the issue in a nutshell that we're asking you to look at today's weather roberta kramer former superintendent of riverside school district and juanita murray the principal of chata royal mentary school are entitled qualified i would specifically refer to i believe it was judge fletcher's fairly recent case of pollack first of savage which noted that the supreme court since its decision and johnson has repeatedly stated that a court of appeals has jurisdiction to hear an appeal of a denial of qualified immunity notwithstanding the district court having found disputed facts and the quote that case because i believe the position that i'm advocating here is identical to the position the defendants had in that case well so let's just assume that the plaintiff's allegations that the defendants had a do nothing policy are tripp so i think we have to assume that for purposes of this correct i do not believe so i believe that well i think for you to when we can't resolve those factual of just bits so just assume that and then look at the evidence and look at whether there's affirmative conduct or deliberate indifference assuming those to be true don't we have to suppose to be true here with due respect your are i don't believe there is evidence in the record there are not facts that support the allegation that there was a do not play but the facts that she alleges about how it came down and when they did and when they what how the reporting might at that we have to assume those in favor of plaintiff appellate right now and i have to come back your honor to making a distinction between what the allegations are and what the underlying testimony is because the underlying and with all due respect your honor i believe that the only indication that there wasn't any sort of policy of discouragement is in the declaration of tiffany all and i think we all have carefully what it spells to me is serious cross examination a trial but you are asking us to do i think exactly this is just callahan's point exactly what we don't want you know law kotori review sure and i don't i don't believe i am your honor because i please help me with that because i am having a hard time with your argument because i'm not not asking you to weigh the the credibility of a witness ms retracted her statements in her declaration and her testimony in the case you know i don't i'm not going to cross examine her trial because her deposition testimony is favorable to the district because her deposition is more favorable counsel but this this i agri there were declarations and there was deposition testimony that walks some of it back there's there's the written policy there's  classroom teacher having made a report she testified she made at least one report to the principal and the principal testified she did not relay that on to the to the state there's a text message back and forth between  and his dorm quest which i'm sure i'm sure you've read and it's quite inflammatory i think this is a tragedy for everybody and i want to walk people through it i'm sure there listening in today but i but you know that record so i mean how can you say it's uniform i'm  very familiar with that record your honor and by way of example what sherry dorn quest testified to is that she went to ms murray not because she was concerned that g b had been abused by anyone but because he did have some bruising on him and it's her practice to make sure that those are documented in a school in ms murray said she would take care of it and then ms murray testify that she did not report that on you know  this text message was doing chris said she felt that it was hyperbole but you know they murdered this child she used she said that i will not testify for the district if she was she was very upset and and i want to be clear we're not making any findings of fact here like you're wasting your time from the standpoint of that there is i'm not saying you're going to win but there is a way that you can win if you assume all of those facts to be true because the state created danger exception which is that issue here this is a truly tragic situation and if your clients are entitled to qualified immunity it doesn't mean they did everything right it doesn't mean that they could i mean but it's a very high bar and if you assume all of those to be true and as far as if as a matter of law that is not affirmative contact or delivered in deference as a matter of law they're still entitled to qualified immunity not every unfortunately not every i mean this poor child you know maybe if they had done something but they didn't put the child the child had his father was murdered and the mother died and they were put with a relative and you know and all of those things and if i mean if you go back and tell the school district that they couldn't have done any better i don't think that would be very good legal advice but that doesn't mean that they wouldn't that they don't necessarily qualify for qualified immunity so let's drill down and assume that what they did is what they give them the m for and says and talk about stick created danger in absolutely your honor and i got this i got sidetracked from answering your question about the do nothing policy because circling back to your question in the do nothing policy even if there was as you alluded to a policy of not doing anything they still have not shown ms davis has still not shown the next step in that is the basically cover up instead of just not doing something you have to be affirmatively trying to discourage the reporting of the abuse otherwise you she said you're honored that that happened in redecoration she retracted that but now you're back to what we do but now that's what also the type of things people talk a trial ok that's what they talk about or the trial ok they didn't report the i know they didn't report it the first day you know whatever the reasons were or whatever deal with it still is a very high standard i agree and that's what you need to talk about you don't need to talk about what a good job they did need to talk about why assume the worst and why that still isn't why they still get qualified immunity if but they still get qualified immunity or because there are no facts that a stablished that a single teacher at riverside school district believed the gear the g b was being abused and failed to make that report to c p s because they had been discouraged to do so and that kind of ties into the causation element that's missing from this case because ations going to be a big problem at trial i will grant you that but there are several people here in this record  had concerns about the child sewing bruising and scratching and whatnot so the christmas concert alone i think there are five individuals who testified that they were concerned they saw scratching and whatnot and the consistent pattern when there was were reports they went zuck which is consistent with the school past policy not the district policy and then when she was taken out of the loop to mari and then mary said she never passed any of them well as it relates to the christmas concert just to be clear under correct me that's right and so what about that and so what about the let me let me just said there's a problem you want to i think to realize i'm out of law on causation because you said there's no indication anybody failed to report of the school policies i believe your point there's no evidence in the record that any teacher thought there were september thought there was potential abuse and made the decision not to report it because of a policy of discouraging abuse and that has to be shown in order for there to be the state created danger because in the absence of discouraging well i directed that the school wide policy says it particular principal was very insistent that she one way or two to work it out with parents and that's what happened with this we talk about the practice that there is testimony to that effect so rather than these people are all mandatory reporters rather than complying with the district policy to report immediately so i'll be quiet now let you respond but that's what i'm struggling with i don't believe there's any evidence in the record your honor none that any teacher staff member considered j g b to have been abused or suspected the he was abused now going back to whether this is tragic and whether they did their job as mandatory reporters is a different issue ok what do we do th passed through she reported bilateral bruising on years and arms her her comments here are skating and those those concerns that she had about the buy a lot or a bruising she did take to ms murray and she believed at the time that the bruising was from roughhousing with the cousin the competition making a closing argument about how it evaluate the evidence and i am not on the jury understood understood but but it goes to whether there was this you have to show an affirmative step taken by the school and then so we're still talk about the affirmative step right correct and why isn't the policy or practice of discouraging reporting an affirmative step can you what's your best  is a policy of practice of discouraging abuse and there's no discouraging reporting of or excuse me discouraging reporting abuse and that policy in this case applied to right out of the other side of the article thank you tragic situation and no one ever the school did not put the child there ok so it's different than some of our cases where say like they put they have a child placement happened with  sexual predator or something and so here it's it's undisputed that the child ended up there by other people it's not we're not talking about the child or whatever we're so the school didn't put the child there so we have to deal with what honor and then whatever happens and if they let's just say it would be worse facts for you if they had reported immediately the first time they saw anything on the child that they reported it and then whatever i don't know we're calling california child protective services you call it something else here let's say they sat on it for two months in the child without investigating or doing a home visit and then the child died then you'd be so in that right correct or that's a different f right or relationship or the relationship of do with this case would be much different i just wanted to start out though even reporting it that doesn't that would not result in the child being a media player and it would have to go to a court process and it would have to be an you're getting way beyond the record counsel i'm sorry i had there is a provision within washington statutes that does allow for an immediate removal of a child but not for the school the court is going to take as given the fact that the district court assumed when it tonight summary judgment simply for a legal reason to terminate if there is an abstract issue of law related to qualified immunity that warrants reversal  i think that the briefing on this is so heavily skewed towards a factual dispute about the credibility of certain witnesses about  question becomes if she didn't suspect that there was any signs of abuse why was she going to as we alleged the gate keeper said sermon what to do about it then everything is really unfortunately skewed towards an act but if we could get there was there is evidence on the record that there was a policy of using either you can phrases do nothing or using murray as a gatekeeper that deviated from mandatory reporting and what that result was is that the staff at c s would not make an independent decision of to report or not all they would do is go to google who the next person which was m that action had it not had that policy not been in place we can presume in the court presumed and it's indicated in the court's decision on the twelve six  to forty seven that the staffer to simply followed washington law and mandatory reporting and reported themselves that the absence of that gatekeeper or the present she's made the presence of the gatekeeper put him in a worse off situation than had been a policy not actually exist no you're talking about policy are you talking about a policy in the school or are you talking about policy of the district you're talking about bowl went to a both your honor  clear about district versus school handbook yes i think that fetzer is asking about the school policy and how it deviated from the district policy so the school policy states that the  reporter must report this to see it c s council and that's your one eleven thirteen the district policy says that use a slightly different language where it says that you have to report it to the school counselor and the issue here is that c e o s at the school level that murray and we argue with the  different categories of defendants we've got the school district and we've got individuals and the school district of course is not entitle to qualified immunity but if we're going to hold the school district liable we've got to find policy custom or practice under  w we need to find that which is different from what we need to find as against the individuals and i'll use the word policy or custom with respect to the individuals but in a different sense from the now  but if we find that say murray as leader the leader of the school had a policy or a practice of discouraging the complaints going beyond her that may be enough for her so i'm asking you to differentiate when you're talking about policy customer practice as to whose you're talking about you see rather yes and so for murray the she created the it's our position she created the policy at the school district or at the school at c policy but i guess it's our position that she even goes beyond the strictly written policy is really an important point and you back up and ask answer judge watchers question again because i think the record now very muddled the policy of the school deviated from the statute written yes it was it says any school personnel who has reasonable cause to believe that a child is suffering injuries suffering physically or sexual abuse all caps must report so excuse me and then the counselor will then report to the department of child protective services so again this is the written policy and it's our position that  that deviates from the statute because the statute places the onerous on the minutes were reporters further it's our position that murray went beyond this and actually instilled a culture a custom of making sure that things were kept in house and that there was a strong gatekeeper before anybody reported to c p s and it could have been  the record indicates it was either mary or the counselor but that the key was that that these individuals served as the gatekeeper and the record indicates at least on two instances w b that murray was serving as the gatekeeper as to whether or not a reporting would occur and again that was with sherry dorm was on october twenty fourth teen and then in november of two thousand and fourteen so that's the written policy at the school level and that was instilled by murray and so she was the policy maker at that level for doctor excuse me  dr kramer the issue here is that she was the she oversaw the district why policy she was in constant contact with murray and that she acquiesced and approved of the policies that c e o s and so for that i believe that in among the she was a opting the policies and so undermine now i do acquitted the it's outside the record but i could discuss more about kind of the case but what happened was is that it was my understanding of it was that there was an expert witness who testified on her behalf it was a  pediatric neurologist i believe who testified that in theory a child could sustain the injuries to the head by falling off of a bunk bed that g v how you're asking us to consider w enough evidence to survive summary judgment deliberate indifference case law indicates that it's a very fast irq a specific issue and also in austin rests on whether it rests deference you know let's i mean let's let's just say that you know you don't report it and you're you've got a gaping hole in your neck or you know something like that i mean that's a better those are better facts for deliberate and deference as opposed to and i'm not saying these are the facts but like a scratch on the hand well and i mean we would have to look at what the undisputed facts are about what the what i would state is that the trier of fact would look at the pictures and determine the jury would look at the pictures and determine are these mere scratches that look like kids playing or is it something more significant and this is child diagnosed ok and counsel one when ms up was taken off and directed no longer work with this child because the foster mother had caused quite a scene and a lot of hollering after she'd been reported to this was another counselor assigned to look out for this exactly the record it would have been i believe it was in january of twenty fifteen thank you so your honor because this court does not heard and for that reason i would ask that you affirm the lower court's decision thank you thank you you save some time would you put two minutes on thank you your honor the reason the briefing was so factually intense is because of the errors in the representations first by plaintiffs to the court as to what the facts were and then the representations or the characterizations by the court the district court as to those facts and you heard one example of it is just now counsel got up and said that went to ms marie on two separate occasions about concerns about g b and abuse that's not true the record is that that october two thousand and fourteen report she went went and told ms murray he bumped his head on  incident and that's the occasion where ms murray went and talked to g b and then asked the school nurse to examine g b after that in the school nurse determined that it was from abuse and therefore didn't make a call what siri during quest testified to was that she talked to ms murray on two occasions one about hitting his head on the rail the other about the biological bruising that's what her telling you said i did i just hear you say she didn't talk to mary twice she didn't talk to him or ms marie twice about suspected abuse no well i'm having problems with how you're characterizing the facts in terms of i have those two those you know whatever you want to call that those two things happened that she talked to murray and it had it didn't have to do with he was getting an f in her class it had to do with things on his body and on one occasion it was because he hit his head on a rail at school that was the point is she ok but it had to do with injuries on his body and what should she do about correct ok actually as a relates to your questions about policy for the school policy versus the district policy the school policy i will i submit is not contrary to the statute the mandatory reporting statute because the mandatory reporting statute allows someone to cause another person to make a c p s call however if we assume that the school's written policy is contrary to the us and the c p s reporting statute that doesn't get the plaintiffs where they need to go because that's not it doesn't discourage the reporting in fact it says you must report to the counselor who then will make the phone call that a written policy does not protect the school if the actual policy and practice by the school personnel is different of course size that was written policy in the school is fabulous there's no hostile question of whether it's wrong but if the school administrators don't follow the policy we still have problems i agree with you people to come to her she then made a decision whether to reported or not or work it out with the parents there is no evidence in this record that those facts occurred as a relates to g b there is no evidence that any teacher ever either went to ms murray and said i'm concerned that g b is being abused and she didn't report it to c p s or any teacher who testified i would have gone i suspected abuse i would have gone but sides for their arguments they have us versus riverside school district submitted and that concludes that the morning