guard i'm going to try to reserve five minutes and i'll try to keep an eye on the clock you know it's my responsibility as set out in the briefing on this appeal there's three issues all of them overlap to some degree but at the same time they are analytically distinct the first issue of course is the issue of duty on which the district court granted summary judgment against my client and that's whether the alleged duty here is limited because jaycee dugard was not specifically identified to the government as a foreseeable victim of phillip garrido before kidnapping the second is the issue of discretionary function exception where the government asks for a firm and  based on the contention that the district court heard by twice fighting that this action is not barred by the discretionary function exception and the third issue of course is causation where both parties have issues with the district court's ruling and i hope to have time to reach it but i to comment on causation which is that i do think the district or the government's argument on causation this discretionary function somehow breaks the chain of causation all the cases that the government sites on that are california tort claims act cases dealing with california's own discretionary immunity under its own court claims act and for that reason i don't think any of those cases are controlling it before turning to the issues i do want to make a few very brief comments about the background  not intend to discuss the harm to my client generally i don't think it requires any comment but the gravity of the government's parole officers negligence in this case or in a or alleged negligence i do think very much informs the government's agent and this is the same officer who's responsible for mr garrido supervision during the two and a half years before my client was kidnapped he recognized what everyone else recognized who had dealt with mr garrido that is that this was a man with a serious problem and that a serious problem with drugs in particular and his problem with drugs was that it caused him to become to engage in sexually and criminally deviant acts against young women officer in a supervision his objective in his own handwriting is closer valence of drug use his handwritten notes in the same form also note that there's a third party risk in this case it's greatly increased with drugs the potential for causing great harm is present if the subject becomes unstable as a result of drug use during the same year he had been told that mr curry don't was quote a time bomb that despite all this mr and one in the next two and a half years learns of almost seventy violations seventy violations of his drug aftercare special condition of parole that imposed upon him a mandatory duty to report those violations and mediately to the parole commission we take issue with these violations of the mandatory duty in this case is not about a complainant trying to find somewhere on the breech of a mandatory duty when the real claim is against some broader exercise of discretion such as in general dynamics it's not about you know what failed test involving grapes that somehow it's in the chain of causation that led the commissioner of the f d a to stop the importation of grapes from chile like in the third circuit's decision in fisher brothers so i just wanted to state that that's what this case is about well we just that's not what we're really here to talk very much about today are we i mean you're not really questioning the negligence or the culpability the parole officer we're looking to see if i'm california law liability would attach in this situation absolutely and most i mean the facts are horrendous but there's no doubt no i don't want to one that and surely something should have been done differently but i think we need to focus on something else don't we yes well but all of that goes to this discretionary function and unity and what i want to make the point is this is not about the parole commission this is about mandatory duties that were violated and all those facts are relevant to whether a negligence based duty would be imposed under california law because the touchstone of duty under california law is foreseeability that is the number one factor that courts look at and with that i want to turn the duty issue which is obviously at least i think the most important issue and i think it's important here to recall that the district court did a whole that there was a special relationship between the government and a reader as a result of the custodial relationship it's not something the government disputes on appeal i think it's important also to who can recognize that this report also twice held that the government did have a negligence based duty to exercise reasonable care and supervising to read  what the district court did hold however was that duty did not extend to jaycee dugard because she was not quote specifically identified to the government as a foreseeable victim of greedo for her kidnapping and that's where i want to that's where the district court went wrong in my opinion and i want to explain why obviously we tried to explain in the briefs well i think this really comes down to a subtle issue but it's a subtle issue that really makes all the difference in the world here person being the parole commission he breached that duty all persons who would be forseeable the injured as a result of the breach of that duty that failure to report to a specifically identifiable person have standing to sue under california's general negligence law applicable to private persons and that's the holding of braggarts as valdez that's the holding of ryznar vs the regions of the university of california holding of meyers versus question barry the the victim himself does not need to be reasonably identified there has to be a duty to warn or to report to a specifically identifiable person so in bragg the duty to warn was to the patient and also the patient's family about the grave consequences that could occur if he failed to take his medication however the victim in that case was a random woman who had been attacked by the patient as a result of the failure to warn the victim the gain jurist person's family of the grave consequences which could result if he did not take his medication it's the same duty here there was a duty to warn the parole commission just like the duty and bragged to warn the family that grave consequences would occur if he did not take well if he did take his medication in this case is the legal medication having breached that duty jaycee dugard is a foreseeable victim of the breach of that duty the duty to report to a specifically identifiable person same thing in rise or versus the regions of the university of california where the dangerous person is not dangerous through any fault of her own she's was inadvertently infected with hiv and her doctor inexplicably didn't tell her or her parents but the victim in that case is a young man who had intercourse with the girl several years later and was not identified at all to the doctor who failed to exercise his duty to warn the girl and her parents and the court in ryznar also says it doesn't matter that the boy or the young man was not clearly identifiable to the doctors what matters is that there was a clearly identifiable person to warn the parents or the girl and those people could have then taken steps to exercise reasonable care which would have prevented the the injury but you know what they're going to come back with they're going come back with and say that's a doctor patient situation and under the f t c a case law we look to the most analogous private party relationship and they're going to point to those rehab center cases ruined so why you're ok tell me why they're wrong about that ok so let's review and i think what it means to me focus on the on the on the california court of appeal cases and i can talk about the as well but what's the alleged duty in beauchesne the alleged duty in cardenas and the alleged duty and rice there completely different duties duty is not to allow it was well actually the emotion the duty was not to allow a dangerous person into your rehabilitation program which was the center non program in san francisco we do not contend could not contend that there was a duty here not to allow the redoubling to parole at all and under california law and i'll talk about the duties in the other cases but i want you to think this this point is really key under california law the duty analysis requires the court to look at the specific claim in this case we actually had a similar claim at the complaint is that we do not have an oh yeah i mean i ask you about emotion the one of the things the court look to in assessing whether the rehabilitation center should be liable is they look to they actually look to state log analogues they look to the state or so so this is where i find this interesting question this case under the f t c a we look to private party liability correct absolutely now the california police and that decision private party liability look to the state exactly so aren't we are we required to look at state in a sense state parole officer liability because under california law that's where they look to assess does is there's two things first of all the duties completely different and i think that's the really the this positive issue because i don't think it's the actor that matters it's a duty now but to get to your question directly what was the public policy that the state says that or the court of appeal says that they the reason that they're finding no duty of care there it's because they want to make sure that the state government has these programs available to it because if these programs do not have the same state immunities that the state has the state will have no ability to do this so that public policy is just not applicable here also as we said i really do think this is kind of a backdoor way to get in state government immunities so i it's just and the other point i want to make is the functions that are being performed by sinan on in beauchesne and by the other rehabilitation centers these are they're performing functions on behalf of the state government i get it that as the government rightly pointed out look a contractor with with the state build a highway or something like that i mean that doesn't somehow turn them into state actors but what the what the actors are doing and beauchesne in these cases they're performing be one function the private parties are simply not under the federal constitution to do which is the whole people against their will for long periods of time by force i mean these people what the what the halfway houses are doing here is are acting as state persons and in that sense the reason they're being given this basically this immunity is to protect the state's interests and i think this is right to united states versus moon yaz also united states versus olson in that whole line of cases indian telling but what chief justice warren says and the united states pursues me and yes when he recognizes the tort based duty of a federal prisoner to sue of federal prison master as he says well having decided the discretionary function exception doesn't apply here and at least for the negligence based to the analysis we have to assume that it doesn't have been decided that that's the congress didn't want to give them discretionary function immunity we shouldn't let the state court rule somehow come in the end and put that immunity back on because we want to let congress draw that line not the here and that was that the united states and its supervision of greta did not owe a duty of care to the general public but only to perceive one specifically identifiable victims and of course in the making that determination the disregard looked at the most analogous cases involving private actors which are the cases involving the rehabilitation centers and now point of counsel primary argument here was that those cases don't involve the same act but that your hono is wrong and it's particularly wrong with respect to rights which is the most recent california case involving a rehabilitation center and was involved a number of claims of now negligent but one of the claims was that the individual who was in charge of the center at the time that the four individuals scaped failed to report that escape to the police to spite knowing about it and the reason he failed to report it was because he himself was on parole and he would have had his parole revoked if the police learned about  nonetheless the california court of appeals said that the center there did not owe a duty of care to the victims because they're not specifically identifiable and that rule it's important to recognize is consistent with the background principles of california tort law as this court explained in anderson which is that the base the background principle is that normally one does not have a duty to control the act the third part now there are exceptions in certain circumstances based on special relationships but the california courts held was that those except that exception should not extend to this contact and in making that binding the court relied on the facts as laid out a row and which is  normal duty analysis and one of the factors is the policy implications of extending the duty so is your position and then under no circumstances could the united states be liable for what someone does on probation or parole there without a specifically identifiable individual you know would create too much of it doesn't stand up to create in these programs and therefore was contrary to public health and i guess the reason i hesitate in answering your question your honor is always with respect to the  things of course that would be different if there were specifically identifiable individuals who want to give you a hypothetical so i can understand your position imagine and i i don't think this would ever happen but imagine jeffrey dahmer got paroled right and has demonstrated a history of eating killing and eating young males so he's on parole and he says you know what i'm going to i'm going to do this again doesn't say who he just says i'm going to do this again and as part of his conditions of parole he's not supposed to hang around near basketball courts or where you might find young men and he's found near a basketball court with young men and not violated even his clear violation of the terms of his supervision and the next week he killed in each one of the people playing on the basketball court under your view no liability for the united states in that situation i don't think so but i think the question there would be one of whether or not there's a specifically identifiable victim perhaps if he was hanging out by specific basketball court under california law maybe that would suffice i don't i just don't know they won't but if that's if that's the case then this guy that demise all kinds of people in the lake tahoe area which is not a large geographic area is actually quite mean large in terms of space but very small in terms of number of people and it seems to me that in that situation based on this guy's history wouldn't any eleven twelve thirteen year old girl the identifiable victim for this god i don't think so your honor and i would know the plaintiff aren't claiming that the individual the pla identifiable victim and that is a love for our population even in your example with the basketball court like i said i don't think there would be a duty there but not as a somewhat different question under california law and of course i mean cases are driven by a public policy that that goes to the idea that we need these rehab centers to operate because of the prison crisis in california and if they didn't have an immunity the corresponded to the to the stadium unities the no one would want to open a rehab center and we'd have would have approved a worse prison crisis in california than the than they already do and on the flip i think the case is relied on  the by the appellant are all driven by incentives that suggest that we need to protect the protect the public by requiring by requiring information to be disseminated to the to the person with whom there's a special relationship and i'd like to have you focus on where you think the incentives are here because i don't think that the u s parole commission needs to be incentivized they're going they just they're going to continue to exist don't the incentives run in the direction of wanting to incent parole officers to monitor their supervisor these carefully so could you talk about that a little bit but on the other side of the ledger in both the california cases and here there is an incentive for the government to rehabilitate prisoners and to allow individuals out of prison so that they can react to our society and that is equally political in the federal contacts as in the the person but the parole commission is not going to go out of business and it's not as if the u s government is going to stop supervising defendants the concern in the california rehab cases was nobody would want to operate a rehabilitation facility so then it sort of doesn't seem to exist when you're talking about the pro commission so i don't think the policy factors of the court are looking to we're at that level of specificity i do think the example which was this court's decision involving employee compensation claim against the federal government the court held that the united states was most analogous to an in state employer even though it readily acknowledged that the policy factors  was the factor there were a line on particularly point the court to meyers which is one of the cases that's the case that involved the failure to warn a diabetic patient about the dangers of driving and what the court said there was it wanted to stress that the policy factors that weigh against liability in other contexts were not president there there at the only really the only policy factor that was present was the one favoring doctors living up to a high duty of care for their patients informing their patients of their medical conditions and there wasn't this contravening factor like there is here regarding the desire to encourage rehabilitation of conflicts  we did address alternative ground i'm happy to address those here i do think though that the discourse analysis of it is a straightforward means for a firm and here i do have a procedural the wrong wrong term to use but i for mr i understand where exactly the status of mr greedo because in the district court's order this court talks about how he was on supervised release and that's incorrect because he was on parole the whole time as i so i saw that the orses i don't think it necessary changes the analysis at all but in terms of that we have to write an opinion in this case one where the other on to make sure we get it right so again he was not on supervised release he was on parole supervision my understanding of the past is that he was on parole supervision certainly at the time of the abduction at a later date i believe is federal perl ended and he was only under the supervision of california right now and that supervised release has a very look i think that in the end i think one thing that the government says is just very correct in its brief is that you've got two lines of cases here and this is not really a state law question in the sense that it's there's a federal question here which is which one of the like circumstances under the f t c way and i just want to take a step back on the history here which is that this duty to control duty to warn a kind of comes up in the fifty's and sixty's in the first case we have on it is this  bracket case involving the grandparents a grandson and it's not a very well developed analysis that i think is helpful for us right now the next big case of course is the case everyone knows is terrorists off tarasoff involves a psychotherapist patient then the case is branch there and the case is going one direction with doctors and those are the cases we rely on and they go in a different direction and the main case there is thompson they're infected by the state government policies to encourage these these private parties to basically act as agents for the state and to grant them and they don't actually mean i hear your point it may be lurking in the background but the court could say that the state liability extends that far state immunity extends far and it doesn't it you're absolutely right it could say that and it didn't and i recognize that situation but i do think that given that the duty analysis is based on a public policy i don't think that public policy is applicable in this situation and i do think that you take bragg i don't think the private person analog is that far off we're talking about a dangerous mental patient who is released from a mental hospital that's not much different from from parole either i did want to point out that is judge jones you recognize that which is that he was precluded from going to south lake tahoe so there lisa was that that geographical limitation as far as rice and i do recognize that the claim that that the government made she is correct there wasn't one alleged violation there that could be at least somewhat analogous which foreseeability that having the calling the police would have actually prevented the harm at all and under the wral and analysis you've got to look at whether the whether imposing that duty would actually prevent the harm remember these people they went they th they escaped they went out and attack some people i think the same night so i'm not sure calling the police would have had any sort of connection to the the injury there and then i just wanted to to close by looking to the same case that the government looked at and i think i'm quoting from the same language and it's myers or squeeze and bury case and they say that they recognize a duty there because the defendants here are not public alameda both of which were ever heavily relied upon by the district court that's at page eighty three of the opinion so unless your honour's have questions i'm prepared to submit on our briefs could i just ask you a quick question is the parolee relationship to the police in the rice case the same as the parole officers relationship to the parole commission know what first so in rice they weren't they weren't parole these are probation as they were actually inmates i'm sorry