ready for the first case this morning which is case seventeen six one three six bishop souter mr langford ready to hear you my name is john langford and i represent the defendant in this case robin singleton suba and before i forget i would like to respectfully reserve some time for rebuttal time's yours this case involves apartment in this case the court misconstrued the facts misapplied the law which caused it to commit error on both problems with qualified immunity analysis this appeal involves an investigation by the defendant into a foster home five months before the plaintiff was placed in  children who expressed no concern at that time she also interviewed the school nurse at the children's school hoops for us no concern for abuse at that time when we she also reviewed a third party whose daughter had only role in this case was to conduct an investigation five months prior to the child's place that she never met the child exercise no because of your control or what is the deficiency in that investigation that is lax the particular unturned or failing to exercise to conduct an investigation just as another social worker would does it doesn't show a lack of professional judgment in fact that it simply shows negligence as well i'm sort of person that overheard other people talking that there were some inappropriate sexual photos i think that this record misconstrued that isn't showing that there was that the foster parent was engaging in sexual activity with the children but i don't think that's what it was but at some point though i think she interviewed the mother of the of the person that heard the rumor in that and that person you know indicated that it was just a rumor but i think shocks the conscience of the court whether it's her failure to investigate to even follow up on that allegation well i think is so shocking because we don't know what she would have found out unfortunately we don't really know do we whether there were such photos well i mean i think that obviously cuts both ways on the other but i think that because you know if you're the person wasn't there a call to a hotline isn't that kind of what started this a call to a hotline by the person she eventually interviews yes rather and the caller said that she had heard that this foster parents secretary had resigned her job because she had seen i think the call was that she'd seen compromising photos of these children and that she had quit her job because of it it seems like a fairly definitive statement that would have been presumably pretty easy to follow up on by contacting the person doesn't matter i mean these are children's lives and that's a serious allegation it's a call to a hotline with some pretty specific information that could have presumably at least been followed up on or some attempt could have been made well and you can't really dispute that had they found such photos presumably he never would have been placed there well i think that's true i don't know you know bad feeling from a secretary the left the employee of the of the we should never talk to his secretary i think this woman she talked to affirm that she had heard this rumor through her daughter at least that's the report that the that the social worker noted is that she talked to this woman who confirm essentially that this was a rumor that she heard from her daughter nothing there's nothing else to indicate it wasn't there wasn't some validity to it i mean i guess i'm just asking it's a it's a significant it's a significant hotline call well i guess it's not some general statement that gets made that she can just kind of assume it that the social workers you would have been in that home more than she i mean i think you know i think that's sort of what can go in her favor in terms of exercising judgment was she made the best the failure to conduct an interview or an investigation as well as some others may have why doesn't indicate an exercise a lack of the exercise of professional judgment so i think those are probably my best two cases on that and your and well i mean i be my guess my weakness would be to judge moore it's his point that she didn't investigate she didn't interview that one person but you know i think that's that's sort of constrained by those two purposes i mentioned thank you it is important thing to note that he and she didn't have any relationship with the child she didn't place a child in the home i think that this comes into play with regard to the special relationship doctor at some point in the district court's analysis becomes a little too vast to me it's sort of  almost like a chain of commerce in a products liability case all those responsible for that home to the time of abuse could be found liable i think in this case the resent at least intervening circumstances the pla different foster worker made the decision presumably after reviewing the evidence to place the child there i think that has to be i think that creates an attenuated relationship i don't know that i would have this record made and i'd like to reserve the rest of my time for bo client would not have been subjected to the action that he took well i'm i have some questions on that yes first of all i don't think you point us to any case where we extended liability back to an individual who conducted an investigation on a referral pre placed mint and that never the child was not in the home i don't know but the fact that she never met the or that matters but the point is it was pretty placement and i think you even acknowledge yourself that at the time of the placement of her notes about the investigation that she did which you claim that investigation was lacking were in the file and presumably whoever did that placement sure should have read her notes and seen what she did on that allegation and on the hotline tip why isn't it there their problem if they didn't say well wait a minute we had this tip it wasn't followed up on it's right here in the file i mean it is you are asking us to extend the link quite a ways down the line to a child who wasn't even in the home at the time she did the referral and i don't know of any case law that permits that i do not know of any case law either your honor the reason we point this out is the d h s s like a lot of institutions or multiplicity of people  assuming for a moment you haven't you haven't you haven't asserted any any liability on the part of any other official who did the placement well there were a multiplicity of defendants at the beginning at rice jets j and may not even have that authority so it becomes imperative that what the defendant in this case did is done exactingly and correctly correctly so that subsequent people have the right thing to rely on a simple example might be someone who she the investigation she said exactly who she interviewed several different people living children in the foster parent including some school a school nurse including social workers and as far as this one particular allegation she interviewed the person who had called the hotline and she said this is what this person said and that's it so it's clear from the note it's clear from anyone like picking up that file that she did not follow up on that i mean she she may have questioned others about that she may know about what was going on the one thing i think that at least from our perspective that we look at is the very last sentence in yvonne l with the courts is that the placing people take the place of the parents up with the conclusion that would be hopefully admissible in a trial to go back and look at what masooma did there is no one no other way from a so you're basically saying the reason we should reverse is because this is before us a summary judgment and there is a conflict of evidence is assuming that we this assuming that's that even though that is the case don't we have to take one other step before we reverse on summary judgment and say that it is the missing evidence that or this is our position the case summary judgment was in was inappropriate here because there is a conflict and conflict is not what is a but there is but is because there is a conflict in the material that's what what is the material evidence upon which not exercising professional judgment and the record of least shows that she did exercise some providers of judgment is th abandonment not the language of ordinary negligence or and we're also not dealing with a products liability case here again position is that she abandonment because in part her duty as we know to the case dealing with children is one that she needs to i think professionally be very acute about what she does because there's no one else unlike a criminal there isn't there a duty of the then current employees of the department to check up on this child to how do we know whether it fact this child would have complained to the two the employees of the social services department if they had been properly question if the child had been properly supervised at her place it seems to me that you say this is this the seen a quote out of this case and the only see n is the the this mistake of not speaking to one of these this i agree with you but here we're talking about one defendant we're not talking about what the others may or may not have done the question is had this one been properly done her work not abandon any aspect of it would that have been even of itself sufficient to stop this process we think it would be and maybe you're correct your honor that some other potential worker in the case should have stepped in and done the same thing i don't know that it is exculpatory to this defendant to say that some other defendant should have done something differently and i agree they could the problem here is the nature of the crime the nature of the offense is one that is here well this isn't the case where the employee it receives a complaint and does nothing it's it's a case where the employer receives a complaint and does a lot of things but doesn't one thing that may and i underline and stress may have led to the discovery of evidence that might have precluded the placement of this died seems to me that you just jump to the conclusion that if she conducted that further examination of further investigation she would have discovered x and x would have been apparent to think her failure to fully and completely adequately do this examination this is remarkable grace you have a child when you have sexual exploitation you have portions of pornography being hidden it requires a high level professional judgment i mean she's got a big task in front of her and i think she pull that to her in a band of well she may have and ultimately i think the judge will sarah's question should get us to that last problem we haven't really talked about which is clearly established prong and the problem with the district court's opinion here is it looked at that from a very high level of generality and as we know we can't do that and i was unable to come up with any cases where there had been a if fairly thorough investigation but an incomplete investigation arguably as there was here and i think that's what we would have to have and i don't think you point us to any cases where the worker had done some investigation but it was incomplete and where that was a clear where that was a constitutional violation well as opposed to that like our recent case matthews i think one of them twenty eight like j letter where there was a complete failure to conduct an investigation on a referral that's different and if we're going to look at the particularized facts here i think we need to hear about some case law where i judge i'm through the professional capacity to fully develop the case and not offer any thought i understand that that may be and that may be relevant to whether we would find that this was a complete abdication of her professional responsibility or whether it shocks our conscience but the professional responsibility that we could find i mean not just advocating for my client but what a terrible situation be eight years old be jerk out there on the house and people or who saw what i you know i did everything i could a didn't say them none of us like thank you will be the remainder of your time i will turn then before we turn to the next case as you all leave the counsel table i'm uncomfortable of people in the audience are uncomfortable and i think we've had a lot of people standing so let's do the best we can to make room for folks in the back of the courtroom who need to see please