back in particular you know i think the interest of this case which is unusual to me even though maybe not to the court is this one is procedure and one is subsidies to procedure that's interesting is that this was an issue fifty six f a specific in the district court gives the opportunity to the parties to address the points and that this judge clearly does he lays out three questions he wants the parties to consider and things are filed and so i don't see any problem with the way they just report handle bill fifty six well i don't think there is a and we're not raising the issue as to whether in bringing up the issue but once you brought up the issue we have a problem with this  and i think the problem arises in this particular passion it has to do with and this is also i think why the case is interesting and maybe even a courtroom is that there is  are state actors then the doctrine of qualified immunity is available and has to be assessed and it has to be decided in any given case whether they're entitled to qualified immunity and the district court decides if they are state actors and goes through that and decides if there isn't anything sufficiently clearly established to cast doubt on their actions if they're not state actors and i understand your view to be that since they originally denied being sta state actor and not be entitled to qualified immunity as in the richardson case oh i certainly understand that but i'm just saying is there sort of either branch of this tree leads you to problems because if they are state actors then you've got to explain why qualified immunity doesn't apply on the merits and if they're not state actors you can't even be proceeding against one thousand nine hundred three in the judge for that reason would correctly have dismissed the action he he doesn't do anything with the supplemental state claim he relinquishes his jurisdiction so you're entirely free to pursue that should you want to in the state courts well let me deal with the first branch first and not talk about the second branch because he decided that issue and it's not on immunity and our position would be that once he read what's not explain what you mean by that because obviously there are criteria there has to be a violation of a constitutional right in the law has to be clearly established and the supreme court has that that people a doctor providing psychiatric services to inmates at a state prison was not entitled to assert qualified immunity and that was given his warrant alternative grounds or is dicta for rejecting the simply acting as the agents of the rockford housing authority we are you are ok not me mate make no make no mistake mistake about that with respect to the specific conduct alleged here they were carrying out a direct order the housing authority know they were acting on behalf of the housing authority it's not clear that there was a direct order where you alleged that they were ordered by the housing authority to change the locks to enter the premises to change the locks well serious and they were doing that as an agent of an coconspirator with housing authority that's that well that works of your argument and that being the case then well how about immunity is available to them and not know if it is corporation which presiding services and it's a private corporation systematically organized to assume a major of the ministry to cast for profit and in competition for other firms then qu immunity doesn't apply in for very good reasons which are made it's a private corporation that's doing everything it's making all the decisions and there is this line of cases about the private prisons that if a public agency simply hires and independent contractor to do something for it the agency relationship looks much different well it depends what they're being hired to do and this is the point they're qualified immunity as i understand it of defense it's not something that we have to plead and disprove and we didn't plead in this group that they didn't plead it either it was the court that brought this up and either side was invited to engage in further fact finding if they but once it comes up the burden is on the it's on you to show that there's no qualified immunity well i don't know what it means by once it once it comes up i mean this wasn't the rule fifty six it's no one's worrying about construing pleadings or anything you could introduce whatever you wanted to in support of your side of this i pad i don't believe so i mean there was discovery have been closed i mean no one had addressed this issue during the depositions and for good reason you could have asked the court in that instance to reopen i think it's fifty six d could have said this is a bolt from the blue for us we're going to need some more discovery of production at least of the defendants to come forward with some detail as to why they were entitle qualified immunity as to why they were different from the firm in richardson and why they were more similar to the private individual until our speed i think that is the nub of the issue because they didn't do so and i think that he was their burden to do so once the court brought up the issue we were not bringing up the issue the was cleaning up the issue and giving both sides an opportunity to argue it pleaded reprove it if they wanted to and they chose not to they rested on the discovery that had been done previously and the only point then forfeiture here was a forfeiture of the district court level as well as before this court the second prong were question in the qualified immunity analysis was never addressed in any manner shape or form by mr metals despite the court's direct instruction to do so because remember the court has already determined in the first summary judgment go around that there was a material issue of fact as to whether the consent to search out clause in the lease agreement had been trigger so the court basically said that yes there is evidence here which would permit a jury to possibly find that there was a constitutional violation so this particular bullfighting community analysis was for that reason truncate well i mean i  they you know couldn't do what they were doing well richardson doesn't apply because it the facts even when going to what most favorable to mr metals demonstrate that everything that was done was done at the apartment is certainly one that bothered the district court judge you know during the earlier faces of the case the district court judge wasn't willing to say that there was consent to enter for example because they had known about this other person in the apartment for quite some time and maybe they were sort of worried about it but it wasn't what you think you don't think of it it's an emergency it's something that you but drift on for thirty days and then when the judge turns it around  says well you know now i'm thinking about qualified immunity is is there enough of a scrap of an emergency to justify the entry that way and he says well maybe yes but but it's a it's a difficult to make because as he's actually very persuasively described why it's not an emergency in the earlier writings sure i agree with that but again you've got to look at it from no there's level he's basically he's not conferring directly himself with mr pressman or mr doyle the referee housing people he goes out there he deals with this one individual hodges tells him to go right right just who is a metro security official and he tells him to go out locks changed to protect the property and perhaps also protect mister metals himself because nobody's heard from him and so he goes out there in the doors lock the lock is been changed so i think that changes the picture that particular fact is key because al wait a minute to change the law here you know this is a senior facility you've got people who are vulnerable i mean who knows what's going on i myself have defended cases that were civil rights cases where this organization to her claims to be some type of autonomous republic the united states takes over houses that are abandoned their apps into the neighbors you know utilities and does all manner of mischief and you know the police arrested that analyst so the idea that somebody taking over a property and you know doing something wrong or improper that that's not beyond the scope of reasonable so that's what he's confronted with the lock is changed and i think the x rays that we because he just doesn't you know tear the door down he asked for instruction and files that instruction you know you have the you got the locks that into you know take pictures locking reopen it because who knows what's going on in there the question is was there guidance there and at that point it became mr meadows as bird to show us there was law out there that would demonstrate to a time and you know that the court even though it didn't have to went out to look for was that might answer the question of whether the law was clearly established by the court doesn't find any law that he regards the judge regards to be at the appropriate level of specificity in the supreme court tells us all the time you know you can't just sort of grandly say that there's a fourth amendment you've got to get down to the facts right and you know it sometimes there just isn't and this is that type of case given what you have here it's a unique situation because you have a private actor of the private actor is acting under the direction of a public entity or maybe not so you need to be careful of these so that work many think this is actually not terribly uncommon that there are contracts that are given out for all sorts of reasons yeah and to you know basic go back to what you said about richardson if this had been you know not mature security or natural property management then you might have something but here they are they're asked to perform a certain task that's limited and they don't seem to have a lot of discretion you know all the evidence that is in the record suggests that you know mr nobody isn't walking around freelancing trying to see if there are any issues and patrolling on his own and making decisions he's acting at the direct request of his boss who in turn is follow instructions provided by rockford authorities so under no circumstance is there any reasonable comparison between this situation the minute mr richards thank you your honor i think we can turn to the essence of the question which is if they're if they're not entitled qualified immunity doesn't matter whether it's that this is an agency which performs investigative path separately just didn't go to the apartment he also went and talked to sop well he checked other things there was a very wince of the apartment over here because of a period of time there's evidence in the record that they're acting as a security agency now as there is a stink in between a security agency in a property manager if so it's a factual distinction and it's something that should be addressed at trial not on summary judgment and there is also evidence in the record which of course both sides have been switching as the issues change and i we acknowledge that that in fact their direction wasn't at that clear that it was a suggestion  that they should you there is clear that there is a considerable level to screw action even in the particular tax but the reasoning of richardson which is that when you have a private agency performing a major function in a competitive market