we argue mr warner being considered to be acting under colors they lost them right from the facts at the scene after mr warner starts beating up the plaintiff and people are trying to take him off his friends announce that he's a cop and it's police business and stay back the plaintiff also says that mr warner and some other deputy sheriffs who arrived on the scene discourage witnesses it wasn't just the friend of mr warner the peace officer but there is i couldn't really find any definition of cop that would be covered by the penal code which defines the various categories of peace officers and public officers and so on so that when he said judiciary liable that's a good point and that is a difficult issue to wrestle with so i look at the penal code eight thirty one point five which defines custodial officers a public officer not a peace officer and then they mention certain counties they don't mention mendocino they say or a county having a population of four hundred twenty five thousand or last and there's been no evidence of the population of mendocino county so even under the penal code when you look at it there still is a little and so one has to wonder since this is a summary judgment what he's doing at the scene warner testifies the first thing he was worried about was that andersen was going to lease and he goes to stop him from doing it and then he starts beating him up and all  this information is not that he's a cop but he and and he through one point five is that he can make warrantless to rast only during the duration of this job and i didn't find any cases defining duration of job but there's another penal code section eight thirty point one where they talk about deputy sheriffs making a rast and they say you can do it well and gauge in the performance of the duties of his or her respective employment but they don't say that the thirty one point five well is that your position quarter was trying to arrest mr anderson well we don't know what he was trying to do he says he was trying to stop him from so i mean there's no indication that he said you're under arrest or he got his handcuffs or anything of that nature is that abandoned after that so many witnesses came forth and so when you look at eight thirty six point five the penal code you're talking about public office employees who can arrest a person without a warrant and so there is some law assuming there is under color of state law the only way you have a good one hundred eighty three action is that he's doing something wrong and i'm quite sure that there's going to be nothing in california law or a mendocino county law that says you can beat people up show up according to what the plaintiff as they were telling they were discouraging people from being witnesses then they they don't arrest mr warner they say you're free to go they don't give many alcohol or drugs fast and it very interesting thing in the investigation report because there was all this talk of saying he's a cop he's not a cop the sheriff's deputy cardio says well and this is an x server did you say you're a peace officer and warner very articulately says no i never said that i was a peace officer so they started studying this thing up right from the beginning the undersheriff that's the scene in this what lies under sheriff going down there he reports the sheriff and then the sheriff  races point is brief i read it yesterday kind of scared me so i read her thing again she says and we're arguing that they fail to do an investigation what constitutional violation is that we're not saying that we're saying that the sheriff conducted presided over a cover up and started right from the beginning he got the understeer down there they start asking questions about being a quote peace officer no one mentions the word cop then how does the coverup violate your constitution your cl constitutional right ok well it's showing deliberate indifference to the actions of the of the employee ok so they're in a sense making themselves liable for the fourth amendment violation and i would also say the fourteenth amendment violation in that they're denying due process to mr anderson access to the courts during the ask the sheriff says and this is also an excerpt i was really worried about this you know looking like it was rigged so what does he do you keep personally calls the district attorney tell them about it oh we got to investigate this and what do they do with warner he doesn't get arraigned he never gets arrested he gets good version because you get a fine he doesn't have to do counseling he doesn't get anything he just has to have no like conduct for a year and everything's expunged the sheriff arrange that ok the sheriff doesn't suspend him so in the so the sheriff who is the final policy maker he says that these depositions in our brief so beating someone up and was about thirty seconds left you want to save some for a bottle ok i will thank you color of law does it matter whether or not he is under color of learning law i don't think i think it's obvious if i understand the argument that they just identified him as a cop and  i don't think it's any different than that of a janitor or someone else another county employee or the thing thing would be acting on color also says he's the police officer if you the police officer i don't think it well he didn't say i'm a police as to how a person on the street might construe the one cop or might construe this guy's position when i asked you know do we want to ask ten people on the street this guy has the following job is he a cop yes or no i don't think  course but of course if we had a genuine peace officer and a cop under your definition of cop so that we can't quote about what is a copy paste officer who is not on duty who just happens to he gets hit from behind he comes storming out of his police business and he starts beating up the man if he's a police officer most likely going to like the i think i think that's right now the only difference between that example and this one is analogy it's not a perfect analogy but for example the cases we have or we have the media riding along on us and like will search and the media can be held liable sometimes and i help acting under color of law you know they're not employed even arguably by by the state so i'm not sure the employment relationship as much you know is definitive on that and we've had cases that have said that that the color of imperfect analogy you know but let's go at this from a sort of a commonsense or policy standpoint leaving to one side the possible liability of the county and the sheriff's department i'm not talking about that i'm only talking about the liability to personal liability in the one nine hundred eighty three suit of ask you to agree to this set of facts someone impersonates a police officer that's not in the uniform of a police officer and because he looks like a police officer is carrying a badge and he's given a deference to a police officer as a police officer let him head in and people respond differently to the cloak of authority as opposed to two people getting into a road rage fight one person didn't in this case and the whole assault  believe their record of thirty seconds or less i mean it wasn't very long you can land a lot of punches in thirty seconds you can well i think we understand your argument it's an interesting case so th will hear their rebuttal just answer the counsel's question their remarks about peace officer and things at the scene are also taken from excerpts of the record for example the quote when when  r warner was interviewed by deputy vo and reviewed by another officer wagner was on page one twenty seven of the excerpts so that's the whole point that's where the next the starts of the county starting to get involved in th