PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CLYDE ALLEN RIFE, Plaintiff - Appellant,

v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY; JOE JEFFERSON, State Trooper; CHAD DALE; JONATHON WILLIS; MCCURTAIN COUNTY JAIL TRUST, Defendants - Appellees. No. 16-7019 (D.C. No. 6:14- CV-00333-FHS) (E.D. Okla.)

________________ _________________ ORDER

________________ _________________ Before LUCERO , McKAY , and BACHARACH , Circuit Judges.

________________ _________________ This matter is before the court on appe llees McCurtain County Jail Trust, Chad Dale and Jonathon Willis’s Petition for Rehearing En Banc , as well as the separate Petition for Reheari ng and Petition for Re hearing En Banc filed by appellee Joe Jefferson. We also have the appe llant’s response to those petitions. Upon consideration, panel rehearing is grante d in part and only to the extent of the changes made to the amended opinion attached to this order. In all other respects panel rehearing is denied by the original panel members. FILED United States Court of Appeals Tenth Circuit 

### April 12, 2017
Elisabeth A. Shumaker Clerk of Court2 The petitions, the response, as well as the am ended opinion were also circulated to all the judges of the court who are in regular active service. As no judge on the original panel or the en banc court requested that a poll be called, the requests for en banc consideration are denied. The Clerk is directed to file the attached amended opinion effective the date of this order.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkPUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ CLYDE ALLEN RIFE, Pl aintiff - Appellant,

v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY; JOE JEFFERSON, State Trooper; CHAD DALE; JONATHON WILLIS; MCCURTAIN COUNTY JAIL TRUST,
De fendants - Appellees. No. 16-7019

__________________ _______________ Appeal from the United States District Court for the Eastern Dist rict of Oklahoma (D.C. No. 6: 14-CV-00333-FHS)

__________________ _______________ Daniel E. Smolen (Robert M. Blakemore, with him on the briefs), Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma, for Plai ntiff-Appellant. Stephen L. Geries (Ammon J. Brisolara, with him on the brief), Collins Zorn & Wagner, Oklahoma City, Oklahoma, for McCurtain County Jail Trust, Chad Dale, an d Jonathon Willis, Defendants-Appellees. Devan A. Pederson, Assistant Attorney General, Oklahoma Attorney General’s Office, Oklahoma City, Okla homa, for Oklahoma Department of Public Safety, and Joe Jeffe rson, Defendants-Appellees.

__________________ _______________ Before LUCERO , McKAY , and BACHARACH , Circuit Judges.

__________________ _______________ FILED United States Court of Appeals Tenth Circuit 

### April 12, 2017
Elisabeth A. Shumaker Clerk of Court2 BACHARACH , Circuit Judge.

____________________ _____________ This case began with the plaintiff, Mr. Clyde Rife, sitting on a motorcycle next to a road , unable to recall the date, the time, or even what he had been doing in a town he had just visited. When approached by a state trooper, Mr. Rife sa id that he was fine. No netheless, the trooper questioned Mr. Rife and concluded that he wa s intoxicated on pain medication and had been in a motorcycle accident . These conclusions led the trooper to arrest Mr. Rife for public intoxication. Authorities later learned that Mr. Rife had not been in toxicated; he had suffered a head injury in a motorcycle accident. Mr. Rife ultimately sued the trooper and the Oklahoma Department of Public Safety, alleging in part that he had been wrongfully arrested. For this allegation, we ask: Did probable cause exist to arrest Mr. Rife? The district court said “y es,” and we agree. The rest of the case i nvolves what happened af ter the arrest. After the arrest, the trooper dr ove Mr. Rife to jail. Al ong the way, Mr. Rife groaned and complained of pain in his heart and chest. Upon arriving at the jail, Mr. Rife was put in a holding cell. The scene wa s observed by a cellmate, who said that Mr. Rife ha d repeatedly complained about pain. Nonetheless, Mr. Rife was not provided medical attention.3 The lack of medical car e led Mr. Rife to sue (1) the trooper, two jail officials, and the entity operating th e jail for deliberate indifference to serious medical needs and (2) the Oklahoma Department of Public Safety for negligent failure to provide medica l care. On these claims, we ask: Did the failure to provid e medical attention constitute (1) deliberate indifference to Mr. Rife’s serious medical needs or (2) negligence? The district court thought no one could re asonably infer ei ther deliberate indifference or negligence. We disagr ee, concluding that both could be reasonably inferred from the evidence. These conclusions lead us to affirm in part, to revers e in part, and to remand for furthe r proceedings. I. Mr. Rife’s Claims Mr. Rife sued the trooper (Joe Je fferson), the two jail officials (Jonathon Willis and Chad Dale), the entity operati ng the jail (McCurtain County Jail Trust), and the Oklahoma Department of Public Safety. 1 With regard to the arrest, Mr . Rife makes two claims: 1. Trooper Jefferson is liable under § 1983 for arresting Mr. Rife without probable cause.

1 The Oklahoma Department of Pu blic Safety is a state agency. See Okla. Stat. tit. 47, § 2- 101. Trooper Jefferson wo rked for th e Oklahoma Highway Patrol, which is a division of the Oklahoma Department of Public Safety.4 2. The Oklahoma Department of Public Safety incurs vicarious liability for the wrongful ar rest under the Oklahoma Governmental Tort Claims Act. 2 For the lack of medical attention after the arrest, Mr. Rife makes three claims: 1. Trooper Jefferson, Mr. Willis, an d Mr. Dale are liable under 42 U.S.C. § 1983 for deli berate indifference to serious medical needs. 2. The jail trust is liable unde r § 1983 for the deliberate indifference of jail employees. 3. The Oklahoma Department of Public Safety is vicariously liable under the Oklaho ma Governmental Tort Claims Act for Trooper Jefferson’s negligen t failure to obtain medical attention. 3 During the lawsuit, Mr. Rife discovered that the jail trust had destroyed a videotape th at showed him in th e jail’s booking area. According to Mr. Rife, the destruction of the videotape warranted spoliation sanctions consis ting of denial of the summary judgment motions brought by Mr. Willis, Mr. Dale, and the jail trust.

2 The Oklahoma Governmental Tort Claims Act is codified at Okla. Stat. tit. 51, § 151 et seq. This law provides the ex clusive tort remedy in Oklahoma for injured pl aintiffs to recover ag ainst state entities. Tuffy’s, Inc. v. City of Okla. City , 212 P.3d 1158, 1163 (Okl a. 2009). Under this law, state entities can genera lly incur liabilit y for torts. Id. This liability may be based on the act s of state employees. Id.

3 Mr. Rife also sued under the Oklahoma Const itution, but those claims are not involved in this appeal.5 II. The District Court’s Rulings The defendants moved for summary judgment, and the district court granted summary judgment to each defendant. On the wrongful arrest claims, the district court granted summary judgment to Trooper Jeffe rson and the Oklahoma Department of Public Safety, concluding that probable cause existed for Mr. Rife’s arrest. On the claims involving a failure to provide medical attention, the court granted summary judgment to all defendants, reasoning that the lack of medical attention had not resulted from deliberate indifference or negligence. In addition, the district court declin ed to sanction th e jail trust, Mr. Willis, and Mr. Dale for destruction of the videotape, reasoning that Mr. Rife had failed to follow the proper procedure fo r requesting a spoliation sanction. III. Our Conclusions We affirm the district court’s orde rs in part, reverse in part, and remand for furthe r proceedings. On the wrongful arrest claims against Trooper Jefferson and the Oklahoma Department of Public Safe ty, we affirm, ag reeing with the district court that probable cause existed fo r the arrest. On the deliberate indi fference claims, we reverse: A reasonable factfinder could find f acts supporting the delibera te indifference claims6 against Trooper Jefferson, Mr. Willis, Mr. Dale, and the jail trust. Thus, we reverse and remand for the district court to determin e (1) whether Mr. Rife’s rights were clearly establ ished and (2) whether a reasonable factfinder could find a causal link between the ja il trust’s policies or customs and a constitu tional violation. On the negligence claim against the Oklahoma Department of Public Safety, we reverse, concluding that a genuine dispute of material fact exists on the reas onableness of Trooper Jeffers on’s failure to obtain medical attention. In addition, we affirm the district court’s denial of spoliation sanctions, concluding that Mr. Rife forfeited his present argument and has failed to identify evidence of bad faith. IV. Standard of Review The district court concluded that the defendants were entitled to summary judgment. We review these co nclusions de novo. Koch v. City of Del City , 660 F.3d 1228, 1237-38 (10th Cir. 2011). In appl ying de novo review, we consider the evidence in the light most favo rable to Mr. Rife, resolving all factual disputes and draw ing all reasonable inferences in his favor. Estate of Booker v. Gomez , 745 F.3d 405, 411 (10th Cir. 2014). We apply not only this standard of review bu t also the substantive burdens on the underlying issues. One such issue is qualified immunity, which is raised by Tr ooper Jefferson, Mr. Wil lis, and Mr. Dale. The7 threshold burden falls on the plain tiff, who must demonstrate that a reasonable factfinder could find f acts supporting the violation of a constitutional right that had been cl early established at the time of the violation. 4 Id . If this burden is met, the defendant must show that (1) there are no genuine issues of material fact and (2) the defendant is entitled to judgment as a ma tter of law. Koch , 660 F.3d at 1238.

V. The Wrongful Arres t Claim Against Tr ooper Jefferson Invoking § 1983, Mr. Rife argues th at Trooper Jeffe rson lacked probable cause, renderin g the arrest a violation of the Fourth and Fourteenth Amendments. According to Mr. Rife, the district court disregarded evidence supporting this claim. Trooper Jefferson counters that

 he had probable cause,

 any possible factual mistake would have been objectively reasonable, and

 the underlying right was no t clearly es tablished. The district court granted summary j udgment to Trooper Jefferson, holding that he had probable cause to arrest Mr. Rife for public intoxication. We
agree.

4 The defendants state that the plaintiff must show a violation of a clearly established constitu tional right, no t that a reasonab le factfinder could find facts s upporting such a violation. The difference in framing would not affect our analysis

.8 A. The Interaction Between Mr. Rife and Trooper Jefferson Trooper Jefferson’s poli ce car had a dashcam, which captured almost the entire interaction between Mr. Rife and Trooper Jefferson. The dashcam begins with Trooper Jefferson checki ng on Mr. Rife, who was sitting on a motorc ycle next to a road. Mr. Rife was confused with dried blood on his no se, and there were grass and grass stains on the motorcycle. Mr. Rife also had gra ss stains on his pants and shirt, indicating that he had been thrown from the motorcycle. Trooper Jefferson asked if Mr. Rife was okay, and Mr. Rife replied that he was fine. But Mr. Rife could not identify the day, approximate the time of day, or remember his social security number. He knew that he had been in Idabel, Oklahoma, earlier that day but could not remember what he had been doing there. His speech was slurred. The trooper suspected in toxication. Because the symptoms of head injuries and intoxication are similar, the trooper looked fo r signs of a head injury: unequal tracking of the pupils, unequa l pupil size, and resting nystagmus. Mr. Rife did not exhibit these signs. Trooper Jefferson then performed a horizontal gaze nystagmus test, which could reveal up to 6 clues of impairment. Trooper Jefferson’s training stated that if a person exhibits 4 out of th e 6 clues, there is an 80 percent chance of intoxication. Mr. Rife exhibited all 6 clues.9 To determine whether Mr. Rife wa s intoxicated, Tr ooper Jefferson conducted four additional te sts. Mr. Rife failed these tests or was unable to complete them. Before on e of the tests, Mr. Rife stated that he felt “floaty”; during another test, Mr. Rife lost his balance. These tests and observations led Troop er Jefferson to arrest Mr. Rife for public intoxication. Trooper Jefferson knew that Mr. Rife was not drunk but believed that he had taken too much pain medi cation. Many of Mr. Rife’s symptoms were consiste nt with intoxication from pain medication, including cons tricted pupils, lethargy, nystagmus, dizziness, and feeling “floaty.” At the time of arrest, Trooper Jeffe rson also kn ew that Mr. Rife had been in a motorcycle acci dent. Mr. Rife ha d repeatedly deni ed being in a motorcycle accident, but Trooper Jefferson said that Mr. Rife had obviously been in an accident. Though Trooper Jefferson knew that an accident had taken place, he did not believe that it had involved high speed or high impact. Trooper Jefferson reasoned that Mr . Rife did not have the t ype of visible injuries that would likely result from a high-speed or high-impact accident. For instance, Mr. Rife had no marks or scratches on his arms. Trooper Jefferson also noted that there was little damage to the motorcycle or saddlebags.10 Trooper Jefferson drove Mr . Rife to jail. During the drive, Mr. Rife said that his chest hurt and groaned in pain. A few minutes later, Mr. Rife stated that his heart hurt and again groaned. Trooper Jefferson acknow ledges that at some point, Mr. Rife complained that he felt sick. B. The District Court’s Allege d Discounting of Supporting Evidence Mr. Rife argues that the district court improperly discounted four evidentiary items: 1. Trooper Jefferson repo rted that the arrest had been for public intoxication under Okla . Stat. tit. 37, § 537 , but this statute involves intoxication from alc ohol rather than medication. 2. Trooper Jefferson kn ew that Mr. Rife was not under the influence of alcohol. 3. Trooper Jefferson knew that Mr. Rife had been in a motorcycle accident and that ce rtain medical conditi ons could mimic the symptoms of intoxication. A lthough Trooper Jefferson ruled out a head injury, he did not rule out sh ock or other medical conditions. 4. Mr. Rife said that the only medication he had taken was for blood pressure. None of this evidence precludes the existenc e of probable cause. The first two evidentia ry items are immateri al because probable cause need not be base d on the statute mistak enly invoked by Trooper Jefferson. See Part V(D), below. Under Okla homa law, Mr. Rife could be11 guilty of a crime if he had been publicly intoxicated on pain medication rather than alcohol. See Parts V(C)-(D), below. The third evidentiary item is immaterial becaus e probable cause does not require police officers to rule out all innoce nt explanations for a suspect’s behavior. See, e.g. , Lingo v. City of Salem , 832 F.3d 953, 961 (9th Cir. 2016) (“It is decidedly not the officers’ burden to ‘rule out the possibility of innocent behavior’ in order to establish probable cause.” (quoting Ramirez v. City of Buena Park , 560 F.3d 1012, 1024 (9th Cir. 2009)); United States v. Reed , 220 F.3d 476, 478 (6th Cir. 2000) (“Officers are not required to rule out every possible explanation other than a suspect’s illegal conduct befo re making an arrest.”); United States v.
Fama , 758 F.2d 834, 838 (2d Cir. 1985) (“The fact that an innocent explanation may be consistent with th e facts alleged . . . does not negate probable cause.”). The fourth eviden tiary item is also immaterial. Though Mr. Rife stated that the only medication he had taken was for hi s blood pressure, Trooper Jefferson could ra tionally have thought that Mr. Rife ha d forgotten what medication he had taken or had be en lying. After all, Mr. Rife had denied being in a moto rcycle accident, but obvio usly had been in an accident and was unable to remember many common things such as what day it was or what he had been doing in Idabel.12 In these circumstances, we reject Mr. Rife’s argument that the district court improperly discounted the four evidentiary items. C. The Existence of Probable Cause Notwithstanding these evidentiary items, probable ca use existed to arrest Mr. Rife for public intoxication. A warrantless arrest is permissible only if an officer has probable cause to believe that th e arrestee committed a crime. Cortez v. McCauley , 478 F.3d 1108, 1115 (10th Ci r. 2007) (en banc). “Pro bable cause to arrest exists only when the facts and circumstan ces within the officers’ knowledge, and of which they have reasonably trustw orthy information, are sufficient in them selves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Id. at 1116 (quoting United States v. Valenzuela , 365 F.3d 892, 896 (1 0th Cir. 2004)). The officer’s belief does not need to be ce rtain or more likely true than false. United States v. Padilla , 819 F.2d 952, 962 (1 0th Cir. 1987). In Oklahoma, the crim e of public intoxicati on involves being intoxicated in a public pl ace. Okla. Stat. tit. 37, §§ 8, 537(A)(8). Mr. Rife does not question whether he was in a public place. Instead, he denies any plausible reason to th ink he was intoxicated. The “outward manifestations” of in toxication are “impaired mental judgment and physi cal responses.” Findlay v. City of Tulsa , 561 P.2d 980, 984 (Okla. Crim. App. 1977). But these symptoms of intoxication “may13 also be symptomatic of other physical impairments.” Id. That was the case here, for Mr. Rife’s symptoms could reasonably sugges t intoxication, a head injury, or other medical conditions. The Seventh Circuit Court of Appeals addressed a similar situation in Hirsch v. Burke , where a diabetic individual experiencing insulin shock was arrested for public intoxication. 40 F.3d 900, 901 (7th Cir. 1994). Before the arrest, the i ndividual had trouble bala ncing himself, seemed incoherent, smelled of alc ohol, had bloodshot eyes, and was unable to state his name or date of birth. Id. at 903. Unbeknownst to the officer, the individual was experiencing diabetic symptoms that mimicked intoxication. Id. Based on these facts, the Seventh Circuit upheld the district court’s finding of probable cause. Id. at 903-04. Similarly, in Qian v. Kautz , an individual with a pre-existing head injury was arrested for public intoxication. 168 F. 3d 949, 951-52, 954 (7th Cir. 1999). The arresting police officer was unaware of the he ad inju ry, but was aware of five facts: 1. The individual ha d lost control of a car and crashed. 2. The individual was hunched over and having difficulty walking. 3. There were no signs that the individual had hit anything in the car’s interior du ring the accident. 4. The individual de nied being injured an d showed no physical signs of injury. 5. The individual’s sp eech seemed slurred.14 Id. at 954. The Seventh Circ uit held that these f acts were sufficient to create probable cause, no ting that “the overall se tting easily support[ed] [the officer’s] decision to arrest [the individual].” Id. Some of the factors suppo rting probable cause in Hirsch are present here. Like the arrestee in Hirsch , Mr. Rife had trouble balancing himself and was unable to provide the police with basi c information (such as the day or time). There are also parallels between th e facts in our cas e and those in Qian . Like the arrestee in Qian , Mr. Rife had been in an accident, was hunched over, denied being injured, and had slurred speech. Additional evidence supports pr obable cause here that was not present in Hirsch or Qian . As explained above, Tr ooper Jefferson examined Mr. Rife to determine whether he had a head injury, chec king for unequal tracking of the pupils, unequal pupil si ze, and resting nystagmus. Mr. Rife did not show any of thes e signs. After ruling out a head injury, Trooper Jefferson conducted other tests that suggested intoxication. In these circumstances, an officer co uld reasonably conclude that Mr. Rife was intoxicated from medication. D. Trooper Jefferson’s Reason for Making the Arrest Mr. Rife suggests that probable cause did no t exist because Trooper Jefferson had relied on th e wrong statute. In a re port, Trooper Jefferson15 stated that the arrest ha d been based on Okla. Stat . tit. 37, § 537. This law deals with intoxication from alcohol, not medication. But Trooper Jefferson’s mistake does not foreclose probable cause because an arresting officer’s “subject ive reason for maki ng [an] arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford , 543 U.S. 146, 153 (2004). Probable cause existed fo r violation of a separate statute: Okla. Stat. tit. 37, § 8. Under this statute, a crime is committed when the intoxication is caused by either alcohol or another intoxicating substance. Findlay v. City of Tulsa , 561 P.2d 980, 984 -85 (Okla. Crim. App. 1977). Thus, probable cause existed even though Trooper Jeffers on relied on the wrong

statute. VI. The Wrongful Arrest Claim Agains t the Oklahoma Department of Public Safety Mr. Rife invokes the Oklahoma Governmental Tort Claims Act, claiming that the Oklahoma Department of Public Safety is vicariously liable for the wrongful arre st. On this claim, the district court granted summary judgment to the Oklahoma De partment of Public Safety, holding that the existence of prob able cause vitiated tort liability. We agree with the district court. Because the arrest was supported by probable cause, the Oklahoma Department of Public Safety could not incur liability for a wrongful arrest.16 VII. The Deliberate Indi fference Claim Against Trooper Jefferson Mr. Rife brought a § 1983 claim against Trooper Jefferson, alleging deliberate indifference to serious medi cal needs. The district court granted summary judgment to Tr ooper Jefferson, concludi ng that he enjoyed qualified immunity beca use there was no eviden ce of a constitutional violation. This conclusion was erroneou s, for Mr. Rife pr esented evidence that would reasonably allow factual findings supporting liability for deliberate indifference. A. The Legal Framework for Delibera te Indifference Claims by Pretrial Detainees The Fourteenth Amendment’s Due Process Clause entitles pretrial detainees to the same st andard of medical care ow ed to convicted inmates under the Eighth Amendment. See Olsen v. Layton Hills Mall , 312 F.3d 1304, 1315 (10th Cir. 2002). Thus, the Fourteenth Amendment is violated if state officials are deli berately indifferent to a pretrial detainee’s serious medical needs. See, e.g. , Martinez v. Beggs , 563 F.3d 1082, 1088-91 (10th Cir. 2009) (analyzing whet her police officers were de liberately indifferent to the serious medical need s of a pretrial detainee). The Supreme Court has established a two-pronged test for deliberate indifference claims. Under this test, a plaintiff must satisfy an objective prong and a subjective prong. Farmer v. Brennan , 511 U.S. 825, 834, 837- 40 (1994). The objective pr ong concerns the severity of a plaintiff’s need17 for medical care; the subj ective prong concerns th e defendant’s state of mind. Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). This appeal focuses largely on the subjective prong. The subjective prong is satisfied on ly if the defend ant knew of an excessive risk to the plai ntiff’s health or safety and disregarded that risk.
Farmer , 511 U.S. at 837. In deciding whethe r this prong is satisfied, the factfinder may consider circumstantial evidence. Gonzales v. Martinez , 403 F.3d 1179, 1183 (10th Cir. 2005 ). For example, the ex istence of an obvious risk to health or safety may indicate awareness of the risk. See Farmer , 511 U.S. at 842 (“[A] factfi nder may conclude that a prison official knew of a substantial risk from the very fa ct that the risk was obvious.”). But “the obviousness of a risk is not conclu sive and a prison official may show that the obvious escaped him.” Id. at 843 n.8. B. Application of Standards Involving Medical Professionals Our court applies specialized standards to deliberate indifference claims against medical professionals. See Self v. Crum , 439 F.3d 1227, 1231-33 (10th Cir. 2006) (d iscussing these standards) . We have not applied these standards to deliberat e indifference claims against laypersons such as police officers. Nonethele ss, the district court analyzed whether Trooper Jefferson was deliberately indiffer ent under the standards for medical professionals. Mr. Rife takes a different appro ach, urging liability of18 Trooper Jefferson based on cases involving layperso ns. This approach is correct because Trooper Jefferson was not a medical professional. C. The District Court’s Discou nting of Supporting Evidence Mr. Rife contends that the district court improperly discounted four evidentiary items: 1. Mr. Rife said that his chest and heart hurt and made groaning noises. 2. Mr. Rife stated th at he felt sick. 3. Trooper Jefferson saw dried blood on Mr. Rife’s nose. 4. An expert witness testified th at someone on a motorcycle is more likely to be in jured in an accident than someone in an automobile. Trooper Jefferson denies any eviden ce that Mr. Rife complained of heart or chest pain or groaned in pa in. We disagree. The dashcam recorded Mr. Rife’s complaints and groans . The district court should have considered this evidence, along with the complaint of feeling sick, the presence of dried blood on Mr. Rife’s nose, and the expert testimony that personal injury is more likely in moto rcycle accidents than in automobile accidents. 5

5 Trooper Jefferson seems to ac knowledge that the district court discounted the testim ony that personal injury is more likely in motorcycle accidents than in automobile accidents. But he argues that “this abstract proposition is immaterial given the ot her evidence suggesting that Rife was not injured.” Response Br. of the Oklahoma Department of Public Safety and Trooper Jefferson at 18. This argument fails. To the extent that there is19 D. Trooper Jefferson’s Conscious Disregard of a Substantial Health Risk Trooper Jefferson argues that Mr. Ri fe failed to pres ent sufficient evidence of a conscious disregard of a substantial health risk. We disagree. Mr. Rife argues that his need for medical attention was obvious. This argument is supported by ten evidentiary items: 1. Trooper Jefferson knew that Mr. Rife had been involved in a motorcycle accident. 2. According to an expert witness, injury is more likely in a motorcycle accident than in an automobile accident. 3. Trooper Jefferson saw grass stains on Mr. Rife’s pants and on the back of his shirt. These stai ns indicated that Mr. Rife had been thrown from the motorcycle. 4. Mr. Rife did not know what day it was, what time it was, what his social security nu mber was, or what he had done in Idabel. 5. There was dried blood on Mr. Rife’s nose.
6. Mr. Rife had constricted pupils, lethargy, nystagmus, and dizziness.
7. Mr. Rife said that he felt “floaty.” 8. Mr. Rife stated th at he felt sick. 9. Mr. Rife complained that his ch est hurt and he made groaning noises, suggesting that he was in pain.

conflicting evidence on th e obviousness of the injury, we must view the evidence favorably to Mr. Rife. See Part IV, above.20 10. Shortly thereafter, Mr . Rife complained th at his heart hurt and again groaned. 6
These facts could lead a reasonable factfinder to infer that Trooper Jefferson had recognized the need for medical attention. Nonetheless, Trooper Jefferson admitted ly did not obtain medical attention for Mr. Rife. Trooper Jefferson denies that a court could find deliberate indifference, pointing to six alleged facts: 1. Trooper Jefferson never saw Mr. Rife exhibit signs of pain or injury. 2. All of Mr. Rife’s symptoms were consistent with intoxication from pain medication. 3. Mr. Rife denied be ing in an accident. 4. When Trooper Jeffers on approached Mr. Rife and asked how he was doing, Mr. Rife replied that he was fine. 5. Upon examination, Mr . Rife did not exhibit signs of a head injury.
6. The damage to the motorcycle was relatively minor.

6 Trooper Jefferson argue s that “even assuming, arguendo , that Rife did, almost inaudibly, say that his ch est or heart hurt, this would not be enough, given the tota lity of the other circumstan ces of this case, to show that Jefferson acted with deliberate indifference. ” Response Br. of the Oklahoma Department of Public Safety and Trooper Jefferson at 33. This argument is flawed in tw o respects. First, Mr. Rife did not whisper these statements; a factfinder could reasonably infer th at the statements were loud enough for Trooper Jefferson to hear. Second , other evidentiary items indicated a need for immediate medical attention. For both reasons, this argument fails.21 The first alleged fact is inaccurate. For instan ce, the videotape shows Mr. Rife groaning and complaining that his heart and chest hurt. In addition, Trooper Jeffers on acknowledges that Mr . Rife complained of feeling sick. And throughout the episode, Mr. Rife had dr ied blood on his

nose. The second allege d fact is at least deba table, for the summary judgment record does not contain evidence of an inconsistency between Mr. Rife’s symptoms (such as pain in the chest or heart) and intoxication from pain medication. And even if the symptoms had been consistent with intoxication, the symptoms could also have suggested se rious injury from the apparent motorcycle accident. The other four alleged facts are insufficient to avoid a genuine dispute of material fact. Mr. Rife de nied being in a motorcycle accident, but the trooper repeatedly stated that he knew that Mr. Rife had been in a motorcycle accident. Similarly, Mr. Rife may have initially claimed that he was fine, but he later comp lained of chest pa in and heart pain, said that he felt sick, and remarked that he fe lt “floaty.” These statements, when combined with Mr. Rife ’s other eviden ce, could adequately support liability for deliberate indifference even if Mr. Rife had not exhibited signs of a head injury or incurred major damage to his motorcycle.22 Together, the ev idence could reasonably support a finding that Trooper Jefferson knew of a substantial risk to Mr. Rife’s health and consciously disregarded that risk. E. Whether the Underlying Righ t Was Clearly Established In district court, Troop er Jefferson argued that Mr. Rife’s right to medical care had not been clearly established, but th e district court did not rule on this argument. In this situation, “[t]he better practice . . . is to leave the matter to the district court in the first instance.” Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co. , 661 F.3d 1272, 1290 (10th Cir. 2011) (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co. , 593 F.3d 1188, 1198 (10th Cir. 2010)). Thus, we remand to the district court for consideration of whet her the underlying constitut ional right was clearly established. VIII. The Negligence Claim Against the Oklahoma Department of Public Safety Mr. Rife again invokes the Oklahoma Government al Tort Claims Act, alleging that the Oklahoma Department of Public Safety is vicariously liable for Trooper Jefferson’s negligent failure to obt ain medical attention. The district court granted the Oklahoma Department of Public Safety’s motion for summary judgme nt, reasoning that Troop er Jefferson’s actions were reasonable as a matter of law.23 On appeal, Mr. Rife argues that the dist rict court improperly discounted evidence supporti ng the negligence claim. We agree and reverse the order granting summa ry judgment to the Oklahoma Department of Public Safety. A. The District Court’s Discou nting of Supporting Evidence Mr. Rife contends that the dist rict court improp erly discounted evidence supporting the negl igence claim, pointing to the same evidence that the district court im properly discounted for the deliberate indifference claim against Trooper Jefferson. See Part VII(C), above. We agree that the district court improper ly discounted evidence s upporting the negligence claim. This discounting of evidence constituted er ror because the district court had to view the evidence favorably to Mr. Rife. See Part IV, above. B. The Reasonableness of Trooper Jefferson ’s Failure to Obtain Medical Attention The Oklahoma Department of Publ ic Safety argues that Trooper Jefferson acted reasonably, relying on five of the a lleged facts that Trooper Jefferson uses to defend against the deliberate indifference claim: 1. Mr. Rife had no visible injuries. 2. Mr. Rife did not compla in of any injuries. 3. All of Mr. Rife’s symptoms were consistent with intoxication from pain medication. 4. Mr. Rife denied be ing in an accident. 5. Trooper Jefferson rule d out a head injury.24 This argument fails. The first two al leged facts are inconsistent with some of the evid ence. For example, the first is inaccurate because Mr. Rife had dried blood on his nose. The se cond is inaccurate because Mr. Rife complained of chest pain and heart pain and said th at he felt sick. The third alleged fact is questionable and immaterial. It is questionable because there is no summ ary judgment evidence stating that some of Mr. Rife’s symptoms (such as pain in one’s chest or heart) are consistent with intoxication from pain medication. This alle ged fact is also immaterial: Regardless of whether Mr. Rife had been intoxicated, a factfinder could reasonab ly find that Trooper Je fferson had recognized a substantial risk to Mr. Rife’s health and consciously disregarded that risk. The fourth and fifth al leged facts are also immaterial. Though Mr. Rife denied being in an accident and Trooper Jeffe rson ruled out a head injury, the trooper repeat edly said that he knew an acci dent had taken place. In our view, the five alleged f acts do not preclude a finding of negligence. IX. The Deliberate Indifference Claim Against Mr. Willis and Mr. Dale Mr. Rife alleges that Mr. Willis an d Mr. Dale are liable under § 1983 for deliberate indifference to seriou s medical needs. Mr. Willis and Mr.25 Dale counter that they did not violate a constitut ional right and that the underlying right was not clearly established. The district court granted summary judgment to Mr. Willis and Mr. Dale based on qualified immunity, reas oning that there was no evidence of a constitutional violation. We disagree , concluding that the district court erred by (1) treating Mr. Willis and Mr. Dale like medical professionals and (2) misunderstanding a key piece of evidence—the d eclaration by Mr. Rife’s cellmate. A. The Use of Standards Applicable to Medical Professionals The district court anal yzed whether Mr. Willis and Mr. Dale were deliberately indifferent under the standards for medical professionals. These standards do not apply because Mr. Willis and Mr . Dale were not medical professionals. See Part VII(B), above. B. Mr. Rife’s Interaction with Mr. Willis and Mr. Dale When Mr. Rife and Tr ooper Jefferson arrived at the jail, Trooper Jefferson told Mr. Willis and Mr. Dale that Mr. Rife had been arrested for public intoxication. But no one mentioned the motorc ycle accident or said that Mr. Rife might ha ve been injured. Mr. Willis and Mr. Dale booked Mr. Rife into the jail. During the book-in, Mr. Rife was dazed, slurri ng his words and showing confusion about where he was or what he was doing.26 As part of the book-in, Mr. Dale completed a medi cal questionnaire for Mr. Rife. According to this questionnaire, Mr. Rife did not show signs of trauma or illness that required immediate medica l attention. Mr. Willis and Mr. Dale suspected th at Mr. Rife was drunk, t hough Mr. Willis was not sure what substance Mr. Rife was on . Mr. Willis and Mr . Dale could not smell alcohol on Mr . Rife’s breath. Suspecting intoxication, Mr. Willis decided to place Mr. Rife on medical observation, fearing that he might throw up in his sleep. This placement required jail personnel to check on Mr. Ri fe every fifteen minutes. Mr. Willis and Mr. Dale moved Mr . Rife to the holding cell. Mr. Rife’s entry into the cell was observ ed by his new cellm ate, Mr. Timothy May, who submitted a declaration rec ounting what he sa w and heard: Mr. Rife moaned loudly, show ed obvious pain, and rep eatedly comp lained of stomach pain. C. Mr. Rife’s Release and Collapse The following morning, Mr. Rife was released. Upon release, Mr. Rife walked about 100 f eet to a bail bondsman’s of fice. During the walk, Mr. Rife stated that he did not feel well. When Mr. Rife reached the office, he sat in a chair. When he later tried to stand up, he passed out.27 D. The District Court’s Consid eration of the Cellmate’s Declaration Mr. Rife contends that the distri ct court improper ly discounted the declaration of Mr. May. In Mr. Rife’s view, the declaration supports the existence of serious pain and the obvious need for me dical attention upon entry into the holding cell. The district court stated that Mr. May’s declaration is unclear about whether Mr. Rife had been in obvious pain when entering the holding cell. We disagree with this characterization, for Mr. May’s declaration states: “I woke up when Mr. Rife entered the holding cell becaus e he was making loud moaning and groani ng noises. He was obviou sly in pain. He kept saying that his stomach hurt and cont inued to make loud moaning and groaning noises.” Appe llant’s App’x at 1650. Th is account unambiguously indicates that Mr. Rife was obviously in pain when he entered the holding cell. In our view, the di strict court misunderstood Mr. May’s declaration. 7
E. Conscious Disregard of a Subst antial Risk to Mr. Rife’s Health Mr. Willis and Mr. Dale argue that they did not cons ciously disregard a substantial risk to Mr. Rife’s health or safety. But a reas onable factfinder could reach a different conclusion.

7 If the declaration had been ambiguou s, the district court should have resolved the ambiguity in Mr. Rife’s favor. See Part IV, above.28 According to Mr. May, Mr. Rife wa s repeatedly moaning in pain and complaining of stomach pain when ente ring the holding cell. This evidence could lead a reasonable f actfinder to infer (1) an obvious need for medical attention and (2) Mr. Willis and Mr. Dale ’s awareness of a substantial risk to Mr. Rife’s health. 8
Mr. Willis and Mr. Dale did not obtain medical attention for Mr. Rife. Thus, the factfinder could reason ably infer that Mr. Willis and Mr. Dale had disregarded the obvious risk to Mr. Rife. According to Mr. Willis and Mr. Dale , Mr. Rife never complained of pain. But Mr. May states under oath that Mr. Rife entered the holding cell while making loud moanin g and groaning noises, “obviously” suffering from pain, and repeatedly complaining of stomach pain. Id . Mr. Willis and Mr. Dale were present at the time. Viewing Mr. May’s sworn account favorably to Mr. Rife, as we must, 9 we consider the inferences that could reasonably be drawn. Mr. May stated that Mr. Rife was moaning loud ly and kept complaining of stomach pain. Because Mr. Willis and Mr. Dale were present, the factfinder would

8 Mr. Willis and Mr. Dale argue th at at most, Mr. May’s declaration indicates awareness of a stomach ache. But a factfinder could reasonably infer that Mr. Willis and Mr. Dale knew that Mr. Ri fe was in considerable pain, for Mr. May stated that Mr. Ri fe had moaned and had repeatedly complained of stomach pain.

9 See Part IV, above.29 reasonably infer that they heard the moaning and pain complaints. And if the need for medica l attention appeared obvious to Mr. May, the factfinder could reasonably infer that the need for medical attention would also have been obvious to Mr. Willis and Mr. Dale. See Farmer v. Brennan , 511 U.S. 842 (1994) (“[A] fact finder may conclude that a prison official knew of a substantial risk from the very fact th at the risk was obvious.”) After all, Mr. Willis and Mr. Dale had alre ady decided to require “medical observation” of Mr. Rife even before he entered the holding cell. See Blackmore v. Kalamazoo County , 390 F.3d 890, 899 (6th Cir. 2004) (stating that the jailers ’ placement of an inmate in an observation cell supported an inference of delibera te indifference to the inmate’s complaints of severe stomach pain). Mr. Willis and Mr. Dale argue that at book-in, they did not see any injuries to Mr. Rife. Bu t a factfinder could reas onably downpla y the lack of visible injuries in light of Mr. Ri fe’s disorientation and moaning of pain when entering the holding cell. Mr. Willis and Mr. Dale also note that (1) Mr. Rife did not ask for medical attention and (2) neither Mr. Rife nor Trooper Jefferson mentioned a motorcycle accident. Nevertheless, other evidence would allow a reasonable factfinder to in fer that Mr. Willis and Mr. Dale had been aware of a substantial risk to Mr. Rife’s health.30 Mr. Rife did not seek medical attent ion immediately after his release. Pointing to this fact, Mr. Willis and Mr. Da le contend that it would be unreasonable to expect th em to recognize the need for medical attention when Mr. Rife did not re cognize that need. For tw o reasons, we conclude that a factfinder could justifiably in fer that Mr. Willis and Mr. Dale had recognized the need for me dical attention even if Mr . Rife had not. First, Mr. Willis and Mr. Dale state that Mr . Rife was confused and apparently intoxicated when arriving at the jail. Second, even after Mr. Rife was released, he remained disoriented fr om a traumatic brain injury. Thus, a factfinder could reasonably infer that Mr. Willis and Mr. Dale had recognized the need for medical atten tion regardless of what Mr. Rife had thought. 10
F. Whether the Underlying Righ t Was Clearly Established In district court, Mr. Rife argu ed that the underl ying right was clearly established for purposes of qualified immunity. The district court did not reach this issue. As noted above, “[t]he better prac tice on issues ra ised [below] but not ruled on by the district court is to leave th e matter to the district court in the first instance.” Greystone Constr., Inc. v. Nat’l Fire & Marine Ins.

10 Mr. Rife contends that he wa s mistreated throughout the night. We need not address whether this contenti on could affect the claims against Mr. Willis or Mr. Dale.31 Co. , 661 F.3d 1272, 1290 (10t h Cir. 2011) (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co. , 593 F.3d 1188, 1198 (10th Cir. 2010)); see also Part VII(E), above. As a result, we remand to the district court to determine in the first in stance whether the underlying right was clearly established. X. The Deliberate Indifference Claim Against the Jail Trust Mr. Rife brings a § 1983 municipal liability claim ag ainst the jail trust. According to Mr. Rife, the jail trust’s poli cies and customs led the jail officials to act with deliberate indifference. The jail trust moved for summary judgment, making two arguments: 1. There was no underl ying violation of Mr. Rife’s constitutional rights that could s upport a § 1983 claim ag ainst the jail trust. 2. Even if a jail employee had committed a constitutional violation, it had not resulted fr om the jail trust’s policy or custom. 11 The district court granted the jail trust’s motion for summary judgment, reasoning that there had not been an underlying constitutional violation.

11 Municipal liability under § 1983 cannot be based on respondeat superior or vicarious liability. Monell v. New York City Dep’t of Soc. Servs. , 436 U.S. 658, 694 (1978). Rather, a plaintiff must establish that (1) a policy or cu stom of the municipality exis ts and (2) th e policy or custom caused the const itutional violation. See Kramer v. Wasatch Cty. Sheriff’s Office , 743 F.3d 726, 758 (10th Cir. 2014) (“As to institutional liability under § 1983, the C ounty can only be liable for the actions of Sergeant Benson if it had a custom, prac tice, or policy that encouraged or condoned the unconstitutiona l behavior[] . . . .”).32 We have already held that a reason able factfinder could infer facts supporting a constitutional violation by Mr. Willis and Mr. Dale, who were employees of the ja i l trust acting in the course of employment. Thus, Mr. Rife has defeated the sole basis for the district court’s award of summary judgment to the jail trust. Nonetheless, the jail trust urges affirmance based on an alternate ground: the absence of substantial harm from the delay in medical attention. See Sealock v. Colorado , 218 F.3d 1205, 1210 (10th Cir. 2000). To support this argument, th e jail trust points to me dical testimony that the delay did not affect Mr. Rife’s medi cal care. But Mr. Rife rebutted that testimony with eviden ce of substantial pain wh ile he waited for medical attention. Id. Thus, we cannot affirm based on the jail trust’s argument. But the jail trust raises two other alternate grounds for affirmance: (1) the absence of causati on and (2) the absence of a clearly established constitutional right. The district court did not rule on these arguments, and we remand for the district court to address these issues in the first instance. 12 Greystone Constr., Inc. v. Na t’l Fire & Marine Ins. Co. , 661

12 The district court concluded that Mr. Rife’s interactions with two unidentified jail official s could not create liability on the part of the jail trust. The district court seemed to hold that the jail trust could incur liability only if the ja il officials could be id entified. We need not determine whether this holding was correct because constitutional violations by Mr. Willis and Mr. Dale could support liability of the jail33 F.3d 1272, 1290 (10th Cir. 2011); see Part VII(E), above; see also Kramer v. Wasatch Cty. Sheriff’s Office , 743 F.3d 726, 758 (10th Cir. 2014) (stating that the county could incur liability under § 1983 for a sergeant’s actions only if the county “had a custom, practice, or policy that encouraged or condon ed the unconstitut ional behavior”). XI. The District Court’s Denial of Sanctions Mr. Rife argues that there was a vi deotape of him in the booking area of the jail and that the jail trust intentionally destroyed the videotape. 13 According to Mr. Rife, destruction of the videotape constitutes unlawful spoliation of evidence, ju stifying sanctions in th e form of an adverse inference against the jail trus t, Mr. Willis, and Mr. Dale. In district court, Mr. Rife did not ask for an adverse inference. Thus, Mr. Rife has forfeited this argument. See Anderson v. Spirit Aerosystems Holdings, Inc. , 827 F.3d 1229, 1238 (10th Cir. 2016). On appeal, we may consider forfeited arguments und er the plain-error standard. Id. at 1239. But Mr. Rife has not aske d us to apply this standard. Thus, we cannot reverse based on this argument. See Richison v. Ernest Grp., Inc. , 634 F.3d trust. Thus, we need not decide whether the jail trust could incur liability based on the miscondu ct of unidentified jail officials.

13 The jail trust, Mr. Willis, and Mr . Dale contend th at the videotape did not show the book ing process. Instead, they state that the videotape “showed Rife walk[ing] into the booking area and call[ing] the [bail] bondsman the next morning.” Response Br. of the Jail Trust, Mr. Willis, and Mr. Dale at 37.34 1123, 1130-31 (10th Cir. 2011) (stating th at a failure to argue plain error on appeal “marks the end of the road for an argument for reversal” newly presented on appeal). Even if Mr. Rife had not forfeite d this argument, we could not grant the sanction he is seeki ng. For an adverse inference sanction, the aggrieved party must show bad faith. See Turner v. Pub. Serv. Co. of Colo. , 563 F.3d 1136, 1149 (10th Cir. 2009) (“[I]f the aggrieved pa rty seeks an adverse inference to reme dy the spoliation , it must also pr ove bad faith.”); Aramburu v. Boeing Co. , 112 F.3d 1398, 1407 (10t h Cir. 1997) (“[An] adverse inference must be predicat ed on the bad faith of the party destroying the records.”). But both he re and in district court, Mr. Rife failed to identify any evidence of bad faith. For these reasons, we uphold the district court’s denial of sanctions. XII. Disposition We affirm in part, reverse in part, and rema nd for further proceedings consistent with this opinion.