school district of philadelphia philadelphia like like all state created danger claims not all but almost all the outcome where what happens to the person who who was harmed by the third party is usually horrific and in this case that severe harm on this child later on but we have to really put aside the outcome or deciding this issue odd immunity in the state created danger claims because we have to look up what was in front of the state school of course there was some connection so we won't be able to make a good case challenge for that i think our strongest arguments are whether or not under the facts the regiment complained that mr littlejohn's actions were conscious court case the mention of car should case which indicated that there might be a difference in a case like this involving objective or subjective so i agree with the court that actual knowledge may not be definite there has to be some facts that we can advise the song something more than a reason on this or an objective standard has to be more subjective so are our point on that is the complaint itself the way it's written does not give circumstances but so we're clear you are not you're not suggesting i required actual knowledge i don't believe that would be the standard and think you know now as to the nature of the risk and what is forseeable as to that you seem to be suggesting as a requirement of a level of specificity and as to that type of a physical or psychological harm that could befall the victim we're in our cases do you find an articulation of the risk of harm with that level of specificity it's not the it's not to that specificity but there has to be sufficient information that would have allowed without making a general inference because it's a qualified immunity case without making a general inference that something could happen something bad could happen there has to be additional facts such as maybe if the complaint alleged that when the woman came into the into the school building there was some kind of negative reaction from this child maybe there was something that was strange that this woman was doing and there was some strange interaction between this woman and child that would give a regional person a small teacher pause to think that there could be something strange  on here but the way the complaints what now is completely devoid of those facts isn't the risk of harm when there's just obvious and common sense when it comes to turning over a small child to a stranger and that mean th to take into account what the facts of the complaints that and there's no facts in the complaint that would give rise to what we believe is sufficient conscious shocking behavior because what you're doing now is you're you're basically speculating what horrible thing could happen without having enough specificity in the complaint itself that we give a reasonable teacher under those circumstances something that think something horrible like this is going to happen where we're with the regulations on how a child we would be permitted to leave the school room on up with the arguing that having not drawn those up i would have to i would have to agree with the court that the reason why the policies were being placed could be several things for example we know that parents of children in schools have the resources some parents didn't have custody and those policies are there to make sure and these are stranger by the way we are people who are known to the child the policy would be trying to make sure the person who's receiving the child has authority to receive a child but going back to the question is that policy itself doesn't give rise to a a constitutional duty on the part of johnny about the awareness to the teacher when he knows that there are these regulations in place why policy they did it but he didn't want to put it in follow through with the policy i think they seem to raise a very very large red flag when he he's we're the policy he asked for identification and the lady who took the child said i don't have any basically he nonetheless kate the child to the lady who came to the school under the facts of the complaint are just isn't that a huge red flag in terms of foreseeability of harm it's a it's a huge red flag as to now that we know what happened it's a possibility but i would say i would suggest to the court that under the under the these facts it's a potential for a risk of harm but under the by not following through and not checking with the office and not making sure that this person and that is where we get into the crux of really well qualified immunity i can it really is and that is what mr will john but what he did was it an action or was it action and so what if we look at the complaint we see that mr littlejohn failed to follow the school district policy mr littlejohn as action i would characterize what he did what he did was he failed to do the things that he was supposed to do under the policy you think they will but then he did something on the trial over to the woman you let the if the woman walked in and took the child in which then the courts suggesting that that would be in action on that one p actionable and that would also be improper so he asked her id a failed to follow through  action or even in action in a given situation actually created more vulnerability or created the very harm in question so here you don't need to account for for the fact that we're dealing with a kindergarten class and the baseline is that you know i can degrade me or it's going to be permitted to simply leave the classroom not walk out of the room walk out of the school into the street but then in this situation at least with children this is age the teacher is really serious in a gate keeper capacity the question is is this this case is not about a special relationship in terms of the shape of the personal district therefore there is no duty to protect just like in the case of foster care or a person who's honest and situation arise where a person's in prison where there is a different issue and we have we have not been asked to address the might might lead to a finding a special relationship that's not the issue before etc but yet when it comes to identifying affirmative acts we still look to that baseline to determine whether there was an  by year olds i too wonder off out of the classroom or school grounds unintended in that case isn't the theory we're at it's as you characterize it to prevent the child from leaving actually changing the baseline creating more vulnerability and harm well that would be creating actually little law i think in the third circuit i think it would read a fine a new circumstance i think it would redefine the qualified immunity issue because there is no case one point that would have put mr littlejohn on notice and i don't believe knight does and i can discuss that quick little john on notice that what you just said would create a new realm of a of a duty better is under the shangri la notice night because the difference between night and this case or for a few things i see that like time to write a request or a bit more but i'd like to get you back on because i think that it's very important for me to discuss the difference about section one hundred eighty three claims especially when you're talking about state created danger which does not represent a super negligence theory it's it's a very specific kind of claim that fits within the narrow box at least the created danger claim such a high bar if trial protective service is turning joshua back over to his father was not an affirmative act didn't create a danger for purposes of liability there how how is this distin well we also understand that that the difference between action and failure to act can be someone in the center and and certainly we are aware of cases and fishing is one of them where the i'm not sure this isn't there it is a complete answer to your question but the school policy and i'm not suggesting here that the school policy defines a constitutional duty and for whatever reason i can find it in my notes the school fully i don't know that that there is case law within the rubric of secret danger that has adjusted the what it means to have an affirmative act or how much protection there needs to be provided to the child on the basis of the age of the child was and then actually failed to follow up with the implications of the policy that the policy and it's a little john's the failure to fully account for the policy is a backdrop against wh n r with joshua and we substitute teacher with child protective services are we right back in a situation the supreme court has directly addressed when it comes to affirmative act i don't think so i don't think so how do you distinguish that from trying to protect a service is physically returning from the safe protected place that joshua was in custody returning him to his father where he was horrifically views and then a feeling to follow concepts although we don't have personal sexual identity we have enough to put a teacher on notice as it were that to hand over a child to a complete stranger is to risk the bodily integrity of  minimize the risk of secondary or right around if we need to go to that level of specificity in defining the right at issue here how could it be clearly established protected from a risk that was extremely rare and not apparent on its face perhaps when folded into the way that right got described we have these two book and of the way we have articulated what's required one saying can be fairly general and the other describing a very specific way how can we reconcile those  some of the things i said in terms of was there an affirmative act was or action or inaction but the reason why there really isn't clearly established law is because night doesn't apply really apply to the facts or circumstances of this case because in the night there were two adults walking home from a bar that night one of the adults subrata that she really was not in an adult state well that's that's a that's actually really a good point here you are and here's for samantha because she was so intoxicated and we know that it was gross freezing out and so mr tatar officer tatar he intervened and he actually conducted a time stop for all intents and purposes question them and and separate it actually separated mr knight from samantha and let samantha out in the cold that's not what happened in this case but there was no he let a woman who did not have adult he did not intervene he actually did nothing ishmael to do something he failed to prevent the prevent the child from leaving he did not do and he did not intervene and that's why there is not the clearly established  recently is context is a legal conclusion and i think once you remove that word released as from the complaint is legal conclusion you're not left with anything other than mr littlejohn fail to act then use the term race as caretaker for someone who was obviously unable to care for themselves and we didn't treat that as any special relationship case that transfer of custody if you know we were treated as a state created danger case why isn't that just as applicable here and where in a similar sense out there was has to be by the teacher in a position as gatekeeper to protect these children and then by acquiescing turning over the custody letting this child be put in a situation where they traveled no longer could be protected against foreseeable risk we have quite situation that we i had  littlejohn did nothing other than let it happen and then to was put in place long before as the teacher in the classroom and when parents released their children into the school setting for that at least temporarily in loco parentis relationship isn't that exactly what they're doing no shortage or intervene personally there i agree that that parents should believe that their children are safe and they're not going to really hurt someone who doesn't is talking about an action versus action and it's such a fine line you could use the word release and that connotes custody and therefore you let somebody go work i mean you didn't do anything to stop the person leaving and so the message would be that the school teacher in this circumstance should do nothing and then they won't be responsible for a ride more than i don't think that's what we want to have and he made a mistake and the mistake doesn't