court and counsel for accommodating the scheduling of this you to my health prior health issue my argument today really focuses on three points concerning which we believe the district the deliberate indifference elements of the sacred danger theory of liability as applied to the facts identified by the district court itself the second is not sure when you get into deliberate indifferen  the decisions of this court which have repeatedly resolved this issue as a matter of law and identified it as a matter of law i would not be able to reconcile those cases and by way of example the bet's versus newcastle case the one where we had the actually youth the adolescent detainees and i emphasize the the detainees part because as a as we know one of the case law once incarcerated the state's duty  increased markedly to protect and in that case we have facts which are directly analogous and which the disk district court and this court held as a matter of law that the deliberate indifference standard was not fact we know that because in the sacramento county of sacramento versus lewis case which is the seminal case in this area was in fact an eighth amendment case and is the case upon which this court and other courts have built the will rise and fall based on that fact so you know you can't say something is analogous and therefore controlling you look at all the facts here there are a number of facts that make it a question  indifference we know as a matter of law as a matter of law because as the district court found sally loftus took several steps to protect the safety of heather contributor and the other cheerleaders under her supervision there were used yes your honor during this time yes rect that is correct your honor and there is and there was no rule requiring that and in fact we know because it's the is the district court noted macs are the opposite of math is question what's important your honor in reason we know there's enough of the written difference here is because sally loftus surrounded this stunt team with spotters whose sole responsibility was to prevent the very type of injury that occurred we know that she made the team wait seven months tempting to add this to their routine we know that before she did that she brought in  i'm sorry you know train of thought you were talking about the steps that you took yes sure we knew that she took several steps several accepted steps in addition to that we know that there was no rule of the the body which regulates athletics in pennsylvania is the there was no guidance meaning from guidance for the she had her own guidance she wanted match she insisted because common sense says when you're doing this type of exercise you don't want to do it on the floor so you need a rule to tell you that mats are good idea she apparently didn't the fact she should not be penalize for her conduct cannot be considered objective and reasonable because she requested additional safety measures beyond the ones that she can  point and the whole touchstone i want but as i understand it of qualified immunity is that the state actor must be on notice through the case law that his or her actions are clearly that thank your honor yes indeed at as of march three of two thousand and four and indeed as of today neither this court in the certainly not the supreme court nor any other court of appeals has applied the state created danger theory to a situation involving a guys a public school athletic injury the district court said well you know it's been applied in this context it is sacred danger theory it's been applied in cases involving teachers who have because this court has told us that a single district court case cannot create clearly established love of putting aside from the moment assuming that it is correctly reason and that case we had to we had two very different things going on here we have the coach invite a collegiate level wrestler who was roughly thirty six percent heavier in weight forty forty pounds heavier in weight was six years older than the young youthful wrestler coming in and and live wrestle concrete floor with no man and you know isn't that just on his face something that that you would think you would know you just can do your honor if that's the case then if that's conscious chocking then how is it in it cannot be it is something that goes on all the time in two thousand current jimmy cont'd a in front of hundreds of parents and other spectators  because they are distorting it for the very first time but let's leave that aside from because i think we've slipped back into deliberate indifference persist negligence and i would like you to stay on the point you you were starting on which is the question whether it can be said to be beyond this view that stunting without mass was deliberately indifferent is that a fair way to put it or an unfair way best way to articulate the standard with respect to deliver is clearly established so i should mention that you know it's unusual in this case typically i would not cite district court cases to this court but they're helpful here because the illustrate on sally lock this in this situation it asks for a degree of legal scholarship in clairvoyance that the the district court judges and lawyers struggle with and i mean i try to find some controlling principle some coherence of this law and it's very difficult and particularly given the fact that you know there's there's one district court case which you can try to find an analogy to which it is very different to say that that somehow say that about a whole line of cases i mean starting with knight would that officer you know have known clearly established that and it's almost as though we put the kind of the deal delivered indifference or shock the conscience once we find that we say well as jordan said it's beyond dispute we're no one in their right mind and therefore it's it's clearly established and i agree with you it's a tough it's a tough league but fundamentally unfair to to use this case as to adopt that standard then at and then retroactively apply to her conduct in two thousand and four thank you very much ro thought that if we were a jury were to find deliberate indifference that that suddenly makes it clearly established and if not what makes this set of fact to what transforms it into something that is clearly established law a much earnest of the first part of the court's question but as to whether or not this the state created danger doctrine was clearly established in this context and clearly this court's decision in dover says deal with it says that district court decisions are properly considered and do seo that question is beyond debate your honor again because it's a district court decision it can't alone represent fairly established law and i'm not going to suggest to the court that it can but there were a number of patients case i mean i understand they're different from terms of the fact that they're really different i mean they're really i mean there's a level of particularly in generalization that we have to be on guard about i mean we're told  court that when you're talking about clearly established law you've got a paid attention to the level of generality cause at a certain level if you go up high enough even you can you can say well yeah that was in the law for a long time so let's let's for purposes of discussion except that molesting children is not the same as high school athletic issues generally and stick to what we're talking about here was it  is deliberately different behavior to the extent that it represented the liberally indifferent state action i think it i think the answer is yes well now then you're had serious re my first question which was once you say deliberate indifference does that then transform it into clearly establish my point in saying it like that is because i'm differentiating from the d r and hunter cases where the but i do want to answer my question which is which is is that the right question i mean you've answered the question and said yes it is and you've said yes it is the case that that would be deliberately indifferent that's bad but my question is is that even the right question to start with this the way i framed the correct legal question is it beyond dispute that stumping without mass is deliberately indifferent violate the law at the very least at loftus there is abundant evidence that she was plainly incompetent for doing such a shocking thing to any reasonable high school cheerleading coach would recognize as shocking because of the severe risk of serious injury that she exposed him for berger to by doing so i think you might have put the rabbit in the hat when you say contrary right because that's that's what we're trying to wrestle with  is whether whether this is so plainly obvious that it's just live and media and should there be a case you say well how well look at this case law clearly this case law says this this is know this experienced coach who was there said she'd never seen anything like it other students that she has had her burger flew over in a way that was bizarre and it was  for you except for what appears to be a factual statement by the district court that this was truly a freak accident that the court says that the and in reducing the risk of serious injury but if she had a circle of spotters that without ten feet stead of work five again this goes back to what the court falls the safety manual that we've placed into evidence specifically warns against this very type of activity where you are introducing more difficult stuff and it's beyond the current you know the fact that maddy was called or until recently and that when you're doing a double twist the mean these these indicate that there are some conflicting views about this do they not public venues like basketball games and things like that but that wasn't the case here loftus knew better she gambled with this in a burger safe well that's an interesting way to put it because this is not cheerleading inherently got risk i mean when you have when you have any kind of athletic activity that falls flying whether it's gymnastics or cheerily  it is it is something in which there is going to be risk is it is what you're arguing for when you say she gambled with his interpreter visit every student in every coach who except except they a level of risk associated with that this kind of activity and that in the question is what's in acceptable level of risk yes to your initial there absolutely is risk with any type of athletic activity cheerleading stunting included but not this particular this this is what differentiates one of the things that differentiates this case  this activity would not exist because of the risk of severe injury do we know if she fell at a place that normally would have been matted or with this fall out she s seem to be the be all in the end all here well if the mats would normally as a matter of course been in a location and she flipped beyond that location sure that would seem to happen on bearing we would certainly present testimony at trial the guy that was const because there was a constitutional right beyond dispute that there's a constitutional right not to work is done in a high school cheerleading squad without a map because that's that's the question you have to say cheerleading squad you could have you come out you know on their knees on roller were so they're not more than two inches above the ground go who and scoop back off the floor is long as you're doing cheerleading your it's all voluntary and there's going to be some  and it was clearly i think that's right when you look at night and it showed zero rather extensive qualified immunity analysis that disregard as it was initially known were deliberate indifference culpability standard because circumstances provided for unhurried judgment was also another case that the court didn't mention and that was the page first school  philadelphia one nine hundred ninety nine eastern district court decision so there were at least four cases prior to this kind that involved school setting injuries where the night state created danger analysis was followed without any confusion two months after this injury occurred i see that amount of time  regarding the clearly established principle well i do not believe it it can be that these cases that we're talking about now can be reconciled with that and i want to pick up on a point that  referenced as far as the anticipated impact between football players cases more on point than i think i really emphasized that is also a lack of equipment case a failure to employ all available s inherent risk of football is a high speed impact but what happened in that case was they played this game without helmets in i respectfully submit that is far more culpable than anything that sally loftus been accused  woman basketball player high school basketball player who showing clear signs of having sustained a concussion he sends her back into the game which at which aggravates her condition she ends up with severe injuries court in that case twice ruled as a matter of law  it don't participate well let me let me ask a practical question ok and you know that the theoretical discussion we've been here should take away from  in any way the the the sense of sorrow that anybody's going to feel about a young person sustained injuries especially a serious injury is the one that occurred here how will school districts know that they'd better find money in their budget for manning instead of turning coaches now if they're not through liability imposed on coach if nothing else put on notice that you can't you can't just say hey learn this stunt over concrete for good luck you know how how are they supposed to you may if you choose of course find a constitutional violation here but sally loftus cannot be sacrificed on the public policy of encouraging greater attention to safety by school districts and that's what that's what the second prong of the saucier analysis is all about so if indeed you know a message must be sent it can be sent while at the same time not not detracting from this law office distinguish yes go by saying that there was a compulsion there was an allegation that the coach pressured or forced the student to re enter the game had after having sustained the injury and that was distinguishing and that was more of an affirmative act as i see in my brief i have no idea whether any of these analyses are appealing to the court or correct i won't know what the correct analysis is until this court seeks but that's precisely why qualified immunity is appropriate here judge lopez on the line now