[00:00:00] Speaker 00:
Thank you very much, and thank you for the opportunity to appear remotely.

[00:00:08] Speaker 00:
Shall I proceed?

[00:00:08] Speaker 01:
Please.

[00:00:10] Speaker 00:
Thank you.

[00:00:11] Speaker 00:
Good morning, Your Honor.

[00:00:12] Speaker 00:
Stuart Hester, appearing on behalf of plaintiff and appellant.

[00:00:16] Speaker 00:
The summary judgment in this case was erroneously based on the conclusion that Officer DeRazzo's violation of law was not clearly established under the second prong of the qualified immunity standard.

[00:00:29] Speaker 00:
As described in Tourist v. City of Madera, while the first prong of the qualified immunity standard examines whether the officer had a reasonable mistake of fact,

[00:00:42] Speaker 00:
This prong, the second prong, examines whether the officer had a reasonable mistake of law.

[00:00:48] Speaker 00:
In evaluating its prong, the court must assume that the officer, again in the words of Torres, quote, correctly perceived all of the relevant facts and asked whether an officer could have reasonably believed at that time that the force actually used was lawful under the circumstances.

[00:01:07] Speaker 00:
Here it isn't disputed that plaintiff, in fact,

[00:01:10] Speaker 00:
suffered a stroke and was in need of emergency medical care.

[00:01:14] Speaker 00:
The second prong issue here is thus whether if Officer DeRazzo had correctly recognized that plaintiff had suffered a medical emergency, was the law clearly established that she would have been required to summon medical care or

[00:01:32] Speaker 00:
was any mistake of law by Officer DeRosa that she did not have to suffer some in that care, even though she perceived the medical emergency reasonable.

[00:01:42] Speaker 01:
But would we have to conclude first that her mistake was itself unreasonable, or at least that that is a jury question?

[00:01:51] Speaker 00:
That is true under the first prong of the qualified immunity standard, yes.

[00:01:55] Speaker 00:
And the district court agreed with plaintiff that, in fact, questions of fact existed as to that issue.

[00:02:05] Speaker 01:
But is that right?

[00:02:07] Speaker 01:
I mean, here she comes upon him and she just shows up on the side of the highway and sees him acting in a certain way.

[00:02:19] Speaker 01:
And your position is it was unreasonable not to call for medical assistance at that point.

[00:02:26] Speaker 01:
So why do you say that was unreasonable?

[00:02:30] Speaker 00:
OK, so just to highlight a couple of facts that would support the district court's conclusion that, in fact, Officer DeRosa was unreasonable.

[00:02:38] Speaker 00:
First, I'd like to call the court's attention to the pictures of Plano's vehicle at pages 253 to 259 of the excerpt.

[00:02:47] Speaker 00:
The record would show that the vehicle had a crushed hood, major front end damage, engine exclusion, a flat right tire, and that the airbag had been deployed.

[00:03:01] Speaker 00:
Then you have how Officer DeRoso encountered plaintiff.

[00:03:08] Speaker 00:
He was sweating profusely, spoke with slurred speech, was slow to react.

[00:03:13] Speaker 00:
His pupils were constricted.

[00:03:14] Speaker 00:
He exhibited confusion, poor balance, extremely slow speech, dry mouth, made multiple spontaneous and coherent statements.

[00:03:22] Speaker 00:
He could not tell where he was coming from, and he could not say where he was going or how the collision occurred.

[00:03:29] Speaker 00:
These are all indications of a medical emergency, especially when considered in relation to the condition of plaintiff's car.

[00:03:36] Speaker 00:
And the CHP's own protocols, which Officer DeRazzo agreed she was familiar with, require her to take additional steps to rule out a medical emergency.

[00:03:47] Speaker 00:
Those very protocols conclude

[00:03:49] Speaker 00:
quote, It is imperative that the possibilities of medical condition be explored and rolled out to prevent the arrest of innocent sober persons and to prevent a person who is injured from being subject to further aggravation and or lack of medical attention, etc.

[00:04:05] Speaker 00:
excerpt of record 277 to 28.

[00:04:07] Speaker 01:
What is the relevance of the protocols in the training?

[00:04:13] Speaker 01:
Does it show that her mistake was unreasonable, or does it show that the law is clearly established?

[00:04:18] Speaker 01:
Where do you see the protocols being relevant to the legal analysis here?

[00:04:22] Speaker 00:
It's our position that those protocols are relevant to establish that her mistake was unreasonable.

[00:04:29] Speaker 00:
She jumped to the conclusion that plaintiff

[00:04:34] Speaker 00:
on drugs because she ruled out that there was any indication of intoxication.

[00:04:40] Speaker 00:
He had a 0.0 blood alcohol level.

[00:04:44] Speaker 00:
There were no indications of any alcohol in the car, any open containers or the like in the car.

[00:04:50] Speaker 00:
And there's no other indication.

[00:04:52] Speaker 00:
He didn't smell of alcohol.

[00:04:53] Speaker 00:
There was no indication of alcohol intoxication.

[00:04:56] Speaker 00:
So she simply concluded that based upon his condition, he must be under the influence of drugs without ever considering the protocols that required her

[00:05:04] Speaker 00:
to determine whether or not he was actually suffering from medical emergency, which would have included calling an EMT, which would have included calling a readily available drug identification expert that the CHP had who would have been able to do an evaluation of him and rule out that he was in fact on drugs.

[00:05:26] Speaker 00:
He simply reached a conclusion directly contrary to the protocols that the CHP trained her on

[00:05:33] Speaker 00:
to determine whether or not he was suffering from a medical emergency.

[00:05:37] Speaker 03:
Can you address the second prong, the clearly established prong?

[00:05:41] Speaker 03:
Obviously, Supreme Court has been pretty tough on this.

[00:05:44] Speaker 03:
And here, the facts are somewhat unique in the sense that the symptoms could have been due to a stroke or could have been potential drug use.

[00:05:52] Speaker 03:
And obviously, the officer made a tragic mistake.

[00:05:54] Speaker 03:
But can you address that?

[00:05:56] Speaker 03:
What are the best cases to show that this right was clearly established?

[00:06:02] Speaker 00:
Well, let me back up a little bit into that answer and describe what the district court concluded.

[00:06:10] Speaker 00:
The district court concluded that the law was not clearly established because there was no Ninth Circuit case that says that if a medical emergency is not the result of an injury inflicted during the course of an arrest,

[00:06:24] Speaker 00:
that medical attention is necessarily required.

[00:06:29] Speaker 00:
So the district court drew a distinction between a medical emergency resulting from an arrest and a medical emergency that preexisted the arrest or was independent of the arrest.

[00:06:40] Speaker 00:
And it's our position that that is not a sufficient distinction to conclude that the law is not clearly established in the Ninth Circuit, just because cases such as Tatum

[00:06:53] Speaker 00:
use language such as, uh, injured while being apprehended does not mean that it's only prisoners or only arrestees, excuse me, who are injured while being apprehended that are entitled to medical care.

[00:07:07] Speaker 03:
I think I agree with you.

[00:07:08] Speaker 03:
I mean, I think if a police officer sees someone hurt and injured, there's, you know, he or she has some duty to help help out.

[00:07:13] Speaker 03:
But here, uh, can you address the specific facts here where the symptoms can be indicative of two things and the officer makes a very bad mistake here?

[00:07:23] Speaker 03:
What's the clearly established case law here?

[00:07:27] Speaker 00:
Well, I would say that it's our position that you do not have to have a case specifically addressing the particular facts that occurred to determine whether or not the law was clearly established.

[00:07:38] Speaker 00:
Here, if you conclude that the law was clearly established that an officer encountering a suspect who has a medical emergency is required to attempt to facilitate medical treatment,

[00:07:53] Speaker 00:
then I think you should conclude that the second prong is met without saying, well, we have a case of similar circumstances where the officer made a mistake.

[00:08:01] Speaker 00:
Because dark position, that's a mistake of fact.

[00:08:04] Speaker 00:
And prong two concerns a mistake of law.

[00:08:07] Speaker 00:
The issue here is whether or not, under prong two, if Officer Durazo had actually understood that plaintiff was suffering from a medical emergency,

[00:08:18] Speaker 00:
is the law clearly established that she would have been required to summon medical attention?

[00:08:24] Speaker 00:
And so when you get into whether or not the facts demonstrate whether or not she was reasonable, she never claimed.

[00:08:32] Speaker 00:
Officer Durazo never claimed, well, the only reason I did not summon medical care was because I was confused as to the law as to whether or not I was required to do that.

[00:08:42] Speaker 00:
She simply relied on the fact that she made a tragic mistake and concluded

[00:08:47] Speaker 00:
that plaintiff was on drugs.

[00:08:51] Speaker 00:
And so it's our position that you do not have to have a case specifically identifying the particular facts that the particular factual mistake made by the officer in this case to determine whether or not there was clearly established law.

[00:09:10] Speaker 00:
And that, of course, was in part the issue in JKJ, which

[00:09:16] Speaker 00:
The court is, I know, familiar with and is aware that there was an in-bank grant on that, and then the case settled.

[00:09:23] Speaker 00:
That was the issue that was going to be addressed in that case, is the extent to which a factual mistake plays a role in determining whether or not

[00:09:36] Speaker 00:
there was clearly established law.

[00:09:40] Speaker 03:
With respect to JKJ and obviously this case here, the question is, I understand your point that this was a unreasonable mistake of fact and therefore qualified immunity shouldn't apply.

[00:09:52] Speaker 03:
But if we adopt your position, aren't we collapsing qualified immunity into just one step, that first step?

[00:10:01] Speaker 03:
That is, if there is an unreasonable mistake of fact,

[00:10:05] Speaker 03:
there's liability, you don't have to look at clearly established.

[00:10:09] Speaker 03:
If it was a reasonable mistake of fact, there's no violation and therefore no liability.

[00:10:14] Speaker 03:
So it seems like we're then just collapsing all qualified immunity into just one step, which was an unreasonable or reasonable mistake of fact.

[00:10:22] Speaker 03:
And I know that that was one of the vexing questions in JKJ of how do we resolve this?

[00:10:28] Speaker 00:
And I would urge that's not the case.

[00:10:30] Speaker 00:
I mean, in this case, the fact that there was no

[00:10:34] Speaker 00:
mistake of law by officer Durazo, I would suggest means that that's that standard that that prong of the test is met.

[00:10:42] Speaker 00:
But there are cases where, in fact, an officer could conclude that a particular type of restraint was appropriate.

[00:10:51] Speaker 00:
And then a court comes along and says, no, that particular type of restraint is is should not be used.

[00:10:59] Speaker 00:
and therefore you violated the suspect's Fourth Amendment, the arrestee's Fourth Amendment rights.

[00:11:06] Speaker 00:
But because there's been no case that says this type of restraint is inappropriate, we're going to nevertheless afford the officer qualified immunity because the law, as to that particular use of restraint, was not clearly established.

[00:11:23] Speaker 00:
The officer comes across a victim that an arrestee that he or she suspects might be suffering from a medical condition and and decides to take one particular course of conduct versus another.

[00:11:38] Speaker 00:
and says, OK, I'm not going to perform CPR, or I'm not going to take these particular acts.

[00:11:44] Speaker 00:
And a court ultimately concludes those types of acts were necessary to satisfy your Fourth Amendment obligations.

[00:11:51] Speaker 00:
But because there's been no case that determines that, in fact, that is required, we're going to determine the law is not currently established.

[00:12:01] Speaker 00:
entitled to qualified immunity, but that's not the case here.

[00:12:04] Speaker 04:
Counsel, I guess you referenced Tatum and I read those facts, but in that case, the arrestee at issue in Tatum, didn't they display certain symptoms of drug use before the officer initiated the arrest?

[00:12:21] Speaker 00:
Yeah, and in Tatum, I think what's important is in Tatum, the decedent died of cocaine toxicity.

[00:12:28] Speaker 00:
The cause of death was the ingestion of the drugs.

[00:12:32] Speaker 00:
And therefore, by definition, that was not what was obviously caused the arrest.

[00:12:39] Speaker 00:
And yes, the plaintiff in that case was displaying those symptoms prior to the arrest.

[00:12:47] Speaker 00:
And so it wasn't simply an

[00:12:50] Speaker 00:
The officer in that case didn't necessarily just make the mistake about, you know, whether or not the victim was suffering a medical emergency or whether or not there was probable cause to arrest her or him.

[00:13:10] Speaker 00:
I remember the facts of that case, he was pounding on the police door, et cetera, et cetera, and clearly there were grounds to arrest.

[00:13:17] Speaker 00:
Here, it was simply a mistake.

[00:13:18] Speaker 00:
Here, it was just a tragic mistake of fact.

[00:13:21] Speaker 00:
And unlike in the Winger case, which is on a somewhat different set of legal principles, there was no, or JKJ, for example, there was no

[00:13:32] Speaker 00:
We're going to make all these efforts to get you medical attention.

[00:13:36] Speaker 00:
But because the arrestee is saying, I don't want that medical attention, I don't need that medical attention, please don't give it to me, the medical attention wasn't provided.

[00:13:45] Speaker 00:
Here, none of that occurred.

[00:13:47] Speaker 00:
The officer simply drew the conclusion, you must be on drugs despite the arrestee's denial.

[00:13:53] Speaker 00:
And therefore, I'm going to arrest you, delay

[00:13:57] Speaker 00:
transportation to the hospital for three hours, and you're going to suffer those consequences for the rest of your life.

[00:14:05] Speaker 00:
And I see I have one minute left.

[00:14:07] Speaker 00:
I'd like to reserve that for rebuttal of the court permits.

[00:14:10] Speaker 01:
Yeah.

[00:14:11] Speaker 01:
Let's put two minutes on the clock for rebuttal, and we'll go ahead and hear from Mr. Gutman.

[00:14:25] Speaker 02:
Good morning, Your Honors.

[00:14:26] Speaker 02:
Nathan Gutman, Deputy Attorney General for Appellees, and may it please the Court.

[00:14:32] Speaker 02:
It sounds like Appellant is trying to import just a pure negligence standard into the second prong of the qualified immunity analysis through this mistake of fact doctrine, which is incorrect, as Judge Lee's question pointed out.

[00:14:52] Speaker 04:
Before we get to the second prong, I just want to make sure I understand your position on the first prong.

[00:14:57] Speaker 04:
Are you conceding that there was a constitutional violation in this case?

[00:15:03] Speaker 02:
No, because we are disputing whether there was causation.

[00:15:08] Speaker 04:
Well, that's interesting, because I was trying to understand that argument.

[00:15:12] Speaker 04:
So I want to give you a hypothetical so I can tease out your position.

[00:15:18] Speaker 04:
Are you suggesting that in a situation where an officer sees an individual breaking into a vehicle, smashes the window of that vehicle to grab a person, is running away with an expensive purse, but is gushing throughout, falls to the ground in pain,

[00:15:38] Speaker 04:
And in that circumstance, the officer arrests that person.

[00:15:42] Speaker 04:
Are you saying that there's no reasonable duty of care in that, constitutional duty of care in that circumstance?

[00:15:53] Speaker 02:
In that situation, the plaintiff may satisfy the first prong, that summary judgment.

[00:16:01] Speaker 04:
Right, but my question is whether or not there's a constitutional right to that treatment.

[00:16:06] Speaker 02:
I would say there's no clearly established, right, but a district court at summary judgment could certainly find that prong established if causation were not an issue.

[00:16:18] Speaker 02:
On appeal, we're not disputing the reasonableness aspect of that first prong ruling.

[00:16:26] Speaker 02:
What we're disputing on the first prong issue is the causation.

[00:16:30] Speaker 01:
When you say causation, what you mean, I guess, from your brief is that even if they had taken him to the hospital promptly after the accident, he still would not have been able to get this additional treatment because the stroke symptoms manifested the night before.

[00:16:45] Speaker 02:
Yes, basically.

[00:16:47] Speaker 01:
But what, is there another causation argument?

[00:16:49] Speaker 02:
No, I would just phrase it a little differently because it's undisputed that the only treatment that's at issue here required an affirmative baseline of normalcy.

[00:17:00] Speaker 02:
And it's also undisputed that the doctors did try to find that baseline and couldn't because there were no witnesses to... Okay, the district court disagreed with you on this point, right?

[00:17:12] Speaker 01:
He said, well, that's at least disputed.

[00:17:15] Speaker 02:
The district court disagreed without any evidentiary basis.

[00:17:20] Speaker 02:
The district court just found our position hard to believe, which was not supported by the evidence, because that issue would, first of all, require expert testimony.

[00:17:35] Speaker 02:
And second of all, there was just a complete lack of evidence showing any baseline, even assuming that, as a common sense matter, maybe the beginning of a stroke

[00:17:45] Speaker 02:
time is is crucial there's just absolutely no evidence when the stroke began it actually seems that if if this is the argument you're at you are asking us to basically affirm on a ground that the district court essentially rejected.

[00:18:01] Speaker 02:
Yes.

[00:18:03] Speaker 02:
Getting back to the clearly established issue, the mistake of fact analysis is not a way around meeting the requirements of the clearly established prong.

[00:18:18] Speaker 02:
It's a way of satisfying those requirements, meaning if there's clearly established law that puts it beyond debate, that an officer's conduct would violate, given constitutional provision, in certain circumstances,

[00:18:33] Speaker 02:
then an officer can't benefit from misperceiving those facts that would show the violation under that clearly established law.

[00:18:44] Speaker 01:
I mean, if an officer here had come upon the plaintiff and had believed that this gentleman was in affirmative medical distress,

[00:18:57] Speaker 01:
Are you disputing that there was no duty at that point to call a paramedic or do something more than what she did?

[00:19:05] Speaker 01:
Are you saying that's not clearly established?

[00:19:09] Speaker 02:
Yes.

[00:19:10] Speaker 01:
What's your basis for that?

[00:19:11] Speaker 01:
Because there's cases that say, you know, if someone is in a medical distress, you have a duty to provide some kind of care.

[00:19:19] Speaker 01:
I'm generalizing a little bit, but that's what the law is.

[00:19:24] Speaker 01:
And we don't have a case that involves somebody that crashes into the side of a highway, quite like what you have here.

[00:19:29] Speaker 01:
But the issue here would seem to be that there was really no effort to get him any medical attention until he was taken to the jail.

[00:19:39] Speaker 02:
We're dealing specifically with the Fourth Amendment here.

[00:19:44] Speaker 02:
That's the claim that Appellant is making.

[00:19:47] Speaker 02:
And our universe of cases is one case.

[00:19:50] Speaker 02:
It's Tatum.

[00:19:51] Speaker 02:
In Tatum, the court decided that the previous 14th Amendment due process standard did not apply to this slice of the timeline between arrest and booking.

[00:20:05] Speaker 02:
And it explicitly based that on Graham's, as an extension of Graham's excessive force analysis.

[00:20:12] Speaker 02:
So the idea that,

[00:20:15] Speaker 02:
that that analysis has to do with injuries that occurred during apprehension.

[00:20:22] Speaker 02:
That's not just an irrelevant fact of that case.

[00:20:26] Speaker 02:
That's the reason for the Court's conclusion.

[00:20:29] Speaker 02:
That's why the Court extended a Fourth Amendment excessive force

[00:20:35] Speaker 02:
analysis.

[00:20:36] Speaker 02:
It explicitly said so.

[00:20:37] Speaker 04:
Isn't our case law talking about the care that's provided of an individual when they're in custody, and that's what's clearly established, isn't it?

[00:20:49] Speaker 02:
The due process right, certainly, with the deliberate indifference standard after booking, clearly established.

[00:20:57] Speaker 04:
And I would say, I would grant that Tata may clearly establish exactly what it said, which is for injuries that- So you're calling it not that it's not that it's not a 14th Amendment due process, but a Fourth Amendment is what you're saying?

[00:21:14] Speaker 02:
And that's what Appellant is saying.

[00:21:16] Speaker 02:
Is the standard any different?

[00:21:18] Speaker 01:
I mean, they're both- Yes.

[00:21:19] Speaker 01:
OK.

[00:21:20] Speaker 01:
Why do you say that?

[00:21:22] Speaker 02:
Under the Fourth Amendment, it's a reasonableness standard.

[00:21:26] Speaker 02:
And the 14th Amendment has a deliberate and different standard.

[00:21:32] Speaker 01:
OK.

[00:21:32] Speaker 01:
But if, again, let's just assume that the mistake of factor was unreasonable, that a jury could find that any reasonable officer who came upon this scene would believe that this person needed medical attention.

[00:21:51] Speaker 01:
At that point, why wouldn't that be deliberate indifference to just arrest somebody and not call a paramedic?

[00:22:01] Speaker 02:
Assuming that the officer was deliberately indifferent to an urgent need for medical attention, yes, that would be, of course.

[00:22:09] Speaker 01:
So doesn't that get to the key issue in the case, which was, was her mistake here reasonable or not?

[00:22:16] Speaker 02:
Oh, it was reasonable, and I would stress here that

[00:22:21] Speaker 02:
Appellant has not cited any facts of symptoms.

[00:22:26] Speaker 04:
But why wouldn't that be a jury question, I guess?

[00:22:30] Speaker 04:
Her reasonableness.

[00:22:35] Speaker 02:
I think on these facts, it's not debatable because it's not.

[00:22:45] Speaker 04:
Well, hold on.

[00:22:47] Speaker 04:
She did a PBT, correct?

[00:22:50] Speaker 04:
a portable breath test showing zero, zero, zero, correct?

[00:22:55] Speaker 02:
Yes.

[00:22:55] Speaker 04:
She was not a DRE, correct?

[00:22:57] Speaker 04:
Right.

[00:22:58] Speaker 04:
And she had people she could call and she didn't do that.

[00:23:02] Speaker 04:
This happened at five o'clock in the afternoon.

[00:23:05] Speaker 04:
It wasn't like it was two o'clock in the morning.

[00:23:08] Speaker 04:
Under those circumstances, why wouldn't it be reasonable for her to see that this person is in need of medical attention?

[00:23:19] Speaker 02:
So I would say that the reasonable just is not disputed because it is undisputed, first of all, that appellant denied having anything medically wrong with him, declined medical attention, and also that he did not display any symptoms that would distinguish a stroke from intoxication.

[00:23:41] Speaker 02:
Those would be asymmetry-type symptoms.

[00:23:44] Speaker 02:
That's not alleged.

[00:23:48] Speaker 02:
A suspect who is displaying only symptoms that are totally consistent with intoxication has denied having anything wrong with him.

[00:23:57] Speaker 04:
At this stage, are we supposed to interpret the facts in light most favorable to the state or to the plaintiff, in this case, to the appellant?

[00:24:06] Speaker 02:
To plaintiff, and these facts are undisputed.

[00:24:11] Speaker 02:
Just a clarification on that point, in the district court's decision, it noted

[00:24:17] Speaker 02:
unequal pupil size.

[00:24:19] Speaker 02:
That actually wasn't in the evidence, and that's why appellant hasn't cited it.

[00:24:24] Speaker 01:
The district court also said that the parties dispute whether de Bronstein denied needing medical care, having medical issues, or needing to take any medication.

[00:24:32] Speaker 01:
So is your position that that statement's wrong?

[00:24:35] Speaker 02:
Yes, in the separate statement, those issues were nominally disputed, but the evidence did not dispute whether Debronstein made those statements.

[00:24:47] Speaker 02:
The evidence that was cited in order to dispute that statement of the states was just evidence showing that the officer shouldn't have believed those statements.

[00:24:58] Speaker 02:
Specifically, there was a partial transcript

[00:25:02] Speaker 02:
of this interaction that began 14 pages in and didn't purport to show that he did not make those statements.

[00:25:09] Speaker 01:
What do we make of DeRosa's statement, you know, you've got a serious condition.

[00:25:15] Speaker 01:
Why does that not create a dispute of fact?

[00:25:18] Speaker 02:
I think I don't think that shows that she

[00:25:27] Speaker 02:
that she believed it was a medical condition as opposed to, you are in serious condition.

[00:25:34] Speaker 02:
I mean, I understand.

[00:25:35] Speaker 02:
Those are the words she said, but.

[00:25:38] Speaker 01:
I guess the other piece of this is that, you know, the officer didn't just come upon de Bronstein walking down the street acting strange, right?

[00:25:45] Speaker 01:
He had just been in this pretty serious car accident.

[00:25:48] Speaker 01:
Yes.

[00:25:49] Speaker 01:
And why wouldn't it have been, why would you say it's reasonable in light of that to not call an ambulance, or why couldn't a jury conclude that?

[00:25:57] Speaker 02:
Again, because he declined medical, and this is undisputed, he declined medical help and denied having anything medically wrong with him.

[00:26:07] Speaker 01:
Is that always going to, you know, if somebody is in great extreme pain or medical situation and they deny it, they, you know, I don't need a doctor, is that a police officer then just has no duty to basically override them and say, no, you do need an ambulance?

[00:26:24] Speaker 02:
No, drawing from deliberate indifference cases, it seems that there are situations where somebody nonetheless is displaying like a life-threatening problem.

[00:26:36] Speaker 02:
But again, it's undisputed that the symptoms that appellant was displaying here were all symptoms consistent with intoxication and did not show in and of themselves that.

[00:26:49] Speaker 03:
If I can interrupt, but even assuming

[00:26:52] Speaker 03:
that the officer thought Mr. Bronstein was using drugs, given the severity of the car accident.

[00:27:00] Speaker 03:
I mean, the picture shows the car was crushed.

[00:27:03] Speaker 03:
He could have still sustained injuries, a concussion or something else.

[00:27:07] Speaker 03:
And it seems like regardless of whether she thought he used drugs or not, maybe the reasonable thing would have been to call the ambulance because someone, you know, drugs or not, he was in a severe car accident.

[00:27:21] Speaker 02:
Yes, so that would totally go to negligence.

[00:27:25] Speaker 02:
And if the court affirms the negligence, all the state law claims just go back to state court.

[00:27:31] Speaker 02:
That can certainly be disputed whether it would be prudent to err on the side of caution.

[00:27:37] Speaker 02:
The issue is whether it was beyond debate that the Fourth Amendment in particular

[00:27:43] Speaker 02:
required an officer to do that.

[00:27:46] Speaker 01:
Right, but if a jury found that her actions were unreasonable, what would be the legal defense at that point?

[00:27:59] Speaker 02:
If qualified immunity was denied,

[00:28:06] Speaker 02:
and we were at a jury trial and the only issue was reasonableness, we'd just be arguing those facts.

[00:28:14] Speaker 02:
So I don't think there's any sort of separate legal defense at that point.

[00:28:18] Speaker 01:
Judge Lee made the comment that in some of these cases, is there a concern that the issues collapse?

[00:28:25] Speaker 01:
What I'm trying to think through is, yeah, there may be some situations where they do, because it just depends on the case.

[00:28:32] Speaker 01:
And perhaps this is one of them, where if the mistake of fact is unreasonable, then it sort of then follows in light of the particular circumstances that the law was clearly established enough.

[00:28:46] Speaker 01:
But because this isn't a question where someone's saying, you know, you didn't do the CPR or you didn't call, you know, you didn't do this particular medical technique.

[00:28:55] Speaker 01:
The problem here is that there was basically nothing done on the scene, which seems uncommon when someone's been in such a severe accident.

[00:29:03] Speaker 02:
Right, those would just be jury arguments.

[00:29:06] Speaker 02:
And we would be arguing that this needs to be looked at from the officer's perspective of an officer who is seeing somebody declining medical care and who didn't display any symptoms that showed any acute medical issue outwardly or anything inconsistent with intoxication.

[00:29:24] Speaker 02:
Again, the real issue here is the lack of clearly established law.

[00:29:29] Speaker 02:
Thank you.

[00:29:31] Speaker 01:
Okay, thank you, Mr. Gutman.

[00:29:33] Speaker 01:
Mr. Esner, rebuttal.

[00:29:35] Speaker 01:
Can you just go ahead and address this issue of your client declining medical care?

[00:29:40] Speaker 01:
Did he do, did he decline that?

[00:29:41] Speaker 01:
What does the record show?

[00:29:43] Speaker 00:
I don't recall him declining it.

[00:29:45] Speaker 00:
I mean, honestly, the page of the excerpt of record that I had printed out, which may not be the complete record based on what I just heard, was at 128, where Officer Durazo asked him, are you okay?

[00:29:57] Speaker 00:
And he answered yes.

[00:29:59] Speaker 00:
But I don't recall the specific declining of the medical care, but I can't represent to the court that counsel is misstating the record in that regard.

[00:30:08] Speaker 00:
But it's certainly no indication that he was forcefully

[00:30:13] Speaker 00:
or purity not in need of medical care to a point where somebody who may have suffered a head injury should be believe that medical care isn't required under Officer DeRosa's training.

[00:30:25] Speaker 00:
So I would suggest that's still a question of fact, even if he specifically said, I don't want medical care, that whether or not he needed it was something that Officer DeRosa was

[00:30:34] Speaker 00:
trained to independently evaluate and should have nevertheless summoned that care or at least ruled out that he was in fact on drugs, which he was capable of doing by calling the drug detection expert that the CHP had available at that time.

[00:30:51] Speaker 00:
On the issue of the second prong, I just want

[00:30:56] Speaker 00:
To close by asking the court just take a step back and recall what the purpose of that second prong is out of fairness to officers so that if there's confusion into the law as to the law.

[00:31:06] Speaker 00:
as to what the necessary steps that are needed are, the officer is given the benefit of the doubt unless the court has clearly determined that, in fact, these particular steps are required.

[00:31:19] Speaker 00:
Where there's an issue where the mistake is purely one of fact, which is simply that Officer DeRazzo did not appreciate that plaintiff was suffering from a medical emergency and took no steps to rule out the fact that she, or to rule out the fact that he was,

[00:31:34] Speaker 00:
then the law is clear.

[00:31:37] Speaker 00:
If he was suffering a plaintiff, and I think I just heard somewhat of an agreement, if plaintiff was in fact suffering from a medical emergency, Officer DeRosa was required to attempt to facilitate medical care.

[00:31:50] Speaker 00:
The fact that that was not done here is a violation of the law that was clearly established and the second prong of the qualified immunity standard therefore has been met.

[00:32:04] Speaker 00:
Unless the court has any questions, I know I'm out of time.

[00:32:07] Speaker 01:
Okay, I want to thank both counsel for the helpful briefing and argument.

[00:32:11] Speaker 01:
This matter is submitted and we're adjourned.