[00:00:01] Speaker 00:
Regardless of the outcome of this case on behalf of the court, I would like to express our sincerest sympathy to the family of the deceased.

[00:00:12] Speaker 04:
I would like to do so as well.

[00:00:15] Speaker 04:
May it please the court, I'm representing Nurse Turner.

[00:00:18] Speaker 04:
I would like to reserve three minutes for rebuttal.

[00:00:21] Speaker 04:
I am Daniel Berrer.

[00:00:22] Speaker 04:
This case turns on the question of whether, in September 2018,

[00:00:30] Speaker 04:
The law clearly established that when a jail nurse gives a pretrial detainee an exit medical screening, or here a discharge mental screening, the nurse has a constitutional duty under the 14th Amendment Due Process Clause, not just the nurse's general duty of care as a medical practitioner, but under the Constitution to give

[00:01:00] Speaker 04:
an adequate examination and not be deliberately indifferent?

[00:01:05] Speaker 04:
And the answer has to be no on both prongs of qualified immunity.

[00:01:12] Speaker 04:
On the first prong of qualified immunity, it's established that if there's a mental examination for somebody going into jail, a mental examination while they're in jail, it has to be constitutionally adequate under the 14th Amendment.

[00:01:29] Speaker 04:
The reason why, according to Estelle versus Gamble, is that the prisoner is utterly dependent on the jailer for all necessities of life, including medical examination.

[00:01:41] Speaker 04:
They can't drive to the doctor's office to get a second opinion.

[00:01:46] Speaker 04:
The state, however, does not have a duty to give general mental or medical help to the general public.

[00:01:55] Speaker 04:
and has no duty to protect a person from harming himself, except under the exceptions of a state created danger, which the district court found did not apply here, or a special relationship.

[00:02:10] Speaker 04:
There is a special relationship with the prisoner for the reasons I gave.

[00:02:16] Speaker 04:
Once Mr. Gilbert was released, he was in the same situation that he was when he was arrested.

[00:02:23] Speaker 02:
Right, but when the nurse was examining him, he still was in custody, right?

[00:02:28] Speaker 04:
Yes.

[00:02:30] Speaker 02:
I mean, is your position she owed him no duties in that examination?

[00:02:37] Speaker 04:
She owed him the duties of care that a medical professional owns somebody that they're examining.

[00:02:43] Speaker 00:
The special relationship still existed at that point, correct?

[00:02:48] Speaker 00:
The special relationship existed if he was going to be... At the point when she did the examination, he was still in custody, so the special relationship still existed.

[00:02:59] Speaker 04:
Well, that's the question.

[00:03:01] Speaker 04:
Whether the special relationship exists when the person is outgoing

[00:03:07] Speaker 04:
and the examination is to screen them before they leave.

[00:03:14] Speaker 02:
What if a nurse is examining someone who's having a terrible medical episode right in front of her and she's in the process of trying to process this person to exit?

[00:03:25] Speaker 02:
Surely we would say the nurse can't just push somebody out the front door of the jail who's having a heart attack or a stroke, right?

[00:03:32] Speaker 04:
that may violate their standard of care as medical practitioners.

[00:03:36] Speaker 04:
But the question is, does it violate the 14th Amendment?

[00:03:39] Speaker 04:
And there is no binding authority from this court

[00:03:44] Speaker 04:
or the US Supreme Court that says so.

[00:03:47] Speaker 02:
How do you say that when the person is in custody at the time?

[00:03:50] Speaker 02:
They're still within the custody of the jail.

[00:03:54] Speaker 02:
In fact, in this case, it seemed that part of the question, he wasn't being processed for release, he was being examined for release to determine whether he should remain under

[00:04:05] Speaker 02:
a state hold for further time.

[00:04:07] Speaker 04:
It was to determine whether he should be referred for 5150 medical hold, which the nurse determined he was not.

[00:04:18] Speaker 04:
And so the question is whether when the further detention to be contemplated would be a civil one,

[00:04:28] Speaker 04:
72 hour hold, but not being in jail, whether the law clearly established there was a 14th Amendment duty to do more than this court said had to be done in Wakefield versus Thompson.

[00:04:41] Speaker 04:
And there is no case law or no Supreme Court or Ninth Circuit case law that says so.

[00:04:47] Speaker 04:
In fact,

[00:04:49] Speaker 04:
In the 25 years since Wakefield was decided, this court has revisited it only in the Chenault case in 2015, which was before the events here, where it said that there was no duty to maintain a prisoner's trust account, so they had enough assets to take care of his medical condition after he was released.

[00:05:11] Speaker 04:
Plus...

[00:05:13] Speaker 02:
I think we're treating this as a single type claim.

[00:05:17] Speaker 02:
There seems to be a few things that are baked into it.

[00:05:19] Speaker 02:
There's some sense that we need to help this person maybe have finances or get a bus or have some other things in the future.

[00:05:29] Speaker 02:
That may be one thing.

[00:05:32] Speaker 02:
But to say that there was no duty in the moment if somebody's having an acute medical episode in the jail while they're in custody seems to be quite a different one.

[00:05:44] Speaker 04:
Well, the question was not whether to get him medical help while he was in custody, except perhaps to hold about a 51-50 hold.

[00:05:52] Speaker 04:
If it was just to give him medical assistance, then they would have to hold him criminally after he was due for release, and we would probably be here for another reason, which is over detention.

[00:06:04] Speaker 04:
The only, he was being screened for discharge and therefore he was in a fundamentally different situation.

[00:06:11] Speaker 02:
Your position, I guess, on the heart attack hypothetical is if somebody in that situation is having a heart attack, there's no duty at that point by the nurse?

[00:06:21] Speaker 04:
Once again, there is the duty that a medical professional owes a standard of care under, which would be actionable under state law.

[00:06:29] Speaker 04:
But the question is whether they owed it the constitutional duty that a jailer or a nurse at the jail owes to somebody who's going into custody or somebody who is already in custody.

[00:06:40] Speaker 00:
But the person's in custody until they're actually released, that's the difficulty I'm having with your argument is,

[00:06:48] Speaker 00:
I think you're saying that once they're being evaluated for release, they're no longer in custody?

[00:06:54] Speaker 04:
They are.

[00:06:54] Speaker 04:
He is still in custody.

[00:06:56] Speaker 00:
So that triggers the special relationship upon which the constitutional obligation hinges.

[00:07:03] Speaker 04:
that we have to go to what medical care is being given.

[00:07:08] Speaker 04:
Here is a mental health screening to determine whether he should be civilly detained, not a screening determining whether to give him medical care while he is in jail.

[00:07:20] Speaker 03:
Suppose in this fact, suppose

[00:07:23] Speaker 03:
during that that when the nurse Turner was examining him he said I think I might kill myself but the nurse says well my medical judgment he was just bluffing so he's released would would qualify immunity still apply qualified well we're still on the hopefully we're still in the first prong of qualified immunity I would say that that is

[00:07:47] Speaker 04:
That might be a ground for negligence unless an immunity applied under state law, but it would not be a violation of the 14th Amendment due process clause.

[00:07:58] Speaker 00:
It wouldn't be deliberately indifferent?

[00:08:01] Speaker 04:
Even if it's deliberately indifferent, the constitutional duty not to give deliberately indifferent treatment is where the prisoner is going to be in a position where he can't get medical care for himself due to the state's imprisonment.

[00:08:17] Speaker 04:
If he left.

[00:08:20] Speaker 00:
He couldn't get independent treatment at that juncture because he was still in custody.

[00:08:25] Speaker 00:
So no one else was available to give him any type of evaluation at that point to assess whether or not he was a danger to himself or others.

[00:08:37] Speaker 04:
I would say that it's at least debatable that there may be a duty owed.

[00:08:43] Speaker 04:
There may not be a duty owed.

[00:08:45] Speaker 04:
And that moves me to the second prong.

[00:08:47] Speaker 04:
of qualified immunity, which is that it was not beyond debate that Wakefield versus Thompson established any greater duty to those being released than to make sure they had an adequate supply of medication because judges have been debating it.

[00:09:08] Speaker 04:
Judges were debating it before these events.

[00:09:12] Speaker 04:
The Cook versus State case, the Koch versus Wade case,

[00:09:17] Speaker 04:
the Paez versus community center case.

[00:09:19] Speaker 04:
These are all district court cases within this circuit in which judges held that Wakefield creates only a limited exception to the general rule that there's no duty to those released from being released from custody except the providing an adequate supply of medication or more or also if

[00:09:41] Speaker 04:
medical if treatment is prescribed be while they're in custody that the treatment be carried out, which is all Wakefield versus Thompson holds.

[00:09:51] Speaker 04:
There are other cases

[00:09:52] Speaker 03:
If I can, since you're on the second prong of qualified immunity, you know, the clearly established, I mean, there is an exception that says, even if there's no clearly established case law, that certain actions are so clearly wrong, you don't need to point to an exact case, right?

[00:10:09] Speaker 03:
Yes.

[00:10:09] Speaker 03:
So under Judge Bress's example of someone having a heart attack, wouldn't that fall under that exception?

[00:10:15] Speaker 03:
It's so clear that the nurse or medical professional would be guilty of deliberate indifference for not helping someone who's having a heart attack.

[00:10:27] Speaker 04:
Well, if they're having a heart attack while they're still in custody and they're being denied any medical care while they're still in custody, I would say yes.

[00:10:35] Speaker 04:
they're still in that situation where they can't help themselves.

[00:10:38] Speaker 03:
In this case, isn't there at least a factual issue where you have three prior nurses who say that Mr. Gilbert is suffering from some psychosis, he's a danger to himself and others, and the videotape arguably shows he's still suffering from some problems.

[00:10:54] Speaker 03:
Isn't that maybe at least a factual question here, whether qualified immunity applies or does a factual dispute?

[00:11:02] Speaker 04:
There's a factual issue as to whether she was deliberately indifferent.

[00:11:05] Speaker 04:
And the district court said a reasonable jury could find that she was deliberately indifferent.

[00:11:09] Speaker 04:
So we have to assume that for purposes of our appeal that she was deliberately indifferent.

[00:11:17] Speaker 04:
But that does not control the issue of whether she is entitled to qualified immunity because the question of whether a 14th Amendment due process duty is owed during an outgoing

[00:11:30] Speaker 04:
mental screening, which failed to prevent the plaintiff from harming himself outside of custody, is not clearly established and is not beyond debate.

[00:11:43] Speaker 02:
Because- I mean, your position effectively is that once they sat down for this interview, there was no Fourth Amendment duty.

[00:11:53] Speaker 02:
That switch sort of shut off.

[00:11:54] Speaker 02:
There were some state law duties that might apply, but there was no longer a constitutional duty at that point.

[00:11:59] Speaker 02:
That's how I understand your position.

[00:12:01] Speaker 04:
There was no longer a constitutional duty to give an adequate mental screening as part of his discharge.

[00:12:09] Speaker 04:
Yes.

[00:12:09] Speaker 04:
And that's our first prong argument.

[00:12:12] Speaker 04:
And for the second problem, we're saying that even if Wakefield versus Thompson and the other existing precedent suggests that, it is not beyond debate and is not one of those rare obvious situations where no binding authority is necessary to settle it.

[00:12:34] Speaker 02:
And that's shown by... It's a little different than a lot of the qualified immunity arguments we see.

[00:12:38] Speaker 02:
I mean, a lot of the other ones we will see will be

[00:12:40] Speaker 02:
Assume all the facts in the plaintiff's favor.

[00:12:43] Speaker 02:
Even then, my client's conduct did not violate clearly established law.

[00:12:48] Speaker 02:
You haven't taken that position here, perhaps because of the district court's findings.

[00:12:52] Speaker 02:
Instead, you're arguing you want to just wall off an entire time period within custody that you just are claiming is outside of the constitutional protection entirely.

[00:13:01] Speaker 04:
We're saying on the first prong, it's outside the constitutional protection.

[00:13:04] Speaker 04:
On the second prong, we're saying the law has not clearly established that it's within the constitutional protection, as shown by the various courts that have debated the extent of Wakefield and the extent to which it imposes a duty of continuing care on a detainee who is being released.

[00:13:25] Speaker 04:
Unless the court has further questions, I will reserve the rest of my time.

[00:13:29] Speaker 00:
Sorry, thank you.

[00:13:36] Speaker 01:
Good morning, Your Honors.

[00:13:38] Speaker 01:
I'm John Burton, and also representing the plaintiffs, appellees, who are Scott Gilbert's parents, are the UCI law civil rights clinic.

[00:13:54] Speaker 01:
And obviously, I agree with the sentiment of the questioning during the earlier argument.

[00:14:01] Speaker 01:
For this interlocutory appeal,

[00:14:04] Speaker 01:
the court accepts is true that Turner was informed about Gilbert's serious psychiatric needs and was deliberately indifferent to them, and that she failed to take reasonably available measures to prevent harm.

[00:14:22] Speaker 01:
The first would have been to refer him to a jail medical provider for an evaluation or medication.

[00:14:29] Speaker 01:
I think it's important to note what happened here factually.

[00:14:33] Speaker 01:
which is that when Turner was, I mean, I'm sorry, when Mr. Gilbert was brought to the jail, it was as a mental health referral from the LAPD who arrested him while he was in this horrible manic episode.

[00:14:47] Speaker 01:
You can see the video of his arrest.

[00:14:51] Speaker 01:
So they sent him on what's called a BOMER, which is a mental health referral.

[00:14:56] Speaker 01:
And the first doctor, I'm sorry, the first nurse who saw him.

[00:14:59] Speaker 02:
Where did you refer to it as?

[00:15:01] Speaker 01:
It's B-O-H-M-E-R.

[00:15:04] Speaker 01:
It's an outside agency like the LAPD or within the Sheriff's Department can refer a person when he's taken to the jail as a mental health referral, and then the jail has within it a mental health unit.

[00:15:25] Speaker 00:
The counsel for these purposes, we have to assume the facts.

[00:15:29] Speaker 00:
in the light most favorable to your client.

[00:15:31] Speaker 00:
So with that being done, to me, your more difficult argument is whether or not there was clearly established law that would put Ms.

[00:15:44] Speaker 00:
Turner on notice that what she did violated constitutional rights of the detainee.

[00:15:51] Speaker 01:
I was surprised during the earlier argument that there was a reference to both prongs because I understood the first prong of qualified immunity to be conceded and the issue to be exactly what your honor just said, which is whether there was clearly established law.

[00:16:11] Speaker 01:
Mr. Gilbert was an inmate of the Los Angeles County Jail for about two and a half days.

[00:16:18] Speaker 01:
during that entire time, he was in need of psychiatric intervention for a serious psychiatric disorder that posed a grave risk of harm to him in the form of self-harm.

[00:16:33] Speaker 00:
But the discrete issue we have here involves Nurse Turner, not what happened, what treatment he was given while he was detained over that earlier period.

[00:16:41] Speaker 00:
But we're looking here at specifically

[00:16:46] Speaker 00:
the pre-release examination of Nurse Turner and whether or not it was clearly established that how she conducted that violated his constitutional rights.

[00:16:56] Speaker 00:
So if you could focus on that, excuse me, that would be very helpful to me.

[00:17:00] Speaker 01:
I think it's clearly established by cases going back to Cabral that's in 1988.

[00:17:06] Speaker 01:
I think the case most on point is Judge Akuta's opinion in Clothier versus County of Contra Costa, which was

[00:17:16] Speaker 01:
reversed on a different ground, having to do with objective deliberate indifference rather than subjective deliberate indifference being the standard.

[00:17:25] Speaker 01:
But she said very clearly that when a mental health specialist, which is what Nurse Turner was, is confronted with a pretrial detainee, which is what

[00:17:40] Speaker 01:
that Mr. Gilbert was, who is depressive, suicidal, and that she knows there's a risk of harm if he's denied medical attention, and then there's self-harm afterwards as approximate result, that is a violation of the 14th Amendment.

[00:17:57] Speaker 01:
So that's exactly what happened here.

[00:18:00] Speaker 01:
And then if you combine that standard, which is established in

[00:18:04] Speaker 01:
perhaps a dozen circuit cases, but I think most clearly by Clothier, with Wakefield, which says when an inmate is in the process of being released, there's an obligation for the transitional period.

[00:18:22] Speaker 01:
You can't just show them the door and say, well, one solution would be to give you treatment.

[00:18:29] Speaker 01:
Another solution would be just to kick you out.

[00:18:32] Speaker 02:
that that wakefield says no that is not consistent with the eighth or the fourteenth amendment not sure what we feel really has to do with the the core argument you're making which is that in in the moment he was being examined t he was at that present time in need of treatment in the same way by the alley by the allegations you may not not unlike someone is having an acute physical episode

[00:18:57] Speaker 01:
I agree.

[00:18:59] Speaker 01:
I think that what Wakefield, what Clothier says is that Nurse Turner owed a 14th obligation, amendment obligation to deal with this unfolding psychological crisis that she was witnessing.

[00:19:17] Speaker 01:
And that's the facts as they're established for the purpose of this appeal.

[00:19:24] Speaker 01:
And what Wakefield says is,

[00:19:27] Speaker 01:
it's not an option just to show them the door you have to deal with it that uh... the the door does not instantly terminate the fourteenth amendment obligation obligation arises i think your honors are are are are right on this because he's still in custody during the during the the the exit examination there were some other parts of your claim that seemed to

[00:19:55] Speaker 02:
be a little bit um maybe it was just rhetorical but things like he was released penniless or he was released alone in a big city i those i had more difficulty with his claims because i don't really see how there's an obligation to give somebody it's really not a clearly established one to give somebody funding for example when they leave jail or to make sure they're accompanied by somebody else though i don't know whether that is part of your theory or not but that does seem to be

[00:20:21] Speaker 02:
To the extent it is, I don't see how you would have a claim there.

[00:20:24] Speaker 02:
I think your claim seemed to me, if there's one, it's when he's there in the moment being examined.

[00:20:30] Speaker 01:
Well, our core claim is that when, and if I could go back to this, Judge Wallinson, I think this is very important.

[00:20:38] Speaker 01:
When he was admitted to the IRC, the first nurse who evaluated him was a medical nurse and said, this is a severe

[00:20:48] Speaker 01:
mental health problem and referred him to mental health.

[00:20:54] Speaker 01:
The second nurse prescribed in Tylenol because he had some physical injuries because of scuffles he had gotten into with deputies when he was wearing a suicide smock.

[00:21:04] Speaker 01:
and said he cannot self-administer Tylenol because he's a risk of self-harm.

[00:21:10] Speaker 01:
Then he was sent to Nurse Hernandez, who said he needs to go into high observation housing, which is a mental health unit.

[00:21:18] Speaker 01:
And there he would be evaluated by a medical professional, a psychiatrist or a nurse practitioner.

[00:21:25] Speaker 01:
and screened and given medications.

[00:21:27] Speaker 01:
That step in the process did not happen because he went to court.

[00:21:33] Speaker 01:
And so when he was being screened as to whether or not he was safe to discharge by Nurse Turner, he had not been evaluated or treated since he was referred for evaluation and treatment.

[00:21:48] Speaker 01:
So here was the jail's

[00:21:54] Speaker 01:
let's say, last stop, you know, the error check.

[00:21:57] Speaker 01:
Okay, we want to make sure that this person is released in a safe manner.

[00:22:02] Speaker 03:
Sorry if I can interrupt.

[00:22:04] Speaker 03:
Can you address Judge Bresch's question?

[00:22:05] Speaker 03:
What exactly are you alleging that was inaction by the nurse here for the claim?

[00:22:12] Speaker 01:
Well, I think she had three things she could have done.

[00:22:14] Speaker 01:
Number one, and should have done.

[00:22:17] Speaker 01:
Number one, she should have referred him to a medical practitioner for the medical evaluation in the jail.

[00:22:25] Speaker 01:
He never got, in which case he would have been provided medications when he left, and this would not have happened.

[00:22:32] Speaker 01:
Number two, and the reason that the argument that he would be over detained is wrong,

[00:22:37] Speaker 01:
is that he was subject to a 48-hour hold for his own safety.

[00:22:43] Speaker 01:
So he could have been transferred to a psychiatric hospital as a danger to himself for evaluation and treatment.

[00:22:53] Speaker 01:
And number three, he could have been put in touch with his family.

[00:22:57] Speaker 01:
The part about him being penniless, I mean, he was alone

[00:23:03] Speaker 01:
in los angeles he was from wisconsin this this was in the chart this was in front of nurse turner and he actually left the jail i mean he had a dollar seventy nine cents on on his books he had lost it if he wasn't having acclaimed medical psychiatric episode and he was just somebody who was in the city and lost i don't think you'd be here arguing that

[00:23:26] Speaker 02:
Yeah, there was a constitutional violation in sending him out the door from the jail at that, you know, as a sane, healthy person, just who happened to have no money or no cell phone.

[00:23:37] Speaker 01:
That is absolutely 100% correct, Your Honor.

[00:23:40] Speaker 01:
That is not our claim.

[00:23:42] Speaker 01:
Our claim is that people who have severe mental illness and are in the throes of a severe mental episode

[00:23:50] Speaker 01:
cannot constitutionally be put out on the street, panelists without contact and with no plan and no access to medical attention, no access to resources.

[00:24:04] Speaker 02:
If he had been not put on the 48-hour hold, what would have then happened?

[00:24:07] Speaker 02:
I mean, what could have then happened?

[00:24:09] Speaker 01:
The district court made that finding that he would have been provided medication and that he would have responded to the medication and he would not have died.

[00:24:21] Speaker 01:
That's in the facts that are accepted as true for this.

[00:24:28] Speaker 01:
This young man had had these episodes many times before.

[00:24:34] Speaker 01:
between long periods of lucidity when he was productive and fine, and every time in his history, every time, he responded well to medications, and that the facts in the light most favorable to the plaintiff

[00:24:52] Speaker 01:
are that he would have responded to the facts this time.

[00:24:56] Speaker 01:
And there's a specific finding, I think it's in page 29 or 30 of the excerpt of record, that he would have responded this time and not killed himself.

[00:25:06] Speaker 01:
And certainly the easiest way for that to have happened would have been a 51-50 hold.

[00:25:15] Speaker 01:
And I just would like to make one final point.

[00:25:19] Speaker 01:
And that is that in evaluating qualified immunity, and obviously in my area of the law, this is a huge thing, we live and die it.

[00:25:28] Speaker 01:
And the cases really seem to fall into two categories.

[00:25:33] Speaker 01:
There are those cases, like we know Judge Bress, you recently decided Smith versus Adepa, where the officers are in very tense, quickly unfolding situations, having to make judgments.

[00:25:48] Speaker 01:
This is the opposite extreme.

[00:25:49] Speaker 01:
This is really like the Riemann versus Vasquez case of earlier this month that we put in our Rule 28J letter,

[00:25:58] Speaker 01:
Judge Lee, like your decision in the Wilcox case, where there is no pressing circumstance and the state actor has time to deliberate, and on top of having time to deliberate, the state actor is given specific policies

[00:26:19] Speaker 01:
And in this case, Turner simply had to do what she was paid by the County of Los Angeles to do, check out that he has an adequate release plan, that he's being taken care of, that he has the resources, that he has a supply of medication.

[00:26:38] Speaker 01:
And I think sometimes the culpability shows up in the lack of credibility.

[00:26:47] Speaker 01:
She wrote,

[00:26:48] Speaker 01:
in his chart when she wrote the discharge summary that he intended to maintain his medication regimen.

[00:26:58] Speaker 01:
Well, he had no medication regimen.

[00:27:00] Speaker 01:
He had no ability to obtain medications.

[00:27:04] Speaker 01:
She wrote that he was going to continue to receive general relief.

[00:27:08] Speaker 01:
He wasn't on general relief.

[00:27:10] Speaker 01:
He was a visitor in Los Angeles who had been here less than a week.

[00:27:15] Speaker 01:
She said he was gonna take public transportation to his doctor and his doctor was in Wisconsin and he had no wallet, no credit cards, no ID, nothing.

[00:27:29] Speaker 01:
And I think the really tragic thing about this case is his mother was desperately trying to get a hold of him because she understood his history, she understood his situation

[00:27:43] Speaker 01:
And she had called a social worker while he was in court, unable to reach him.

[00:27:50] Speaker 01:
And her telephone number was right there in the chart when Nurse Turner was doing this discharge interview.

[00:27:58] Speaker 01:
And all Nurse Turner had to do was say, your mother's trying to reach you.

[00:28:03] Speaker 01:
Can we put you in touch?

[00:28:05] Speaker 01:
She did not even do that.

[00:28:08] Speaker 01:
uh... and uh... it uh... pearson versus callahan which obviously is his position if she had called the mother would be with the constitutional duty that you claim exists have been fulfilled well i think she needed to do more than that but certainly the the finding of the district court is explicit that had she done any one of those strings

[00:28:30] Speaker 01:
referred him to, which I think the number one choice should have been, referred him to a medical practitioner in the jail for the assessment and treatment that he was supposed to get the day before.

[00:28:45] Speaker 01:
Number two, put him on a 5150 hold for 48 hours.

[00:28:49] Speaker 01:
And number three, put him in touch with his mother and his family.

[00:28:55] Speaker 01:
And the judge said, had she done anything,

[00:28:58] Speaker 01:
had she done any one of those three things, this suicide would not have happened.

[00:29:03] Speaker 01:
Those are the facts.

[00:29:05] Speaker 03:
Is there any clearly established case law on the third element about contacting family members?

[00:29:11] Speaker 01:
Well, I think that actually in sort of a different context that Riemann versus Vasquez talks about contacting family members.

[00:29:22] Speaker 01:
But I think it's a more

[00:29:25] Speaker 01:
It's a slightly more general proposition than that, that they had somebody in front of them, in custody, in desperate need of care, and they should have provided that care.

[00:29:37] Speaker 01:
What alternatives did she have?

[00:29:40] Speaker 01:
And she had three alternatives, and she didn't use any of them.

[00:29:44] Speaker 01:
Instead, she sent him out the door with nothing but the clothes he was wearing.

[00:29:51] Speaker 00:
All right.

[00:29:51] Speaker 00:
Thank you, Counsel.

[00:29:51] Speaker 00:
You've exceeded your time.

[00:29:53] Speaker 00:
Rebuttal?

[00:29:54] Speaker 01:
Thank you.

[00:30:01] Speaker 04:
Good morning again, Your Honors.

[00:30:03] Speaker 04:
First, I wanted to address my colleague's statement that he thought I had waived or forfeited on the first prong.

[00:30:10] Speaker 04:
Our brief does identify as the first issue of the first prong of qualified immunity.

[00:30:14] Speaker 04:
We haven't waived it.

[00:30:16] Speaker 04:
In regard to my colleague's argument, as in the

[00:30:19] Speaker 04:
answering brief, he focuses on the facts.

[00:30:22] Speaker 04:
We are stuck with the facts.

[00:30:24] Speaker 04:
That's what happens on an appeal from denial of a qualified immunity summary judgment.

[00:30:29] Speaker 04:
But he avoids the law.

[00:30:31] Speaker 04:
We cited the cases in which federal judges have debated the duty owed to a pretrial DTE who is released.

[00:30:42] Speaker 04:
And the degree to which Wakefield versus Thompson establishes that.

[00:30:46] Speaker 04:
Those cases are not even mentioned in the answering brief.

[00:30:48] Speaker 04:
They're not mentioned in my colleague's oral argument.

[00:30:52] Speaker 04:
Whether or not we lose on the first prong, we must win on the second prong because Nurse Turner did not violate clearly established law.

[00:31:01] Speaker 04:
And with that, I will submit.

[00:31:03] Speaker 00:
All right.

[00:31:03] Speaker 00:
Thank you.

[00:31:04] Speaker 00:
Thank you to both counsel for your helpful arguments.

[00:31:06] Speaker 00:
We'll be in recess for 10 minutes.

[00:31:08] Speaker 00:
We'll return at 1115.

[00:31:21] Speaker 02:
This court stands in recess for 10 minutes.