good morning matthew pritchard on behalf of the appellant officers and city of san jose i'll try to reserve about four minutes your honour's ok i'll keep an eye on it may please the court the officers in this case are entitled to qualified immunity because plaintiffs failed to state below that failed to state a constitutional violation below and because under the second prong of the qualified immunity analysis no clearly established law would have put these particular officers on notice that their conduct at the time of the trump rally violated a constitutional right starting with the constitutional question threshold requirement for any state created danger claims is that the plaintiff established state action was responsible for the particular danger that plaintiff allege amount by another entrance indeed you are and that is not a state created danger claim precisely because that's that's not a sacred question that she's the state action question well no no the argument isn't the allegation of the complaint is there was on there was an waiting at the at this accident the police said you're going out that accident and we're not going to let you out the other accident even though it's safer that sounds like state created danger for me it's not for two reasons the first is to take the last part of your  your your formulation just pleasure of that there was no safety outside of the area where the the people the protesters are gathered independent of state action and this is really important because the only reason that the plaintiffs could stay and the only reason that could allege in their complaint that there was a particular area to the right where there was a relative absence of protesters as opposed to the left where they were directed just because the police were there and that they were blocking off that other exit had the police not been blocking off that other  said there's just no question as a matter of common sense and based on the allegations elsewhere in the compound and sense an allegation of common sense usually means just take my word for it and not very strong allegations as i recall word that the other exits were safe or they could have escaped the mob by just taking another exit are going the other way i think was market street instead of the same way they could've gotten in their cars and  only reason they didn't is the cops force them just like they forced that drunk guy who was i guess eighty sixth at the bar to go freeze to death instead of go back for his jacket it's very distinct from your honor they did indeed argue throughout their briefing on appeal and below that it was safer but it would have been safer if they could have just gone the other way to twenty six yes well that means the allegations of the complaint control sure of their allegations of fact those aren't allegations of fact by any mea on the allegation is if i had been able to go out the other acts that it was safe are you going to live with that that's in that's in the complaint we don't here are in here if i can explain why if that if there were if that that's not an allegation of fact that's an argument about the way things would have gone no we're not going to get anywhere if you insist that that's not an allegation of fact let me they allege that it would then it was safer all right so the plaintiffs also alleged in state of a most sources page for example that had the police not called private search efforts that the plaint the dissidents in that case would have likely been rescued or as chances would have been increase of getting rescued the reason this court's dismissed that at the pleading stage because it was a it was a twelve b six motion to dismiss is that that is implausible on its face this is not implausible on its face if you take the danger that plaintiffs allege which is that they would have to confront political opponents without police to protect them that is the danger we're talking about here  that's not really the danger the danger is that there are going to confront an angry mob and that they were going to get hurt and they say the way we were sent by the police without any choice on our part was dangerous and indeed we did get heard if they had allowed us to leave by another exit it would have been safer that's what they say and you've got to assume that that's true it may not turn out to be but for the moment it's true so it's true let's assume that it is true that they will you have to so much dr don't see why it's implausible either him or it was plausible that if the police set up in a particular area where the mob is and their reporting to let people out only if they run the gauntlet that it's not impossible that if they just sneak out another door and go different way they won't have to run the ball well let's take state action out of the equation altogether which is what you have to do given the backdrop constitutional principle that there is no entitlement to any kind of state protection so if you take state action wholly out of the picture which is the necessary constitutionally were here you are left with a situation where plaintiffs are going to a political rally without any police protection at all right there are no police there's no one to protect them  nature of engaging in speech activity is that you will face political opponents who may become violent in their opposition to you that just in here is in the speech activity itself when you take state action out of the picture here what you're left with is a group of people attending a controversial political rally with a candidate that is highly controversial in the area where he is speaking those people without police protection cannot plausibly allege that had the police been absent altogether from that rally they would not have faced hostile protesters from any exit that they left that rally from that is that truly is implausible in the same way that it was implausible in the state of a most that i'm not sure that's the way we're supposed to look at it the police are there they have already a mechanism according to the complaint may or may not be true of protecting these people and they fail to take advantage of it sure but that's just not that's just an action you are  in johnson versus a he's not in action once the police force him to run that gauntlet rather than just speaking in a way i mean i think it's not implausible that the rumor gets around the hall they're beating us up and we because the cops are making us run a ma hat and in your pocket along with your pin and just sneak away your i agree it's an affirmative act unlike in johnson that i don't dispute there is an affirmative act here the affirmative act is closing off exits and leaving just the one exit available but the second question is you're on a road to judge fletcher and pollock versus savages whether the affirmative action exposed the plaintiffs to a danger that they would not have faced in the absence of state action this is a critical in different from the inquiry whether once police got involved they could have taken different actions that would have been better than the one that they took and if you take police action out of the out of the equation they don't dispute this no one can dispute that they wouldn't have been safe or they wouldn't they would have faced the exact same danger of having to confront hostile political opponents without police protection i just think that follows and that follows from a state a famous and it follows from city of johnson versus city of seattle  police that produces danger and here we have an affirmative act by the police the british nature not not a danger that wouldn't have existed without state action that is just that's just i think clear your honor and in a state of a most they also allege an affirmative act the affirmative act was halting private rescue efforts i'm sure you didn't hear that last in the state of a most verses page the plaintiffs they're also alleged an affirmative act that was halting private rescue efforts for the guy who'd wandered into the desert the court said ok but we have to be we have to look at what would have realistically been possible in the absence of state action here this is a person who wanders into the desert is facing inherently the danger of starvation and all of the other things here what a state of a most and johnson do stand for is that there are certain activities that you when you allege that that's the activity you're engaged in they are inherently there are dangers out in here in that activity wandering into the desert is one thing assuming the police don't make you wander into the desert it's quite another if the police make you wander into the desert then it's more like the case of the guy who was drunk when the police made him walk his muster no one made plain police did not make plaintiffs go to the trump rally they didn't make the protesters go to the trump forced out of the building they say that once they left they were left with a single exit so you're saying they should have just stayed in the building all night least until the demonstration ended but that's not the hill i want to die on a much more unless it's alleged i am much more it doesn't matter you are what why it doesn't matter is just like wandering into a desert when you wander into a political rally where you're going to face political opponents it doesn't matter what the police do afterwards even if that thing afterwards makes it more dangerous than the other alternative they could have come up with because you were already facing the danger this specific danger that you allege caused your injury which is confronting political protestors because you already faced it the state state action is absent but i want to quickly address deliberate indifference very very clear admonitions of the supreme court and even this court recently in sharper says county a mortgage that the right can't be stated at a generalized what level you know there's just no question here that that's exactly what happened there is no case that deals with  police officers at a political rally or if there are any kind of protecting speech activity which is very much a singular governmental undertaking it's a very complex one it requires balancing constitutional considerations with safety and other things there is no case that would guide a reasonable officer on the scene of such a an event on exactly what the contours are of when he can create an exit a single exit versus multiple exits when he can direct people in a certain way versus other ways there just is no case that even remotely speaks to that conduct so on that i just think there's no question that the clearly established wrong agenda that the admonition that we don't state rights at a generalized level that wasn't followed i also think as to deliberate indifferen quickly emphasize you know this is an important important part of the state create a danger doctor and it serves federalism and separation of powers interests and so far as it prevents the judiciary from intruding into the decision making of state and executive officials except in those cases where the judicial shot of conscience is shocked because you know there's just no justifiable reason for the action that the officers took this case is a perfect demonstration of why that talk that limitation is wouldn't these officers face complicated situation of balancing the interests i just discussed between first amendment rights and safety they were faced with exactly two alternatives stick with the plan we have which is to keep one skirmish line and not break that line or deviate from that plan without knowing exactly what's going to happen if we open up one exit surely the protesters it's common sense would tell you we're going to move to that other exit the only reason they weren't there before is because they've closed off that is that we don't know what's going to happen that's not the kind of callous shocking conduct of this quarter's ever found morning your honour's please the court i'm harmeet dillon for the appellee is in this matter who are the plaintiffs in the case below your honor as i think it is clearly established from the over five hundred paragraphs of detail allegations  the second complaint in this matter that the actions in this case taken by the police they do shock the conscience they did put the plaintiffs in a very dangerous position there were alternatives and it isn't just pointing to a single door and saying going out the door the allegations in the complaint talk about funneling people a block away and then forcing them towards a crowd of four hundred protesters four hundred of the allegations in the complaint point out your that there were  over eight thousand attendees at this rally there were four hundred protesters this is not a case where as the appellant is arguing plaintiffs asked for it by going to a rally they have the right to go to the rally and while they don't have the right for the police to intervene and prevent the harm that would be there in an ambient fashion they absolutely have the right according to this court and according to numerous authorities and the supreme court as well that once the police take an action to put them into danger once they put them in harm's way by forcing them to take a particular route when other routes are available and then by blocking exits by not allowing them to flee by refusing to intervene by in fact stating in the earshot of violent protesters that we're not going to do anything and you have to keep going this way by blocking them from from reaching their cars at the garage blocks away from this protest these are all actions of the police took that put the plaintiffs in danger and thereby created to duty for them to act let's assume that we agree with you that they did put people in danger was a pretty dumb plan that they came up with the question is whether it was deliberate indifference etc but let's assume there was a constitutional violation my question is was the right clearly established so that qualified immunity could not be given at this stage me as so when we find at first a concert a violation unless we can find some case involving crowd control do you have a case to show that it was clearly established but your honor i disagree that the standard is that we have to have a case that involves crowd control specifically the standard articulate but i we do have a case but let me start with that anderson creighton actually stands for the proposition that it isn't required that the exact factual circumstances be established on all fours that's not the standard and this court has repeatedly articulated the involving crowds were the police officer should know absolutely so sorry your honor to me go ahead the johnson case is actually a case specifically where the ninth circuit applies these standards to that on the facts of that case i'm not so that so the predicate as was their constitutional violation if i'm not mistaken what the court held there at the summary judgment stage was that there was no constitutional violation because all that the plaintiffs complained about in that case a deficient crowd control plan and that was insufficient there was not the allegation that we have in this case that the crowd control plan or the choice between two different types of plans put the plaintiffs in such danger that it rose to a constitutional level  o shock the conscience and i would agree with you one below not because of the deficiency of the plan in the abstract you one below because as it turned out this wasn't working i mean the we're not talking about deficiency of the planet some abstract way is when they are leaving there is a clear and present danger right there in front of them and the police say you're going that way right into the danger this is not sort of at the planning stage back when the police  honor judge nelson i think it is clearly established there that the qualified immunity and malice of can apply to the crowd control situation but in that case with a fully developed record not at the state that we are here they simply didn't meet it and so that's the distinguishment of this case but the precedent is there and your honor has also asked us to address a case henry a versus wilderness and that case your honor stand for the proposition actually in a fairly broadly construed concept that the entire foster state system of nevada including numerous specific homes in which the plaintiffs were placed was so dangerous that as a matter of law it was deliberate indifference to place children into those homes and what's important about that case is that in that case this court says that it isn't necessary for there to be a freedom from harm for the police to be liable for creating the harm in fact the fact that dangerous foster homes existed in that situation is irrelevant this court used the word irrelevant to talk about the preexisting danger so all of the argument that we just heard from appellants counsel with respect to the fact that trump supporters should have known that they were putting their lives at risk by going to a political rally is according to this court irrelevant we have pled in excruciating detail that there are numerous paths to safety and  happened here was the police operated almost like a deus ex mocking on the gates of the rapidly driving people towards danger in a narrow channel and then causing that harm when it was right in front of their eyes it wasn't theoretical it wasn't five blocks away it wasn't it might happen this does shock the conscience your honor and did this is demonstrated by the allegation in the complaint that six hundred members of the public immediately complained to the city within days about this you don't see that in normal circumstances and we have to also understand that we're operating in a system here we're at the police give you orders we've all seen on television what happens if you don't follow the police orders you go in a different direction your life could be at risk from the police so these citizens follow the orders of the police they didn't have a choice and they were harmed as a result and under the are well established law you're qualified immunity qualified immunity is not available but on top of that given numerous precedents your honor judge kleinfeld has talked about the hypothermia cases there are numerous hypothermia cases in the ninth circuit there are cases of women being placed in situations in the wood case where the lady was raped after the police officer made her get out in the middle of a dangerous area there are other rape cases there's the case of the nurse there's it seems plain to the supreme court says you need a case that's a low enough level of generality now i've always been troubled by that phrase it reminds me of the old law school joke law of the horse if you have a of dispute about a contract involving a horse you look up contract law not horse law so i never know quite what they mean by generality however it may mean crowd control cases and if it does i gather you don't have one and that strikes me is the most delicate part of your argument if you have any more that you've thought of since answering judge nelson's question on the same thing i'd like to hear well your honor i submit that the johnson case does apply here and if it were in fact the law that you had to have a case on all fours for there to be a notice then you know this court would never have created the would decision or the grub decision or any of the other cases that have stood the test of time on qualified immunity that a circumstance that where the police should know that they're putting somebody in a dangerous situation that puts them on notice of hope in the hope case united states supreme court states that the is can still be on notice their conduct violates established law even in novel factual circumstances that's united states supreme court precedent i don't believe it's been overruled by the more recent decisions that the language that your honor points out is somewhat difficult to satisfy but here where this court has applied that analysis to a crowd control situation yet reached a different conclusion not sufficient to put them on notice and there's been numerous statements from this court in from the united states  supreme court that it is the the burden is on the police the burden is on the government to educate themselves about that and so whether these individual officers satisfied that burden for themselves and read the case law or were properly advise that is not my burden at this stage in the case and so i respectfully submit that case is close enough but the other cases that we've cited in our papers make it clear that where a situation is so shocking is this the police should be on notice that sending people into danger just like sending them out into the cold in montana in the winter to freeze telling a sexual abuser that the person next door reported him to the police that's the kennedy case those are all individual cases and then i guess my through i think that we should establish that at this point with crowd couldn't whole you can't do that but whether they get qualified immunity is the question of whether or not there is something that you can point to that would clearly say that police officer you can't do that well where this court applied that analysis and johnson i think that is an example and i understand the concern that the different conclusion was reached but that was a different stage of the case that's another critical distinction it may be the case that when we come back to this court if we have to later on in the stage of this case where i may have things i'd like to appeal in other decisions a judge coded in this case below but the factual record may be different at that point and we haven't had a chance to conduct zero discovery in this case we had a chance to not take all the depositions of these officers to know what they knew we have not had a chance to take the depositions or any of the other officials in the city to know what complaint and your honor to that point almost all the cases relied upon by the appellant in this matter are summary judgment cases and those are cases at the other under the spectrum and you know this court has had a chance at that point to see a fully developed record and that is a significant distinction here we should be allowed the five hundred paragraphs plus of allegations the shocking behavior detailed in this complaint to have our chance to prove this case and to hold police responsible for their outrageous conduct in this case as alleged in the complaint case for one thing there are different factual standards to be applied in and the manaul analysis the judge code is allowed to go forward it is on a completely different point that doesn't even enter into the set out what they claim are the facts i understand your honor and obviously will have some challenges to face at that point in the case and and i think there are a number of things that we have a hard road ahead it is these are difficult cases we understand that  and understanding that we think this is a shocking case that needs to go forward ok thank you you all pick up just judge nelson were where you were sort of last the last line of inquiry that you had which is i want to emphasize i think there's no question here that even if there is a crowd decision you know in the federal register that says you know in theory crowd control decisions can give rise to substantive due process violations of course that's true anything can give rise to substantive due process violations if you know it meets the standards of the of the state create a danger doctrine certainly neither johnson or any other case would do would tell a reasonable officer how we need to conduct him so he could be a hypothetical case that's been rattling around in my mind about this argument that let's suppose the facts are not as alleged here let's suppose the facts are the the police lines seems to be working and the police are forcing people to go a particular way up the entrance but then some protesters blow up a fuel truck and there's a huge fire and it's not people pounding protesters on the head with a bag or rocks it's this huge fire and the police keep telling the rally attendees you have to go that way that's our orders that's our planet's way to go but you can't go that way without getting too close to the fire and you're at risk of the police using force to stop you if you try to go a different way or having to run through the fire and hope you don't get to burn burn too badly i don't think there's ever been a case like my hypothetical case so i think you would say that because there's never been a case about it fuel truck been set on fire and it's too dangerous to go past that and the police can say well i'm just a cop what do i know i mean i didn't know there was anything against the law about that so i made people do that because that was our plan they would have qualified immunity for forcing people into the fire no that's your case i think i think that's your argument it is your honor that the difference is that would be an example as outlined in sharp and white versus poly of where the constitutional violation is so obvious that there was no justice there was no legitimate law enforcement safety other justification for the exact conduct which is making someone continue to go into a fire when there's a perfectly safe open alternative there were law enforcement reasons for the officers to stick with the single exit crowd control plan here they didn't have they would they did not have the benefit of hindsight to know that opening not opening up and by the way we allege in their complaint that this was a crowd control plan formulated for the purpose of crowd control safety that when the officers were following that plan we know that they were relying on at least this idea of safety even if they did a bungled job at it and so those allegations show that both there was no deliberate indifference and that they're entitled to qualified immunity i had hoped to conclude but can i have twenty seconds to do that when you have thanks your honour's i just want to emphasize in closing that because i think in the bay area we see this all the time there are lots of situations where police are facing this difficult situation of protecting people engage in speech activity it's a really difficult thing and what i think this case does and a constitutional holding that this creates a danger it really does raise the specter of due process claims every time police try to do what we hoped they would do which is protect people who engage in speech activity so for that reason i'm asking the courts a vacate the one thousand nine hundred three holding in its entirety ok thank you very much for there ar