say may please the court it's my honor today to represent richard and joe inflexion this case was wrongly dismissed below because the district court failed to recognize six different important duties that were to our clients by the various defendants because the district court failed to recognize the implicit billeted of the public duty doctrine and important exceptions to that dr i like to briefly touch on what the six duties are that we believe exist in this case and then go through each in some detail as the court desires the first is that the defendants created the danger the second is that the defendants accepted the duty of protection by instituting monitoring of the assailants at issue and then withdrawing that support from the community the third is that a special relationship existed between the defendants and the students the fourth is that a special relationship existed between the defendants and the pla the fifth is the creation of a special temptation or opportunity for criminal conduct which gives rise to a duty and the sixth and final element or the sixth and final source of duty is the general calm of all notion of duty and the area where the only reasonable way of getting there is through our client's neighborhood school or in well that's that's part of the question for the case your honor everyone's pointing the finger at each other but the way it worked as a practical matter how far did they move the bus stop it a number of blocks  president we're here in case it is your honor i mean that's the that's the risk we take from our side of the equation we're not in a position to roll the dice and take that take that risk if this court finds that is without prejudice and wants to send us back down i would suggest the court raised but the important thing that this order and it's really one paragraph of operative language ignores is all of the layers of duties that are at issue in this case and so for instance you have the fact that the defendants created the danger to begin a jury to decide whether or not he accepted the risk of what was going to happen after that but that wasn't what judgments ruled judgment said there is no duty in the first place when in fact the very clearly it was because the defendants created the danger by forcing the students through this neighbor and this court in tender cited with approval a number of cases from other jurisdictions that are very similar so for instance when officers drive prisoners to a store or to a workplace when when a parolee is provided with an automobile that the state itself is creating the danger just as here the state created this danger in forcing the students through this particular neighborhood and this is a highly dangerous group of people these are some of the most dangerous and i believe all together there were twelve your honor there were seven students who were involved in the attack that ranged in age up to twenty years old that criminal backgrounds they were in what amounts to a reform school because of their tr backgrounds and there were numerous complaints by the community yet the defendants moved to the school bus stop from the school to force this walk then in response to the complaint that was monitoring that the defendants withdrew which brings me to another issue a let me ask about this as a your position that once the monitoring program was put in place that the defendants had an obligation you know forever too to continue the marking risk and here there's no question but that they increase the risk from zero when the students were being picked up at the school to obviously one hundred percent when they were forced through the neighborhood and secondly there were none of these issues when the monitoring was taking place no attacks and when they did away with the monitoring here our clients are attacked all the defendants say with respect to the the relationship that maybe you're making a distinction here between the school and the m t a but the schools at least would suggest that once the students leave the school that's the end of the matter for them except that isn't the case so for instance here is why we know that number one they put the monitors in plates so the school was able to put the monitors in place and demonstrated that indeed they have the ability to stop the problem to monitor it off school well the  that they may have done that gratuitously at least from their view doesn't mean that they had a duty to continue to do x except under the restatement which covers even gratuitous efforts to protect someone else and says you can be libel for doing those and correctly in addition to that there is also a student code of conduct that the school writes in response to in accordance with the policies of many of the other defendants the student code of content of conduct explicitly states that it covers students off campus coming to and from school into it from bus stops and so on and so forth and we've cited that in our papers in the foot so the school had here the ability to control the students this is not the case where the school can merely why their hands of the students and we've seen wash our hands where it is where is the line drawn between the responsibility of the school and the responsibility of the parents i think that i think the lines drawn when the question is whether or not there is an ability to control and here we know there's an ability by the school to control for a number reasons one it's right in a policy that they can do it too they've demonstrated the actual ability to do it regarding these students in this neighborhood on mr fletcher street so so we know that they can control the students the defendants want to change the test to one of custody media and physical custody which is not this court in pender in adopting the case i cited earlier made it clear that even once you're out of the custody of the state if the if the  state in effect put the wheels in motion to create that danger the state is responsible and that's in the case of what parolees and others in that case it was an unsupervised parole even that's a different context isn't it i'm every every context is different but i don't think which is that's the question these students are extremely dangerous their criminal histories they again are in effect want to while they want or maybe the some of them may been us those under the supervision of the criminal justice system some likely were i don't can't answer that directly your honor but what i can tell you is that they were assigned to the school because they couldn't be permitted and in any other school this was in effect what we used to call in its disfavor i guess a reform school or situation where these were some of the could in force control and i'll give you another example moving on to the third source of duty here which is a special relationship if there is a special relationship between the defendant and the wrongdoer or the defendant and the sorry twenty four seven no but certainly again it comes where do we draw the line again i think very clearly when there is an actual demonstrated ability to control or importantly in this case when there is at least enough evidence of that question to go to a jury we're here this case haven't been thrown out on a motion to dismiss and there is it least a jury question as to whether or not the school had the ability to control these students once off campus because they had actually demonstrated the real on the ground ability to control them through the monitoring number one and number two they had policies that it was the school's policy to control the students they the school wrote that for themselves and that the students were subject to that policy and subject to discipline through that policy so that creates at the bare minimum a jury question on this point of where do you draw the line and how and how are those policies different from any policy the school would implement at any school well the policies themselves were look we're likely not terribly different but the actual monitoring was different because it's not typical that that kind of monitoring takes place it took place because of the notice to the school of the dangerous propensities of these people so these are not individuals who are your typical school children that you might be familiar with these are very dangerous people who are violent and with behavioral problems and again raging you ranging in age up to twenty years old so some of the so we've cited talks about the dangerous propensity and there's a distinction between custody and control control is sufficient when it's grouped with a dangerous propensity to act that creates this special relationship as  position than he was without the montreux i mean he went out there and engaged him self but that is a question of whether or not he accepted the risk which is an entirely different question the court did not rule on that and that would be a jury issue in other words it's there is a jury question as to whether or not he was contributory negligence which is the issue the court is getting at we're not here on that question we weren't of permitted the opportunity to develop a record and it will be a jury question to begin with the only question for the court in the only question on which the lower court rule is whether or not there's a duty and there are very clearly is a duty here to exercise the actual ability to to stop this and just simply ended their efforts in that regard so there's clearly a duty there's also a special relationship directly with the fletchers and with people of with the class the neighborhood members of whom the fletchers are members in other words you don't have to have a direct relationship under the case law between the school or the defendants and the fighters themselves but only between the school and a a duty because under three to three of the restatement once you engage in the monitoring you have a duty to discharge that appropriately it gives rise also because it helps underlie the special relationship but even without the monitoring the state or the government here still created that danger by moving the bus stop from the school to the neighborhood that there is will also the general common more test for duty which is meant here there is what about if they had to move the bus stop and yet this incident had occurred if they hadn't moved the bus stop and if there was no monitoring there would be an argument the defense could probably successfully make and it's always hard to guess at that act that it was but there'd be an argument the defense could probably successfully make that there was no affirmative state action that is required here the affirmative state action is seizing the monitoring and moving the bus stop so we can check those boxes and that's why we haven't seen any significant reliance on that point from the state i think the yonder there is actually no obligation for the school to have any sort of system in place where the students must take a bus the students are all high schoolers some of them could potentially drive they can walk wherever they want in this situation they actually walked over to baltimore county which is where mr fletcher may have been his house was in balmer county not in baltimore city there is no obligation for the state to require any of these students to have gotten on any particular us that bus stop where there had been w or moved was not a requirement for any of them to get on there is no way that we could have evolved provide a proper burial there is no actual yellow school bus in baltimore so you don't have anything to do with but this was a public transportation this is an m t a is who provides a public transportation but i thought your colleague said that there was a contract between the school and the m t a to provide the service the schools do way are they do work with the students to get them bus passes so that they can acce reform school it is a school where students who have had issues in the traditional schools go however there is no requirement that they have a criminal record there's no requirement that they be under and custody in actuality these students are not wards of any agency are not words of the state they're not people who who are the students would go sign up for students who have had to face some sort of difficulties in the traditional schools whether it be because there were some type of criminal offenses or simply behavioral offenses in their traditional schools however we would still argue that that is the only one of those types of schools in baltimore there are different schools for different issues that's why i do believe as the one that was more of the reform type of school and they don't there's only one of the are because other students in our other schools throughout the entire system could have issues and simply because a student it has some form of perhaps bad behavior perhaps a criminal record does not mean that our duty extends  and at that point you were obligated to continue to do something to protect and they were what you say about that but we don't believe that the law actually supports that we still believe that you need to go back to what is the creative danger is and what it is in order for it liability to apply in this have a claim but we believe he still would not because again this duty has to be to mr fletcher and our duty is not we do not have a duty to mr fletcher because at no point have we ever  and they're actually putting this what we're calling a monitoring program again did not change mr fletcher situation it was simply a program that at best was monitoring the students to get out of the grounds of the school that were then what they are arguing with extend the duty of the school to continue is being monitor our students twenty four seventh's because where would this end i get a bus stop moving one block away what do we then have to monitor them all in the past and when they get home in their communities perhaps some of them even lived in this community do we then have to walk them to their door it's simply a slippery slope that the plaintiff is trying to create a relationship with the school system and everyone in the community and we do not believe that there is any case all that supports that it's very clear cut very special relationship must be an affirmative act at this time there was no affirmative at there is no duty for failure to protect the government entities to be a c does not their we don't believe any amendment would be able to change the fact that nothing has played to get past your munity but more importantly nothing has been played to show that there was a special relationship with mr fletcher and the school system because that is where the relationship lie is between the two of them and nothing has been played there has been no danger created even if the monitoring system was put in place by the system the lack thereof did not create this danger because that would then have  that we are there live over every action these children take when they leave the school system which just simply is not with the law is when they leave they are there are going off the grounds are no longer in the custody of the school system the school system simply while they are in their control meaning having school function or the school itself they cannot continue to be their parent twenty four seven in throughout their continuance so again there have been no permits of acts by the by the school system that therefore induced plaintiff to rely on it because the plaintiff actually admits that he went outside and he knew the suit was not going on there was no longer monitoring so he did not rely on anything from the school system and we do stand by the argument that against the government as it serves the public i'll be arguing first that recovery is borrowed against each of the state personnel that have been named and the second number they are there is to state personnel find you've got it so i represent the department of personal capacities however that is most costly mentioned there's no allegations of a direct or personal involvement by either just a general allegation that the state failed to provide appropriate transportation or to address the community safety concerns but it's apparent from the face of the complaint that their name by virtue solely of their public offices in the mission of their agencies and therefore the nine hundred eighty three claims must be dismissed against them because acting in their official capacity state personnel do not constitute a person under the will case law dispute about whether or not they were also named in their personal capacity can be resolved again by the substance of the complaint which is court looks at and the fact that these are really official complaints with regard to the negligen the that claim must also be dismissed against the state personnel because they personal retain their immunity to suit under courts and judicial proceedings article five five two two for acts or emissions that are within the scope of their public duties that are made without malice or gross negligence and as the barbary case points out that's a high bar malice involved evil or wrongful motive the purpose to injure gross negligence involves willful and wanton behavior an intentional failure to manifest to perform a manifest duty and as we've discussed here there is no duty at all rather secretary ron and director langley personnel acting within the scope of their public duties and any alleged bureaucratic mismanagement or failure to do more on behalf of community is not enough to surpass that standard so with no liability attached to the state personnel of like to turn to the  matter of law not only is negligence not a deprivation of liberty but also the failure to protect from a third party is also not sufficient under the dick cheney case law so all that we have remaining then is the negligence claim against the state agencies and the maryland tort claims act those representing limited waiver of states immunity under section twelve the ash one of four of the government state government article but mr fletcher has failed to state a claim for negligence the key element duty  missing here and it's important to note that the existence of a duty is a matter of law that is appropriate for dismissal and that's how this case was dismissed at the district court level put simply there's no duty for the state to protect mr fletcher from his assailants unless such duties created by statute or special relationship the statutes are quite clear and it really isn't argued below that there was any statutory duty the education agency provides funding it regulates but it doesn't operate individual schools or supervise students  these are quintessentially public duties and to the extent that they regulate it largely focus on rider safety about avoiding railroad tracks and crossing multiple lanes mr fletcher is not within the class that those regulations are intended to protect nor is this one of the harms that those were intended to prevent with regard to transportation agency they provide mass transit to the public at large as was noted initially in your honour's questions federal law actually prohibits exclusively transporting students that's  forty nine us c fifty three twenty three and so is important no the bus stop was it was utilized as a public service and so students can't be a specific class in this context and weather could be a duty of care to passengers as a calming carrier that duty d complaint around like the stop near the school as opposed to a number of blocks away but it's important to know that that bus stop regardless of where it was placed was a public bus stop to be used by all and as was noted below these students were not in  relationship either with the school once dismissal happened or with any sort of department of juvenile services and so once they left they could have walked and i think counsel mr hans will acknowledge that they could have walked elsewhere that if they can another boss and so the lack of control mean any sort of monitoring program would ultimately be ineffective although it was attempted that affirmative act did not put mr fletcher in any worse condition then having individuals walk through the community and engage in private violence pedestrian and that follows all the way through to mackinac in two thousand and seven but it's important to know that this standard that relates to police officers and law enforcement is brief below but that this should be a case of first impression but ultimately  two case from the maryland court of appeals they noted that this is a general standard that is used to preserve case by case review it was equipped to deal with nine one one operators it's equipped to deal with other agencies and so here the state alleged monitoring would have involved student supervision which the state apart of education does not do and the state had no relationship with mr fletcher because those bus stops are created as a service for the public not just students they're not an affirmative act for the benefit of a particular person nor any facts alleged to show reliance on the state's protection back mr fletcher left his home which indicates a lack of reliance so even assuming all facts in the light most favorable to mr fletcher this is a case of private violence on public and this court should affirm the district court's decision thank you like  protect the neighborhood instead there is a special relationship when those inch when between those in charge of persons with known dangerous propensities and those that have custody of others that's ashburn versus enron two counting what's interesting about that it and to answer justices question it separates those in charge of persons with known dangerous propensities and those with argue there is a lack of custody but they cut the analysis in half and ignore that if you are in charge if you have some ability to control literally interpreted a person with a dangerous propensity then the  satisfied again that's versus and run and count how does that apply to the state board of education and the maryland transit authority the maryland transit authority and the state board we have here's a problem we have everyone on the defen matter if they don't have any they're not in charge of the students but because i think your honor it comes down to a question of contract and whether or not their contract required pick students up at the school and we can't answer that without discovery we know there was a contract between the school and the responsibility and i accept it was my response or what i understand your honor but i want to make clear to the court if there is control not just custody of someone with a dangerous propensity then there is a special relationship  a duty there is also a separate special relationship between a school and pupils generally that's valentine versus one target so what we have here is a special relationship that creates the duty between these students in terms of drawing  line i think this case is perfect for drawing it on the plane or side of the equation because there is the demonstrated ability to control the student through monitoring and because of the policies of the school state but they apply to students at quote while they are on city school property and while traveling to and from school or any school sponsored activity so the school has accepted for itself the very responsibility on which it is sued it has not only accepted that responsibility but indeed has undertaken to discharge it negligently but it's undertaken to discharge it by actually providing the monitoring so here we see the ability again to return to the  control which is what's important not custody not whether or not down the line there might be an immunity defense or down the line there might be a question of whether or not there was any negligence on the part of our client but we're here on the question of duty as to immunity the answer is simple the maryland tort claims act and the local government tort claims act in maryland waived immunity in different circumstances that are beyond the scope of the minute i have left on behalf of individuals and the government so i'm unity is wave pursuant to those acts based on determinations of the jury must make as to malice and gross negligence even if there is no malice or gross negligence the government is viable if there is the the  individuals are liable that's from a thousand feet in the air there's a lot of ifs ands or buts but the answer to immunity is it's been waived there are special tory means of dealing with it with respect to the state law claims as to the federal claims the question comes down to qualified immunity and these are all very clearly established rights and so there is no qualified immunity and indeed we don't have a ruling on that below i would suggest to this court that number one we need a recent ruling on it below we need a recent ruling to review that made that distinctions between different units in different parties and we need as the court has already suggested our right to engage in discovery which of course would be critical to some of those defenses and instead what we have is a really a one paragraph analysis of a case that deserves a lot more attention due to bring danger to this community from these students who are and i think you heard it best from my counterpart what amount to some of the most dangerous folks in baltimore everybody with these behavioral problems everybody with criminal problems in a city that unfortunately and i live there is known for those issues was shuttled to this one area these events it's in the papers happened three days after the death of freddie gray when the city was on high alert to put it politely at a time when it should have been clear to the school that their charges had extremely dangerous