Legal Case Summary

Before we start, I want to welcome Judge Liam O'Grady to the news joining us today for all our Gnidistri Judge from Alexandria. Are glad to have you, Judge O'Grady. Thank you very much. I hope you'll lead us to the right resultant in these cases. Please do me a favor. All right, look here, two guys from South Carolina. Well, you know, this is a great way to end the week. All right, let's say Mr. McKinon, former law clerk to Joe Anderson, former. All clerk in Alaska, believe me. Sir, your memory is amazing. And you're on the clerk's offices told us they had to turn off the mic because of feedback. So if you have any trouble hearing you, please. I'm not going to call any trouble with us here. No, you're not. Good morning, Mr. Chief Judge and members of the court. May it please the court

. I represent Cody and Christopher Herne, who are the sons of the decedent Henry Herne, who hung himself at the Elmkastor County Jail on September 13th, 2009. Very briefly with the facts. Mr. Herne was distraught and living behind his ex-wife's house in the woods on a tarp. Sort of camping out. There were cans and bottles back there. And he'd been living out there for a few days at least. His wife believed he had been breaking into her home and stealing small items. And so call the police or Lancaster County Sheriff's Department. Deputy Donovan Small responded along with a sergeant, Sergeant Whitaker. They found the campsite. They spoke with Miss Herne, the ex-wife. And at the campsite, they found a note pad with a five-page note on it. They read the note. They spoke with Miss Herne and were unable to locate Mr. Herne at that time. They left later in the day and reher and did show back up in the woods

. His ex-wife called, not my one again. This time, Deputy Small responded and did arrest Mr. Herne for domestic violence. You said that they read the note, but of course, the appellees dispute that. Well, they do, Your Honor. But as it's a summary judgment motion, Your Honor, the written report that Deputy Small did it to seeing clearly says that he read the note and Sergeant Whitaker read the note. Now, later on in deposition testimony, they try to hedge away from that a little bit. And Deputy Small says we kind of skim through it and they all kind of qualify it. But the contemporaneous written report clearly says that Deputy Small read the note and Sergeant Whitaker read it as well. And certainly at the summary judgment stage, that would be a disputed issue of material back, Your Honor. So, this time they do arrest Mr. Herne. There is a conversation in the patrol car where Deputy Small claims that he asked Mr. Herne about the meaning of the note and that Mr. Herne is dismissive and says, you know, not to worry about it. They get to the jail, Mr. Deputy Small and his supervisor, Lieutenant Whitaker, who he had consulted with prior to the arrest, look at the note

. And again, there is some dispute over how, in what detail Lieutenant Whitaker looked at the note, but he, I mean, currently looked at the note. Is it your position that Deputy Small is asking, making inquiry about the meaning of the note that that by itself is not enough to absolve him or others of liability? Absolutely, Your Honor. I mean, I believe Your Honor is asking me. And this is in the mind you're in the context of no knowledge of any prior history of any suicide, which the cases seem to think are important. Where Your Honor, in some instances, the history of suicide would be important. And this, we have the context first, Your Honor, of a man who's clearly disturbed. He's living behind his ex-wife's house on a tariff on the ground in the woods. So he's clearly not in his right mind. She believes he's been breaking into her home. We don't know whether that was true or not, but that was what she told the officers. That was her belief. And on top of that, we have a five-page note, which has continued references to death. Just really briefly. Well, I don't know if it continued his fair. And I think the length of the note may cut against you because there are references to all kinds of things. And that note, which might have distracted a reasonable observer from what you claim to be the principal gist that is that he intended to kill himself. He did, Your Honor

. But I would ask Your Honor to remember that we don't have to prove this is a suicide note. The standard is deliberate indifference to a known risk. And so, so long as the note and the context of the note present a known risk of suicide, that's all we have to show. And we certainly can see that it's possible the note can be interpreted differently. But we don't have to- The subjective test, and clearly he's been identified as a subjective test. And it's also considered subjective recklessness. So why isn't the judge here required to look at- And the deputies more importantly, look at the overall information that that deputy received, which was very much in conflict, wasn't it? Well, it is a subjective determination, Your Honor. But we don't find- I mean, I don't believe the deputy's testimony is credible. I mean, for example, deputy's small repeatedly references a note as a written report. He quotes three specific portions from it and is contemporary in his written report. He was clearly concerned about the note. And then two and a half years later in a deposition, he minimizes everything. But as a course, even the Farmer Court, you know, as the Supreme Court said, you can't just deny an obvious risk. But say, I did- We're allowed to prove by circumstantial evidence that they had knowledge of this risk. And we believe that's the crux of our case, that given the expert testimony, the note and the circumstances of the note, were entitled to a jury- So that seems to cut against you as well. If the experts couldn't agree, then why should the deputy be held to a higher standard? Well, I'm not sure- I mean, our experts were not in conflict, Your Honor. Well, that's true

. But they had an expert that said to the- And I realize that any conflicts should be resolved against you. But I guess my point is, in the context of a conflict amongst experts, you've got an officer on the ground looking at a note for the first time without any context. No prior history of suicide. I mean, is it fair to say that he had subjective knowledge actually knew or could not avoid knowing on those facts? Yes, sir. And I said, I think that the alternative rule would be that as long as one side and litigation can dig up some experts somewhere that will testify others and they risk their off the hook. And that's just- I don't believe that to be the law, Your Honor. And in this case, again, we don't have to show that this was definitely a suicide note. The standard is deliberate indifference to a known risk of harm. Am I correct in my recollection that every time he was asked by somebody, well, he intended suicide or whether or not he had suicidal thoughts that he did not. He did, Your Honor. But as both of our experts said, that is common for someone who's actually made the decision to kill themselves. For someone who's sort of the crack- Well, the deputy has to be an expert. Well, again, that actually goes to our point, Your Honor. That deputy is not qualified to make these determinations. If you look at this note, there is a risk of suicide in this note. And all three law enforcement officers, Whitaker, Kirkley and Small, testified that in their training and the policy at the Lancaster County J.O

. was, if there was any risk of suicide, you did not take the inmate to the J.O. You took them straight to the hospital. And so the only way they can justify their actions is by saying, we read this note. And there's no risk of suicide. We just don't find that. I know that's what they say. They said they either didn't read it or they read it and found nothing concerning in the note. And we just don't find that, believe it. He's suggesting that we shouldn't look at a small, for instance, and consider the fact that he was a high school graduate. And he'd been on the force less than 20 months, I think. And are we looking at it subjectively through his eyes as to why he made the decision he made? We are, Your Honor. But again, I think the evidence is he was extraordinarily concerned about the note. I mean, the written report from what was a fairly routine arrest was a page and a half typed with multiple references to the note, including quotations for multiple pages of the note, which shows he clearly read the entire thing. And again, we don't have to prove that he did a mental health assessment and felt this inmate or this detainee was suicidal. Anyone, I think, with a high school education would look at this and say, there's a risk here. And that's all we have to show

. I mean, just the reference alone, I don't want my face sunk in. I don't know what... What's the only thing... The only thing that I could think of your honor is decomposition. And that's the only thing that I asked the different witnesses at depositions. And one of their medical experts had some crazy theory about a flesh eating bacteria or something. So, it's the kind of thing that you look at it. I don't even know what that means. So, I don't know how we expect a deputy to meet that and pick it up as an indicator that he's anticipating his own death. Well, Your Honor, but there are lots of other... I mean, I only have two options, us or this

. And then he goes on to say, he's tried to contact his ex-wife, he hasn't responded. So, this is his only choice. And, you know, I guess this could be taking a trip to Vegas or something. But again, the whole picture here is a disturbed man camping out in his ex-wife's backyard in the woods, in the wet, with no toilet facilities, no, I mean just eating canned food, and then in her belief, sneaking into her house when she's not home. This is a seriously disturbed man. And I would say this note should increase an author's level of concern. I mean, he gives away his entire worldly possessions, his Elvis picture, you know, $225 in change, which was all the money he had in the world. There was no money he had on him when he was arrested. Is this his living in the woods or factor? I believe it is, Your Honor, only because it provides the context to the note. You know, if he was holding down a job as an accountant and, you know, up to date on his mortgage and everything, maybe the note is less significant. But for someone who the author's note is living behind their ex-wife's house, clearly still obsessed with his ex-wife breaking into her home, according to her, he's seriously disturbed. Let me ask, do you concede that there's no liability against the sheriff in the county and the jail administrator at this stage after the... We do, Your Honor. And I should qualify that under the 1983, there's no federal liability. We are pursuing state law claims

. How about Snipes, the book in clerk? There's no evidence that she did anything but shake the note book out. And before she put it in to the Custard Records custodian, right? Your Honor, I will absolutely concede that our strongest claims are against deputy small and lieutenant curfew. I don't think that I can see there's no claim against servant Snipes. She says she flipped through the peaches. I think that's for a jury determine whether that's credible or not. I mean, I understand, you know, inmates get caught with porno magazines and things like that, and then you're just going to look through them for content. But this is a five-page handwritten note with a map on it. This is not kind of standard thing that an inmate gets arrested and has in their possession. And she says that she didn't read it, but I think that we're entitled to have a jury determine whether that's credible or not. It's brought in, I won't make sure I understand the facts. It's brought in with him. Yes, sir. And put into the judge. She's the booking sergeant and in mentoring his personal possessions, she says what she says is, she flipped through it looking for contraband, but didn't read it. Was it with any other evidence or is it there's that the only piece of evidence that comes with him? That is the, your Honor, to the best of my knowledge, the only piece of evidence that comes in with him that would suggest mental distress or suicide. Is this the only piece of evidence, sir? Well, there are other items given to her. Your Honor, I apologize

. I don't, I know he did not have any money, which is I was going to say that, you know, deputy small store that he believed that Mr. Hermann was going to take a trip somewhere when he had no cash on him, is just not believable, especially when the note references all his cash is at this church with his worldly possessions. He's never given the tray my like a complete knowledge of the record, but it was a reason never given for why they pull that letter out and brought it in. No, sir. That was, it was at his campsite. It was on a legal page, Your Honor. It was bound in a notebook bound together and they bounded it the campsite and read it and they didn't know other than they thought it was evidence. That's all they thought it was significant. Yes, sir. They never, they certainly, they never told me they blood it was a suicide, never something. But they never put it in evidence of the crime. They just left it in the Sheriff's Department as a personal property of Mr. Hermann. That's correct, Judge. I agree. Lieutenant Curculy and deputy small actually had a conversation about that issue, whether it was evidence or whether it was personal possessions and they came to the conclusion, it was a personal possession and so it was booked in. The rest of my time is I have 10 seconds left unless your honors have further questions, I'm going to see it to my opposing counsel. You've got some more time after for a fly. Thank you, Your Honor. Andy Linderman who's been to more force circuit arguments, I think than I have. I don't believe a term goes by, Mr. Linderman, we don't have your smile at face over here. And always glad to see you. Always glad to be here, Your Honor. Really? For the most part. Let's don't go too far for the most part. May I please the Court? My name is Andrew Linderman. I represent the Appellis in this matter. The honors, I think the obvious point to start with is that this case needs to be viewed from the viewpoint of a 14th Amendment case rather than negligence case. And in reading the Appellis arguments and reading their brief, what they have really put forward are arguments in support of a negligence claim. Relying on such testimonies from Mr. Katsaris, the experts saying any reasonable police officer would believe that that particular note was a suicide note. Well, that's a reasonable person's standard. That's not the standard obviously under delivered indifference, which has been spelled out by the Supreme Court and former B

. You've got some more time after for a fly. Thank you, Your Honor. Andy Linderman who's been to more force circuit arguments, I think than I have. I don't believe a term goes by, Mr. Linderman, we don't have your smile at face over here. And always glad to see you. Always glad to be here, Your Honor. Really? For the most part. Let's don't go too far for the most part. May I please the Court? My name is Andrew Linderman. I represent the Appellis in this matter. The honors, I think the obvious point to start with is that this case needs to be viewed from the viewpoint of a 14th Amendment case rather than negligence case. And in reading the Appellis arguments and reading their brief, what they have really put forward are arguments in support of a negligence claim. Relying on such testimonies from Mr. Katsaris, the experts saying any reasonable police officer would believe that that particular note was a suicide note. Well, that's a reasonable person's standard. That's not the standard obviously under delivered indifference, which has been spelled out by the Supreme Court and former B. Brent. Obviously, you have to get before you get a tribal issue of fact. I mean, you've got a very high standard. We've got this delivered indifference or subjective recklessness. But here on our record, we have on the one hand, we have the note. And on the other hand, we have testimony that Mr. Hurnes gave to Deputy Small in the discussions that they had. And there seems to be, you've got the report that says I read the note. You've got Small's testimony that I kind of glanced at it. And also Whitaker directly inconsistent testimony in this deposition as to whether we read the note or not. When do you get to the stage where there is circumstantial evidence that a jury needs to decide under a standard this high? Well, I think one of the important things to look at is what you just said that the standard is so high. And the key with delivered indifference, of course, is, and that's what I was trying to focus on a moment ago, is that you look at the subjective recklessness as Yanners indicate that's what essentially former B. Brent and adopted was the subjective recklessness standard from criminal law. So it requires a two-pronged test, and you have to look at what that particular officer knew, and specifically whether or not then based on what he did with the information, assuming he recognized a substantial risk of harm, whether or not his response, he knew that that was inappropriate. But it's a very high standard. But if there's conflicting evidence as to what he knew, then when is it appropriate for a jury to resolve whether his credibility? Well, obviously the role of the district judge, and in this particular case Judge Gurgles, to look at whether or not a reasonable fact finder could conclude otherwise. And based upon his review of the factual information that was presented at summary judgment together with the very high standard delivered indifference, Judge Gurgles made the determination which we, of course, suggest this court was absolutely correct that the evidence did not rise to the level of allowing a reasonable fact finder to conclude that there was an inference delivered indifference

. Brent. Obviously, you have to get before you get a tribal issue of fact. I mean, you've got a very high standard. We've got this delivered indifference or subjective recklessness. But here on our record, we have on the one hand, we have the note. And on the other hand, we have testimony that Mr. Hurnes gave to Deputy Small in the discussions that they had. And there seems to be, you've got the report that says I read the note. You've got Small's testimony that I kind of glanced at it. And also Whitaker directly inconsistent testimony in this deposition as to whether we read the note or not. When do you get to the stage where there is circumstantial evidence that a jury needs to decide under a standard this high? Well, I think one of the important things to look at is what you just said that the standard is so high. And the key with delivered indifference, of course, is, and that's what I was trying to focus on a moment ago, is that you look at the subjective recklessness as Yanners indicate that's what essentially former B. Brent and adopted was the subjective recklessness standard from criminal law. So it requires a two-pronged test, and you have to look at what that particular officer knew, and specifically whether or not then based on what he did with the information, assuming he recognized a substantial risk of harm, whether or not his response, he knew that that was inappropriate. But it's a very high standard. But if there's conflicting evidence as to what he knew, then when is it appropriate for a jury to resolve whether his credibility? Well, obviously the role of the district judge, and in this particular case Judge Gurgles, to look at whether or not a reasonable fact finder could conclude otherwise. And based upon his review of the factual information that was presented at summary judgment together with the very high standard delivered indifference, Judge Gurgles made the determination which we, of course, suggest this court was absolutely correct that the evidence did not rise to the level of allowing a reasonable fact finder to conclude that there was an inference delivered indifference. You have to focus in these type of cases on specifically what the particular officer says he knew, and then, but obviously you can look at whether or not there are circumstantial evidence to suggest otherwise. In this particular case, what is very key is their whole case is based around this note. And obviously the note as Judge Gurgles recognized does not include a specific threat of suicide. And it includes a lot of different information. One of the points that the plan says relying on significantly is the the sunken face comment. And I totally agree with the point that Judge Tracks or just made nobody knows what that means. And in fact, Mr. McKinnon just said can be interpreted many ways. And he also just conceded a point that I think he has to because his expert suicideologist conceded it that that note as a whole can be interpreted many different ways. So obviously if it's not clear cut and it can be interpreted many ways, where is the circumstantial evidence that would suggest that when officer small testifies that I didn't read that as a suicide note, I didn't take it that way. I was curious about it. And of course, then he follows up and specifically asks Mr. Hurn who he found to become and coherent and of appropriate demeanor. He asked him what it was about and Mr. Hurn then provided him with a very cogent explanation for the note. Mr. McKinnon put some substantial import on the fact that your client deputy snipes tried to run away from how much of the note he actually read in his deposition testimony

. You have to focus in these type of cases on specifically what the particular officer says he knew, and then, but obviously you can look at whether or not there are circumstantial evidence to suggest otherwise. In this particular case, what is very key is their whole case is based around this note. And obviously the note as Judge Gurgles recognized does not include a specific threat of suicide. And it includes a lot of different information. One of the points that the plan says relying on significantly is the the sunken face comment. And I totally agree with the point that Judge Tracks or just made nobody knows what that means. And in fact, Mr. McKinnon just said can be interpreted many ways. And he also just conceded a point that I think he has to because his expert suicideologist conceded it that that note as a whole can be interpreted many different ways. So obviously if it's not clear cut and it can be interpreted many ways, where is the circumstantial evidence that would suggest that when officer small testifies that I didn't read that as a suicide note, I didn't take it that way. I was curious about it. And of course, then he follows up and specifically asks Mr. Hurn who he found to become and coherent and of appropriate demeanor. He asked him what it was about and Mr. Hurn then provided him with a very cogent explanation for the note. Mr. McKinnon put some substantial import on the fact that your client deputy snipes tried to run away from how much of the note he actually read in his deposition testimony. That's obviously relevant, right? The credibility of the officer and a jury I suppose could reasonably conclude that if he was trying to minimize that aspect of the facts that in fact he did note and now is trying to avoid that knowledge. Well, I think really what the the pellens argument as along those lines is they're trying to compare his deposition testimony to what was actually included in the note mean in the report that he did which is at page 274 and 275 of the record. And that's not a fair comparison based upon the way it's been argued because really if you take a close look at the officer's type written report. He doesn't contrary to what I believe I understood Mr. McKinnon. It is I'm sorry 275 and 276 of the record. And if you look at page 275 of the record the first page of that particular report I disagree with Mr. McKinnon he doesn't quote verbatim any portions at least I don't see it in here and maybe I'm mistaken but I don't see any word for word quotes from from the note about three fours of the way down he says deputy D small also noticed a yellow notepad that was lying on the sheet deputy D small red the notepad which was written the D her from H her and H her and had stated where his other belongings were and that winter was coming and he did not know what else to do. The letter also stated for D her to go get his belongings that he was saying goodbye and that he loved D her and Daisy who was his daughter. That's the extent of his description of what the note says so it doesn't actually show that he read the entire note because it's certainly not a necessarily a summary of all four pages of that particular note and it certainly doesn't give any quotations I think that is very consistent with officer small subsequent deposition testimony. We're supposed to read the words deputy D small red the note had as meaning that he read just a little bit of it and it's consistent with his deposition. Well he certainly doesn't state here give the son and my point being that what the argument that the intelligence have made is they've suggested that his his deposition testimony is inconsistent because his note went into great detail and the point that I'm trying to make is his note didn't go into it. Yes it says I read the note but even if you assume that that's true it's what did he get from the note did he interpret that note as a suicide note and he says he didn't there's no evidence to suggest that he's not being candid about that in addition to that as I've already touched on the note does not include a specific threat of suicide I think that's undisputed that was found by Judge Gurgel and the plaintiff's own suicideologist expert says it's subject to interpretate. So I think that's a very good explanation something that Mr McKinnon has just conceded here today. So what did we do with the fact that he was legally intoxicated at the time that they arrested him? Well that of course didn't come out until and that's not in this particular record I do not believe that there are medical records in this record I might be mistaken about that but going through it last night I don't believe I saw that. I think the only references actually in the appellans brief right and bottom line that was not a significant issue they raised that in their brief discussion of sergeant snipes saying that she must have been deliberately indifferent because in addition to not reading the note or digesting the note even her testimony was she just flipped her looking for contraband but in addition to that that he was intoxicated there's no evidence that the officers found him to be intoxicated and that was not a significant issue. I don't believe that this summary judgment record includes the level of intoxication assuming that he is even though I may have missed that but I don't believe that's in there and I know where they've cited it in their brief they have not cited to the record because I just noted that this morning

. That's obviously relevant, right? The credibility of the officer and a jury I suppose could reasonably conclude that if he was trying to minimize that aspect of the facts that in fact he did note and now is trying to avoid that knowledge. Well, I think really what the the pellens argument as along those lines is they're trying to compare his deposition testimony to what was actually included in the note mean in the report that he did which is at page 274 and 275 of the record. And that's not a fair comparison based upon the way it's been argued because really if you take a close look at the officer's type written report. He doesn't contrary to what I believe I understood Mr. McKinnon. It is I'm sorry 275 and 276 of the record. And if you look at page 275 of the record the first page of that particular report I disagree with Mr. McKinnon he doesn't quote verbatim any portions at least I don't see it in here and maybe I'm mistaken but I don't see any word for word quotes from from the note about three fours of the way down he says deputy D small also noticed a yellow notepad that was lying on the sheet deputy D small red the notepad which was written the D her from H her and H her and had stated where his other belongings were and that winter was coming and he did not know what else to do. The letter also stated for D her to go get his belongings that he was saying goodbye and that he loved D her and Daisy who was his daughter. That's the extent of his description of what the note says so it doesn't actually show that he read the entire note because it's certainly not a necessarily a summary of all four pages of that particular note and it certainly doesn't give any quotations I think that is very consistent with officer small subsequent deposition testimony. We're supposed to read the words deputy D small red the note had as meaning that he read just a little bit of it and it's consistent with his deposition. Well he certainly doesn't state here give the son and my point being that what the argument that the intelligence have made is they've suggested that his his deposition testimony is inconsistent because his note went into great detail and the point that I'm trying to make is his note didn't go into it. Yes it says I read the note but even if you assume that that's true it's what did he get from the note did he interpret that note as a suicide note and he says he didn't there's no evidence to suggest that he's not being candid about that in addition to that as I've already touched on the note does not include a specific threat of suicide I think that's undisputed that was found by Judge Gurgel and the plaintiff's own suicideologist expert says it's subject to interpretate. So I think that's a very good explanation something that Mr McKinnon has just conceded here today. So what did we do with the fact that he was legally intoxicated at the time that they arrested him? Well that of course didn't come out until and that's not in this particular record I do not believe that there are medical records in this record I might be mistaken about that but going through it last night I don't believe I saw that. I think the only references actually in the appellans brief right and bottom line that was not a significant issue they raised that in their brief discussion of sergeant snipes saying that she must have been deliberately indifferent because in addition to not reading the note or digesting the note even her testimony was she just flipped her looking for contraband but in addition to that that he was intoxicated there's no evidence that the officers found him to be intoxicated and that was not a significant issue. I don't believe that this summary judgment record includes the level of intoxication assuming that he is even though I may have missed that but I don't believe that's in there and I know where they've cited it in their brief they have not cited to the record because I just noted that this morning. Now definitely small did Mr. Hurn's whether he had thoughts about harming himself or is that? Well he asked what was the explanation for the note I mean he was just curious about that and of course that in our judgment shows that he isn't deliberately indifferent. He was not the one who asked directly whether he had any thoughts of suicide. I don't believe he asked those questions I think he asked for an explanation to note it was sergeant snipes as part of the intake process. She did a medical questionnaire and one of the questions that's asked is whether or not the inmate is or the perspective the detainee is thinking about hurting himself or has any type of suicidal ideation. Well if in fact small had no inclination to believe that Mr. Hurn's was going to hurt himself and why ask about the substance of the note why would it matter. I'm sorry why would the question matter why would he ask about what the note meant unless he thought perhaps that there was some thought about hurting himself. Well I've his explanation he was curious what it meant I mean that he just wanted to make certain that there wasn't anything unusual going on. You know another important point in obviously in Mr. Small's favor and I don't believe that we touched on this in our brief and I certainly want to call it to the court's attention. That Mr. Small was also asked when he by Hurn once when Hurn was being brought in he asked Small to go back and get his property. And I think that's significant the man was asking to safeguard his property if he intended to go through with the suicide as spelled out in his in the note as as they're suggesting that the note says he wouldn't have cared what happened to his particular property but he was asked for that to be to be safeguarded so that's something that small was was asked which would tend to be inconsistent with anything or the suggestion that's made that the note says. Because the note according to the appellans that they've interpreted that the say that he was essentially giving his property away sort of as a last will and testament in certain respect. In addition to the statements about having his face son Ken and I guess for his mind can differ as to what that meant he had a list of songs at the end of the note. He did suggested that he wasn't not going to be long for this world

. Now definitely small did Mr. Hurn's whether he had thoughts about harming himself or is that? Well he asked what was the explanation for the note I mean he was just curious about that and of course that in our judgment shows that he isn't deliberately indifferent. He was not the one who asked directly whether he had any thoughts of suicide. I don't believe he asked those questions I think he asked for an explanation to note it was sergeant snipes as part of the intake process. She did a medical questionnaire and one of the questions that's asked is whether or not the inmate is or the perspective the detainee is thinking about hurting himself or has any type of suicidal ideation. Well if in fact small had no inclination to believe that Mr. Hurn's was going to hurt himself and why ask about the substance of the note why would it matter. I'm sorry why would the question matter why would he ask about what the note meant unless he thought perhaps that there was some thought about hurting himself. Well I've his explanation he was curious what it meant I mean that he just wanted to make certain that there wasn't anything unusual going on. You know another important point in obviously in Mr. Small's favor and I don't believe that we touched on this in our brief and I certainly want to call it to the court's attention. That Mr. Small was also asked when he by Hurn once when Hurn was being brought in he asked Small to go back and get his property. And I think that's significant the man was asking to safeguard his property if he intended to go through with the suicide as spelled out in his in the note as as they're suggesting that the note says he wouldn't have cared what happened to his particular property but he was asked for that to be to be safeguarded so that's something that small was was asked which would tend to be inconsistent with anything or the suggestion that's made that the note says. Because the note according to the appellans that they've interpreted that the say that he was essentially giving his property away sort of as a last will and testament in certain respect. In addition to the statements about having his face son Ken and I guess for his mind can differ as to what that meant he had a list of songs at the end of the note. He did suggested that he wasn't not going to be long for this world. Well I think again we have very much the benefit of hindsight in this case and I think Judge Gurgo obviously the standard and I think the Paris versus Cleveland case gives this court a very good road map as to how to apply that. And obviously you can't look at with hindsight and if you look at the note and try to look at without hindsight he doesn't say at my funeral I want these songs played he just says I like these songs now what does that mean. Certainly we all know now with the benefit of hindsight that what he was probably suggesting is he was planning out his funeral. But at least maybe that's certainly a reasonable suggestion but with the benefit of hindsight doesn't say that it just says I like these songs they weren't the typical songs I mean I disagree with the appellans I don't know that they're the typical songs that are played at a funeral. But again that's all subject to interpretation this is a subjective standard here and you have to look at what these particular officers knew and of course this court is already touched on you got four different appellans in this particular case and the issues are somewhat different for each of them. I don't think there should be any question in this court's mind that sergeant Whitaker the summary judgment for him was appropriate even if he read the note the first time it was found at the campsite it is without dispute that he had no involvement whatever whatsoever with Mr. Hurn. Mr. Hurn was not at the campsite at that particular point. The officers know when the wrote note had been written they did not I don't believe that that was that was ever clear to them or were they questioned about that. It was simply found as on a on a yellow note pad and I don't think it was I'm pretty certain it wasn't did if I recall the note. And the other notes that they found subsequently none of the deputies had looked at before the suicide occurred that's correct and deputy Whitaker. Mr. Hurn was the supervisor of the detention center at some stage and was there any information in the record that he knew that Hurns had been arrested and was in the detention facility before he hung himself when he was the supervisor. I don't and I don't recall him and I apologize to you I don't recall him being a supervisor. That may be Kirkley. Yeah, Kirkley was the Kirkley was the supervisor

. Well I think again we have very much the benefit of hindsight in this case and I think Judge Gurgo obviously the standard and I think the Paris versus Cleveland case gives this court a very good road map as to how to apply that. And obviously you can't look at with hindsight and if you look at the note and try to look at without hindsight he doesn't say at my funeral I want these songs played he just says I like these songs now what does that mean. Certainly we all know now with the benefit of hindsight that what he was probably suggesting is he was planning out his funeral. But at least maybe that's certainly a reasonable suggestion but with the benefit of hindsight doesn't say that it just says I like these songs they weren't the typical songs I mean I disagree with the appellans I don't know that they're the typical songs that are played at a funeral. But again that's all subject to interpretation this is a subjective standard here and you have to look at what these particular officers knew and of course this court is already touched on you got four different appellans in this particular case and the issues are somewhat different for each of them. I don't think there should be any question in this court's mind that sergeant Whitaker the summary judgment for him was appropriate even if he read the note the first time it was found at the campsite it is without dispute that he had no involvement whatever whatsoever with Mr. Hurn. Mr. Hurn was not at the campsite at that particular point. The officers know when the wrote note had been written they did not I don't believe that that was that was ever clear to them or were they questioned about that. It was simply found as on a on a yellow note pad and I don't think it was I'm pretty certain it wasn't did if I recall the note. And the other notes that they found subsequently none of the deputies had looked at before the suicide occurred that's correct and deputy Whitaker. Mr. Hurn was the supervisor of the detention center at some stage and was there any information in the record that he knew that Hurns had been arrested and was in the detention facility before he hung himself when he was the supervisor. I don't and I don't recall him and I apologize to you I don't recall him being a supervisor. That may be Kirkley. Yeah, Kirkley was the Kirkley was the supervisor. Did Whitaker take over for Kirkley after Hurns had been brought in I think that's the I think actually at the point see Whitaker's only involvement was early that morning the first time to the campsite and Whitaker while they were at the campsite got called to another another scene. That was the end of his involvement he had no further involvement with either the arrest the transport or the incarceration. And I think the evidence is uncontroverted on that let me make one additional point Mr. McKinney said several times in his opening that the fact that that Mr. Hurn was homeless essentially homeless living in the woods should have suggested somehow to these officers that he was mentally unstable or deranged in some way. And I don't think that's a fair assessment. I mean I'm unfortunately in society today we have a lot of homeless people and the simple fact many homeless more than likely do have mental illness but many do not. I don't think you can simply make that jump because this man was living in the woods. Well I think it's point is that it paints a mosaic that in addition to the other facts may be enough to show subjective knowledge. So is it your view that absent and explicit threat of suicide there's just no way for ever for an officer to be on actual notice and have subjective knowledge of a threat of suicide? Well that certainly was what this court found in Gordon versus kid they said there needs to be some sort of prior suicidal tendencies suicidal history that detention officers need to be on notice of some particular history in order to be in the woods. So that's the standard that this court said in farmer. You know I think it does certainly parts of Gordon does does not because Gordon also expresses a reasonable man standard and suggested that something less than subjective recklessness in the criminal sense would be sufficient to give rise to liability. But I think that's the only part of Gordon that is probably no longer good law but certainly how you approach and what you look for as far as a history I think those aspects and we rely on Gordon and I think Judge Gergo actually cited Gordon as well for those premises. But obviously farmer v. Brennan governs and this court has a wealth of case law after farmer v. Brennan again one of the best cases I think was written by former chief judge Williams who obviously we miss greatly in South Carolina and I'm sure this court does I know this court does as well but that is an excellent opinion and that's one that I believe really set the framework that this court can follow and has followed and substantially substantially. So I think that's a substantial number of cases since then in both suicide and any type of deliberate in difference cases in a jail or prison setting and that court and that decision from this court really spells out you know what what I think is probably the prime issue that the appellance of argued here and that is whether or not the note itself was obvious enough provided such an obvious risk of harm that it doesn't matter what the officer say they subjectively knew

. Did Whitaker take over for Kirkley after Hurns had been brought in I think that's the I think actually at the point see Whitaker's only involvement was early that morning the first time to the campsite and Whitaker while they were at the campsite got called to another another scene. That was the end of his involvement he had no further involvement with either the arrest the transport or the incarceration. And I think the evidence is uncontroverted on that let me make one additional point Mr. McKinney said several times in his opening that the fact that that Mr. Hurn was homeless essentially homeless living in the woods should have suggested somehow to these officers that he was mentally unstable or deranged in some way. And I don't think that's a fair assessment. I mean I'm unfortunately in society today we have a lot of homeless people and the simple fact many homeless more than likely do have mental illness but many do not. I don't think you can simply make that jump because this man was living in the woods. Well I think it's point is that it paints a mosaic that in addition to the other facts may be enough to show subjective knowledge. So is it your view that absent and explicit threat of suicide there's just no way for ever for an officer to be on actual notice and have subjective knowledge of a threat of suicide? Well that certainly was what this court found in Gordon versus kid they said there needs to be some sort of prior suicidal tendencies suicidal history that detention officers need to be on notice of some particular history in order to be in the woods. So that's the standard that this court said in farmer. You know I think it does certainly parts of Gordon does does not because Gordon also expresses a reasonable man standard and suggested that something less than subjective recklessness in the criminal sense would be sufficient to give rise to liability. But I think that's the only part of Gordon that is probably no longer good law but certainly how you approach and what you look for as far as a history I think those aspects and we rely on Gordon and I think Judge Gergo actually cited Gordon as well for those premises. But obviously farmer v. Brennan governs and this court has a wealth of case law after farmer v. Brennan again one of the best cases I think was written by former chief judge Williams who obviously we miss greatly in South Carolina and I'm sure this court does I know this court does as well but that is an excellent opinion and that's one that I believe really set the framework that this court can follow and has followed and substantially substantially. So I think that's a substantial number of cases since then in both suicide and any type of deliberate in difference cases in a jail or prison setting and that court and that decision from this court really spells out you know what what I think is probably the prime issue that the appellance of argued here and that is whether or not the note itself was obvious enough provided such an obvious risk of harm that it doesn't matter what the officer say they subjectively knew. And that issue is actually rejected in the in the parish case and I would submit that the reasoning in that particular case should apply here as well and I think the facts actually in this case as I've indicated are actually stronger because there have been concessions that this note can be interpreted different ways and certainly the plaintiff's own expert has said that which I think is a key point. As my time is running out I do want to deal with one we've raised qualified immunity of course as an additional sustaining ground that issue was raised below by foot no judge Gurgle indicated that he did not need to reach the issue but we would submit to this court that even if you find that there may be an issue of fact in dispute with one or more of these officers and I certainly as I said before I think the cases are clear cut with Whitaker and Snipes. Curcly may be a little closer and small may be a little closer but I think the case that the plaintiffs have made as far as those two officers are more on the lines of negligence rather than deliberate indifference which obviously is a claim that they still have pending having been remanded but assuming this court finds that there's an issue of fact in dispute as far as the 14th amendment claim is concerned we would reassert our entitlement to qualified immunity. And I think the strongest argument on qualified immunity is the simple fact that you've got a district court judge who has examined these facts looked at them closely and has made the determination that he doesn't believe that the conduct that has been alleged and taken in a light most favorable to the plaintiff gives rise to deliberate indifference and obviously there's case law from the United States Supreme Court and a wealth of case law from this court that says if two jurists disagree with the court it's not going to be a case law. I think the court will agree based upon the front lines and having to decide things on the spur of the moment but obviously after reviewing the facts reviewing legal arguments reviewing briefs and make the determination that one judge says there's a constitutional deprivation and another judge suggests that there may not be well that's classic evidence or classic proof that the officer should be entitled to qualified immunity. The general fact that judge Gurgles looked at this and it's concluded that these facts taken in a light most favorable to the plaintiff do not give rise to deliberate indifference even should this court disagree we would suggest the qualified immunity that these officers are entitled at the very least the qualified immunity. I see my time is running out unless there are any other questions we would ask that the court affirmed the lower court and I thank you very much for your time. Thank you Mr. Levin. Thank you Mr. McKenna. Thank you Your Honours. Your Honours if I could just turn really briefly to Deputy Smalls report. This would be oh it's actually in two places in the record Your Honour one is at 135 and I believe Your Honours are looking at it later in the record it shows up again but 135 is. Thank you Your Honours. Thank you. And you have about two throws of the way down the page he says as Judge O'Grady mentioned he clearly says he read the note and of course he backs off in his deposition and his judge DS picks up that is evidence from which the jury can infer he's trying to get out of a claim

. And that issue is actually rejected in the in the parish case and I would submit that the reasoning in that particular case should apply here as well and I think the facts actually in this case as I've indicated are actually stronger because there have been concessions that this note can be interpreted different ways and certainly the plaintiff's own expert has said that which I think is a key point. As my time is running out I do want to deal with one we've raised qualified immunity of course as an additional sustaining ground that issue was raised below by foot no judge Gurgle indicated that he did not need to reach the issue but we would submit to this court that even if you find that there may be an issue of fact in dispute with one or more of these officers and I certainly as I said before I think the cases are clear cut with Whitaker and Snipes. Curcly may be a little closer and small may be a little closer but I think the case that the plaintiffs have made as far as those two officers are more on the lines of negligence rather than deliberate indifference which obviously is a claim that they still have pending having been remanded but assuming this court finds that there's an issue of fact in dispute as far as the 14th amendment claim is concerned we would reassert our entitlement to qualified immunity. And I think the strongest argument on qualified immunity is the simple fact that you've got a district court judge who has examined these facts looked at them closely and has made the determination that he doesn't believe that the conduct that has been alleged and taken in a light most favorable to the plaintiff gives rise to deliberate indifference and obviously there's case law from the United States Supreme Court and a wealth of case law from this court that says if two jurists disagree with the court it's not going to be a case law. I think the court will agree based upon the front lines and having to decide things on the spur of the moment but obviously after reviewing the facts reviewing legal arguments reviewing briefs and make the determination that one judge says there's a constitutional deprivation and another judge suggests that there may not be well that's classic evidence or classic proof that the officer should be entitled to qualified immunity. The general fact that judge Gurgles looked at this and it's concluded that these facts taken in a light most favorable to the plaintiff do not give rise to deliberate indifference even should this court disagree we would suggest the qualified immunity that these officers are entitled at the very least the qualified immunity. I see my time is running out unless there are any other questions we would ask that the court affirmed the lower court and I thank you very much for your time. Thank you Mr. Levin. Thank you Mr. McKenna. Thank you Your Honours. Your Honours if I could just turn really briefly to Deputy Smalls report. This would be oh it's actually in two places in the record Your Honour one is at 135 and I believe Your Honours are looking at it later in the record it shows up again but 135 is. Thank you Your Honours. Thank you. And you have about two throws of the way down the page he says as Judge O'Grady mentioned he clearly says he read the note and of course he backs off in his deposition and his judge DS picks up that is evidence from which the jury can infer he's trying to get out of a claim. He's backing off what he said earlier to defend himself and elocidate it goes to his credibility but then going my route after that he goes on to quote from the note he says he stated where his other belongings were that's from page two of the note which means he read page two then he says winter was coming that's a direct quote from the note that's from the first page of the note and then he goes on he tells her to get his belongings back to page two and three and then goodbye and then he loved Darcy and Daisy. He's his ex wife and daughter that's from pages three and four of the note so he's both quoting the note and he's referencing the entire note so his later testimony that he just skimmed it is simply not credible and I also ask if your honours wouldn't mind turning with me to page one thirteen of the record this is from deputy small deposition test and as Judge DS picked up on his questioning he was clearly concerned I ask him at the top of the page. I said what did you ask him about the note and deputy small said I ask him hey are you okay that is a deputy who is concerned about this man's welfare and then he goes on and I ask him I said well why did you ask him about the note and he doesn't answer me he has no explanation for that at the end of the page he goes on to say he wasn't concerned about the note at all. You're skipping the part where he says he was leaving going out west right right to the family goodbye I did you're on a but but my my my question there is why did you ask him about the new and he gives me this what I would say is a nonsense story about moving out west. He has not explained why he's concerned about the note even if you take it even if you believe him that he really did hear this note this message about going out west or Mr. Herndt he does not explain he claims he was not concerned about Mr. Herndt he was coherent everything was fine nothing word him yet he quoted the note multiple times in his report and even in his deposition he admits he asked him are you okay this is not consistent with the law enforcement officer who is not concerned about the law enforcement officer. How concerned about his welfare well before that though in the deposition of one one twelve you were asking about the conversation as they were on the way to the detention center any more fully explains that Herndt told him that he did for a living worked on the oil rigs off the coast of Florida made a good living at it got slack and he moved back there and it was a casual conversation like me and you speaking. It isn't that fully flush out the nature of the conversation that he had if you it does your honor but again I think it's important to remember that that deputy small test if he has no psychiatric training no mental health training he is totally unqualified to make an assessment so if well no because I think your honor that that if he has any concern there's only one course of actions to blow chart are you concern this in made is going to commit suicide if there is a concern not a certainty but if there's a risk if there's a concern they go to the hospital and not the jail he I mean it may be a psychiatrist could ask these kind of questions and say his effect was calm he was pleasant he discussed his job with me and I made an assessment that he wasn't a suicide risk deputy small can't do that his only job is if there is a risk of suicide which we submit there clearly was there was a risk. Not a certainty and that's what our expert conceded it you can't read the note and say with a hundred percent this man is going to kill himself but it is clear there is a significant risk to someone who wrote that note especially someone who's not just homeless but what they're going to sheet behind his ex-wife's house and breaking into steel knick-knacks. If he was to be taken to a hospital was it the Lancaster hospital or the state hospital in Columbia they said the emergency room your honor which I took to mean the the the the the regular hospital in Lancaster. So he he's not qualified to make assessments or say you know I'm satisfied based on these answer is there's no risk if there's any risk all three of them say Whitaker small and currently immediately to the ER and that's they just they didn't do that and they're not they're not qualified to make an assessment. Or decide based on a conversation that there's no risk. A couple of other points your honor I thought the question about Gordon and farmer was a great one farmer clearly said you can have circumstantial proof of knowledge and that in my opinion gets recorded. I mean that's it is it is a subjective standard but the standard of subjective knowledge is subject to circumstantial proof under farmer and that's what we have in this case we have the fact that the details the details commentary about the note the concern in the conversations and just the fact we believe the jury is entitled to look at the note and make their own do make their own decision do they believe these officers testimony. It's the argument I'm asking judge Gergol parse out the in his order of the distinction that you made between a risk of suicide and actable. He did not your honor that's your problem with that one of my problems your your and again judge Gergol didn't give us argument in that your honor he decided on the brief so that was a point I would have would have made an oral argument but was not given the opportunity

. A couple of other quick points your honors as far as qualified immunity my colleague made an argument you know jurists can disagree what about these these porophysers on the street but the what I would respond to that your honors is they didn't disagree on the law no one disagrees on the law in this case the question is is there evidence supporting the fact these deputies had knowledge of the risk that's purely an evidentiary standard and Wilson doesn't apply there's no. It's not like it's not an uncertain constitutional right it's well established in the fourth circuit that pretrial detainees have a right to be protected from a risk of suicide there's no there's no question on that law and if there was a risk the officers had to act on it. I guess the point was that he's looking at saucer versus cats in the first prong saying is there a violation of a constitutional right and that's a factual inquiry and if the court came down the other way how have the officers recognized the the constitutional violation. Well yes sir but I would say that the question in that regard is is it a violation of the constitution to be deliberately indifferent to the risk of suicide the answer is unquestionably yes and then judge gurgles or basically says there is no evidence that these officers were aware of the risk of suicide that's a sufficiency of evidence decision that I think would not would not be on their side as far as qualified immunity but they go together. Yes sir and I would again say you're I'm not saying that a jury could not find against us but my belief is that we should have been able to submit this case to a jury there is at least an issue of material back. Thank you Mr. McKinlin. Thank you I would like to come down and shake your hand but I got some kind of bug