[00:00:10] Speaker 01: Good morning, Your Honors. May it please the court, Justin Sarno appearing on behalf of the appellant, Rocio Martin Leal. With the court's permission, I'd like to reserve one minute of time for rebuttal. [00:00:21] Speaker 01: Thank you very much. This court should reverse the district court's denial of qualified immunity because the law was not clearly established at the time Martin Leal acted. As this court is well aware, the plaintiff bears the burden of proving guilty. whether or not the allegedly violated right is clearly established. And here, the plaintiff failed to meet their burden. Specifically, the cases cited by the plaintiff, as well as the district court in its order, are materially distinguishable, so much so that Martine Leal was not reasonably on notice that her conduct was unconstitutional. [00:00:57] Speaker 01: Before I briefly address those cases, I'd like to first address the 2025 decision in DeBronstein, which this court has rescinded requested the parties to address. DeBronstein is distinguishable and should not serve as the litmus test or the lodestone by which this court is decided. DeBronstein did not involve a jail setting. DeBronstein did not involve a suicide. DeBronstein involved a major roadside automotive collision for which the receipt of care was obvious. [00:01:29] Speaker 01: Now, [00:01:30] Speaker 05: It talks about how we look at whether the need for medical care is essentially fact or law and whether you need to have law about the medical assessment of fact. And so why would it be different? And you started with this isn't about suicide or jail. Why should it be different how we think about the problem? [00:01:54] Speaker 01: Because the obviousness of the physical manifestations of injury. In that case, for example, the law enforcement official had difficulty differentiating between whether or not the individual was suffering from drug-related issues or, tragically, in actuality, a stroke. But the physical manifestations of injury were obvious, and yet the official did nothing. [00:02:16] Speaker 04: Why does obviousness matter? Because when we have, and particularly in the jail setting, Well, you have numerous people interacting with an arrestee. You have the arresting officer and then you've got a handoff to a jailer like we have in this case. [00:02:31] Speaker 04: We also had that situation in Cannes where it was an arresting officer handing off to a jailer. [00:02:37] Speaker 04: And so if someone is witnessing something that's happening like suicidality, that's one thing. In this case, I mean, I think you I'm guessing you would agree. Martin Leal, she acknowledges that there is a known suicide risk here. [00:02:55] Speaker 04: She was told before she put the decedent in the cell. She was told while she was putting the decedent in the cell. She was told after she put the decedent in the cell. [00:03:08] Speaker 01: That's right. And I would point, Your Honors, because there's a specific nuance that I think is particularly important here, and that's at page 317 of the record where Officer Saldana tells Martin Leal that Tranberg-Hodley was threatening suicide as a manipulation tactic to sleep with Mrs. Doe. And the problem is, and with respect to the point of obviousness, is we're foisting a burden on a detention officer to make extraordinarily complex determinations, psychological determinations, for which there's a DSM-5. [00:03:41] Speaker 04: Because no one thinks that she's a doctor. Correct. She has a bunch of forms that she's supposed to do. She has protocols to do. She has things that she admits. exactly what she should have done. She doesn't seem to be, she doesn't actually seem to be at all ambiguous about whether he was a suicide risk. So once we get to the point where she is not, where she knows, what additional information do we need to say that there is a suicide risk? [00:04:09] Speaker 01: Well, I think in this particular case, because the nuance is that you know, it was being used as a manipulation tactic. I mean, all of that is occurring within the skull, right? So the difference from de Bronstein, for example, is that you have clear physical signs of distress. In the case of suicidal ideations, it's far less obvious. [00:04:27] Speaker 06: Does your argument rest entirely on prong two of qualified immunity? Or to ask the same question another way, if we, you know, taking all the facts in the light most favorable to the plaintiff, as we have to do at this stage, Do you think that they establish a violation of a constitutional right? [00:04:46] Speaker 01: No, not at all. And this is a prong two case exclusively. [00:04:49] Speaker 06: Those are two different things. [00:04:54] Speaker 06: If taking all the facts in light, most favorable to the plaintiff, if they don't establish a violation of a constitutional right, then you'd win a prong one. Right. If they do, but it's just not a clear constitutional right, then you'd win a prong two. So are you making just a prong two argument or also a prong one? [00:05:11] Speaker 01: We're making a prong two argument, Your Honor. [00:05:13] Speaker 06: Okay. So then you concede that taking all the facts in the light most favorable to the plaintiff, they establish a violation of the 14th Amendment, but just it wasn't sufficiently clearly established. That's correct, Your Honor. Okay. [00:05:25] Speaker 01: Yes. And what I'd like to do is point to Your Honor's reference to the Kahn decision and the cases that were cited by the plaintiff in the district court. Because in Kahn, that was a particularly egregious circumstance in which the deputies were transporting the suspect in the back of the cruiser, And the suspect starts wrapping a seatbelt around her neck and starts to choke herself as if to commit suicide. [00:05:44] Speaker 04: But what they were what was clearly established in Khan, those those officers didn't get qualified immunity. Right. [00:05:50] Speaker 01: Right. [00:05:51] Speaker 04: And what they were supposed to have done is one of two things. Either get medical help, like take this person to the hospital instead of the jail, or at least tell the jailer that there's a suicide risk. [00:06:05] Speaker 01: No, no, I agree. [00:06:06] Speaker 04: And I think that's what Saldana told. [00:06:09] Speaker 04: Merton Leal. She didn't have to witness it herself. He told her, and she is not ambiguous about whether she thought he was a suicide risk. I realize there's some negative facts and positive facts, but none of that in her estimation, as she admits later, adds up to her being ambiguous about suicide risk. [00:06:30] Speaker 01: I understand that, Your Honor. I fundamentally believe that the issue of suicidal ideations is distinct in terms of its obviousness, as pitted against the cases that were relied upon by the plaintiff, Kahn being one where I agree. Denial of qualified immunity under those circumstances was reasonable. The same as in Clouthier, where we had a circumstance where the mental health specialist affirmatively removed suicide protocol protections for the detainee and then gave him back his clothes, which facilitated his ability to commit suicide. And that was obvious. [00:06:59] Speaker 04: Would you agree that suicide is a medical risk? [00:07:03] Speaker 01: Yes, of course. [00:07:05] Speaker 04: And would you also agree that this case is not just about suicide? But, I mean, everyone seems to be focused on suicide. But he's also withdrawing, which she also acknowledges. Would you acknowledge that withdrawing is also a medical situation? [00:07:18] Speaker 01: Yes, I agree. [00:07:19] Speaker 04: And for both of those medical situations? So he has clearly indicated at least two serious medical situations. But it wasn't like some of the other cases where she kind of made the wrong choice. She actually did nothing medically. [00:07:33] Speaker 01: Okay. Well, what I would point to, Your Honor, then, is the decision in Horton, right? Because in 2019, this court found that a deputy who had been told about a threat of suicidality from the mother essentially allows the detainee to remain in the cell for 27 minutes. [00:07:50] Speaker 04: With respect to Horton, does it make a difference here that we have two medical conditions, not just one? So to the extent that suicide is sort of maybe its own branch of medical issue— Here we have just a straight-up medical issue on withdrawal. They're connected, but we do have two things in the chart as opposed to one being just suicide. I understand. [00:08:11] Speaker 01: I mean, I think that certainly raises the complexity level of the factual circumstances, but what it also does is— Doesn't it simplify it? Well, in a sense, no, because for purposes of Martine Leal, who's a detention officer who doesn't have the training and experience, as is undisputed on the record, to make these critical, difficult discriminations— about differences in suicidal ideations and whether or not this is an immediate and obvious medical risk, I mean, I think it foists on the detention officer a burden that just is not clearly established under the law, not unless we're relying on cases that are overly generalized to define the proposition. [00:08:48] Speaker 06: Can I ask you to read a point in Horton to you? In Horton we said it is critical whether our case law had at the time of the events in this case sufficiently clarified when a detainee's imminent risk of suicide was substantial enough to require immediate attention. Why isn't the question of whether a risk of suicide is substantial enough to require immediate attention a medical or psychological or correctional question rather than a legal question? [00:09:19] Speaker 06: Why does it make sense to think of that as something that you would go look to cases to figure out rather than something that you would look to, you know, psychological practice manuals to figure out. [00:09:29] Speaker 01: Yeah, I understand the concern, but I think a good thing to sort of look at under this circumstance would be the courts holding in Gordon 2 versus the County of Orange, where the court sort of bifurcates the qualified immunity analysis vis-a-vis medical professionals and nurses versus law enforcement officials. I mean, I think that there's a clear differentiation between the duties that are attendant to a medical professional who is more trained to make these determinations and versus a jail prison guard who clearly doesn't have the training and experience to do so. [00:10:01] Speaker 06: But to Bronstein, and this goes back to a point that I think was made earlier, that involved a highway patrol officer, right, not a medical professional. And as I understood the holding there, it was that this question of, you know, did the person's, you know, there was, you know, the observable physical characteristics of the person, suggest a need for some sort of medical intervention. And we said, you know, that's a factual medical question. [00:10:32] Speaker 06: That's not a question that you go look to case law to figure out. And so I'm not sure why this would be different because this is all, I mean, they're both law enforcement officers. So that doesn't seem like a ground of distinction. [00:10:44] Speaker 01: I don't think ultimately that if the court were to look at DeBronstein as a roadmap with which to decide this case, it's doing so while honoring the Supreme Court's directive that we look at cases that are sufficiently specific. I mean, I understand the tension in DeBronstein and the fact that we're looking at medical conditions generally. The court says, for example, what's the difference between, for example, a heart attack or appendicitis, and why should we make those complex differentiations of degree? But I think to echo Judge Lee's dissent in DeBronstein, I mean, the issue there is whether there are clear signs of distress And that creates so much so of a problem in the circumstance between drug withdrawals versus a stroke, but is even more highlighted in the extraordinarily more complex and non-obvious circumstance of suicidal ideations. [00:11:32] Speaker 05: So for us to agree with you, do we have to agree with the DeBronstein dissent? Well, it was... You think DeBronstein's wrong and that's how we should decide this? [00:11:40] Speaker 01: No, I don't. But I do think that the observation made by Judge Lee in that case was particularly apt, especially when looking at the difference between a medical-related emergency such as the difference between a stroke and the difference between drug-related effects and that of suicidal ideations, which are just simply less obvious because they don't possess the same physical manifestations. [00:12:03] Speaker 04: We have cases, including to Bronstein, where really the problem with what the officer did was just not getting medical help at all. But even that officer did more than the officer here. [00:12:18] Speaker 04: And same is true in a case like Gordon, right? Where going down the wrong path might be one thing, but doing nothing seems to be where the law actually is clearly established that you have to do something when you're presented with a medical. This is maybe not, you don't have to necessarily screen every person medically, but when you are presented with serious medical conditions, of which here we have two, you've got to do something. That's where de Bronstein seems to be sort of relevant in that way, right? [00:12:46] Speaker 01: Well, I think the problem is, is that at the end of the day, regardless of de Bronstein, and we believe it's too high a level of generality to apply to these facts, we do have the fact that there is a reasonable mistake of law and fact, which applies for purposes of qualified immunity. And I do think that there are other circumstances undisputed on this record, which bear on the question of Martine Leal's duties and responsibilities at the time. I'd like to just list a few of them. The first is Undisputed, it was an extraordinarily busy jail at the time that Tranberg-Hodley was admitted. [00:13:17] Speaker 01: We know that there are COVID-19 protocols that prevent two inmates from being in a cell at the same time. But most importantly, Module A, which was the— She was busy. [00:13:27] Speaker 04: But weren't there just four detainees there? [00:13:29] Speaker 01: Yes. But the interesting fact that I think the court should focus on is that Module A was the one module in the Gardena jail that was specifically designed for suicidal detainees, and it was occupied. So the question becomes for Martine Leal, is she foisted with the responsibility of trying to determine who's more suicidal under the circumstances? When we have a case that indisputably we have Mr. Tranberg-Hodley committing suicide within less than an hour? I mean, it's not as if Martine Leal is sitting there twiddling her thumbs. [00:14:01] Speaker 01: I mean, she has to make classification determinations in an extraordinarily difficult circumstance. [00:14:06] Speaker 04: She's doing a lot of things, and she was really busy, but she's not doing this thing, and she is – maybe making a choice about one suicide versus another. I mean, that just seems to be like a very fact-intensive question that doesn't necessarily go to what's clearly established, when clearly established seems to be about a known risk of suicide, and she doesn't seem to be unclear on that. I see that my time has expired. I'd love to respond to that. [00:14:27] Speaker 01: Go ahead and respond to the question. I would just like to say that Horton is on the books. I mean, and Horton provides notice to the official that, you know, a deputy was granted qualified immunity, which rails against the cases that have been cited such as DeBronstein. We know that's 2025. That couldn't have informed her. But we know that there are cases that have applied qualified immunity, especially also Gordon 2, which albeit was decided in July 2021. [00:14:51] Speaker 01: But the court says in that opinion, there's no established law that provides the right to direct view safety checks. And so that also bears on the question of whether this is debatable, which we believe it is, not a circumstance of her being plainly incompetent. [00:15:07] Speaker 06: And just to follow up on that, I mean, the point about, you know, there's the one cell where you can observe people and that's full and the COVID issues all seem, I mean, those are all very good points for you, I think. But I guess those seem like reasons that there's no violation at all here. But you've conceded that at this stage of the case, we have to assume that there is, right? So I'm just having trouble figuring out how that fits into the argument that you're making. [00:15:33] Speaker 01: It fits into the case law that exists. And the fact that there's nothing on point, given these circumstances, given suicidal ideations, that places her on notice that her conduct was unconstitutional. [00:15:46] Speaker 05: I'll still give you a minute for rebuttal, but let's hear from the other side. [00:15:49] Speaker 01: Thank you very much, Your Honor. [00:15:53] Speaker 05: I think he used your time. [00:15:57] Speaker 05: So I'm not sure what to do about that. Do you want to give more time? [00:16:01] Speaker 06: Up to you. [00:16:02] Speaker 05: Yeah. I can give a minute or something. We could give you two minutes. [00:16:08] Speaker 05: Two minutes now. That's perfect. [00:16:18] Speaker 03: May it please the court. My name is Catherine Hoang. I represent the appellant, co-appellant, City of Gardena. And I'd like to actually... [00:16:29] Speaker 03: spend one minute on argument, and I'll save two minutes, I believe. You're not going to get rebuttal, so use your time now. Oh, I don't get rebuttal? Okay. [00:16:37] Speaker 03: The cause of action remaining against the City of Gardena is plaintiff's wrongful death action, and it's premised solely on vicarious liability, and the City's position is that as Martin Leal is not liable for wrongful death, so the City cannot be liable for wrongful death, and As Martin Leal is also immune under 845.6, so the city is also immune from 845.6. [00:17:06] Speaker 03: I want to clarify the record, actually, because I don't have rebuttal, that plaintiff's brief states that Martin Leal was terminated. She actually was not terminated. She actually ended up resigning. And I also wanted to clarify, the record also indicates that Saldana asked her Brandon Transburg-Hodley, whether or not he was suicidal, and he said no. So I think that's a really strong point of distinction as to the reasonableness as to Martin Leal's actions. [00:17:39] Speaker 03: And briefly regarding the jurisdictional point, I think Horton is on point with respect to the jurisdiction of this court as to the 845.6 claim. [00:17:50] Speaker 05: Are you familiar with Hampton v. California, which I think suggests that the Government Claims Act does not provide immunity, so there's not immediate appealability? [00:18:00] Speaker 03: I do. I'm not familiar with that. I apologize. But I would just point to the fact that the facts are inextricably intertwined with the qualified immunity claim, and therefore the court can consider it. I think that Horton should apply as well as Jett. which they didn't address jurisdiction in denying jurisdiction. They actually, in Horton, they went ahead and addressed the 845.6 claim. And also in Jett, I believe they also addressed the 845.6 claim. [00:18:32] Speaker 03: And let's see. [00:18:35] Speaker 03: And I think any argument that the plaintiff ends up making with respect to the violation of policies, I believe that there was No imminent signs of suicide, especially consider Brandon said that day to Saldana, I am not going to harm myself. I'm not suicidal. And I think I'm over time, so I apologize. Thank you. [00:18:55] Speaker 03: Thank you. [00:19:01] Speaker 02: Good morning, Your Honors. John Burton for the Appalachians and the plaintiffs, the parents of this young man. And with me at council table is... [00:19:16] Speaker 02: I think the case should be affirmed. The order by Judge Slaughter was extraordinarily thorough. There were three hearings. There were 30 docket entries worth of evidence. A number of the claims were dismissed voluntarily. Going into that, a number were there were summary judgment. The ones that remained Clearly, our tribal issues of fact under Rule 56, the summary judgment should be denied. [00:19:51] Speaker 04: Can you just articulate or obviously hung up on what the clearly established rule is? And I think it would be helpful for you to just articulate what you think that rule is here and the cases that it's based on. [00:20:06] Speaker 02: Well, we think two cases are extremely clear. The first is actually a Monell decision, Gibson versus County of Washoe, where the court said a meaningful screening to initiate the appropriate medical protocol is guaranteed for pretrial detainees under the 14th Amendment. [00:20:31] Speaker 04: Is that all detainees, which seems very general, or is it any detainee who presents a serious or possible medical condition? [00:20:38] Speaker 02: Oh, no, no. It's all detainees because without the screening— it cannot be determined whether the detainee presents a serious medical issue. [00:20:50] Speaker 04: So in that framing, suicide and withdrawal are just on the list of things that you would catch in a screening that everyone should have. [00:20:59] Speaker 02: Absolutely. Withdrawal can kill people by itself. [00:21:05] Speaker 02: Withdrawal is also a risk factor for jail suicides. Jail suicide is a well-known phenomenon. [00:21:14] Speaker 02: Go into any jail, there's signs saying, you know, call the helpline. Guards carry X-Acto knives to cut down ligatures or suicide cells. [00:21:24] Speaker 05: I mean, so... Sorry, can I just ask you to clarify? I had not... I know that the defendant did not fill out the screening form and admits that, but I had not understood that to be the focus of your claim. I thought your claim was really... sort of aside from that, she knew enough to do more, regardless of the screening. Am I misunderstanding what your claim is? [00:21:44] Speaker 02: Yes, because it's both. It's clearly both. [00:21:51] Speaker 02: And the way that Judge Slaughter explained it, he said there are two lines of cases that lead to this result. The first is the Washoe line of cases, which says you have to do a screening to determine whether if there's a medically appropriate procedure to implement. It has to be done. [00:22:13] Speaker 06: The classification, then it's... And how is that, to the extent that that's the proposition of law that you're saying was clearly established, how is it consistent with the Supreme Court's decision in Taylor? [00:22:25] Speaker 02: Because Taylor, which was distinguished by Judge Slaughter, and it's been distinguished by numerous district court judges... [00:22:37] Speaker 02: is a case where the only defendants in that case were the warden and the commissioner of the prison system. The actual care was being rendered by a contractor who was not before the court. So the qualified immunity was reduced. [00:23:05] Speaker 02: given to the warden and the director for not, allegedly not having adequate policies. Here, we're saying the policies were great, they just were not followed. [00:23:22] Speaker 02: And that's why the Monell claim is not before the court. But here, and everybody who's passed on this has said that Clothier survives the Burks case. [00:23:39] Speaker 04: Your friend on the other side is arguing that Horton controls this case and that Horton says that in a suicide case, you have to have, I don't want to say a DNA match, but a really close match in terms of the case law of a factually similar or maybe even identical case. So can you just talk us, say to us why Horton doesn't sort of doom this case and particularly whether this, you know, how Horton is different because maybe in that case there wasn't another medical issue? [00:24:18] Speaker 02: Well, number one, there was no other medical issue. I mean, withdrawal alone was a reason to go to either the emergency room or the county jail. I mean, there were options. And if there wasn't a cell to put him in that was susceptible to observation, which was required under policy, there could have been a call to a supervisor, you know, what do I do? But to get back to Horton, in Horton, the prisoner was admitted. [00:24:48] Speaker 02: He was put in a cell. [00:24:51] Speaker 02: The mother called and spoke to the arresting officer afterwards, gave some information. that could suggest a possibility of suicide, allegedly, and the officer did not go right away and check. That's a different fact. And here in Clothier, when someone is received and is a known suicide risk, and certainly Judge Friedland, we're not backing down on that one at all. [00:25:27] Speaker 02: I mean, setting the screening aside, I just did that chronologically first, the fact that he came in and they said he tried to hang himself this morning, we were told by his girlfriend, and has a history of suicide, that that alone required a different form of housing and supervision than he received. [00:25:50] Speaker 04: On that particular point, are you arguing that that It's not important that Martin Leal witness herself some kind of obvious sign of suicidal ideation. [00:26:08] Speaker 04: That's just not important here because once she's told, she's told. [00:26:11] Speaker 02: Well, certainly once she's told, that's adequate. [00:26:15] Speaker 02: And in fact, anybody who's sort of done deep dives in this area knows that people who are intent on committing suicide tell people that they're fine and they're not going to do it because otherwise it will interfere with their plan. [00:26:29] Speaker 04: And his denying suicidality was just not the only piece of information she had because she has an officer walking down the hallway with her and back saying, suicide, suicide, suicide. [00:26:39] Speaker 02: Right. In fact, that officer had been told that he had attempted to hang himself that morning. So suicide, suicide. Plus, she knew firsthand, and we have this on video, that he was saying, I'm withdrawing, I'm really depressed, I'm withdrawing from methadone, that independently required a different course of conduct than what she took. [00:27:06] Speaker 04: So in some ways, your answer on Horton is this isn't Horton because this is suicide plus another condition that would be equally serious meriting screening. [00:27:17] Speaker 02: Absolutely. I mean, but Also, I don't think that Horton overruled Clothier or Kahn. In fact, it embraced both those holdings. [00:27:29] Speaker 04: So do you think that Horton is basically saying, yes, Kahn and Clothier are this clearly established rule, and we're just not there in this situation based on these facts? [00:27:39] Speaker 02: The way I think of it and the way I think that it plays with the de Bronstein question is that when – When there are gray areas. [00:27:52] Speaker 02: But de Bronstein was not a gray area. Here's a guy who was in an accident who's showing these neurological symptoms. [00:28:00] Speaker 02: You have to get medical care. This case is not a gray area. Here's a guy who's withdrawing, who's tried to hang himself that morning, who's clearly not an appropriate inmate for this jail case. needs to be held under observation until it can be taken to an appropriate facility. [00:28:19] Speaker 06: And so at that point, I mean, so Martin Leal, you know, knowing the information that she has, she can't put him in the one cell that you put people in in the circumstances full. [00:28:32] Speaker 06: So she thinks, you know, I'll go put him in the other cell and check in on him sometime later. I mean, suppose at that point, you know, she calls up the city attorney and says, you know, here's what I know. Here's my plan. Is that okay? [00:28:45] Speaker 06: And the city attorney at that point, I guess your position is would have said like, no, that's clearly a 14th Amendment violation because why exactly? [00:28:56] Speaker 02: I don't think she should call the city attorney. I think she should call her supervisor. [00:28:59] Speaker 06: The hypothetical is to illustrate whether there's clearly established law. [00:29:04] Speaker 02: Judge Miller, you're raising a good question. [00:29:08] Speaker 02: But the person she should call in this situation is her supervisor. Hey, I've got somebody who's suicidal who's withdrawing and I don't have a cell, what do you want me to do? So it was maybe an inner. And that's right. [00:29:23] Speaker 06: What is the what is the rule of law and what are the cases that at that point would have told her that her proposed course of action was was improper? [00:29:34] Speaker 02: The case that told her that the action was improper is Clothier saying you cannot take somebody who is a known suicide risk and maybe has other conditions and put them in a remote cell and not look at them. [00:29:52] Speaker 06: When you don't, when the close by cell from which you can observe them is full. There's alternatives. [00:29:58] Speaker 02: The alternative is to first call the supervisor and say, what should I do? The second is take them to the emergency room, which they call an okay to book. The third is is a county run. These kind of patients... And you think Clothier tells you you have to do that? [00:30:18] Speaker 02: Clothier says you have to put him in an appropriate place, not an inappropriate place. The module L, which is the furthest cell from the booking area, is not an appropriate place to put somebody who is suicidal and withdrawing from drugs. [00:30:35] Speaker 06: If that's the only cell that you have, what is it in Clothier that says you have to go outside of the facility that you're in charge of? [00:30:46] Speaker 02: Because Clothier says you cannot be deliberately indifferent to a threat of suicide by putting somebody in an environment where they can kill themselves when you know that that's a risk. You cannot disregard that risk under the 14th Amendment, which is what she did. They say, you know, we don't want a jailer making sophisticated medical judgments whether this is a manipulation tactic or whatever. Well, that's absolutely right. [00:31:18] Speaker 02: We don't. She's the one who did by saying, oh, well, he's not really suicidal. We can put him in the cell and check him an hour later and not keep him on a 15-minute watch in a cell that's nearby. [00:31:32] Speaker 04: I think it goes back to Khan, which is the choice in Khan was either don't take him to the hospital, not the jail, or take him to the jail for medical attention instead. but just taking to the jail without medical attention is wrong. [00:31:44] Speaker 02: That's absolutely correct. And in that sense, Kahn is on all fours, although we didn't cite Kahn because it was the arresting officers. But I think that's absolutely right. [00:31:58] Speaker 04: Just going back to your argument about gray areas, you mentioned that DeBronstein is not a gray area, and you think this case is not a gray area. And so basically are you saying that you think that Horton – Is a gray area. That's why they just they said, no, we just don't have something really that fits the situation because it's just doesn't add up. [00:32:17] Speaker 02: Horton is a gray area. I think the underlying principles are well established. They cite Kahn and Clothier. But whether those obligations are triggered by once a person's in custody, a telephone call from the mother that then the arresting officer has to immediately check the cell. [00:32:41] Speaker 02: And that that that that is is not. [00:32:45] Speaker 04: And what about methodologically Horton? I mean, methodologically Horton may just kind of leave us with this problem, which is that kind of a mistaken apprehension of the whole situation is a good enough reason to say no clearly established law. So how do you address that? [00:33:02] Speaker 02: I don't think that's what what Horton says. I think that's what Bronstein says, which is if there's a mistake, the mistake has to be reasonable. [00:33:11] Speaker 02: and the jury decides whether the mistake is reasonable. [00:33:15] Speaker 04: On prong one. [00:33:18] Speaker 02: On prong one and prong two, I think it's a jurisdictional question. I mean, the plaintiffs believe this court should not decide the merits of prong two. [00:33:28] Speaker 05: I'd like to follow up and try to understand how you're reading Horton. I mean, Horton's discussion of this ends that – The case law at the time of Horton's attempted suicide was simply too sparse and involved circumstances too distinct from those in this case to establish the reasonable officer would perceive a substantial risk that Horton would be would imminently attempt suicide. So it's like looking to the cases to see what the officer should have known. [00:33:58] Speaker 05: But I think you're trying to say. It's not about the cases, it's about whether just factually it was obvious that the suicide risk was high enough. [00:34:08] Speaker 02: I understand Horton to say that there's no case holding that an officer who is told somebody already in custody is a suicide risk, and then the officer has to immediately check that person. They say, well, that's not clear enough in our cases, so we're going to give him qualified immunity. What Clothier and Kahn are saying is that when somebody is brought to a facility and and has indicia of suicidality at that time, those cannot be disregarded and have him just put in a remote cell and unmonitored, contrary to the jail policy. [00:34:52] Speaker 02: And that if there's a question of, well, I made a reasonable mistake on whether he was suicidal, that's an issue of fact. And we don't look to case law to sort of define whether somebody who says, I don't really want to kill myself, I just want to sleep with my girlfriend or something, that that's, you know, we don't go into those nuances. Those are factual nuances, which is why not only is this case not disposable on summary judgment in the defense's favor, but we don't think that the court should even be hearing it on the merits, that we think that the approach in Alexander and Peck should be utilized in this case. [00:35:39] Speaker 05: Okay, you're over your time now, so I think I need to cut you off. Thank you for the helpful arguments. I think we had a minute for rebuttal. [00:35:45] Speaker 02: Thank you. [00:35:52] Speaker 01: Your Honors, thank you. Page 597 of Horton. [00:35:56] Speaker 01: Mr. Horton's mother is speaking to Deputy Bryce and discusses his drug use, PCP and Molly. So we have suicidality plus. [00:36:05] Speaker 01: Also in Taylor, a 2015 decision from the U.S. Supreme Court, they state at page 826, no cases have discussed suicide prevention protocols. That's critical for determining whether the law was clearly established. Lastly, Alexander v. Nguyen, 2023. This court states with respect to cases involving the conditions of confinement and adequacy of medical care that the law was still developing in 2023. If that was the case in 2023... [00:36:35] Speaker 01: It was certainly the case in 2021. [00:36:38] Speaker 01: This court is respectfully requested to reverse. Thank you. [00:36:42] Speaker 05: Thank you both sides for the helpful arguments. This case is submitted and we're adjourned.