[00:00:01] Speaker 02:
Good morning, your honors, and may it please the court. My name is Norman Morris. I'm here today representing Officer Toby Hall on the appeal from the district court's decision. I'd like to reserve three minutes for a rebuttal.

[00:00:14] Speaker 02:
We're here today because the district court erred in three ways on its decision relating to our motion for summary judgment. First, the district court did not address in any way the second ground for the arrest in ruling on the wrongful arrest claim. It focused entirely upon the medical. The undisputed facts then are that there was a second ground for arrest, and that was the unlawful possession of a loaded concealed handgun. That fact is undisputed. The court appeared to have lumped that analysis into the medical analysis relating to the diabetes.

[00:00:54] Speaker 02:
That's improper. We would be entitled to qualified immunity at the very least on that under Odoan.

[00:01:00] Speaker 03:
But even if hypothetically we were to agree with you, there's still another argument that a claim arose at a somewhat later point in time at the hospital, right?

[00:01:14] Speaker 03:
So your point about PC for the gun arrest doesn't deal with what might or might not have arisen at the hospital.

[00:01:27] Speaker 02:
That relates to the second and third basis for the errors. The first error is the wrongful arrest. He had probable cause to arrest him. That is undisputed. Plaintiff himself, Mr. Gomes, admitted he did not have a concealed weapons carry license.

[00:01:43] Speaker 02:
He told the officer during the stop where the weapon was. The officer located it. It had a loaded magazine in the well, therefore is deemed a concealed handgun under California law. That gave him the ability to arrest him. So as far as the first cause of action to address today for the wrongful arrest, the district court erred. It, again, attempted to use the analysis for the diabetes instead and focused it exclusively on the diabetes. Turning to the second and the third, the second relates to the state-created danger doctrine, and that does relate into the diabetes.

[00:02:20] Speaker 02:
That does not relate to the weapon at all. As to the state-created danger, again, the Supreme Court erred because it focused on the facts of what happened later.

[00:02:31] Speaker 02:
We did not place, and the facts show, we did not place the plaintiff in any different situation than he would have been in otherwise at the time of the stop.

[00:02:38] Speaker 03:
So I don't really understand that argument. You stopped him. He complained. You took him to the hospital. And then, according to plaintiff, you learned that there were no drugs and alcohol in the system. And yet instead of taking that and knowing that that

[00:03:05] Speaker 02:
meant that there was a big danger here you took him back to the station so i don't understand why uh that's not a viable state created danger circumstance certainly and actually the issue that you just referenced with the state alleged statement at the hospital that's one of the key issues on appeal that the district court erred on there is no evidence whatsoever to show no independent evidence whatsoever to show that any tests were performed at the hospital but but

[00:03:35] Speaker 03:
First of all, there's no factual dispute that there was a blood and alcohol screening, right?

[00:03:45] Speaker 02:
Correct, Your Honor.

[00:03:46] Speaker 03:
And there's no dispute that – there's a dispute about when you learned, but there's no dispute that it came back negative, right? Correct, Your Honor. Okay, so then you have his statement in the depot – And then someone came over because I had my eyes closed. They said, no, we couldn't find any drugs or alcohol in his system. I think this is in several places, but I'm looking at 3ER257. Why isn't that admissible evidence for the proposition that your client heard that and still took him back to the station?

[00:04:21] Speaker 03:
First of all, Your Honor, it's inadmissible hearsay. It's not hearsay. It's not offered for the truth of the matters asserted. It's offered for the fact that your client heard it.

[00:04:31] Speaker 03:
So even if we have jurisdiction to reach the hearsay issue, I don't see how it's even conceivably hearsay. It's offered for your client hearing it. There's no question that it's true, but regardless of whether it's true or not, there's evidence from which an adjudicator could determine that your client heard it. Your client said that he was at the hospital with him the whole time. So if it was said at the hospital, there's evidence from which a trier of fact could conclude your client heard it.

[00:05:01] Speaker 02:
Again, Your Honor, I will point out that the only evidence in the record relating to these tests show that these tests were performed. The alcohol test was, I believe, performed three days later. this incident and the drug screening test the only evidence of any drug screening test that there is indicates that it was performed weeks if not months after this incident there is no evidence that there was any test performed at the hospital indeed I think of when we look back at the additional testimony that was provided here about the length of time I believe the court would probably agree that It's highly unlikely that any hospital, we've all had the experience of going in and having blood drawn, that any hospital is going to get you complete blood and alcohol tests within 30 minutes.

[00:05:48] Speaker 02:
That's the length of time he was at the hospital the first time, approximately 30 minutes.

[00:05:55] Speaker 00:
It just seems like you are asking us to resolve factual disputes, and that's just not appropriate here.

[00:06:04] Speaker 00:
appeal and Regardless in this posture. We have to make all inferences in favor of the non-moving party.

[00:06:12] Speaker 02:
Mr. Gomes Well in light of this is your honor. This is a case that we did not cite to because it's a recent decision from this court the Cardenas Excuse me like about Cardenas or Nellis v. Johnson at 165 f 4th 1234 I decided earlier this year involves a remarkably similar situation. In that court, this court did, in fact, reverse the district court's denial on similar claims. In Cardenas Olson, or I'm sorry, Cardenas Ornelas, the plaintiff was similarly making statements that he had heard the statement, and the district court relied upon that in denying qualified immunity.

[00:06:54] Speaker 00:
But you would agree with us, right, that we don't have jurisdiction to resolve factual disputes, right?

[00:07:02] Speaker 02:
I would actually, under Cardenas or Nellis and the case that Cardenas or Nellis cited, I believe that you do have jurisdiction. Cardenas or Nellis is, quote, although we do not ordinarily have jurisdiction on interlocutory appeal to review a denial of qualified immunity based on the existence of a disputed fact, When there is an allegation about the conduct part of the equation, but insufficient evidence of that conduct to create a genuine issue of material fact, our cases permit review.

[00:07:28] Speaker 03:
But counsel, even if I were to agree with you on your legal point, the district court said... Gomes asserts that Hall was informed that the blood draw did not find any drugs or alcohol in his system before he transported Gomes from the hospital to the jail. And the district court also said at the hospital, Hall was informed that Gomes' blood draw showed that he had no drugs or alcohol in his system, and he testified that he heard someone say this while essentially he was at the hospital and while Paul, um, was with him the whole time.

[00:08:08] Speaker 03:
So even if you're right that we have the ability to review it, I don't see how looking at the evidence in the light most favorable to, uh, the plaintiff, that that doesn't create a disputed issue as to whether the officer heard there was no drug or alcohol found in his system while at the hospital before he transported him back to the station.

[00:08:29] Speaker 02:
But again, we don't know who said that statement at the hospital, even assuming it's not hearsay. We contend it is hearsay. It's multiple level because it relies upon the test results. There is no evidence of any test results.

[00:08:42] Speaker 03:
But again, if it was at the hospital, and you don't dispute that your client was with the plaintiff the whole time at the hospital like he testified, right?

[00:08:51] Speaker 02:
He was.

[00:08:52] Speaker 03:
So if it happened at the hospital and the only people there are your client, him, and people from the hospital, why isn't it a permissible inference to be drawn that it was somebody who knew what they were talking about and that your client heard it? If your client heard it at the hospital... I just don't see how, in the light most favorable to the plaintiff, the district court couldn't draw the conclusion it did.

[00:09:20] Speaker 02:
Well, first off, just to be clear, our client has denied. Officer Hall denies learning that fact.

[00:09:25] Speaker 03:
I understand that.

[00:09:26] Speaker 02:
He testifies he did not learn of the results until after he'd already been sued. But furthermore, as to this statement here, I think it's also critical to look at the fact the plaintiff testified he had his eyes closed and he was drifting in and out of consciousness.

[00:09:38] Speaker 03:
So a trier of fact might not believe him.

[00:09:41] Speaker 02:
It's not only not believe, it's the question of, is there any basis for that statement? And that's, again, under Wilkinson v. Torres, 610 F. 3rd, 546.

[00:09:51] Speaker 02:
When the facts as alleged by the non-moving party are unsupported by the record, such that no reasonable jury could believe them. We need not rely upon those facts for purposes of ruling on the summary judgment motion.

[00:10:01] Speaker 00:
So you are relying on cases that say when there's absolutely no evidence that the plaintiff has put forward. But here, I think there's actually a lot. You have... Mr. Gomes going in and out of consciousness in the police car on the way to the hospital. You have no smelling of alcohol, right? You have none of the tests that would normally be done in a DUI case. You have none of that, the nystagmus, the rapidly moving dilated pupils. You have none of that that would normally be done for an 11-550 California Health and Safety Code.

[00:10:38] Speaker 00:
offense or DUI. And so here you have the loss of consciousness. You have all these physical symptoms. You have him saying, I don't use drugs. I haven't drank alcohol. So this is not a case where there's no evidence to support Mr. Gomez's position.

[00:10:58] Speaker 02:
Well, I think turning back and looking at the court's recent decision in Odoan, which is similar, an officer is not required to rely upon a self-serving statement of innocence. In Odoan, it's a very similar fact. In that case, it was an epilepsy case, not this. And it was a probable cause for arrest case. But he claimed the officer was told that I had this medical condition. Therefore, he should have known that I wasn't violating the law.

[00:11:25] Speaker 02:
This court held that did not give rise to a denial for qualified immunity and reversed.

[00:11:32] Speaker 02:
Furthermore, if we look at Hopkins v. Bonvacino, which is 573F3752, again, that case is slightly different in that that is a case relating to whether or not officers were entitled to qualified immunity for a search.

[00:11:47] Speaker 03:
Let me give you a hypothetical, which I understand are not the facts here. Let's say The facts that plaintiff proffered were that, and it would be undisputed that the nurse who did the draw, I don't remember the gender, but The nurse who did the draw said to your client, we've looked, we've done the draw for drugs or alcohol. The results are there are no drugs or alcohol in his system.

[00:12:21] Speaker 03:
Would that be enough to get past qualified immunity if you added that hypothetical fact here?

[00:12:28] Speaker 02:
If they had the actual testimony of that person, likely. However, they have not identified any medical provider at the hospital that allegedly stated that. They do not identify or describe any individual at the hospital. They contend to say that there is no evidence of any blood or alcohol tests being performed by the hospital. In fact, the only blood that was drawn was drawn for processing by the Department of Justice Crime Lab. Had the hospital actually done something with those blood tests, that would have interfered with the criminal chain of custody.

[00:13:01] Speaker 00:
So the only test... Even the whole thing about the blood test is...

[00:13:07] Speaker 00:
The whole purpose that Officer Hall takes Gomes to the hospital is to get him tested to see if there's drugs or alcohol in his blood. And then the officer claims, well, I never knew the results of that test until I got your complaint.

[00:13:26] Speaker 00:
Doesn't that seem odd to you? Not at all. If you took him to the jail for the purpose of maybe booking him for 11-550 or DUI, then it would be assumed since you've done none of the field tests on sobriety and you don't have any other of the normal tests you would conduct to see if someone's under the influence of drugs or alcohol, you would at least have looked at the blood test results.

[00:13:49] Speaker 00:
But separate from that, I want to ask you two questions about DeBronstein. DeBronstein analyzed the claim for deprivation of medical care under both Fourth and Fourteenth Amendment. So then how should we say, oh, it's not possible even or proper to consider such a claim under the Fourth Amendment if DeBronstein did both? So that's one. And then the second is you argue there was no clearly established law based on de Bronstein because it was issued three years after the arrest here, but de Bronstein was actually analyzing what was clearly established law in 2018, and this arrest was 2020.

[00:14:23] Speaker 00:
So it really doesn't matter when de Bronstein was issued if it's analyzing the law two years before the incident arrest.

[00:14:32] Speaker 02:
Certainly. As to the first question, I believe it is under the 14th Amendment. As to the second, relating to de Bronstein's ruling, de Bronstein is a 2025 ruling, so it cannot be deemed to have given the required notice for purposes of qualified immunity as to something that happened three years before. I think we would all agree upon that.

[00:14:50] Speaker 00:
Now, when you turn and you look at the cases cited in de Bronstein... I wouldn't agree about that, because it made a finding that this was the clearly established law in 2018.

[00:15:01] Speaker 02:
Correct, and that's where I'm going. The fact that the court in de Bronstein looked at, number one, de Bronstein had a different factual pattern that is entirely distinguishable, and we have to keep that in mind when we talk about de Bronstein. De Bronstein involved time on scene of four hours, very apparent evidence of potential of damage to the vehicle and other things that the court held should have given rise to that, to the determination that, you know, this person may have some medical conditions. That was not the case here. Furthermore, the cases that de Bronstein cites, when you look at those cases, those are cases that relate to in custody, meaning the person was already in the jail being treated, and those cases are primarily directed against medical providers in those facilities, not a line police officer out on the streets making an arrest for what he determined he had probable cause for.

[00:15:53] Speaker 02:
This court has previously held that Police officers are not medical providers, and that they should not be held when making these decisions to the after-the-fact determinations relating to medical expert decisions.

[00:16:06] Speaker 03:
But, I mean, we said in de Bronstein, the standard is one of objective, deliberate indifference in the face of the substantial risk of the plaintiff's suffering.

[00:16:16] Speaker 03:
serious harm. And you've already told me that you agree that if there were clear evidence, he were told that the officer were told that no drugs or alcohol that we'd get past qualified immunity. So, um, uh, it seems like the entirety of your argument is resting on. We can't look at what he said.

[00:16:43] Speaker 03:
We can't look at what the plaintiff said he heard.

[00:16:47] Speaker 02:
Our argument is that there is no evidence to support what he said because there is nothing. Plaintiffs had the opportunity, and Mr. Gumbs had the opportunity to introduce evidence Any test from the hospital, I mean, if the test was performed at a hospital, there would be a record of that test. Furthermore, I don't believe that it would be, and the hospital would know this, that they could walk up to someone and say, oh, we did a test result, here's results. That would be a violation of both California law and federal law for them to provide that information because it's health information. They can take the blood test and then they can pass it on.

[00:17:19] Speaker 02:
They can't come back later and say, oh, well, this is what we found. You don't have that. Mr. Gomes could have asked for that information, but he didn't. So that's the issue here. We don't have any evidence whatsoever. There was no admissible evidence that the district court could consider relating to this alleged statement.

[00:17:37] Speaker 03:
Counsel, you're out of time, but we'll give you two minutes for your rebuttal.

[00:17:51] Speaker 01:
Good morning, Your Honors. Christian Contreras on behalf of Mr. Gomes. This case concerns Mr. Gomes, a professional security guard who was on his way to work and suffered from a medical emergency. He pulled over to address this medical emergency when he was encountered by Officer Hall. Now, the crux of the Fourth Amendment and even the 14th Amendment is reasonableness. There's been significant discussion about what happened at the hospital.

[00:18:23] Speaker 01:
But when you look at the totality of the circumstances, totality of the evidence, and totality of what happened on the day in question, from the very beginning, it was clear that Mr. Gomes was suffering from a medical emergency.

[00:18:35] Speaker 03:
How was it clear that he was suffering from a medical emergency?

[00:18:41] Speaker 03:
How is it clear that what he was suffering from wasn't self-induced drug or alcohol intoxication?

[00:18:48] Speaker 01:
Well, your honor, there's a specific learning domain from the peace officers standards and training guidelines, which apply to every certified police officer, including Officer Hall, which talks about specifically how these officers are first responders and they are trained to recognize issues such as diabetic emergencies. And when you look at the factors, which was actually something presented to the district court in its analysis in terms of how to recognize these issues. It talks about some of the symptoms that are recognized by the officer.

[00:19:20] Speaker 03:
There's no question he was driving erratically, right? Correct. And there's no question that he had a loaded gun in the car.

[00:19:28] Speaker 01:
That's true.

[00:19:29] Speaker 03:
Okay. And then there's no question that relatively quickly, although maybe reasonable people could differ about the quickly part, relatively quickly he was taken to a hospital for a blood and alcohol screen.

[00:19:42] Speaker 01:
I wouldn't say relatively quickly. It was roughly 40 minutes that the officer was at the scene before he took him to the hospital initially.

[00:19:50] Speaker 03:
OK, so 40 minutes. Correct.

[00:19:53] Speaker 03:
And you're saying it should have been 20 minutes, 15 minutes, 10 minutes, 25 minutes. Well.

[00:20:01] Speaker 01:
Yes, I would say five minutes. I mean, frankly, we wouldn't even be here if the officer merely would have just summoned medical care as required under the Fourth Amendment. I mean, these officers are trained to recognize these types of issues. We're not saying he should have treated him and done a whole full-blown diagnosis as to exactly what it was, but they're trained to recognize these types of issues as first responders, and specifically diabetic emergencies as outlined in the training. And so here, not only were there objective symptoms, Mr. Gomes himself.

[00:20:30] Speaker 00:
Those symptoms could have easily also been symptoms of drug or alcohol use.

[00:20:36] Speaker 01:
They could have. And in fact, the training says that the officers shouldn't rush to judgment and to confuse drug intoxication with a diabetic coma or diabetic type emergency. So, yes, they have similarities, but the officers should look at the totality of the circumstances. It was a Wednesday evening. Mr. Gomes told the officer that he was on his way to work. There was no drugs found in the car. There was no paraphernalia. And so when looking at everything, it was unreasonable for the officer to assume that he was under the influence.

[00:21:06] Speaker 00:
Do you agree that the officer at a minimum had probable cause on the firearm?

[00:21:13] Speaker 00:
Because Mr. Gomes didn't have a concealed carry license.

[00:21:16] Speaker 03:
After the fact, yes. What do you mean after the fact? I mean, your client told him, I got a gun. It's here. I shouldn't have it loaded. I'm a guard. I should know better. But I screwed up.

[00:21:31] Speaker 03:
That's true. And that's not PC at the time? At the time he sees an illegally carried weapon, which the person admits the enter to, that's not enough for reasonable grounds to believe a crime had been committed or was being committed?

[00:21:51] Speaker 01:
Be that as it may, even if there is, I think there is, that is probable cause. But even if that were the case, there's two issues on that ground. Number one, even if someone has committed a crime, the officer doesn't disregard their safety, their medical safety, and say, oh, look, they committed a crime. Let me just take them to jail.

[00:22:11] Speaker 03:
I agree. Those are different questions. But you've answered my question about whether there was probable cause.

[00:22:20] Speaker 01:
Right. But the second issue with with that is that the officers, officers in California can cite and release depending on.

[00:22:28] Speaker 03:
But there's no obligation to write.

[00:22:30] Speaker 01:
Right.

[00:22:31] Speaker 03:
And it in this case, given whether it was drug induced or something else, there would have been no possible reason for the officer to release your client on the highway. Right.

[00:22:45] Speaker 03:
Not under this circumstance. Right. Well, that's what we're talking about here, these circumstances.

[00:22:50] Speaker 01:
Right. So not under this circumstance, but they're trying to bootstrap probable cause on the unrelated issue to then try to justify the conduct as a whole, which is improper. You still have to render aid and provide medical care and at least summon medical care.

[00:23:06] Speaker 00:
But you can see that you haven't provided any evidence that the officer lacked probable cause. based on the firearm.

[00:23:19] Speaker 01:
I would agree. I would agree.

[00:23:21] Speaker 00:
That would then give us jurisdiction to review whether the district court denial of qualified immunity as to the Fourth Amendment unlawful seizure claim was appropriate or not.

[00:23:38] Speaker 00:
Because our law does say that if there's no evidence, then we can actually rule.

[00:23:44] Speaker 01:
Right, when there is no evidence, that's under the Foster v. Indio case that was cited in the Ornelas case that was cited by counsel. But here there is evidence that... I think, frankly, the gun issue is a red herring.

[00:23:59] Speaker 00:
No, it's not. It's the basis of probable cause for the arrest. And you've just conceded that you have no evidence against that. So then we have jurisdiction to say...

[00:24:11] Speaker 00:
That was improper not to grant qualified immunity on the Fourth Amendment claim for unlawful seizure because of the valid probable cause to arrest based on the firearm.

[00:24:23] Speaker 01:
Right. But when looking at the officer's account, the primary reason for the detention was because of his belief, mistaken belief that— You can have dual causes for an arrest.

[00:24:35] Speaker 00:
You can have probable cause for multiple offenses. Right.

[00:24:38] Speaker 01:
You can, you can, but you have to look at it whether it's reasonable or not. Was it reasonable to detain him for that length of time just because of a firearm that was in the vehicle when he's suffering from a medical emergency? And so I think that's the main issue under the Fourth Amendment.

[00:24:51] Speaker 00:
Right, but that's just... You're raising... Okay. You're raising a different...

[00:24:56] Speaker 00:
different point but let me also say you you're seeming to say that your failure to provide medical care is a Fourth Amendment claim but you've also argued it as a 14th amendment claim but that only applies to pretrial detainees which mr. Gomes was not so do you concede that 14th amendment is not the appropriate amendment to rely on for your medical care claim

[00:25:23] Speaker 01:
I personally wouldn't necessarily concede that, mainly because of Bronstein and what Bronstein said in terms of how these claims could be analyzed. The 14th Amendment claims typically are analyzed under the jail context and pretrial detainees, but Bronstein analyzed it under both, the 4th and 14th.

[00:25:48] Speaker 00:
has to rely on a lot of the jurisprudence that's been developed in the 14th Amendment because that jurisprudence exists. And it just doesn't exist to the same extent for the Fifth Amendment. So we're going to consider it that way. But Bronstein also said 14th Amendment is for pretrial detainees and Fifth Amendment is, or I'm sorry, Fourth Amendment is for people who are being detained during the course of an arrest.

[00:26:11] Speaker 01:
Right. So the main case is Tatum, which talks about Fourth Amendment. But I think the reason why Bronstein reasoned the way it did is because it was looking at a body of law to determine whether it was clearly established what an officer must do under certain circumstances. And when you're looking at the Fourth and Fourteenth Amendment, it's been clearly established for a significant time, well before this case, that an officer has to provide objective information. care it doesn't have to provide actual care but some in medical care or at least do something to render aid immediately when it's clear that the person is suffering from a medical emergency so whether it's an actual claim let's say that the case precedes the trial i don't think bronzing is saying it has to fall under either or bronzing was saying that under the body of law which qualified immunity can do it doesn't have to be just one specific case it could be a body of law under the fourth and fourteenth amendment jurisprudence of the ninth circuit

[00:27:04] Speaker 03:
Officers are on notice that they have to provide objective objective reasonable care after arrest cancel I want to turn a minute to your friends Statement that when your client was first taken to the hospital There's no record of any tests being performed. Is that correct?

[00:27:28] Speaker 01:
An actual medical record yes That's unclear. We have the medical records from the actual hospital, whether it reflects the actual... There is a medical record which reflects that he was there, he was taken. Whether the actual medical record reflects the reading, that's unclear.

[00:27:51] Speaker 01:
But I think that also goes to, frankly, I think the heart of my argument, and I respectfully state that this court lacks jurisdiction to even hear this appeal. I know there's an issue with the Fourth Amendment about the probable cause, but as a whole, their main argument is, the linchpin of their argument is, oh, well, this statement is hearsay. I believe it's non-hearsay. It's being used to show... I agree with you.

[00:28:17] Speaker 03:
It's not hearsay. It's for the... it's being offered to show that somebody heard it right but uh but would you agree with me that if there were no evidence of any kind and the district court found a fact based on no evidence of any kind in the record that that would be a legal error that we had the right to review i think it depends on evidence i think it depends on evidence because there is a case

[00:28:47] Speaker 01:
There is a Ninth Circuit case which addresses that, and that's what my friend here was discussing in the Ornella's case. The Ornella's case discussed the Foster v. City of Indio case, which completely different facts about how... Yeah, so let's say here, hypothetically, obviously the district court didn't do this.

[00:29:04] Speaker 03:
The district court said...

[00:29:07] Speaker 03:
The plaintiff testified in his deposition that the officer said, I heard the results. You have no drugs or alcohol in your system. And there was nothing in the deposition that said that. Would we lack jurisdiction to review that?

[00:29:27] Speaker 03:
The district court just misquoted the deposition entirely.

[00:29:32] Speaker 03:
And we have the transcript, and it's clear that that wasn't said.

[00:29:37] Speaker 01:
That would be more of a legal error. I agree with you. But here we're not dealing with a legal error. We're dealing with sufficiency of evidence, which Johnson prohibited. And the whole progeny of Johnson, even George versus Morris... There's multiple, multiple, multiple Ninth Circuit cases which talk about that it's improper for this court in an interlocutory appeal to review the sufficiency of the evidence. And the sufficiency of the evidence is what is being done here in terms of whether it's admissible or not.

[00:30:09] Speaker 01:
The court looked at it, but I think, frankly, the bigger issue with just focusing on the statement, the district court relied on five material disputes of fact on, this is ER 89, It talked about the first dispute of fact, whether Officer Hall observed Gomes blocking traffic.

[00:30:27] Speaker 00:
Can I just get a clarification on exactly what there's no evidence of? If I look at ER 277, it's a summary of care provided by Cottage Health, so, you know, the hospital. And it says, was actually here for legal blood draw first.

[00:30:47] Speaker 00:
taken to jail where his blood sugar was checked and found to be over 600, so was returned here for evaluation. So it does support that a blood draw was done first. Presumably it was not for the blood sugar because they did that at the jail. So presumably that was for either the presence of drugs or alcohol, right?

[00:31:09] Speaker 01:
That's correct.

[00:31:10] Speaker 00:
Okay. And...

[00:31:18] Speaker 00:
And even Officer Hall says, after the blood test, I transported him to the county jail where he did the medical screening, and that's where the nurse tried to take his blood sugar and wasn't able to get a result, right?

[00:31:32] Speaker 01:
That's correct.

[00:31:33] Speaker 00:
So, I mean, there does seem to be a sufficient amount of evidence in the record that a blood draw was done for the purpose of drugs and alcohol.

[00:31:48] Speaker 00:
when Mr. Gomes was first brought to the hospital.

[00:31:52] Speaker 01:
Right, but the biggest issue in this case, there was never any medical care summoned or requested. I mean, it's typical for officers to even take folks to the hospital for an okay to book. An okay to book is just merely taking them for medical clearance. The officer doesn't conduct the actual medical assessment, but at least takes them to the hospital at the very least to have them assessed. Here, because the specific inquiry was just for drugs and alcohol, that wasn't done by the staff. And so if the officer would have merely said, hey, can you just also do a general assessment, clear him to book, We wouldn't even be here because the officer would have satisfied his requirements under the Constitution, but he didn't.

[00:32:28] Speaker 01:
That's the biggest issue.

[00:32:29] Speaker 00:
Can you quickly explain why we shouldn't follow the Fifth Circuit in holding that admissibility questions are not reviewable on appeal of a qualified immunity denial?

[00:32:43] Speaker 01:
Yes, because there's plenty case law. I mean, Supreme Court jurisprudence first in Johnson versus Jones. That's the Supreme Court case. And then in the next term, it decided Barron's.

[00:32:55] Speaker 01:
But there's there's significant nine circuit jurisprudence talking about how this court cannot review sufficiency of evidence. A state of Anderson versus Marsh. There's also an versus Cooley. That's a 2009 9th Circuit case talking about how material facts is categorically unreviewable on interlocutory appeal. And there's just significant cases which talk about that. The 9th Circuit cannot look at the sufficiency of the evidence. And so I see my time is up.

[00:33:25] Speaker 01:
I would ask that this court affirm the district court. Thank you. All right. Thank you, counsel.

[00:33:39] Speaker 02:
Thank you, Your Honors.

[00:33:42] Speaker 02:
One of the points that Mr. Contreras just raised was that the officer didn't do anything on the scene, basically. He should have provided care. I think what we have to remember, and this goes to the second issue that we raised about the state-created danger. We did not put him in any greater danger than he was already in at the time.

[00:34:05] Speaker 02:
If you look at Mr. Gomes' own testimony, he stated he had stopped taking his meds months before, had not sought any medical care for months, despite knowing his condition, had been suffering adverse conditions that day. And this is also in the record. If you look at the report of the incident, he did not state he was on his way to work. He said he thought he was down in L.A., near a baseball arena, I believe.

[00:34:31] Speaker 02:
So that is there. But when we get to it, when we look at the facts of it, he also stated, and this is critically important for the state of greater danger, he did not intend to seek medical care. He intended to go to work as an armed security guard carrying a gun, go to work despite knowing all these things, knowing he already pulled off. At no point did he say he was going to seek any medical care.

[00:34:54] Speaker 02:
At any point in time, he could have said, hey, I think I need an ambulance. Officer Hall would have called an ambulance. Hey, I think I need to see a doctor. He would have gone in to see a doctor. He didn't. He acted just like the regular drunks and others that officers see all the time. His symptoms were consistent.

[00:35:14] Speaker 02:
That is what happened here. Officer Hall actually put him in a better position because instead of the plaintiff going to work and basically probably passing out there with a gun, which would place the public at risk, he was taken into custody. Within 40 minutes, he was taken in for the blood draw. Again, at that point of time, he could have told the phlebotomist, hey, I think I need to see a doctor. He didn't. He didn't ask for any medical care when he was there. That's in the medical records.

[00:35:41] Speaker 02:
Additionally, when he was at the hospital, or not the hospital, at the jail, he could have said something more. He didn't. There was nothing raised about these issues until the second visit, when he had to be back at that point when the blood sugar levels were known. That is a key fact. The state created danger as well. So on that ground alone, we think the district court erred.

[00:36:00] Speaker 03:
All right. We thank counsel for their arguments. The case just argued is submitted. And with that, we are adjourned for the day.

[00:36:06] Speaker 02:
Thank you.