jacksonville judge rosen bahman i have been very happy to come up and be part of this panel and today we're very happy and honored to have with us one of our colleagues from south florida judge who was a more team is he's been on the district court  miami since two thousand and two since two thousand and two and he's a very experienced lawyer and trial judge and we're very very happy to have him here with us to help us out with our cases he sat with us on parks to a finish if we take you beyond the light then don't worry just keep talking to us as long as we keep and with that will begin with our first case which is sixteen dash one seven five six zero you know you want us to resolve the if you are if you are right about district court having committed error you want to conduct that qualified immunity ourselves or you want to send it back to the district judge for known imminent danger to that child we're not saying that's this case but you're saying that there is no constitutional right whatsoever unless the child is actually in the custody of your clients restraint of personal liberty they deprive a person of their ability to to fend for themselves now we're talking about children here and i don't think there's any question that when we get to the point of custody right that your clients could be on the hook my question is before we get to the put children are actually in the custody of your clients is there some point before that where your clients can be held responsible for violating the children's constitutional rights if they place them with a known imminent danger your honor i would say that that is a fact specific this particular is  there was there wasn't that knowledge there was some knowledge that the grandmother had been arrested several years earlier for a sex offense but there was no showing that she wasn't fit to care for the children because of that arrest several years earlier mr kitchen i you you said you want us to decide this issue but if if you keep pressing and i speak only for myself but if you keep pressing the point that these children did not have any constitutional rights whatsoever that had to be respected by your clients you're barking up the wrong tree it's a different thing to say on the facts of this case as alleged there was no constitutional violation because of what was known or not known by the defendants that's a very different argument than trying to say that children who are placed in custody in part by your clients have no constitutional rights for example in the scenario that judge rosenbaum laid out your odds are two very different things i would say that right is triggered  serial rapist known convicted released from custody after twenty years in prison and a parent says yeah let him let my brother have him and you check and you see that the child that the brother has had those act occurs when the state takes sufficient dominion and control of the children they so that they can't protect themselves in this situation the children were always with the grandfather or the grandmother and in that situation this is refuting thank you very much you've saved your time for question of there's a big question about causation too because i think the plaintiffs would be again i speak only for myself but i think the players would be in a very different situation if the injury to them had caused this case screams screams of negligence and that may not be enough i understand what you're saying but it's an embarrassment it's an utter and barrus meant to the care that we provide for children in our state again that says nothing about how this case is going to get decided in the three of us a look at the law and we'll do our best to get the case right that's just it's just my personal view you've got problems i think of solve some of the problem well problem number one is that the district court didn't do what it was required to do and i can understand what the district court was trying to get at given the record that it had but you know defendants are entitled to have their motions to dismiss on qualified immunity grounds decided on the merits if the district judge thought that their motion didn't stand up then what you should have done was deny it and say we're moving forward and let them decide whether or not they're going to take an appeal but you can't you can't be telling defendants that they can't file qualified immunity motion as you you as a district judge saying discovery is  to me like the case was pretty clear that the defendants are entitled to a ruling one way or the other on their motion to discuss as you know qualified immunity is an immunity from suit not just from liability and the supreme court  told us that if if a defendant is entitled to qualified immunity suit is allowed to go forward then the defendant loses the protection the qualified immunity is intended to provide so allege that they knew about her mental health we were very cautious we didn't go a step further we said they knew or they should have learned we now know they knew and so this court could look at that allegation determine there's a constitutional you said there are different ways to resolve the issue we have before us but her prior criminal issues are they part of your claim of causation at the clearly established if anything your honor we would argue that the shany wootton and powell are sufficiently clear that someone in brady in perry's position would think that they didn't have a constitutional duty you don't think there's any constitutional obligate with under him with regards to a placement decision you're on that's how that's how you began your argument earlier on all guns blazing you're ok i just want to try to get an answer on this and i understand you're zealously representing your clients the way you should this is not an antagonistic sort of thing it's one thing to say on this record as alleged in the second amended complaint there was no constitutional violation and even if there was there was no clearly established constitutional i understand that argument it's quite another thing to say and i want to see if that's what you're asking us to find there or hold that d c s employees in your client's position have no constitutional obligations with regards might not exist i'm saying they didn't exist in this particular situation in your are if i may well let me tell you the problem with what you may want us to do procedurally not substantively and let me tell you from the perspective of a district judge all of us have been district judges and judge there's been discovery we can't unscramble the egg if we rule on qualified immunity and the case goes back to judge cor and there's a motion to amend the complaint and make the dismissal to be without prejudice where he think he's going to do your honor i would think that if you rule on this and you find that there was no clearly established law than the game  on the facts alleged but there may be different facts alleged now that there's been discovery and more information i'm i must but i'm saying what just to me said there's no way to allege facts to assist to show that the law if a constitutional duty existed was clearly established so again you're going back to that question and you're saying that there cannot be any constitutional violation no matter what