the theory that when she participated in the hiring of a federal law enforcement officer that she did so with deliberate indifference that officer many years later on the job shot and killed ms alvarado and the plaintiffs allege that the hiring decision was the moving force behind miss alvarado his death we believe in this case that there are three fundamental facts clear from the complaint that conclusively refute any allegation of deliberate indifference the first is at the time the officer tackett was hired he had no work history remotely comparable to the alleged excessive force he used he legibly used here no instance where he allegedly was responsible for the death of any suspect no instance where he allegedly used deadly force no instance where he allegedly  displayed a firearm secondly the incident issue here of course occurred nine years after the most recent alleged incident of misconduct and officer tackles background and over six years after he was hired as a federal law enforcement officer he was questioned about his record prior to getting hired so there was some incident about a hotel room and drugs and it seems like there was a charge that he had put people's lives at risk but was it not a violent episode could you explain what happened in that episode it was not a violent episode it was this the age of stop of a car of the driver did not have a dinner for cation the driver said they didn't have a case in was back in the hotel room they took him back to the hotel room because he said he was willing to go and let him come in and and difficult there was some danger in that they supposedly did not handcuff him on the trip back to the hotel room so the extent to which that there was a danger they put themselves at danger but this was not in any way comparable to what's allege here and then the third fundamental fact that's important here is that this is a single incident hiring case there's no allegation that misha voght in the circumstance ever anyone else who engaged in econ that remotely similar to this or even anybody who ever violate anyone's constitutional rights under any circumstances whatsoever well those are there was no discovery but we're  she did not report it but she was not the person who made the hiring decision she was in the hiring chain it only makes sense to people down the chain in reviewing will make a recommendation as to whether somebody should be hired or not but you can't characterize recommendation i think this person should be hired as recommending that the person should be hired without giving appropriate authority that is the hiring official going forward and getting appropriate authority so on so no i don't believe she violated the regulation and on top of that the supreme court made very clear in the davis case names her share that a violation of a regulation will not deprive a agent of their qualified immunity you have to show a violation of the constitution you have to show deliberate indifference for those reasons we believe that the court erred in failing to dismiss the case and qualified immunity grants qualified immunity protects agents unless they violate a clearly established constitutional right that's once so thoroughly the plainly incompetent or no or those who knowingly violate the law in order to show a clearly stablished claim it's normally necessary to point to cases involving parallel or at guess factual circumstances it's not enough as a general matter simply to point to legal principles that were developed an unrelated factual circumstances you my show that the constitutional right in the contras of the right have been defined in truly comparable factual circumstances usually start talking about whether there were cases clearly establishing the right in cases where we are worried there may be a violation of the right but i thought the thrust of your argument was really that there was no violation here at all because the work history didn't show this kind of behavior before and that's what brown or well sure but but the qualified immunity that has to step test first is violate the constitution and if you find a a violation was that violation clearly established so we believe it does not show a constitutional violation here is your argument here that the alleged constitutional violation is defin ed by the district court at too high a level of generality the supreme court's yes absolutely for a number reasons if you'd take the first issue and that is this is this issue of no his work history comparable to the circumstance the the plaintiffs at mit in this case that the shooting and killing in this case was not predictable what they say is that there was a history of unlawful detentions and because they allege that this shooting in killing occurred in the attempt to accomplish an unlawful detention that the hiring official mischa barton is liable under fruit of the poisonous tree theory the problem with that is that there's nothing to support that in a case of this report similarly situation on hiring cases in brown in fact occludes because in round the court said there may be circumstances rare circumstances truly egregious circumstances where you can recognize a hiring claim but to do so you must satisfy an extremely high level of culpability by the hiring official amongst the highest that exist anywhere in the civil law it's not eno ugh simply to say it was predicted or forseeable at the time of the hiring that the person might go out and violate somebody constitutional rights in some circumstance you might show it's highly likely the person will engage in the  inextricably connected that the injury can reasonably be characterized as the plainly obvious consequence of the hiring decision when you admit up front that this injury was not predictable then you do your claim is preclude it simply not clearly established in case law he had to that we're talking about a person who was on the job for six over six years at the time of the of the injury i'm wondering that how that part is relevant under brown because brown talks about what you knew based on the prior work record at the time of hiring and the issue with the hiring so how does the six years after make a difference because deliberate indifference is both a subjective test and an objective test what the court said was the the injury must be the plainly obvious consequence of the hiring decision the problem is that when you have six years nobody can predict going to took place within a year of the hiring decision and the other two are basically remains back to the district court without a discussion of that there is nothing approaching a six year period  similar to what we sometimes hear in in criminal sentencing cases where we're trying to predict recidivism based on a prior conviction that if a conviction is just too old and occurred too many years ago that that can't serve as a reliable predictor that this particular defendant is going to repeat the offense well what the is that a similar now i don't think it's similar i think the better analogy is th that the plaintiffs have characterized this as a causation issue but the supreme court in brown made it back absolutely clear it's not a but far factual causation issue if it's a causation issue at all it's a proximate cause type causation issue it's you have to show in the in the common law context come along tort proximate causes for sea ability that some injury will curb but this is like a super proximate cause you have to show it's highly likely the particular injury would occur so it's more can i believe to a proximate cause analysis and approximate cause analysis is appropriate for resolution in a motion to dismiss the they're basically is three things wrong with this we can bring a claim that's based on injury that took place over six years the first thing is the the seminal case brown which they rely on t a kind of analysis this was not an issue in the case at all to say that brown clearly establishes for qualified immunity purposes an ex ante analysis is to make the precise error the supreme court has warned against over and over again most recently in san francisco vs she had and that is to read a case for qualified immunity purposes far outside the factual parameters of the case and say it establishes things that were not issue in that case you cannot do that the second  brown indicates anything with respect to x eighty it indicates the opposite because this notion of a plainly obvious consequence test that the injury has to be directly and immediately connected to the hiring decision by definition that indicates that the time period once a person is higher is relevant to determination because the longer it takes for the injury to take place the less direct and immediate it is again by definition and then third thing and i think if this is very important if you look at some of the due process claims as a general matter and how they've been treated by the courts of appeals in the rare cases where courts have recognized these kinds of claims the courts have said there's one principle that almost always applies and that is these caves are not open ended these claims are limited in range and duration that's a common print of a phrase used or they have to be close in time in s cession there is no case law that recognizes what with the plaintiffs are asking for and that is basically an open ended claim that if a hiring official hire someone and that person stays on the job for thirty years and only applies that the that's i'm a nail context and you don't need to show a pattern in the business context but what the court said really and in brown is that it's important to show a pattern because a at i'm talking about brown brown was a nail case but brown required the pattern but the brown needed no pattern to show that it was an act by the city they admitted that the sheriff was a decision making official for the city and his action in hiring somebody was an act of the city what brown was focusing on was not that but was focusing on the issue cup ability and you can't show cup ability without showing a pattern because a pattern shows the official had some feedback that supports the idea that it was conscious disregard and without that pheno that someone could have done a single thing so bad that it would be unreasonable to hire them as an author i know i would not say that i what i'm saying is is that what brown indicates is a normal matter you have to show a pattern is general met you could have you could come up with the a case so we agree just so terrible that the court might say no pattern was necessary but the general rule is you need a pattern and this case would fall within these within any kind of general rule so basically our position is they are three reasons why qualified immunity is appropriate here no history similar to this in the in the agent background too long on the job to far too much to attenuated claim over six years on the job and the hiring official had no atter to support an inference of deliberate indifference in this case each of these things standing alone is sufficient for qualified immunity when you consider them collectively it's a compelling case for qualif good morning your honor may i please the court i need to point out first that we are here on a qualified immunity plea from a twelve b six motion which was denied there has been no discovery in the case the issue under a ball and under general twelve b six jurisprudence is has there been a plausible showing that we are entitled to relief we're being held to a standard at supreme court level jurisprudence on a twelve b six motion secondly i'd like to address the three points that counsel made to give you the factual specifics that are so critical in that regard i need to clarify that the complaint is alleged in their excerpt of record at pages one fourteen to one fifty nine counts all it takes some liberties elegant liberties mind with the factual record we have not alleged that that killing was a clearly foreseeable result what we have alleged is that packets conduct in engaging in rousting someone without legal authority improperly detaining or attempting to detain them and then lying to them regarding the course of his authority and engaging in physical abuse physical abuse related to not letting her leave physical abuse in regard to instructing his co agent to smash a window that that physical abuse was also consistent in other words it's understood your briefing i thought your illegal detention an excessive force and the problem with the facts as the way under the case law is there is no detention until the deadly force is actually utilized because she had not yet submitted to a show of fishel action that's what the district court judge went off on her dari but i don't violation through the conduct of that lead up to the seizure and what case do you have to support that theory i'm not aware of a case that says you can be liable for a civil rights violation for rousting somebody or for fault slee declaring that you have a legal right to be there to detain you give me a case here well i think if you look at brown itself it speaks of that kind of conduct not in another words what is the a right that is being asserted here is the constitutional right of  to avoid being subjected to the consequences from the deliberate indifference of a hiring official to the high degree of likelihood that this conduct will occur in other words as well does not touch which conduct are you pointing to you have to show conduct that violated a right yes so what is the conduct the violated the right the conduct that riley to go well let me just say this i don't know that we are necessarily bound we have the right to defend the judgment in court below any rationale whether or not it was raised in the court below we disagreed with the district court judges finding on and it doesn't technically apply to us except in the way in this collateral argument that they've made they've cut loose one of the co defendants missed a ruse and say and saying there was no technical detention because the judge said the way i read your complaint being conclusionary in the pleading we alleged that there was a detention that is to say there was a period of time before she left the case doesn't support that that's the problem i'm having with your argument that case law really does require an actual submission to authority and sadly in this case the submission came when you know ten or however many rounds were fired and it killed or and stopped her leaving that's that's when the detention no i appreciate that but i am i am saying that given and counsel is correct the supreme court said in this kind of a case you have to have a case that meets high burden of culpability and causation and so on the culpability issue we think we have that in spades because of the incident after incident after incident and tell us what caused that you think is repeating we don't know if that's involved that the officers conduct if it causes harm need not necessarily violate any constitutional right that the constitutional right that is at all it has to be to be ac under nineteen eighty three no no what i'm saying is that the constitutional right is the constitutional right that you have a right not to be subjected to deliberate indifference that will cause harm in other words it's the act of the hiring official that is as and here not whether the ultimate harm so long it was foreseeable is at the result of a technical constitutional violation by the offices that it has to have been the plainly obvious consequence that the decision to hire would deprive a third party of a federally protected right so it's the hiring has to have the consequence of depriving the federally protected right so what the deprivation of the federally protected right the debt officers were that this officer engaged that this officer engaged and let me talk to you in that regard and show you the pattern there are multiple instances in which this officer  that may be protected yes she was entitled to leave that's undisputed she was entitled to leave the area he refused to allow her to leave the area when she walked away he followed after her when she got into his her car he stood in front of the car impeding her freedom of movement and in that regard although she tried she she stayed there and she tried to get around him we believe that at least for the moment that she remained and we say it's up to the minute so if that's all you can do to get to here is something he did that arguably violated her right that could be predicted are you know what you know well the answer is whether they're nominal or not is a matter that can be later determined but certainly we are entitled to at least nominal damages in the fact that they are only nominal damages does not mean that we're not permitted to go forward did live for at least some time after they die the death the bullets hit her but let me just can you explain that i thought you're not talking about the bullets you're only talking about the moment where he's standing in front of her condo but you're asking me ultimately  up to the point where deadly force was employed you you would concede that there's not enough under brown to show so the link to the use of excessive force but that's a separate claim that you have against the officer who employed  that it's it is that actually i wanted to be a little deliberately vague on that because i think that that's ultimately a determination that should initially be bay by the trial judge and the court but well tell me why this language in the brown opinion does not refute your theory and i'm reading from page fourteen and four eleven five twenty us i quote a lack of scrutiny may increase the likelihood that an unfit officer will be hired and that the unfit officer will when placed in a particular position to affect the rights of citizens act improperly but that is only a generalized showing of risk the fact that inadequate scrutiny of an applicant's background would make a violation of rights more likely cannot alone give rise to an inference that a policy makers failure to scrutinize the record of a particular applicant produced a specific constitutional that's right that's why in our pleadings we were very careful to try to break down the condom in other words i didn't look at the specific definition of whether there was was a technical fourth amendment seizure alone we looked at the specific conduct what did he do with respect to mr but britain he jumped over his house he illegally detained him he put handcuffs on him and then he took him out and put him in a car without air conditioning in the imperial valley and the man was very very sick had to kick out the window and then he took bertuzzi to the jail and while the man is sweating he drinks a cold drink in front of him we say that involves misconduct physical mistreatment lying and detention or and our case area but there are multiple incidents here in other words he has also the lackey case and it's exactly the same pattern of conduct that occurred in this case he goes to a house he shines the light in the middle of the night the man who is in the house who's it turns out is innocent of any wrongdoing comes out but because he's in bed and he gets out of bed he only has some pants on and it's this time it's winter and it's freezing cold he says and he's detained there won't fully detain he has to go into his house because he's freezing no you're staying here when he attempts to go into his house attack it physically intervenes and and then he arrest him and then during all of this he's lying about the extent of his authority and what lackey is legally required to do then there is another case also involving of wrongful seizure he stops a driver what i wanted to say in this regard because we believe if you look at the complaint we have alleged an actual seizure now i appreciate that the district court judge on his reading of the complaint said no because of hold o this conduct of act hackett's which is the precisely same conduct the same conduct that was involved in all of the other three specific instance in the style of the others the person who was trying to be under it was not alleged but at remained there for a period of a short period of time before she attempted to leave very long it was not very long but what do you say you could construe that as a detention and then the detention was broken when she started the car correct something like that in other words yes when she gets in the car and he stands in front of the car and the other man is at the window with his gun out that's a detention where she was detained where she wasn't moving where she was submitting to them and then given tagon standing there and given her being threatened by the man at the side of the car ultimately a second or two just before she left he smashed the window we say that that was a detention now she left and that leaving was certainly not as opposed to detentions as have never recognized that there i mean i'm thinking of the cases at the border where there's an attempt to stop the person and then the person you know either physically resists or actually runs and we've declared there was no submission to authority therefore no detention well i would say i would say this you're i appreciate that but here's here's what else i'm here for i'm not only here speaking on behalf of the dead woman and her family i'm also speaking on behalf of a decent law enforcement agency that tried to do the right thing and got sued that was a very professional i mean it was extraordinarily professional and that's why what happened here was so unnecessary because it again and again and again was is not whether this officer was unfit for hire by the border patrol that's that's what the argument was that was made by the supreme court in brown i don't think anybody's disagreeing with that premise promise the question is whether or not the hiring official had sufficient information to  this is the argument you know to me raised by opponents today and to me it's almost like a proximate cause argument not another word that the six year delay or time passes between the things first of all there is absolutely no case law support for that argument the argument goes the other way round what the cases say be further higher no case law what's the best case that you can shows the decision made on x date you know can be a proximate cause of something that happens five or six years later there is no analysis no explicit reference to time after the hiring the only our discussion of time is if the misconduct the person engaged in predated the decision to hire but for if there was dicked discussion say well if if the wrongdoing fifteen or twenty years ago with no repetition then it's attenuated then you don't have causation because too much time has passed but with respect to this issue they raise and i admit that it is a logical  one and if i may use a word clever argument but it's completely without any support in the case law in other words they look to the time of the hiring and there is no one alice is now judged to sheeba i do say that at some point if it's an excessive case in other words a guy has been hired no misconduct for a decade or two and then before he retires does something well at that point as a factual matter there's atten say that you couldn't do that well it's based on logic a matter of law as a matter of law it is yours you're still have to decide no i think there are factual cases so clear in the extreme that the court could say look if it were this then as a matter of law it can be done ok all i'm saying is in the case law it has never been done and in fact and there's a there's a second good reason for that which is we don't know what he was doing between the time he was hired in the time he killed this lady as a result of his attempted detention or about five and a half minutes over so i think we're going to have to end it here i'll stop ok i need the panel's help because this this is a case in which had the federal officer done her duty this never would have happened and then he meant mr i know your time has up we understand your argument counsel i let  ime period well the four circuit dealt with the time period in a very similar time period in the well him case which i've cited and that involved a ten year period and in the court said that  year period here between the alleged misconduct and so that that's right in the ballpark of the same i would also point out the martinez case cites a supreme court decision dealing with a parole decision where the parolee five months later kill someone to kill this child and the court said five months was too remote from the decision to support a sub to due process kind of theory i would point out the eerie case in the third circuit dealing with a four year period in the court in the city of erie said that was too long so i thought so i think there are cases and i think you can also discern again from the statement of brown itself that the injury and hiring decision have to be so immediately and directly linked as to show it to plainly obvious consequence that