[00:00:01] Speaker 02:
Good morning and welcome to the Ninth Circuit.

[00:00:04] Speaker 02:
I'm Judge Nelson and it's a pleasure to be joined by my colleagues, Judge Fletcher and Judge Fisher.

[00:00:10] Speaker 02:
Judge Fisher is here visiting and helping us take care of our caseload all the way from the East Coast and the Third Circuit.

[00:00:18] Speaker 02:
We have three cases set for argument.

[00:00:21] Speaker 02:
I'd ask you just to watch your time, let us know if you want to reserve time for rebuttal, and then just wind up as the time's winding down.

[00:00:32] Speaker 02:
We'll go ahead and call the first case set for argument, which is Fair versus Turley, and that's case number 24-1846.

[00:00:40] Speaker 02:
We'll hear from Mr. Ford.

[00:00:51] Speaker 03:
Good morning, Your Honours.

[00:00:52] Speaker 03:
May it please the court, Corey Ford, on behalf of the Parnell Fair, I'll reserve three minutes for rebuttal.

[00:00:59] Speaker 03:
Your Honours, this is section 1983, post-arrest.

[00:01:02] Speaker 03:
denial of medical care and excessive force case where the court at the district level failed to properly apply the qualified immunity analysis at summary judgment.

[00:01:12] Speaker 03:
The overall general issue on appeal is that for both of these claims, the district court weighed the evidence, ignored material disputes of fact, and ultimately was able to conclude based on those errors that a reasonable officer would not have known that their conduct violated the Fourth Amendment rights for Mr. Fair.

[00:01:32] Speaker 03:
I'll start with the denial of medical care claim.

[00:01:34] Speaker 03:
And when you look at the district court order and the facts he relied on there, I'll start with the senior medic, which he themes a key party to the facts.

[00:01:43] Speaker 03:
It seems as though his whole order rests upon kind of this idea that the senior medic said he was fine.

[00:01:49] Speaker 03:
We're not disputing that he did say he's fine.

[00:01:52] Speaker 03:
But at the time that that happens, we need to have context of what happened, which the district court ignored.

[00:01:57] Speaker 03:
In that timeframe, the paramedic walks up

[00:02:00] Speaker 03:
Turley claims he has a broken leg to the paramedic.

[00:02:04] Speaker 03:
The paramedic says, obviously, he's fine.

[00:02:08] Speaker 03:
But what happens after?

[00:02:09] Speaker 05:
So what do we know about what the medic did before he said he's fine?

[00:02:15] Speaker 05:
Did he just look at him?

[00:02:16] Speaker 05:
Did he touch the leg?

[00:02:18] Speaker 05:
What did he do?

[00:02:19] Speaker 03:
Well, he literally just is walking up from the Sonic where he was initially at.

[00:02:25] Speaker 03:
And in a passing breath almost, it seems just says he's fine.

[00:02:29] Speaker 03:
Keep in mind, Fair has jeans on, which the court didn't look at.

[00:02:33] Speaker 03:
So it's hard to know if there's any obvious injury there.

[00:02:37] Speaker 03:
So it's literally within that time frame of him basically walking up and Turley saying those, he's claiming his leg's broken.

[00:02:44] Speaker 03:
He goes, oh, he's fine.

[00:02:46] Speaker 03:
And then what we do see after that is Turley goes after

[00:02:50] Speaker 03:
Fair keeps making complaints.

[00:02:52] Speaker 03:
Turley goes, which leg, right?

[00:02:55] Speaker 03:
Which leg, your right or your left?

[00:02:57] Speaker 03:
So when the time he says he's fine, neither of them even knew which leg was even possibly injured at that time.

[00:03:05] Speaker 03:
And then when we asked him at his deposition, Turley goes, obviously he didn't check him out.

[00:03:10] Speaker 03:
So for the district court to rely on that statement saying that Turley was basically relying on the medic saying he's fine,

[00:03:18] Speaker 03:
Turley knew he hadn't been checked out at that point.

[00:03:21] Speaker 03:
Also, Rindak wasn't even on scene yet.

[00:03:23] Speaker 03:
So for him to even rely on that statement is, you know, he obviously couldn't have.

[00:03:28] Speaker 02:
Well, but I mean, what are the officers supposed to do here?

[00:03:32] Speaker 02:
Because they, I assume you'd say they did the right thing.

[00:03:35] Speaker 02:
They called a medic.

[00:03:36] Speaker 02:
Your complaint seems to be that the medic provided negligent medical advice.

[00:03:43] Speaker 02:
but how is an officer supposed to be tasked with determining that?

[00:03:47] Speaker 02:
I mean, is he, he's supposed to say, well, I don't think you could know that by not looking at him.

[00:03:53] Speaker 02:
So he's going to tell the medical staff what they need to do.

[00:03:57] Speaker 03:
Yeah.

[00:03:57] Speaker 03:
Well, he didn't call the medical order.

[00:03:59] Speaker 03:
The medical came over on his own.

[00:04:00] Speaker 03:
So he didn't summon medical medical walked over after, after the incident.

[00:04:05] Speaker 03:
But in terms of, we're not saying that, you know, obviously I get your point on that, but at the time,

[00:04:11] Speaker 03:
when Turley is, you know, I think Tatum shows us that they need to provide prompts, necessary medical attention, right?

[00:04:20] Speaker 03:
And the issue here is there was no medical attention given to him or no medical- Well, there was a doctor there, right?

[00:04:26] Speaker 03:
Or is he a doctor or a physician's assistant?

[00:04:29] Speaker 03:
He's a senior medic, so I think he had a little more training than a normal paramedic would.

[00:04:34] Speaker 02:
Yeah.

[00:04:35] Speaker 02:
So he's there.

[00:04:37] Speaker 02:
So they did provide prompt medical care.

[00:04:40] Speaker 02:
Again, your claim seems to be that the medical care was negligent.

[00:04:43] Speaker 02:
And that may be, but that's not the issue before us.

[00:04:46] Speaker 02:
The question before us is, were the officers justified in relying on that medical advice that they received?

[00:04:55] Speaker 02:
Well, I don't think they received any medical advice.

[00:04:58] Speaker 02:
A doctor said he's fine.

[00:05:00] Speaker 03:
Yeah, but at that point, he didn't even know which leg he was.

[00:05:04] Speaker 03:
And, you know, I get your point.

[00:05:07] Speaker 02:
You know, I think it's also for looking at... Do you have any case, I mean, of course, as you know, there's two issues here.

[00:05:13] Speaker 02:
One is whether there was a violation of the Fourth Amendment.

[00:05:18] Speaker 02:
Two prongs to qualified immunity.

[00:05:19] Speaker 02:
One was whether there's a violation or clearly established.

[00:05:22] Speaker 02:
Is there any case, what's your best case that it's clearly established that an officer would violate the Fourth Amendment by

[00:05:33] Speaker 02:
relying on incomplete medical advice.

[00:05:39] Speaker 03:
I don't know if there's a case directly on all fours of those, but I think... Even if it's not on all fours, how close can you get us to this?

[00:05:47] Speaker 02:
If I'm an officer, I'm thinking the doctor said he's fine.

[00:05:51] Speaker 02:
Admittedly,

[00:05:54] Speaker 02:
We got a problem.

[00:05:54] Speaker 02:
The officers probably didn't act completely appropriately after that.

[00:05:59] Speaker 02:
They weren't exactly nice, but they had medical advice.

[00:06:05] Speaker 03:
So what do you do in that situation?

[00:06:07] Speaker 03:
Well, I think in terms of the case, I think you rely on Tatum because it's plain.

[00:06:12] Speaker 03:
But I think when you're looking at the facts too, Turley here is the only one who hears these fine.

[00:06:17] Speaker 03:
And then when Riddick shows up later, obviously he didn't hear that comment.

[00:06:20] Speaker 03:
And he asked Turley, he asked

[00:06:23] Speaker 03:
is medical coming over to check him out.

[00:06:25] Speaker 03:
Curly says, I don't know.

[00:06:27] Speaker 03:
And then Rindeck proceeds to call medical and cancel it within like the roughly two minutes later on.

[00:06:34] Speaker 05:
So Austin has more than one interaction with your client.

[00:06:39] Speaker 05:
Isn't that right?

[00:06:40] Speaker 05:
I mean, he's there's a little bit of a back and forth.

[00:06:43] Speaker 05:
It's not just that one.

[00:06:44] Speaker 05:
He's fine.

[00:06:45] Speaker 05:
He has some opportunity to observe him.

[00:06:47] Speaker 05:
Is that right?

[00:06:48] Speaker 03:
Yeah, well, I think I think he comes back to the scene, but the language is that when he's asked, he goes, we're going to go get the keys.

[00:06:54] Speaker 03:
Do you need us?

[00:06:55] Speaker 03:
Turley after he says he's fine.

[00:06:57] Speaker 03:
Turley goes, no.

[00:06:59] Speaker 03:
And then what we see is we don't see any type of medical evaluation.

[00:07:03] Speaker 03:
We look at the pre hospital report.

[00:07:04] Speaker 03:
He's responding to the sonic issue.

[00:07:07] Speaker 03:
and then there's a cancel of medical care or emergency medical by the officers.

[00:07:13] Speaker 04:
In your opinion, does the video show any visible sign of deformity of the leg?

[00:07:22] Speaker 03:
I don't think you could because he has jeans on but I think when you see the screening report when he gets to the hospital there's an obvious deformity and a right hematoma issue on his calf.

[00:07:33] Speaker 03:
So I mean obviously if anyone at the scene including the paramedic or the officers would have just lifted up the leg they could have likely I'm assuming that that would have been there.

[00:07:41] Speaker 04:
Well isn't that a condition that's

[00:07:43] Speaker 04:
Very difficult for an on, you know, officer who's untrained and as a medic to be able to detect any quicker than what they did by taking him into the station and then get them to the hospital.

[00:07:59] Speaker 03:
Right.

[00:08:00] Speaker 03:
I think it's hard to diagnose that that would be an obvious visible injury.

[00:08:03] Speaker 04:
So what did they do wrong?

[00:08:04] Speaker 03:
But if you look at Tatum also, they rely on Phillips too, where there was an internal serious medical issue, right, where the officers summoned the paramedics twice in assessing the objective reasonableness.

[00:08:17] Speaker 03:
So I think, you know, their mistake that, you know, the paramedic checked them out, if he even did, was I think it's unreasonable to even assume that as well.

[00:08:28] Speaker 04:
What part is unreasonable?

[00:08:31] Speaker 03:
Their belief that that fair was fine.

[00:08:33] Speaker 03:
I don't think their testimony even reflects that they thought the paramedic checked him out.

[00:08:37] Speaker 03:
So I think what you see is some language that they actually denied him denied him the care to have the paramedic come.

[00:08:45] Speaker 03:
I think it's a disputed fact, right?

[00:08:47] Speaker 03:
You could see you could see it one way, you could see it the other way.

[00:08:49] Speaker 03:
And I think that's the issue we're having here is, you know, is it you know, is that a question of fact that needs to go to the jury?

[00:08:58] Speaker 05:
As I sort of distill your position, it seems to me that what you're saying is that the officer should have said to Alstad, the medic, do your damn job.

[00:09:10] Speaker 05:
Isn't that really what's going on here?

[00:09:12] Speaker 05:
That they saw that he didn't do much of a checking him out, and they said they're not themselves the expert, but they could have seen that the expert didn't check him out.

[00:09:21] Speaker 05:
Correct, and I think they're... So you're saying that what they should have done is to tell Alstad to do his job?

[00:09:26] Speaker 03:
Correct.

[00:09:27] Speaker 03:
And I think their training and policies reflect that.

[00:09:29] Speaker 03:
They're supposed to see that Sergeant Walford, their sergeant who comes to the scene later and we took his deposition, he says that they're supposed to actually see and check, have the paramedic check them out.

[00:09:39] Speaker 03:
They even have the ability to, if they don't think he did a fair enough job on the medical evaluation, to have it reevaluated.

[00:09:45] Speaker 03:
So I think that goes, obviously it's not to the binding precedent, but it goes to the reason why.

[00:09:50] Speaker 02:
Well, and I guess that brings me back to my initial question.

[00:09:55] Speaker 02:
Is there clearly established law that says it's a violation of the Fourth Amendment to rely on faulty medical advice?

[00:10:06] Speaker 02:
Because it sounds like you do have, where I see a dispute of fact is whether the medical advice

[00:10:12] Speaker 02:
was faulty or not.

[00:10:14] Speaker 02:
I mean, I think you have a pretty decent case that there was some negligent medical advice given, but is there, is it clearly established that the officers couldn't rely on that or that they had to, as Judge Fletcher said, tell the doctor, I don't think you did a good enough job.

[00:10:33] Speaker 02:
You need to do more.

[00:10:34] Speaker 03:
I think there's clearly established law in the sense.

[00:10:36] Speaker 03:
What is that though?

[00:10:37] Speaker 03:
I think it's that they need to seek the necessary medical attention.

[00:10:41] Speaker 03:
And that's what didn't happen.

[00:10:44] Speaker 02:
But do any of those cases say, I mean, those are cases where no medical attention was sought.

[00:10:50] Speaker 02:
Do we have cases where medical attention was sought and it turns out not to be enough?

[00:10:57] Speaker 03:
I don't know if we've gotten that far.

[00:10:59] Speaker 03:
And I'll just touch on kind of our, we have a similar argument in the excessive force, obviously a different kind of fact pattern.

[00:11:08] Speaker 03:
Uh, the same thing applies there.

[00:11:10] Speaker 03:
It looks like the district court, you know, viewed when you do the facts in favor, it's not a simple situation where the officers came.

[00:11:17] Speaker 03:
They believe, you know, the paramedic was checked out and then they basically ultimately made him walk a couple of feet to get him to the jail.

[00:11:27] Speaker 03:
Is your excessive force claim against rindak still alive?

[00:11:30] Speaker 03:
No, it's at this point we're just solely conceding that issue and it's against early.

[00:11:35] Speaker 03:
Um, but

[00:11:36] Speaker 03:
Charlie was the main officer was on the scene and with their throughout the duration.

[00:11:40] Speaker 03:
Obviously there was repeated complaints of of the broken leg.

[00:11:45] Speaker 03:
what we don't have on body cameras is how we got over to the stomach.

[00:11:49] Speaker 02:
Will you say broken leg?

[00:11:50] Speaker 02:
It wasn't actually broken, was it?

[00:11:52] Speaker 02:
I mean, I'm not trying to minimize the injury, but I'm just saying it wasn't actually broken.

[00:11:57] Speaker 03:
It was essentially a dislocated knee.

[00:11:59] Speaker 03:
Yeah, yeah, and required amputation ultimately at the end.

[00:12:04] Speaker 05:
This is a horrible case, but it sure looks to me as though the

[00:12:08] Speaker 05:
the sort of the core of the problem is that the doctors did not treat this properly.

[00:12:15] Speaker 05:
I mean, he ends up at the hospital at, I think, 5.30 in the morning.

[00:12:19] Speaker 05:
The events take place somewhere around 3 in the morning, 2.45 to 3.15.

[00:12:24] Speaker 05:
I mean, he's to the hospital pretty fast.

[00:12:28] Speaker 03:
Yeah, I think what happened is the delay at the scene.

[00:12:31] Speaker 03:
And we see Turley, he doesn't even take him

[00:12:35] Speaker 03:
you know, the district court says that he took him right to, you know, doesn't make any differential that he took him to the jail to you and see, you know, he took him to the jail, drove him back to Sonic, drove him all the way back to the jail before the medical staff made it clear that he needs to go directly to the hospital.

[00:12:52] Speaker 05:
That's very clear that he does not take him directly to the hospital.

[00:12:56] Speaker 03:
Yeah.

[00:12:57] Speaker 03:
So it's that ongoing delay in our position in terms of, you know, whether there was some negligence on the hospital part is that

[00:13:03] Speaker 03:
You know, the delay caused the severe compartment syndrome, which made it harder to diagnose at the hospital.

[00:13:10] Speaker 02:
But the problem here, it seems, is the rarity of this.

[00:13:13] Speaker 02:
I mean, this is not an issue where you have a bone sticking out or someone who's bleeding that you know you have to get to the hospital.

[00:13:23] Speaker 02:
Yes, in hindsight, it would have been better for them to go.

[00:13:26] Speaker 02:
But again, I almost think it comes back to the same issue because they're relying on the doctor who said, this is fine.

[00:13:33] Speaker 02:
Faulty advice, sounds like, but they didn't have a reason to believe that there'd be some random problem.

[00:13:41] Speaker 02:
I mean, even if it had just been a normal dislocation or even just a break, it wouldn't have been this bad.

[00:13:46] Speaker 02:
It was sort of the randomness of what happened that they couldn't have foreseen.

[00:13:51] Speaker 02:
And the standard procedure is not to take them directly to the hospital, but to take them to get checked out in the first instance at the jail, which they did.

[00:14:01] Speaker 03:
Right.

[00:14:01] Speaker 03:
And I'll save some time for rebuttal and just to close on that.

[00:14:05] Speaker 03:
Just, you know, when you see that screening report, they do note an obvious injury.

[00:14:11] Speaker 03:
So, you know, our inference is that that should have been an obvious injury on the scene.

[00:14:15] Speaker 03:
And obviously, we didn't have the luxury of him being in shorts that day.

[00:14:19] Speaker 03:
He was in jeans.

[00:14:19] Speaker 03:
So, I mean, you know, is it reasonable to lift up someone's leg and see if they're faking injuries, see if they're injured?

[00:14:26] Speaker 03:
You know, our answer is that, you know, that's that's a reasonable thing to do from the officer standpoint, especially with their training and policy.

[00:14:34] Speaker 03:
So, okay.

[00:14:34] Speaker 03:
Include on that.

[00:14:35] Speaker 03:
Thank you, your honor.

[00:14:35] Speaker 03:
Thank you.

[00:14:46] Speaker 01:
No worries.

[00:14:50] Speaker 00:
Good morning.

[00:14:50] Speaker 00:
I'm Lisa Anderson, and I'm here on behalf of Officer Turley and Officer Rindak of the Las Vegas Metropolitan Police Department.

[00:14:59] Speaker 00:
We know from cases of this court like Tatum that the critical inquiry is not whether the officers did everything that they could have done, but whether they did what the Constitution requires.

[00:15:12] Speaker 00:
Here, they promptly summoned medical assistance, and the Constitution did not require more.

[00:15:18] Speaker 00:
That's a direct quote from Tatum.

[00:15:20] Speaker 00:
In this particular case, we know that Mr. Fair was seen on three separate occasions each time after the medics were summoned by the Las Vegas Metropolitan Police Department.

[00:15:34] Speaker 00:
The first time was within three minutes of Mr. Fair's leg injury.

[00:15:39] Speaker 00:
And again, although counsel wants to quarrel with the issue of

[00:15:45] Speaker 00:
whether the police at that time had asked the paramedic to come over.

[00:15:50] Speaker 00:
The reality of the situation is that the paramedic was at the scene because he had been dispatched by the Las Vegas Metropolitan Police Department through their dispatcher to attend to Mr. Fair.

[00:16:04] Speaker 04:
Are these paramedics also employed by the police department?

[00:16:09] Speaker 00:
No, they are not.

[00:16:10] Speaker 00:
It's a separate entity.

[00:16:12] Speaker 00:
that the police department does not own direct control or is not an agent of the police department.

[00:16:19] Speaker 00:
So it's not as if the paramedic was simply at the Sonic having breakfast or was a bystander that just happened to meander by who had no obligation or duty whatsoever to attend to Mr. Fair.

[00:16:33] Speaker 00:
That was the very reason that he was there in the first instance.

[00:16:37] Speaker 05:
Were the paramedics called

[00:16:39] Speaker 05:
after a fair was tackled or were they called because he was sleeping in the car?

[00:16:45] Speaker 00:
The first time they were called because he was sleeping in the car.

[00:16:49] Speaker 00:
We know that later that officer Turley, after the medic had left to walk back across the street, had asked officer Turley whether the medic was going to come back and officer Turley or whether he was going to look at him.

[00:17:05] Speaker 00:
And officer Turley said, no, I don't know.

[00:17:08] Speaker 00:
And so at that point, Officer Rindak made the decision to radio for medical.

[00:17:15] Speaker 00:
And within approximately three minutes, we know from the radio that medical was canceled.

[00:17:21] Speaker 00:
But importantly, at that time- Go back a step.

[00:17:24] Speaker 00:
Yes.

[00:17:25] Speaker 04:
The medics woke him up in the sonic drive-through.

[00:17:28] Speaker 00:
That's right.

[00:17:29] Speaker 04:
And then he took off walking somewhere.

[00:17:33] Speaker 04:
Turley arrives.

[00:17:34] Speaker 04:
Turley starts chasing him because the medic said something about him.

[00:17:37] Speaker 04:
OK.

[00:17:39] Speaker 04:
And then he gets tackled, right?

[00:17:41] Speaker 00:
Yes.

[00:17:42] Speaker 04:
And then that medic, that senior medic who found them at the drive-through, that's when the senior medic went over and said he was fine.

[00:17:49] Speaker 04:
Was it not?

[00:17:50] Speaker 00:
Yes, Your Honor, that is correct.

[00:17:52] Speaker 04:
So that's really the second interaction with fear.

[00:17:57] Speaker 00:
Yes, the senior medic saw him at the Sonic, then saw him a second time after he had within three minutes of the tackle into the grass across the street from the Sonic.

[00:18:08] Speaker 00:
And then that medic returned and saw him a third time after medical was requested over the radio at the Sonic.

[00:18:19] Speaker 00:
And we see that on body worn camera footage that he has in fact returned back

[00:18:24] Speaker 00:
and that he is there standing there near Mr. Fair after the time that medical was canceled and the radio reflects that medical was canceled because that unit, the unit that the senior medic was part of, had checked Mr. Fair out.

[00:18:43] Speaker 00:
That was reported on the radio.

[00:18:45] Speaker 00:
It's also reflected in the dispatch notes that the court has as well.

[00:18:51] Speaker 04:
Who canceled it?

[00:18:52] Speaker 04:
Pardon me?

[00:18:53] Speaker 04:
Who canceled it?

[00:18:54] Speaker 00:
Officer Rindak canceled it because he was present when the senior medic returned to the scene and checked Mr. Fair out.

[00:19:05] Speaker 00:
We know that the senior medic was on scene.

[00:19:08] Speaker 04:
The third time or the second time?

[00:19:10] Speaker 00:
By your measure, the third time.

[00:19:12] Speaker 04:
OK.

[00:19:13] Speaker 00:
Yes.

[00:19:14] Speaker 05:
What do we do with the argument that

[00:19:17] Speaker 05:
I'm now stating it as strongly as I can in favor of Mr. Fair, the argument that the officers should have seen that Medik Alstad didn't check him out at all.

[00:19:32] Speaker 05:
Did they have any obligation to say, hey, wait a minute, you didn't do your job?

[00:19:36] Speaker 00:
No, Your Honor.

[00:19:37] Speaker 00:
Under clearly established law, as we know it now, they did not.

[00:19:42] Speaker 00:
We've cited to you cases.

[00:19:43] Speaker 05:
Okay, let me give you a different, more extreme example, and I recognize these are not the facts.

[00:19:50] Speaker 05:
We got a medic, they call him over the phone and the medic says, listen, I'm not coming out.

[00:19:54] Speaker 05:
I've seen these things before.

[00:19:56] Speaker 05:
I don't even need to check him out.

[00:19:57] Speaker 05:
He's just fine.

[00:19:59] Speaker 05:
Can the officer rely on that?

[00:20:01] Speaker 00:
I think that it would be unreasonable in that particular scenario.

[00:20:06] Speaker 05:
So you're saying that at some point the officers have a responsibility to tell the medic to do his job properly?

[00:20:12] Speaker 00:
I think that the officers have to be able to, utilizing what a layperson would know about a situation, to make a reasonable decision under the circumstances that they are confronted with.

[00:20:27] Speaker 00:
to determine whether they can reasonably rely upon the information that they're being provided now here in this particular scenario we don't have

[00:20:38] Speaker 00:
the type of scenario where, like in the Braunstein, there was a substantial and obvious risk of serious harm to Mr. Fair if he did not receive immediate emergency attention.

[00:20:52] Speaker 00:
The officers always knew that Mr. Fair would be transported to the Clark County Detention Center.

[00:20:58] Speaker 00:
They know that there's a full medical staff there, including EMTs, that would see and evaluate Mr. Fair before he even was admitted

[00:21:07] Speaker 00:
to the Clark County Detention Center.

[00:21:10] Speaker 00:
And that particular circumstance coupled with the fact that we have a paramedic that's saying initially that he's fine remaining on the scene for, first of all, he was there for over 25 and a half minutes.

[00:21:25] Speaker 00:
But in a large part of that, he was standing very close to Mr. Fair in a situation where he could observe him, where he could listen to him, where he heard the complaints of pain.

[00:21:37] Speaker 02:
But he never lifted up the pant leg.

[00:21:39] Speaker 02:
I mean, that seems to be the issue here, because it sounds like, we don't know, but if he had lifted up the pant leg, he might have seen that this was more egregious.

[00:21:49] Speaker 00:
Well, first of all, Your Honor, he did lift up the pant leg.

[00:21:53] Speaker 00:
We know that because Officer Turley testified to that in his deposition.

[00:21:58] Speaker 00:
Sergeant Walford also testified.

[00:22:01] Speaker 02:
And was there any opposing testimony to that?

[00:22:04] Speaker 02:
Did the plaintiff in this case testify that that didn't happen?

[00:22:08] Speaker 00:
The plaintiff in this case testified first that it didn't happen.

[00:22:12] Speaker 00:
Then when he was asked clarifying questions in his deposition, he couldn't remember.

[00:22:17] Speaker 00:
And when pressed on the issue of why he believed that that had not occurred, the only response that he could give was that it couldn't have happened because if he had been evaluated, he would have went to the hospital.

[00:22:34] Speaker 00:
I don't believe that that is the type of justifiable inference that would override all of the objective facts that we know about this particular scenario that occurred at the time.

[00:22:46] Speaker 02:
So earlier you made the case that there's no clearly established law and that may be correct.

[00:22:53] Speaker 02:
But as to the constitutional violation, are there facts that could go to a constitutional violation here or you say no?

[00:23:01] Speaker 02:
because it was objectively reasonable for the officers to rely on the medical advice in this thing.

[00:23:07] Speaker 00:
I believe that there was no constitutional violation because again, turning back to the language in Tatum, they did in fact promptly summon medical care.

[00:23:18] Speaker 00:
Whether we define prompt as the initial three minutes, he's fine.

[00:23:25] Speaker 00:
Whether we define it as the second or the third time when the paramedic was there and after he had been there for

[00:23:35] Speaker 00:
well over six minutes standing there, observing Mr. Fair, listening to his complaints.

[00:23:41] Speaker 00:
And let's not forget that the paramedic testified in his deposition that this would not require any type of a substantial medical evaluation.

[00:23:50] Speaker 00:
that it would largely be visual, that he wouldn't even necessarily need to go up under the pant leg to look because there was no sign of a bone that a lot of times he could see whether a bone was protruding even through the pain.

[00:24:07] Speaker 02:
I'm not a doctor, but it seems like if you want to find out if there's a broken leg, you look at the leg.

[00:24:13] Speaker 00:
I don't disagree with you, but again, then we're second guessing what a paramedic is testifying to under oath.

[00:24:20] Speaker 00:
And our cases, whether we look at the Seventh Circuit case that we cited in our brief, or the Ninth Circuit's decision in LaMire, which was a Fourteenth Amendment case, it is... Can I ask just quickly?

[00:24:32] Speaker 02:
Sure.

[00:24:33] Speaker 02:
Are these Fourth Amendment claims or Eighth Amendment claims?

[00:24:37] Speaker 00:
they are that they were played under a fourth amendment okay yes and it's not eighth amendment because at that time he had not been convicted yes i think that the court has looked at this in the context of the fourteenth amendment as well which is where we get to that notion of

[00:24:54] Speaker 00:
What was really necessary at the time anyway?

[00:24:56] Speaker 00:
And what does prompt mean?

[00:24:58] Speaker 00:
Because again, we don't have any objective evidence of a serious medical need that required immediate emergency attention that could result in serious harm to Mr. Fair.

[00:25:12] Speaker 00:
He had a leg injury.

[00:25:13] Speaker 00:
Ms.

[00:25:14] Speaker 04:
Anderson, let me ask you this.

[00:25:15] Speaker 04:
After the senior medic gave his opinion that he was fine,

[00:25:22] Speaker 04:
Doesn't the video depict the leg protruding in an irregular fashion that might alert the officer that maybe the medic's opinion wasn't accurate?

[00:25:37] Speaker 00:
I know that the council for the appellant is making that argument, but again, we're looking at that with the benefit of hindsight first and we're looking at that knowing that we're looking at it with the benefit of the video.

[00:25:52] Speaker 00:
Yes, absolutely.

[00:25:53] Speaker 04:
Which under Scott versus Harris, there's a standard under which we look at that evidence.

[00:25:58] Speaker 00:
understood, but at the same time, it has to be looked at within the context of the situation.

[00:26:04] Speaker 00:
The officer testified that he did not see that at the time.

[00:26:08] Speaker 02:
And how do we evaluate that?

[00:26:10] Speaker 02:
Because I mean, our case law says if the video contradicts testimony, we rely on the video.

[00:26:18] Speaker 02:
I mean, let's say we went back and watched the video, and you can see Turley looking at it, pointing at it.

[00:26:27] Speaker 02:
saying something to his fellow officer about, whoa, did you see that?

[00:26:32] Speaker 02:
Would that be a different case?

[00:26:34] Speaker 02:
Because we'd look at that and say, wait, he should have been on notice at that point that there was something different here.

[00:26:41] Speaker 00:
I don't believe so again, Your Honor, because it gets back to that same notion, which is that we have a very qualified medical professional there who says that he's fine, does not change that opinion the entire time that he's on the scene, despite being there and having the opportunity to observe Mr. Fair.

[00:27:01] Speaker 02:
And the officer would, or excuse me, the medical, the senior medic was there at the time that the leg appeared twisted.

[00:27:12] Speaker 00:
I do not recall, Your Honor, but Officer Turley very definitively testified in his deposition that he did not see anything like that.

[00:27:22] Speaker 00:
I personally did not see anything like that until I knew to look for it because of the arguments that were being made to the court.

[00:27:32] Speaker 00:
So when we're looking at something with the benefit of hindsight, which in these cases we shouldn't do,

[00:27:37] Speaker 00:
and we know what we're looking for or we slow down the video to look for it, that's a completely different situation than when we have a dynamic situation on the scene where the officer is dealing with a number of things including a foot pursuit, a person who's claiming injury,

[00:27:57] Speaker 00:
You know, being alone in the middle of the night across the street with an arrestee, needing to cancel a code red, needing to get other units over there and to do his investigation into the issues that surround the arrest.

[00:28:11] Speaker 00:
And so again, I think we have to go back to the notion, which is that, you know, like the district court stated, the key party in the facts of this case is the senior medic.

[00:28:22] Speaker 00:
We have a trained medical professional there.

[00:28:24] Speaker 00:
That medical professional remained there for an extended period of time.

[00:28:29] Speaker 00:
He had the ability and the duty to take Mr. Fair in the ambulance that he had there if he believed that he was in need of immediate emergency medical attention.

[00:28:41] Speaker 00:
And the fact of the matter is that unless the senior medic had been a vascular surgeon or the officers had been vascular surgeons, no one could have known or anticipated that this very simple leg injury... Well, that's a little bit overstated because he didn't see a vascular surgeon at the...Fair did not see a vascular surgeon when he went to the correctional facility and yet they identified it as a problem.

[00:29:07] Speaker 02:
I mean, I get your point, but I mean, I think we just need to be careful about what standard we're setting here.

[00:29:14] Speaker 00:
I mean, by the standard, and Your Honor, what I meant by that, just to be clear, was not that he didn't need any medical attention, but that there wasn't a necessity for immediate, you know, emergency medical attention.

[00:29:28] Speaker 02:
My point is a basic doctor at the correctional facility understood he needed it as soon as they looked at it.

[00:29:34] Speaker 02:
That's kind of the conundrum.

[00:29:36] Speaker 02:
There's this sense that if the senior medic had actually looked at it, and you say he did, but if he'd actually looked at it, he might have seen that.

[00:29:42] Speaker 02:
I guess we don't know that.

[00:29:43] Speaker 02:
But to a certain degree, that doesn't matter because the senior medic is not a defendant here.

[00:29:48] Speaker 02:
We're only dealing with the officers.

[00:29:49] Speaker 00:
Yes, Your Honor.

[00:29:50] Speaker 00:
And that raises another important point that goes to some of the comments that the court has made because this case was largely brought initially as a medical malpractice case.

[00:30:00] Speaker 00:
And the plaintiff's own medical expert identified, among other things, that had there been a medical professional at the scene, that that medical professional's actions were negligent as well.

[00:30:15] Speaker 00:
And with that, Your Honor, we believe that there was no Fourth Amendment violation and that if there were, that there was no clearly established law that would take this case outside of qualified immunity.

[00:30:25] Speaker 00:
Thank you.

[00:30:32] Speaker 03:
Thank you, Your Honours.

[00:30:33] Speaker 03:
Just to touch on a few points, I think largely those facts are the way Metro views them.

[00:30:38] Speaker 03:
When you do them in favour of FAIR, I don't think those are actually the facts you would lie on.

[00:30:43] Speaker 03:
When you look at the paramedic, he was asked at his deposition, he was shown his pre-hospital care report.

[00:30:49] Speaker 03:
There was nothing on that pre-hospital care report that would show he did any type of evaluation.

[00:30:54] Speaker 03:
And we asked him, is that generally your practice when you evaluate some to put something in that report?

[00:31:00] Speaker 03:
He said, yes.

[00:31:01] Speaker 03:
And then when we asked him, did you perform any medical evaluation at the scene?

[00:31:04] Speaker 03:
He didn't remember what he was doing that day.

[00:31:06] Speaker 03:
The district court says he made, he was obvious deformities at the scene.

[00:31:11] Speaker 03:
That was an assumption he made based off watching the video in hindsight.

[00:31:15] Speaker 03:
Um, so we, we don't have, and the video, we have the luxury of the video here, right?

[00:31:19] Speaker 03:
So there's no indication that he, he did any type of physical inspection of his leg.

[00:31:25] Speaker 03:
There's no indication that the pant leg was ever lifted up by anyone at the scene.

[00:31:29] Speaker 03:
We have the video, it's all on there.

[00:31:31] Speaker 03:
in the timeframe from when a RINDEC calls medical and cancels it, the body camera footage is off.

[00:31:40] Speaker 03:
And pursuant to training, they're supposed to have their body camera footage on when there is a medical check.

[00:31:46] Speaker 03:
So we don't have any confirmation from either of the operatives.

[00:31:48] Speaker 03:
There's a firm confirmation.

[00:31:50] Speaker 03:
Their admissions say that there wasn't a medical evaluation on the scene.

[00:31:53] Speaker 03:
So there wasn't actually necessary medical attention given to Mr. Fair at the scene.

[00:32:00] Speaker 02:
Okay, thank you.

[00:32:01] Speaker 02:
Thank you to both counsel for your arguments in the case.

[00:32:03] Speaker 02:
The case is now submitted and