was passed and eight hundred and seventy one is called the klux klan has the problem problem of non governmental actors carrying out government we sanctioned oppression it isn't and trying to then escape liability because you have actually attribute that to the government it's also in the text of the statute itself which is it's illegal for any person and clearly a government to quote subject or cause to be subjected to any citizen therefore of the county or city shielded from cairo and that's the error that the district court made and its analysis at bottom it incorrectly concluded even says the central air that we see on in consequential the judge then proceed as to analyze this case only under the rd prong of the not liability which applies only to single isolated acts or decisions of officials or employees and which or is your argument well maybe it shouldn't have been made by somebody else but in fact it was proven by somebody else that is in the count yes you're out of both both those things but policies maybe can be legally sanctioned only to that's part of it your i don't know what's the st thing we have to do we have to look at all the people that were involved in creating this to see if i can be fairly attributed to the county so yes the policy makers in this case were multiple people but the district court corporate the i've been county clerks then acknowledge that there's at least four different parties in the room when they were creating practice and custom and the rd which is the only problem that was dealt with in some patnaik and anger and woods was when you've got a single isolated acts such as a judge making a decision to not give states and form defendants of their rights and there's no other responsible for clearing up a policy such as the clerk such as the defense opposite public defense the people who own prosecutors office they they were all part of the clark county going only through the county commission not that's not correct  this report and the defense in this case would say well only the judge has the authority to actually do that so the fact that the mayor and the city council and most of the policy created it and start the whole thing and have a judge do on their behalf is in consequential and that that's not the case that we have right now that the county but have clearly spoken i mean in that instance but we don't have that here because the county clerk and it was the jack to implement the policy so  and then he went to the city council and other people in the city and said what do you think a message that sounds good to us let's do it again there are now some causing the citizen to be subjected to they are responsible for this policy that's very clear  bands the same parties were involved every time the program is modified etc and then a very critical fact here is that you cannot say that this is exclusively carried out under the judicial authority when the clerk s show how under washington law clerks serve the functions of both an officer of the court and as a county official an officer of the court needs to get a judge for its mission to do something like stopping a program like this but a county official on her own initiative action when i've read that when i read the judge's order there was a funny grammatical thing that i noticed it said that if the individual doesn't pay the money or show up  says a court order will be issued and it doesn't say by whom so should we read that is just leaving it up to the clerk the way the clerk said in one of her declarations or depositions that it's up to say look if you don't show up for the hearing the judge is going to have you arrested and put in jail and then you can defend your nonpayment she was free right to that and stead of arresting him absolutely she was free to next and then you've got some time yes ok thank you right is an allocation of that signatures already and the decision making that is a necessary part of that signature is already regarding when warrants are issue or a legal financial obligation payment issue the war the more narrow issue here however is that nothing in that sequence made her a policy maker there was no state law of morty that indicated that she was therefore empowered to make him county alysia this to the contrary the authority to issue states already to issue legal financial obligation warrants is allocated by state law strictly to the j program ok very good your honor there are two points i think they're critical on that the program is not necessarily the constitutional violation it's the issuance of the arrest we know in this case  hundred and thirty two thousand maybe in two thousand and six time period i think the records suggest regarding having a system of enforcing legal financial obligations we don't one who was involved in the creation at that time the record doesn't exactly say your honor it's an indicator that the record indicates that there were a number of people the judges the record suggest the prosecuting attorney had something to do with it council asks does your office establish policies about collecting elihu obligations and she says not only my office there were others involved who else was involved and she testifies in our twenty five she says th program and i think that's the critical issue here it was not the pillar or program is unconstitutional under bearden that's not what was found unconstitutional a state versus later that was unconstitutional was the issuance of an arrest warrant by the clerk unconstitutional by reviewing court a superior tribunals world clearly that that practice was unconstitutional because she did not have to go to the court to get an order each time an arrest warrant would be issued she didn't have to go to the court to stop issuing the arrest warrant you know that's exactly the reason why this is not an issue where she had delegated authority what what i think needs to be very clear if to refrain from issuing an arrest warrant that's not policy making a fort we see that very clearly impound our report states that discretion in the exercise of judicial functions is not sufficient efficient must be exercise of discretion by an employee could give rise to a constitutional violation the result would be indistinguishable from responding at superior liability the best case that counsel i feel like were off on a floor on that point and i think you have conceded as you would have to conceive that what the clerk was doing was in fact unconstitutional the thing about  eighty three dollars liability that matters here is it does apply the illegal acts that doesn't just apply to legal acts maybe the clerk wasn't allowed to issue an arrest warrants under the law we know that that's so both under washington law for what is her authority and under constitutional law according to the washington court of appeals decision nevertheless she did it as she was having people arrested and put in jail it seems to me that so long as that's a policy and practice of the county it's not just some employee acting contrary to were not under the umbrella of any policy so long as that's what the counted regularly did i don't see why it matters whether it was lawfully done and it wasn't discretion of some subordinate employee that the cl sheriff he makes the policy for the sheriff's office and he tells his deputy if you see any kind of crime between a black person and a white person arrest the black person  no authority that it's plainly unconstitutional it's undoubtedly contrary to local law too but he does it and he's the sheriff why isn't the clerk in the same position for this the business of issuing warrants when she wasn't supposed to even though it's nowhere near in that league of wrong doing well because the doing of it or the not doing of it is an issue of whether she had the authority under state law that's the issue in your hypothetical your honor regarding w sure you would certainly find under a tribunal versus gates or any number of police brutality cases inquiry into whether or not the municipality was responsible for the sheriff's actions sure acts in a way that is authority and under mcmillian that the analysis is made very clear by the majority opinion you must look to the specific act that is being challenged and determine under state law if that act is in fact that  of the accounting was it an authorized if but i'm not sure that really responds to judge kleinfeld cooling which is to say in his example the sheriff clearly did not have any authority under federal law under state policy making authority in other words if we don't have a scenario where the sheriff is in fact granted that authority by state law and a sure absolutely usurps that field for himself without anyone at the county having he had anything to do with the matter at this pacific act that's being challenge and whether that specific act was authorized by either state law or some local someone to code provision to be the policy of the county otherwise we have you know this is an area that ad county clerk or whoever governs the office didn't authorize it here it's the county clerk herself the elected official who manages the county but what we're what we're asking about if the answer has to do as she testifies and declaration the answer is with respect so when she will take applications from ask or so it's entirely up to her if the if the question that we're asking about may have to do with workplace so you're saying there couldn't be a benton county policy unless the board of commissioners adopted it formally but no no that's one form of mono liability i mean councils exactly right it could be that ms del final policy maker regarding issuance of warrants but not simply because she did it and not simply because they were unlawful it could be the not the employee because she did it problems may i mean there are also i think question issues where people say to some organ of government you can't do that people say that to cleese when sometimes you can't do that and the answer is i'm doing it and that's basically what happened here as somebody would say you can't do that issue arrest warrants he's doing it well agree that such rot comparisons are are going to get us quite what mcmillian at least is teaching which is the requirement not to assume that policy making allies someplace other than we're state law puts it process ok and the process being watched when people failed to pay we would issue a warrant that's the testimony from the deposition that's not different from the testimony in her declaration and what that indicates is that the judges created the process that that the she then appointed just as and in a livingston the judge read of the process two hundred and twenty nine people actually failing your honor the best evidence is comes from the fact that st of all it was a ten year program mr elvin came into office in two thousand and six i believe and made the choice that she was going to continue doing what was the practice and custom of the office over the years she was part of the process to modify it from graham she talked about how over the years not just her but she worked with the judges and the prosecutor in the defense to see what changes they had to make and then seek knowledge that she was it was the policy of her office it wasn't just the judge's policy that she followed coordinator who could have been in the back and there was also a city policy or county policy that was part of the reasoning for the for the judge so it doesn't stop right there see like the eighty court date or in the end the county is like like the three liability is the only deterrent it's crucial to stop the chinese are doing this if there's no downside to bombing the constitution how would have any effect and ok well said this this