witness is dead now we're going to let them talk for a while and see what their story is and then he's going t me that i don't have enough proof because they've got their story together well their story did slip up a bit because they disagree even though they had this chance to meet they disagree with the m s he wasn't breathing anymore when e m got there and when you add up everything he ever called for his mommy while he's in the car you know there's there's very disappointed year old man who is slipping away and this business of the people's big fixed is a very big deal tell that to e m s not told at all no updates at all propping him up against the leg glassy eyes gazed look i mean he was dead i want to be able to argue that to the jury there's a fair there's enough evidence in the record that this is a contested issue a material fact and that the officers were not being truthful so with respect to this appeal this judge denied qualified immunity correct and is your position and that we don't have jurisdiction because they are a fact question was the basis for the district judge's ruling or do we have jurisdiction and we should affirm which is you know there's this court yes you don't have jurisdiction because under jones there's a contested issue of material fact that goes to the very core issue i'm qualified immunity but it's a opportunity by the time we get to this stage to go ahead and say that on these facts it is appropriate to deny qualified immunity and that would help the development of a watch simply dismissing the appeal doesn't do much for the next case but you could go either way and similarly there's no pendent jurisdiction the city's tried to appeal the fact that the court went on and denied summary judgment to the city on the medical issue and i'm saying there's no pendent jurisdiction because because an officer can get off and qualified immunity that doesn't really impact whether the city ratified their conduct or not so what is your theory in terms of why you even assert that the city could be liable is it simply the ratification theory or is there some other theory and the deliberate indifference a serious medical need it is the r ification theory under proposed nick the supreme court said a long time ago that you can have a single incident where a policy maker reviews the conduct of the wrongdoer and then that review becomes the application of policy as viewed through the facts and here this is and then there's ample case law that we've cited from the circuit as well that says when you do an investigation that's not really designed to find out what happened then you are asserting then you are you're approving of the conduct of the wrong doer as consistent with your policy practice and procedure and here their investigation wasn't designed to find out what happened they never really stacked up all of the evidence of what was going on in the car and really determined and this is a homicide for i mean really and it is a fair inference that the city was simply rubber stamping the statements of the officers and didn't really dig and that is why mr brown's death was not fully and properly investigated and so the court was right to deny summary judgment to the city there's no pendent jurisdiction this court should entertain the appeal from the city as part of this appeal there no for the question thank you very much just like to address some things and i took notes on the take in the order that brought them up the first issue regarding that al discovered this issue in discovery talking about the depositions and why didn't the amount as a complaint you can check the dates because it's all part of the record but the best of my recollection is all the depositions were completed in the summer time of i believe it was twenty twelve and our spazz of motions were filed in the summer time of twenty thirteen when i do know it was about a year apart so if there were issues that he discovered based on the mass or mts testimony he should have had a whole year to amend that complaint and there is an issue in terms of discovery in terms of experts and all that sort of thing we don't know that the court's going to give us those sort of things there's a reason deadlines are sat it's so we can move litigation forward and just it's not fair for a plan have to say oh well we told you long after all the deadlines but hey we could have fixed it we could have fixed it so therefore we should go forward with it as to the issues regarding whether or not police in their communication with e m s on the scene first of all it's undisputed in the record that there is no distinction between bravo and delta in terms of the way  response you can look at the deposition i believe it sergio fletcher he's very clear it doesn't matter what the coding is we're moving just as fast or we want to fast as we can it doesn't matter what the coding is we are responding with full life saving measures it doesn't make a difference in addition there is also unspirited testimony that there was no manner for e m i asked him police to directly communicate the police would have had a radio and a police dispatch where van had taken the time to radioed in a mass dispatch i want to add take the time to radio to e m s directly and we all can remember being little kids and playing the game of telephone how that's a problem more over sure and i'd like to just repeat that the serious signs of distress and this is the testimony from it's unanimous the serious signs of distress did not manifest until police could already hear the e m s sirens approaching and knowing how long the relay would take and knowing that they were going to be on scene in a matter of sixty ninety seconds which is how long it actually wants it would have really been a fruitless exercise to start radioing in a couple other quick things mr garret's time brought out that mr bro his mommy in the back seat of his own car there's testimony that's not unusual for people who are being arrested our officer said that that happens all the time and as this idea that they met together to get their stories together limit together as part of the  investigation the city under talk there is no conspiracy claim here if there were a if they think there was a conspiracy should have brought a civil conspiracy claim it's not before the court and he sort of argument rolling involving a conspiracy is a red herring that no jury should ever be able to