[00:00:01] Speaker 04:
The next matter before us this morning is 23-1055, Lebernez versus Wilson.

[00:00:09] Speaker 04:
You can correct my pronunciation.

[00:00:17] Speaker 01:
May it please the Court and Council of Your Honors.

[00:00:20] Speaker 01:
My name is John Osgood.

[00:00:22] Speaker 01:
I represent Appellant Captain Kenneth Wilson and the cross-appellee Shelby Shields

[00:00:31] Speaker 01:
in this matter brought by the appellant, I'm sorry, the cross-appellant and the appellee, Mrs. Lieberens, Sarah Lieberens.

[00:00:44] Speaker 01:
I would like to reserve approximately five minutes at the close of my opening argument simply because there are issues to address on Ms.

[00:00:53] Speaker 01:
Lieberens's cross-appeal.

[00:00:55] Speaker 01:
And I also want to provide deference to my colleague

[00:01:01] Speaker 01:
with respect to her argument.

[00:01:04] Speaker 04:
Well, it's your responsibility to protect that five minutes.

[00:01:08] Speaker 01:
I understand, Your Honor.

[00:01:11] Speaker 01:
I'm going to do my very best.

[00:01:13] Speaker 01:
I wanted to just outline it for the court.

[00:01:16] Speaker 01:
Your Honors, the first issue is that the district court in this case erred in denying summary judgment as to Captain Wilson individually upon application of the doctrine of qualified immunity.

[00:01:32] Speaker 01:
As this court is aware, given the extensive jurisprudence that it's issued, the inquiry is whether the violative nature of Captain Wilson's particular conduct is clearly established under precedent from the United States Supreme Court, this circuit, or a consensus of other circuits.

[00:01:53] Speaker 01:
As this court's aware, the clearly established law cannot be established at a high level of generality.

[00:02:00] Speaker 01:
At the district court level, Judge Wong noted that plaintiff appears to concede and did concede that there's no Supreme Court or 10th Circuit case that reflects the same or substantially similar facts to this case.

[00:02:16] Speaker 04:
We're looking at a de novo, aren't we?

[00:02:18] Speaker 01:
We are looking at a de novo review, yes, Your Honor.

[00:02:21] Speaker 04:
So we don't have to agree with that statement.

[00:02:24] Speaker 01:
No.

[00:02:24] Speaker 01:
I'm providing it simply for context within

[00:02:29] Speaker 01:
My argument, your honor.

[00:02:31] Speaker 01:
So where does that leave us?

[00:02:33] Speaker 01:
This is not, as the appellants characterize it in their briefing, an easy case.

[00:02:38] Speaker 01:
There's no basis for the argument that Captain Wilson was on notice of a specific duty that he was required to undertake to present Mr. May's suicide.

[00:02:48] Speaker 04:
Well, isn't our case law pretty clear that if you have

[00:02:56] Speaker 04:
knowledge that someone is a suicide risk in prison, that you must do something?

[00:03:03] Speaker 01:
It depends, Your Honor.

[00:03:04] Speaker 01:
It depends.

[00:03:05] Speaker 01:
And there is evidence in the factual record that Captain Wilson, in fact, did do something.

[00:03:15] Speaker 01:
Captain Wilson was aware of Mr. Mays being in an intoxicated state based on his limited, in terms of moments, interaction with him.

[00:03:24] Speaker 01:
and following May's singular comment that he was indeed trying to kill himself.

[00:03:31] Speaker 01:
Based on this interaction, he determined something more should be done, and he determined that Mr. May's, that inquiry should be made into whether Mr. May's was eligible for detox and that a call be made to mental health.

[00:03:44] Speaker 01:
And that call occurred, it didn't, as... So doing something is

[00:03:56] Speaker 05:
What he did, you think is really doing something?

[00:03:59] Speaker 05:
I'm not sure it isn't doing something.

[00:04:01] Speaker 01:
What he did is doing something.

[00:04:02] Speaker 05:
He's in charge of the jail.

[00:04:04] Speaker 01:
That's correct, Your Honor.

[00:04:06] Speaker 01:
What he did is doing something, and particularly in the context of the information that he had, and the fact that this clearly established law under the jurisprudence of this court and the United States Supreme Court does not establish

[00:04:25] Speaker 01:
a specific duty that he was required to undertake.

[00:04:28] Speaker 02:
What about to take reasonable steps to protect a prisoner's safety and bodily integrity?

[00:04:37] Speaker 02:
a duty that's been spelled out in our case law, and here you mentioned, you know, he hears one suicidal ideation when someone's intoxicated, but you kind of glossed over what may be the most significant thing that he observed, which was an individual actually engaging in self-harm that he witnessed.

[00:04:54] Speaker 02:
So if I marry what is a reasonable step to protect bodily integrity with the observance of someone actually engaging in bodily harm, how do you square that?

[00:05:03] Speaker 01:
Well, there's a difference between the bodily harm that Mr. Mays was engaged in

[00:05:08] Speaker 01:
At the time he made the comment, which was not necessarily going to lead to, which was not a suicidal attempt, Your Honor.

[00:05:17] Speaker 01:
I mean, he was banging his head against a metal divider.

[00:05:20] Speaker 01:
That was not a suicidal attempt.

[00:05:23] Speaker 04:
Well, he said it was.

[00:05:24] Speaker 04:
He said, I'm trying to kill myself right now.

[00:05:29] Speaker 04:
That's a quote from Mr. Mays that's in the record.

[00:05:31] Speaker 01:
That is a quote from Mr. Mays.

[00:05:33] Speaker 01:
That's absolutely in the record.

[00:05:34] Speaker 01:
And that's absolutely the singular statement that Mr. Mays made to Captain Wilson and to Officer Macias.

[00:05:46] Speaker 01:
However, that statement is completely devoid of context as compared to the case law and the decisional case law that the

[00:05:57] Speaker 01:
petition, I'm sorry, that the appellants provided to support the argument that qualified immunity should not apply.

[00:06:05] Speaker 05:
What does that mean that's devoid of context?

[00:06:08] Speaker 05:
I don't understand what you're saying.

[00:06:10] Speaker 01:
Well, this goes to the district court's application of the sliding scale as opposed to applying specifically clearly established law on a similar or substantially similar set of facts.

[00:06:27] Speaker 01:
And as this court is aware.

[00:06:32] Speaker 04:
Well, are you saying that the knowledge has to be established the same way?

[00:06:38] Speaker 04:
That each of the people that are asserting qualified immunity have to have attained their knowledge of the prisoner's suicidal state in the same way for it to be clearly established?

[00:06:52] Speaker 01:
Not necessarily.

[00:06:54] Speaker 01:
But there's not a case

[00:06:56] Speaker 01:
There is simply not a case on point or not directly on point.

[00:07:01] Speaker 01:
I'm not saying it's a case that we're not arguing that a case has to be directly on all fours with this particular set of facts.

[00:07:10] Speaker 04:
Well, what is it that is missing here?

[00:07:12] Speaker 04:
I mean, we have case law that very clearly states if you have subjective knowledge

[00:07:21] Speaker 04:
that a prisoner is in danger of killing him or herself, that it triggers an obligation to take reasonable efforts to prevent suicide.

[00:07:33] Speaker 01:
Again, Your Honor, I believe that's an application of the sliding scale as opposed to clearly established law.

[00:07:39] Speaker 04:
No, that's not an application.

[00:07:41] Speaker 04:
That's a restatement of the holdings of cases.

[00:07:47] Speaker 04:
You said that he, Captain Wilson, did something to facilitate a call to a mental health facility.

[00:07:55] Speaker 04:
Is that what I heard you say?

[00:07:57] Speaker 01:
That's correct, Your Honor.

[00:07:58] Speaker 04:
Well, he testified he wasn't even aware of the attempt to call the mental health facility.

[00:08:05] Speaker 01:
He noted that there was

[00:08:10] Speaker 01:
that there was a need to potentially do something more relative to Mr. Mays' state of intoxication.

[00:08:16] Speaker 05:
To whom did he note that?

[00:08:20] Speaker 01:
He noted that in his testimony.

[00:08:21] Speaker 05:
That's what, that's the... Well no, he's got to be, he's got to communicate that then to somebody.

[00:08:26] Speaker 05:
Did he communicate it to Shields?

[00:08:29] Speaker 01:
He did not communicate that to Ms.

[00:08:30] Speaker 01:
Shields, no.

[00:08:31] Speaker 05:
Did he communicate it to anyone?

[00:08:34] Speaker 01:
Not to my knowledge, Your Honor.

[00:08:36] Speaker 05:
Well,

[00:08:39] Speaker 05:
So nice thoughts are good enough, right?

[00:08:43] Speaker 01:
Well, Your Honor, again, the argument, again, it's simply not established under clearly established law that he was on notice of a specific duty

[00:09:04] Speaker 01:
that he was required to undertake.

[00:09:06] Speaker 04:
He doesn't have to be on notice of the duty.

[00:09:08] Speaker 04:
He has to be on notice that the person is suicidal.

[00:09:12] Speaker 04:
And then the law imposes a duty on him.

[00:09:18] Speaker 04:
I mean, it's clearly established under our case law.

[00:09:21] Speaker 04:
Would you agree?

[00:09:23] Speaker 04:
It's clearly established under our case law that if a person in a position of Captain Wilson has knowledge that a prisoner is suicidal, they have to do something.

[00:09:39] Speaker 01:
It's clearly established, yes, but in this particular context and under this particular set of facts, he didn't have a clear understanding that this particular individual was suicidal based upon the singular comment that he made.

[00:09:53] Speaker 04:
Okay, so you're saying he did not have subjective knowledge that this person was suicidal.

[00:09:58] Speaker 01:
That's correct, Your Honor.

[00:09:58] Speaker 04:
Well, there's certainly an issue of fact on that, isn't there?

[00:10:02] Speaker 04:
I don't believe there is, because I don't believe it's... Well, I saw him beating his head against a cell, and Mr. Mays said, I'm trying to kill myself right now.

[00:10:13] Speaker 04:
I mean, a reasonable jury could find that that was enough to put the prison personnel that heard it to be aware that he was suicidal.

[00:10:29] Speaker 01:
But again, Your Honor, I'll go back to my point that I started with.

[00:10:36] Speaker 01:
The approach regarding the aggregation of the factors of which he was aware does not in and of itself establish a clear duty that he owed.

[00:10:49] Speaker 04:
I don't understand what you're saying.

[00:10:54] Speaker 04:
Are you saying that the facts that are pled could not, a reasonable jury could not find he knew that Mr. Mays was suicidal?

[00:11:05] Speaker 01:
That's correct, Your Honor.

[00:11:07] Speaker 05:
OK.

[00:11:08] Speaker 05:
The district court, though, aren't you stuck with the district court's determination that there is an issue of fact?

[00:11:18] Speaker 05:
Didn't that, our case law, indicate that?

[00:11:21] Speaker 01:
I don't believe we are, Your Honor, because it's not

[00:11:25] Speaker 05:
It's not clearly established under this precedent that under this set of facts... You do agree that under our case law you are stuck with the determination by the district court that based on the record before that district court that there is sufficient facts to indicate subjective knowledge of the problem.

[00:11:48] Speaker 01:
To the extent that there is a dispute of fact, yes.

[00:11:51] Speaker 04:
I want to alert you to your time because you wanted to stay five.

[00:11:55] Speaker 01:
We'll reserve the rest of our time for rebuttal.

[00:11:57] Speaker 01:
Thank you.

[00:12:17] Speaker 00:
May it please the court, Megha Iran for plaintiff Sarah Lieberens, Jackson's mother and personal representative of his estate.

[00:12:23] Speaker 00:
And I'd like to acknowledge that Ms.

[00:12:25] Speaker 00:
Lieberens is in the courtroom today.

[00:12:27] Speaker 00:
So while in jail,

[00:12:29] Speaker 00:
a highly intoxicated Jackson said he was trying to kill himself while repeatedly hitting his head against the wall.

[00:12:35] Speaker 00:
Defendant Wilson and Wells saw and heard this, and then they told defendant Shields about his behavior and that they feared he was suicidal.

[00:12:44] Speaker 00:
But all three defendants still left him in the cell without removing dangerous items, without sending him to detox or mental health, and without even monitoring the camera footage that was constantly streaming footage of his cell.

[00:12:57] Speaker 00:
Jackson then killed himself, his body was not found until the next morning, and none of these defendants are entitled to qualified immunity.

[00:13:05] Speaker 04:
You're going to argue your cross-appeal with your response here?

[00:13:11] Speaker 04:
That's correct, Your Honor.

[00:13:12] Speaker 04:
Why do you have a right to even make a cross-appeal argument?

[00:13:15] Speaker 04:
It's pretty clear in qualified immunity that there's a right to an interlocutory appeal.

[00:13:22] Speaker 04:
if immunity is denied, but no such right if immunity is granted.

[00:13:28] Speaker 00:
Certainly, Your Honor.

[00:13:28] Speaker 00:
So we do think pending appellate jurisdiction over the other two defendants here is appropriate because the claims are so inextricably intertwined.

[00:13:36] Speaker 00:
We're talking about the same set of facts and the same set of law here that shows that those defendants also violated clearly established law.

[00:13:44] Speaker 04:
But it's not the same facts.

[00:13:45] Speaker 04:
Anytime you have qualified immunity, it's very defendant-specific.

[00:13:50] Speaker 04:
And for each one, you have to independently evaluate

[00:13:55] Speaker 04:
specifically what that person knew and specifically what that person did.

[00:14:00] Speaker 04:
So I'm not convinced you have pendant jurisdiction here, but you can try to convince me otherwise.

[00:14:07] Speaker 00:
Certainly.

[00:14:08] Speaker 00:
And we understand it's the rare case where you exercise pendant appellate jurisdiction.

[00:14:11] Speaker 00:
We think this is one of those rare cases because the facts are so overlapping and that any differences that do exist are just dwarfed by those overlapping facts in law.

[00:14:20] Speaker 00:
But we understand that that is a rare situation.

[00:14:23] Speaker 00:
And I'm happy to focus my discussion today

[00:14:25] Speaker 00:
on Defendant Wilson.

[00:14:27] Speaker 00:
So I'll start there with Defendant Wilson, who knew three things.

[00:14:31] Speaker 00:
He knew Jackson was highly intoxicated.

[00:14:33] Speaker 00:
He knew he was hitting his head against a cell wall, and that he described that behavior as trying to kill himself.

[00:14:38] Speaker 00:
We also knew that he drew the correct inference from all that conduct.

[00:14:42] Speaker 00:
He said that he feared Jackson was suicidal.

[00:14:45] Speaker 00:
That's at 2 appendix 133.

[00:14:47] Speaker 00:
He also said we have to take him to detox or do something more for him.

[00:14:52] Speaker 00:
But then he didn't do anything.

[00:14:54] Speaker 00:
He didn't remove dangerous objects from the cell.

[00:14:57] Speaker 00:
He didn't put them on suicide watch.

[00:14:59] Speaker 00:
He didn't connect them to detox or do much of anything for that matter.

[00:15:03] Speaker 05:
So here we have... Wilson's counsel indicated that he did not direct those comments to anyone.

[00:15:11] Speaker 05:
Is that correct?

[00:15:12] Speaker 00:
So, Your Honor, I believe he told Defendant Shields that he feared Jackson was suicidal.

[00:15:17] Speaker 00:
And on the way out of the cell, he told Defendant Wells, you know, this general statement, we have to maybe take him to detox or do something more for him.

[00:15:25] Speaker 00:
And our contention is that shows that he was aware of a specific suicide risk that Jackson was facing.

[00:15:31] Speaker 05:
He vocalized... He says this to Wells.

[00:15:36] Speaker 00:
The comment about doing something more, I believe he says on the way out of the cell when Wells is there as well, yes.

[00:15:41] Speaker 05:
Well, Wells was the one, the arresting officer who brought the plaintiff in to the jail, right?

[00:15:50] Speaker 00:
That's correct.

[00:15:52] Speaker 05:
If the plaintiff should be transferred elsewhere to detox or elsewhere to do something more, wouldn't that fall to Shields to do?

[00:16:06] Speaker 00:
Well, Your Honor, sorry, Defendant Wells to do.

[00:16:09] Speaker 00:
But I do think that would have been the responsibility of all of the defendants.

[00:16:14] Speaker 00:
So certainly, Defendant Wells was obligated to do that.

[00:16:18] Speaker 00:
But also, Defendant Wilson, as the person in charge of the jail, was obligated to take reasonable steps to protect Jackson.

[00:16:25] Speaker 00:
And if one of those reasonable steps was taking him to detox, that was his duty as well.

[00:16:30] Speaker 00:
Now, this court's case law in Cox and Crane is clear that the clearly established law requires an officer, once they have that specific knowledge that a particular prisoner is at risk of suicide, that they have to take reasonable steps.

[00:16:44] Speaker 02:
Wasn't Crane decided two years after these events?

[00:16:47] Speaker 00:
It was, Your Honor.

[00:16:48] Speaker 00:
So I think Crane is still important just for two reasons.

[00:16:51] Speaker 00:
First, it reaffirmed twice that Cox did set out the clearly established law.

[00:16:56] Speaker 00:
And of course, Cox predated the conduct here.

[00:16:58] Speaker 00:
And it also canvassed the case law of this court's sister circuits and said, quote, it said that those cases, quote, reiterate the principle, end quote, articulated in Cox.

[00:17:09] Speaker 00:
And it was talking there about this court's sister circuit decisions that all predated the conduct here that we also rely on in our briefs.

[00:17:17] Speaker 00:
So just sort of reaffirms this idea that that law is clearly established both by this court and a robust consensus of out-of-circuit authority.

[00:17:25] Speaker 00:
And your honor, while we do think that Cox and Crane too are sufficiently specific on their own terms to clearly establish the law here, we have much more.

[00:17:36] Speaker 00:
So we have case law on very factually similar circumstances.

[00:17:41] Speaker 00:
where officers were denied immunity.

[00:17:44] Speaker 00:
So I'll start, you know, my friend on the other side was talking a lot about, well, Officer Wilson didn't have a duty to do something specific.

[00:17:53] Speaker 00:
Now, we do think Cox and Crane are specific enough, certainly.

[00:17:56] Speaker 00:
But we do have cases where officers were specifically denied immunity because they failed to remove dangerous items from the cell.

[00:18:04] Speaker 00:
So that's Converse, Snow, Coleman, and Elliott.

[00:18:07] Speaker 00:
In all of those cases, officers knew someone was suicidal, and they didn't remove a bed sheet from the jail cell.

[00:18:14] Speaker 00:
That's exactly one of the failures that defendant Wilson and the other defendants did here.

[00:18:20] Speaker 04:
But qualified immunity, it's not a negligence standard, right?

[00:18:26] Speaker 04:
The officer Wilson could have decided to do something and it may have been ineffective and Mr. Mays may have succeeded in killing himself anyway.

[00:18:37] Speaker 04:
That would not be a problem under our case law, right?

[00:18:41] Speaker 04:
That wouldn't give you a cause of action.

[00:18:43] Speaker 00:
No, Your Honor, and I think here we're not even close to that world because Defendant Wilson did absolutely nothing.

[00:18:50] Speaker 00:
So it's not that he did something and it was somehow not enough.

[00:18:53] Speaker 00:
He didn't do anything at all.

[00:18:56] Speaker 00:
And that is the one thing that clearly established law prohibits.

[00:19:00] Speaker 00:
He didn't remove items, and the specific cases I've talked about go to that

[00:19:04] Speaker 00:
specific failure.

[00:19:05] Speaker 00:
There are also cases that we pointed to where the failure was one of not sending the person out to a hospital or mental health or not monitoring them closely once you're aware that they're a suicide risk.

[00:19:18] Speaker 00:
And so those cases on monitoring, for example, are again, Converse, Snow, and Coleman, where officers were specifically denied immunity because they did not closely watch someone either on a video screen or via physical checks.

[00:19:32] Speaker 00:
And so all of these cases, certainly in conjunction with this court's own case law in Cox and Crane, put defendant Wilson on notice that once he learned Jackson was at risk of suicide, he had to do something

[00:19:46] Speaker 00:
to help prevent that from happening.

[00:19:48] Speaker 04:
And if he turned to his subordinates and said, call facility and arrange for transfer?

[00:19:57] Speaker 00:
So there are two points on that.

[00:19:58] Speaker 00:
First.

[00:19:58] Speaker 00:
That would be enough, wouldn't it?

[00:20:00] Speaker 00:
I don't think it would, but we also know that he didn't quite do that.

[00:20:03] Speaker 00:
So he himself testified that he was not aware of an attempt to call mental health.

[00:20:08] Speaker 00:
That's at 3 appendix 78.

[00:20:10] Speaker 00:
So in his own testimony, he didn't even take that one step.

[00:20:16] Speaker 00:
But even if he had taken that step, you know, once there was that failed call to connect to mental health and if he was aware that it failed, he couldn't just stop there.

[00:20:26] Speaker 00:
You know, this court said in Lucas v. Turnkey that just doing something when that something is totally inadequate to the situation at hand is not enough.

[00:20:35] Speaker 00:
And that makes sense.

[00:20:36] Speaker 00:
That's what other courts have also said in the jail suicide context.

[00:20:40] Speaker 00:
So for instance, in Cavalieri, the Seventh Circuit case, one of the officers gave the same sort of defense.

[00:20:48] Speaker 00:
That person said, hey, I tried to arrange a counselor for this person.

[00:20:52] Speaker 00:
I offered to do that.

[00:20:54] Speaker 00:
And the court denied that officer immunity, because that's just not enough when you're talking about someone who is at risk of suicide.

[00:21:01] Speaker 00:
And here, Wilson didn't even do anything as basic as that.

[00:21:08] Speaker 00:
Your Honors, I'd also like to turn just quickly to one factual point that Defendant Wilson appears to contest in his briefs, which again, given the posture of this appeal, isn't proper.

[00:21:24] Speaker 00:
But Defendant Wilson notes or suggests that he only saw Jackson hitting his head one time.

[00:21:31] Speaker 00:
And I want to make sure the record is clear that that's not accurate.

[00:21:34] Speaker 00:
What I believe he's referring to is a part of the district court's decision at 3 appendix 78 where the district court recognizes that Wilson conceded that he saw Jackson hit his head at least one time after first denying that he saw that at all.

[00:21:49] Speaker 00:
Now, when you watch the video at 9.57 p.m., you can see that Wilson is watching Jackson repeatedly hit his head against the wall, over and over, so much so that he then goes into the cell, physically stops Jackson from doing that and says, you know, you've got to stop smacking your head on the wall.

[00:22:05] Speaker 00:
Then later, he comes back at 9.59, standing outside the cell area.

[00:22:10] Speaker 00:
And from there can hear and possibly even see that the hitting is continuing.

[00:22:16] Speaker 00:
So he saw multiple head strikes.

[00:22:18] Speaker 00:
He also, of course, heard the statements that I'm trying to kill myself.

[00:22:23] Speaker 00:
And he knew that Jackson was suicidal.

[00:22:26] Speaker 00:
And I don't want to belabor the point, but under this court's case law, under a robust consensus of authority, his failure to act violated clearly established law.

[00:22:37] Speaker 00:
And it also violated the specific jail policies here.

[00:22:40] Speaker 00:
So the policy said, once you have awareness that somebody is at risk of harm, you have to do certain things.

[00:22:47] Speaker 00:
You have to remove everything from their cell.

[00:22:50] Speaker 00:
except a suicide suit and a mattress.

[00:22:52] Speaker 00:
That didn't happen.

[00:22:53] Speaker 00:
You have to monitor them with 10-minute camera checks and 20-minute in-person checks.

[00:22:57] Speaker 00:
That didn't happen either.

[00:22:58] Speaker 00:
You have to contact mental health to do an evaluation.

[00:23:04] Speaker 00:
That didn't happen either.

[00:23:05] Speaker 00:
And so whether this court relies on 10th Circuit Authority and Cox and Crane or a robust consensus of out-of-circuit authority or even the hope obviousness doctrine and this sort of

[00:23:15] Speaker 00:
jail policy that put these officers on notice, certainly Def.

[00:23:21] Speaker 00:
Wilson is not entitled to immunity.

[00:23:23] Speaker 00:
I think the District Court absolutely got that right.

[00:23:26] Speaker 02:
Do you distinguish what our law says about the duty to react to what one has knowledge of from an individual capacity versus a supervisory capacity?

[00:23:36] Speaker 02:
Can you help sort of distinguish how that applies in this case?

[00:23:38] Speaker 00:
Sure, Your Honor.

[00:23:39] Speaker 00:
So I think a state of Booker is most helpful there, because in that case, this court said that when the supervisor is intimately involved in the underlying conduct, there is no need to do a separate or special qualified immunity analysis for that person in his supervisory capacity.

[00:23:56] Speaker 00:
And so here,

[00:23:58] Speaker 00:
Defendant Wilson's failures violated clearly established law both in his capacity as a jailer, but also in his capacity as a supervisor.

[00:24:07] Speaker 00:
So the appropriate course would be to allow both of those claims to go forward, and then to have a jury essentially make the decision about whether they want to hold him liable in one capacity or another, or both, or neither.

[00:24:19] Speaker 05:
Can you short circuit that by addressing first

[00:24:24] Speaker 05:
the defendant as a jailer, and if the decision is there is no qualified immunity, is that necessarily established as the same if he's the supervisor of jailers?

[00:24:38] Speaker 00:
I think here where his conduct as a jailer and a supervisor is so related to each other, it's so much the same that I do think that would result.

[00:24:47] Speaker 00:
I do think there are a couple of other things that also go to his role as a supervisor.

[00:24:52] Speaker 00:
So for instance, his knowledge that defendant Macias had recently resigned, specifically citing a lack of training, and that he left

[00:25:00] Speaker 00:
that person with Jackson anyway is something that happened in his role as a supervisor.

[00:25:08] Speaker 00:
But because he was so closely involved with this conduct as a jailer, I do think denying him qualified immunity in that capacity would essentially be enough to deny him immunity as a supervisor as well.

[00:25:22] Speaker 00:
And I think that's what a state of Booker would permit this court to do.

[00:25:28] Speaker 00:
Your Honor, if I may briefly talk about Shields and Wells, I do want to reiterate that both of these other defendants had essentially the same knowledge that Def.

[00:25:37] Speaker 00:
Wilson had.

[00:25:38] Speaker 00:
So Def.

[00:25:39] Speaker 00:
Wells also saw the hitting of the head.

[00:25:41] Speaker 00:
She knew he was intoxicated.

[00:25:43] Speaker 00:
She also heard him say, I'm trying to kill myself.

[00:25:45] Speaker 05:
But she's seeing this from the capacity of being a dispatcher, correct?

[00:25:49] Speaker 05:
And doesn't that create a problem with clearly established law?

[00:25:53] Speaker 05:
So this is Defendant Wells, Your Honor, who brought him to the jail.

[00:26:02] Speaker 05:
He's not involved.

[00:26:04] Speaker 05:
He's just delivering this person.

[00:26:05] Speaker 00:
I don't think that's quite right, Your Honor, for a number of reasons.

[00:26:09] Speaker 00:
So defendant Wells called her supervisor while she was at the jail.

[00:26:13] Speaker 00:
And her supervisor told her to make sure Jackson was on suicide watch and that he was connected with mental health.

[00:26:18] Speaker 00:
So her supervisor certainly believes she had authority at the jail.

[00:26:21] Speaker 00:
And she did something.

[00:26:22] Speaker 04:
According to her, she said she doesn't control the jail.

[00:26:26] Speaker 04:
She just delivers him there.

[00:26:28] Speaker 04:
And she went to the person who does control the jail, Captain Wilson, and said,

[00:26:33] Speaker 04:
you need to put him in a mental health facility.

[00:26:34] Speaker 04:
She passed on the message and relied on him to do something.

[00:26:40] Speaker 00:
Well, Your Honor, Defendant Wilson said she didn't pass on that information.

[00:26:45] Speaker 00:
And so we do have to construe that fact against her.

[00:26:47] Speaker 00:
But more than that, I think Defendant Wells had the authority to do something herself.

[00:26:54] Speaker 00:
She was in that cell.

[00:26:55] Speaker 00:
She was in the dispatch area.

[00:26:56] Speaker 00:
She was telling Jackson what to do and what not to do.

[00:26:59] Speaker 00:
She was certainly acting with authority that evening.

[00:27:01] Speaker 00:
And she didn't even sign over.

[00:27:03] Speaker 04:
Well, there was nothing to suggest that Defendant Wells had any control over the jail.

[00:27:11] Speaker 00:
Your Honor, I think there is something to suggest that, many such things, actually.

[00:27:15] Speaker 00:
So there's her supervisor's comments telling her what to do while in the jail.

[00:27:20] Speaker 00:
There's her own conduct going into the cell telling Jackson what to do and what not to do, and the fact that she didn't even formally sign over custody of Jackson until after he began hanging.

[00:27:31] Speaker 00:
And then you add to that defendant Shields' testimony that they did not call Detox because defendant Wells didn't want to do so.

[00:27:39] Speaker 00:
It's clear that she certainly could have acted and in fact prevented perhaps some action from happening here.

[00:27:47] Speaker 04:
Thank you.

[00:27:48] Speaker 04:
Thank you.

[00:27:51] Speaker 03:
May it please the court, fellow counsel.

[00:28:04] Speaker 03:
I am Leslie Schluter.

[00:28:06] Speaker 03:
I represent Elka Wells.

[00:28:09] Speaker 03:
Elka Wells was a road deputy who was working court security who also helped out with assistance on calls on the weekend if needed.

[00:28:21] Speaker 03:
The first issue I would like to address is the issue of pendant jurisdiction.

[00:28:26] Speaker 03:
We do not believe, as the court has already observed, that the facts are the same.

[00:28:35] Speaker 03:
that this satisfies the standard of being inextricably intertwined.

[00:28:39] Speaker 03:
And each official who is present before the court, whether as appellant or as appellee, is here on distinct facts.

[00:28:48] Speaker 03:
So we ask that the court decline to exercise pendant jurisdiction.

[00:28:55] Speaker 03:
If the court elects to accept pendant jurisdiction over the cross-appeal, we ask that the court affirm

[00:29:05] Speaker 03:
District Court Judge Wong and her decision to grant summary judgment based on qualified immunity to Elka Wells.

[00:29:12] Speaker 03:
I believe that the plaintiff's arguments are answered in the combined brief that contains Deputy Wells' sections.

[00:29:21] Speaker 03:
I invite any questions, but otherwise wish to turn over the time to my fellow counsel.

[00:29:26] Speaker 03:
Thank you.

[00:29:28] Speaker 04:
No questions.

[00:29:39] Speaker 01:
Your Honors, we would again reiterate Mr. Schluter's comments relative to the court declining to exercise pendant jurisdiction with respect to the claims, both against Ms.

[00:29:54] Speaker 01:
Wells and against Shelby Shields, because we are indeed not talking about the same facts here.

[00:30:04] Speaker 01:
As to the supervisory liability issue, a state of Booker versus Gomez is not on point based upon the fact that the, we're talking about two different sets of facts.

[00:30:22] Speaker 01:
The appellee identifies no clear precedent, placing Captain Wilson on notice, that the supervisory liability claim is based upon

[00:30:34] Speaker 01:
an allegation of a deficient training program and suicide protocols as compared to the affirmative claims, the individual claims that are based on interactions with Mr. Mays.

[00:30:49] Speaker 01:
And those are two different things.

[00:30:51] Speaker 01:
And the failure to identify clearly established law relative to the former mandates dismissal of the supervisory liability.

[00:31:05] Speaker 04:
Thank you.

[00:31:05] Speaker 04:
We will take this matter under advisement.

[00:31:09] Speaker 04:
Appreciate your argument today.