leaves the court i'm mark who are here on behalf of the appellate in d c g and also her dollars there are two reasons this case should be reversed or remanded for trial number one under the federal tort claims act the evidence that we we had done that we what we did have were in the record excerpts where the various policies procedures the floors agreement things like that that were that were all and frankly that you can get at the court did take judicial notice that he detained them we put him in custody then and then he takes them after that he starts driving them around pulls over that he is accepted when he puts the restraints on them doesn't need to they surrendered there's under the floors agreement under the short term of custody policies of the corner of the or pro both of those things were unreasonable under the circumstances and then what he does is he puts them in the back of this and so the court will know i think the court can take judicial notice that this unit truck is not just a truck it's like it's got a camper on the back of it that you would put hunting dogs in and that's what he doesn't put them back in this with no water no food drop them around for and then continues to drive them around and that the but by doing that i understand the court's going with this but that taping them the court could say that action was outside the court scope but an employee can go in and out of the course sco scopes but your honor that still even taping their mouths is excessive force and could be considered within the scope of employment taking them could still be considered excessive typing the ras can still be considered excessive force could still be the doing of that whether he would he was doing that to try to keep them quiet so he could do was something else on the radio you know that type of thing we don't know but i understand the court's position on the duck typing that but he still know that i think the the the inference in the light most favorable to the plaintiffs would be that he was going to report and we don't know if he changed his mind and started getting texts from you know from his wife but right before that time right after that time over issues with his with his child and we don't know frankly if the switch flipped in this agent and then after he left the duty station is you know he could have been wanting to let them go we had a history of letting other people go but then but then he changed and did what he did so our position basically on the pre duty station torture order is that the significant in extreme towards granted or after the buddhist but the court trial court looked at that backwards it looked at those severe torture extreme tours and kind of went backwards not looking at the torch that occurred before the duty station in terms of the transport violation of the floor is the policies of restraint transport the court did not know that he was hypothetically does not in your case suppose hypothetically that on the way to duty station he had stopped the vehicle and forced these women out behind a barn and had assaulted him and put them back in the very end and proceeded to the duty station excessive d force is one thing would be within course scope but the court could also look at that and say ok well under these circumstances these facts it's out of course in scope and a twill be one no that's an improper time to make that determination but of course as a matter of ma we can we can we can treat it as a twenty six dollars if we want to make that decision and out of court and the court can do that but it but in this acts in your view are in the scope of the after after the duty station after the duty station your honor after the after the duty station we would concede the sexual acts are not in the scope of but excessive force that he used against the appellants and also the minor plaintiff after he left the duty station it would depend on all brother not that it's furthering the pretty duty station towards number one and and more importantly just a store we also would would have a situation where that would have been imputed to the government sent this they sent this officer out to check the sifters to check this family unit in the family unit disappears off the video they don't know where it is they don't continue to check on him after that point in fact part of the reason for that is not just for undocumented people but to check only officer safety if this if these people had been they were but if they had been the kind that had begun to read dangerous part of the whole purpose of the supervision which is the nd point is to also help protect the officer as the court recognizes its opinion one of the reasons why discretionary function d does not apply it will come to but th point we would have this we would have knowledge imputed to the government that they were in his custody at the time he was in the duty station and then they let him drop off now we have no b t o camera evidence has gone missing completely ignored any supervision that the government wants to use the supervisory function on the one home as a shield to protect against discretionary type about public policy reasons but on the other hand use it as here to protect agents in the field up or to have supervisory function it's not all is just crane noted and we believe judge perry had that right it's not a public policy analysis and that analysis would be different took them in restraints drove away from the government building chu a secluded area to commit unprovoked physical and sexual assaults however greed is their conduct  is precisely underscores d why that had no connection whatsoever to his mission or purpose or authority as a border patrol agent this was so far afield from the scope of import and extent you're just looking at them that earlier conduct before the government facility all that happened was an arrest and or a strange highly typical for what who are patrol agents do and texas law would not within the scope of his employment to arrest people and to properly restrained people in a reasonable way and that they did it in a on we moved way and was properly restrained it seems to me get an inch by initial arrest the officer was within his scope of his employment that's what he does he arrest people and and sometimes restrain them when they unlawfully cross the border but then the question is whether that would state a claim under texas law of an unlawful arrest or an assault an assault because he used restraints and what the district court said is texas has a privilege for law enforcement officers applies under cases and in the f t c yeah and under those privileges if your arrest uses objectively reasonable amounts of force it is not an assault and if the if there but with respect your honor i don't think that could make out a claim under texas law and not my own my own view of this is that the question is this goes solely to the question of whether an assault was committed under technology and i think it's clear under texas law and it's our d view that an officer who was trained someone who is lawfully arrested who consented to the arrest is entitled to use risk restraints and that's per se objectively reasonable as a matter of law that's our there was an airing of the facts that they had a they got discovery of various policy manuals ins and so forth and so on so they could make their case and the district court then ruled on summary judgment which is entirely appropriate for it to do here i think that it's clear that the discretionary function would be so excuse me so mr mr couper told us if i got it down right that there was no there was no discovery in the beginning reasoning was after the supervisors were aware that the plaintiffs were had been taken into custody by agent manson areas happened at about five hundred and fifteen dollars on the night in question after that point then there was a duty on the part of the supervisors that arguably was breached and for that reason the assault continued after that point against that one plaintiffs remained alive so what amended to the to court for further proceedings are it depends on how you will your honor if you will if you agree with the government that the discretionary function exception would bar the negligent supervision claim  would be if that is correct and establishes a tort under texas law would that tort nonetheless be barred d by the discretionary function exception under twenty six  there's two questions when it comes to negligence which st is whether texas would recognize the toward under these circumstances and nd if it would would the tort nonetheless be barred by the discretionary function exception under the discretionary function to feds the government's view is if you disagree with the district work and agree with us that the discretionary function exception bars the negligent supervision claim in this case that would apply across all the plaintiffs regardless of those who could and couldn't state a tort under texas law one if the facts here are different why it's a result not  if the facts would be different and the district court believed they made a difference for whether texas recognizes the tort but they don't make a difference for the discretionary function except because discretionary function exception ask different set of questions st it doesn't ask about knowledge it asked whether the decision the supervisor decision is susceptible to policy analysis in this case  patrol says you've got an agent out there who is a soft in women and he still on the loose and has one of my acquaintance is with them at this moment and they did nothing whatsoever to try to  and flagged down a camera and as soon as they did the border patrol agents sent out officers found her immediately transported her to the hospital found the other plaintiffs who had been assaulted and transported her immediately to the house and so the only one who was left was someone they didn't know where where she was and they tried to then track down this officer and eventually found him in his home where he then in gauge the police and therefore ultimately took his own life but as soon as we knew of everything we did in a completely responsible way the question is whether between the the initial arrest and that five hundred and fifteen time period whether or not we were negligent in supervising this employee without any knowledge of what he was doing and so what they're asking for is essentially a rule which would require supervisors to constantly be checking in on employe do you have somebody do you have somebody did you get somebody and this is the kind of this would be a a damages action sounding toward where the courts would be employing a nondiscretionary mandatory policy on the agency that itself has not adopted that rule and in fact the policy about communications here calls d for quote regular communications and i'm going to quote the plaintiff's brief quoting the policy in so far as technologically possible and resources a lack those words on their face is are teaming with exactly the kind of discretion that the discretionary function is talking about and precludes torts on that basis because otherwise you have to keep the courts nd guessing legislative and executive choices about how much discretion to give their supervisors and their employees in their relationship and without a mandatory policy the district court only went on to look at the post fine case teen conduct because it held that the discretionary function exception didn't apply to be entire course of superman and the reason why it does imply to the entire not the subjective intent of the officer in that moment but whether that the type of decision we're talking about how to supervise an employee is susceptible to so to economic or political or social h nancy your question i think your honor i think the district you could instruct the district court that your discretionary function exception would apply to all the negligent supervision claims including the one that it thought was live and if you go back and read the rule fifty four b certification i believe there's a sentence or two in there with the district court recognized that part of the reason it was certifying is if the government prevails on some issues that it had lost the issue is reasonable objectively reasonable force that's what it is under texas law that in the texas law d is about officers using force if he didn't need to use it to begin with they surrender without him so that they pose no problem to him why does he take them  short term custody policy which which has down to a recognition that the the document a person shall be promptly processed and transported actually that it's blanked out on it but it's a one hour time period they're supposed to do that are subsequent evidence show this was closer to three to four hours that that he did that if you drop around in there and they're scared to death frankly at this circumstance in the back of this is this so excessive force was also used it violated excessive force policies but don't because it's custom border patrol has adopted and they've assumed by adopting that assume the duty like that shared in case would tell us to follow those policies and they have what is excessive force and they're reasonable force under the circumstances is pretty much the same as texas i'm not suggesting there's a significant difference but it's just another reason for that there was no waiver of this because we specifically brought it to the prophets attention in our brief our own way pages one  based on case specific evidence directly what we told the court we then brought it up after we lost hope will be one that the argument is well we didn't do a motion for reconsideration we try to bring up the court again at a status conference here that is reflected on them restrained them and bound them in these flex cuffs in the back of the truck afterwards when they put up no no opposition at all to him so i'll be on the issue of negligent act of a reasonable patrol adopts the words mean so that so that's the situation with respect to negligent supervision there is a difference for the pellets versus the remaining pla because the type of conduct conduct which the court would consider whether or not to shield for public policy reasons was different in the knowledge was different at different times at the time they were at the duty station knowledge was imputed that he was in