please the court stephen for new can assistant attorney general for the defendant appellants we respectfully request that your honors reverse the decision of the district court in so far as it denied the motion to dismiss below if i may jump right into substance on the qualified immunity issues the constitutional rights at issue are properly defined as this the right under a theory of deliberate indifference of an inmate to compel prison officials to test a prison for radon under proper protocols and if necessary remediate the prison for a donor under proper protocols and that is important it's the scope of the constitutional contours of the scope of the right and the close already we have to that is the supreme court's most recent decision on safety protocols in a prison and qualified immunity now says that taylor versus barks is the closest thing we have to assessing what hi ranking wardens correctional fissionables must do and what they should know they're required to do not by statute not by methods of best practices but as a constitutional mandate and minimum and what's more entailed versus bork's they were the court even went so far to say you need authority constitutional precedent to shed light on the constitutional mandates in the protocol context another decision that sheds light on some of this is this recent this court's recent decision in the almighty supreme born a law where there was actually an analysis of a specific department of correction practice policy in the constitutional implications of that in the qualified immunity context and what's important about this what bull for the plaintiffs and the district court have erred in their analysis is there very well may be a claim stated they very well have a let may have alleged the elements of deliberate indifference and alleged a prima fashioned case we've never taken a position on that we were ordered not to but in a law every single judge all below  the procedural early procedural stages there was an agreement and a subsequent order that we would only address immunities in the briefing at the outset in a why all four judges that the district judge and the panel from the circuit everyone agreed that there was a constitutional violation there actually was one in that case it was still qualified immunity entirely separate analysis from whether there's a claim stated and whether there's immunity we don't have anything from this circuit from the supreme court at all addressing the implications from a constitutional standpoint of radon in prison we certainly don't have anything addressing what testing protocols would be required when how yes or on there is supreme court case law that says the th amendment in compass is the right to be protected from future harm or some sort of substantial risk of future harm the important thing about those cases obviously but i think the most central one is helling which seems to be the most at issue in this case that is stating a claim analysis that is have you allege to claim to either pursue an injunction or to file a complaint state a claim the immunity thing is really entirely separate analysis and that happened in helping the defendants and helling were entitled to qualified immunity for the damages claims so to the extent we go more down the helling road than we do the taylor road which we would obviously urge the taylor road is more recent and more apt but if we went more down helling than taylor the harrowing road it is that we have a newly recognized right here a newly recognized problem that is unique it's material unique as alleged in the complaint the act what are you referring to read on rooms yes your honor and that is important in this case the actual complaint itself is crystal clear in paragraph seventy two to seventy four they allege a radon is mature really different than environmental tobacco smoke it's in perceptible more important it's naturally occurring and most important for this appeal there's no constitutional authority on nothing is there a difference in your argument between defendants who are charged with violations before the two thousand and thirteen testing and then after the two thousand thirteen testing there is certainly a difference in what they're alleged to have done or not done or known or not known so yes there is a difference in the actual file of factual allegations alleged against them we maintain they are still there a and perhaps for slightly different reasons though so before two thousand and thirteen there's actually no allegation that they did something improper the claim is that they didn't test they didn't remediate they didn't establish protocols the one of the biggest problems with rather than you lumping those together before we get remediation they didn't test the claimed there before two thousand and thirteen as i understand it is that defendants knew or should have known that newtown had an above average rate on a level which i understand is true most of the state of southern connecticut or at least the southern part of  it so the question is whether it was clearly established that with knowledge that you were in an area with above average rate on levels you had to test right and you're saying that obligation as a matter as a matter of constitutional indifference to safety was not clearly established absolutely or ok but after the two thousand and thirteen test where they get the concentration above four in i think it's fifty eight of one hundred and seventy rooms is that right i believe ok what's your argument for why they're why the law was included least stablished after that point three fold your  honor st that time period there's actually still alleged to have done something that right so we do actually have a material change that arguably would couple of ways we maintain it's more in our favor which is they did implement testing protocols including in complaint about areas including in compliance with the school statute which is what prompted the testing in the st place so they did actually test now we're squarely in taylor vs bork's land now we're debating which protocols were sufficient and which w test prisoners rooms at that time i thought the the only testing was in a discrete area and that that part of the complaint is that knowing there was this problem in the areas that were tested it showed deliberate indifference not to test the prisoner areas that that is what's your qualified immunity argument as to that two fold st we're still we still have to separate whether it's states a claim from whether it's clearly established so at that time there is still no rate on precedent and there's still very little if anything about environmental concerns in a prison what's more is that time is actually critical from a from a standpoint of jurisprudence which is two hundred and one extension thirteen this court in the supreme court start issuing a flurry of qualified immunity decisions exemplifying over and over again sometimes as many as three a term from the supreme court narrowly construed narrowly construed we need specificity so while this is all going on and while they are implement some testing when one area where the actual complaint was about and not another area at that point the precedent at that time which is how we have to look at it gives those correctional fishel basis to believe you would actually  authority at that time if the precedent becomes even more clear then and then it's confirmed a couple years later until a versus barks now we're debating which safety protocols are constitutionally sufficient which aren't and we're doing it without any guidance we're stumbling through a complete abyss of constitutional darkness at that point in the formal context let me let me just say for argument's sake we're not totally swayed by that do we still have to consider who among the defendant would have been authorized and responsible to order further testing and did not do it and which ones did not because it seems to me we have a lot of defendants with different responsibilities so i don't know whether of defendants in a lot of years here to cover a briefing we tried the best we could but we would agree with your honor that there are there are certainly according to the allegations for three maybe four defendants from two thousand and thirteen on surrenders semple  link and warn falco own no one before that is really alleged to have implemented in adequate testing in an area one area and not another ever before that seems to have just been alleged to have failed to do something so those  after two thousand and thirteen but even there there is still a problem of ok maybe they're alleged to have tested one area and not another and maybe they should have known there was a risk but we still don't have a constitutional authority to help them got through that and we do have to look at this as these are not legal scholars if judges and lawyers can disagree about this even if correctional fishel is can disagree about this there i mean i'm glad you mentioned it's alleged to be so materially different including nationally occurring in perceptible it's not a cell assignment or someone's blowing five packs of smoke in a cell mates face it's something that could just be there and no one would know or could know and at the very least and we don't can see this but we don't even have a decision about some other naturally occurring carcinogen that can't be perceived and we have we have nothing about that at the material difference is alleging the complaint about ra have to be considered both ways i recognize your position you have multiple roles one of them being in the sense of offering advice to your clients in through to so assume point on appropriate notice so that going forward there would be no immunity in these circumstances possibly and i hate to do the lawyers heads here but it would depend on the but it would depend on the opinion certainly i think if there was like taylor versus barks just a decision saying not clue established then actually know if it was more what the amicus is actually respectfully begging this court to do and how it ended its foot no if it's brief it wants this court to do a step one pearson analysis in addition to step two clearly establish the amicus it wants this court to opine on the scope of this rule the right in question and define it and that very well could and probably would and certainly we would but on sovereign immunity and that pertains even to the plaintiffs request for junk free and it seems to me are you are you not prepared do whatever testing remediation whatever they're seeking as part of their injunctive relief to get to the bottom line can't you all settle this in terms of what what  steps you going to take to avoid future injury then i understand there's the question of constant medical care let's let's deal with the conditions in the prison you can't work out something on that so i responses to your honest question if i may one certainly yes if we ended back down before the district court with qualified immunity dismissing the individual clients and only the official capacity clients being at that essentially going through classification process and that context certainly we could we could sit down at the plants and discuss that that's not what you want you want to dismiss the client when one of the reasons and as i said there are two parts one is seeking death and the other is the providing perspective medical care from people who've been incarcerated there i want you to address the st certainly so yes we are prepared to do the testing in a remediation that would be deemed appropriate by whoever is where turned out lead us that's one of the basis for our it's the primary basis for our claim that sarver moony bars the testing of the facility for radon relief portions of the claims because there is a directive it's not allege in the complaint but the record has a directive an updated directive from the commission of correction that not only provides all the  of a facility right on perspective in the complaint it goes way broader it mandates the entire city that with the plaintiffs and then the claim would be moot most and your honor that was our biggest problem with the court's ruling group was the plaintiffs in the district court went down an analysis of mootness and really that the only now says we got the decision was confined to a footnote and it was an issue of whether there's an exception to move this arguments not notice even if we presume that everything's still there is the export to young exception to the law of the moment hasn't been satisfied because we must presume and the only way to read the complaint fairly is to presume that the relief they're seeking would remedy the alleged ongoing violation we have a and a mandated policy from the commission to test every facility in the state now on a on a pretty rigid cycle that's what much more rigid than what they're seeking in the complaint so there can't be an ongoing violations not a mo issue or at least not yet it is an eleven the memory problem if they want to litigate that that can be litigated if any were in state court which is maybe the biggest problem under the th amendment is the penn horse problem not just for medical but i don't think there is a dispute and i certainly don't think there can be a dispute that the state law claims under the connecticut constitution that are seeking injunctive relief must be dismissed that one that was there i don't think that can be test contested it please the court my name is very well troop and and i represent the plaintiffs respondents in this matter the i have to immediately take issue with the fact that the scope of the right as defined by the state is in fact not the scope of the of the constitutional right that we have placed at issue nor is it the one judge order to found the constitutional right here anything then a condition of confinement claims about involuntary exposure to environmental hazards and before the two thousand and thirteen testing i mean in helen there was actual exposure not only was it ongoing it was you could see it so here before two thousand and thirteen i gather your claim is based entirely on the fact that this area in connecticut is known to have radon issues but not now not the prison this area you know so it's so it begins with the fact that you know and read on it it just it just set the stage rig the nd leading cause of lung cancer is in fact more likely call lung cancer than environmental tobacco smoke the rate a levels in this building were the equivalent of smoking a pack of cigarettes a day to two and a half number of occasions where they were on notice how uranium levels in the water that were astronomical the testing for the school and stature in connecticut as of two thousand and three there were all kinds of things that  put them on notice that they should have been looking at the should have been test and should have been testing it so the the issue was not about what are the testing protocols and how do you remember he ate this that's so the state wants to you know get into taylor walk and in fact tailor be useful for the fact that the the issue there is not like helen which i nothing to do with the fact that inmate is involuntary only exposed to a known carcinogen and in point of fact your honor there is also a state case pending right now that we have it's a class action protocol that they talk about the new testing protocol that resolves this it doesn't and two things one before dr charter chain we agreed that what was in front of her it wasn't going to be part of the record for purposes of this appeal and separately  what we know is that in two thousand and seventeen they tested and the results were as bad as they were in two thousand and thirteen and we have allegations we have witnesses that will talk about that state of manipulating the testing but they then put in another system that was an inadequate so it is so the so the perspective piece here which gets us around the sovereign immunity in fact and should they not have both the prison and no i mean that's not what i'm saying i'm not saying that they're entitled to a raid on from prison but you what you are entitled to is that the levels of radon should not be so high that you are words office was ten zero i mean the factual equivalent of not secondhand smoke but smoking either a pack of cigarettes a day to twenty of texas cigarettes a day that's what they were exposed to and so seven it's their home and in the united states the e p a says that you cannot have a home you cannot sell a home with radon greater than four pickier his partner and you know howling that goes through the labonte which is this festival by the nd circuit which has not been overturned that states that you cannot expose you cannot in voluntarily expose prisoners to an environmental hazard at levels that are going to create an unreasonable risk of serious medical harm and that's exactly what's going on here over a long period of time it causes an unreasonable risk the pending parmer of the occupant of the home smoked or didn't smoke i mean which is why you can't sell a house if that if it ra says no this is the bow you know are you creating something that's posing a serious health risk but in those cases the risk was was known to be present in the prison you do have to come to terms with taylor's statement that there's no no precedent at least at the time of taylor that detention facilities have to implement procedures to identify their vulnerability mates and i'm asking you where is there in because there just finish my question where is there any precedent that says that you have to test for hazards that are known to be prevalent in your area not in your know that you've got a carcinogen and you address it well with respect i or two thousand and thirteen i don't understand that the case here there's nothing alleged to that effect i'm just trying to see whether in assessing the dismissal of the requested dismissal we distinguish between pre two thousand and thirteen and post two thousand and thirteen so again is there a case that says that you are constitutionally required to test when you know that a hazard is prevalent in the area and and your honor this is that the motion to dismiss stage which takes all the facts that we allege to be accurate and it's not just about testing that we're claiming that they in fact knew they knew when they built it they knew afterwards they that we're reminded all we've got a problem here and chose to do nothing for it all the way until ten years after when they should test at the school and there's an ongoing problem  level that the e p a said they knew they were building it in a place where you've got to look at the issue and didn't and the with respect to everything else your honor it came from  newspaper articles different kinds of things that were going on when we knew the water they knew the water there may have levels were so high and one of the things that happens is that like when you run a shower and you're cook all i wanted to know was whether you had any pre the concern i have is that taylor has put us off track because it's not about the testing in the protocols and taylor is about suicide prevention where the inmates are voluntarily you know acting up that's not the situation here and that's why i mean i don't know whether at the end of the day we're going to be able to prove everything or not but what the court did was take us back till the health problems manifest themselves to have it so you know all these cases are facts but thank you for trying cancer my question of controlled substance and are hard for corruption not to my knowledge on they to defeat immunity for a constitutional right they need a constitutional precedent i would just point out your hono dismissed your remedies not only th amendment that's not what the th minute title is you threw in prison also with your honor's question from my sister council on helling the construction of prisons in this case has been dismissed as medium by judge order to and in this case she determined that everything before helling is those defendants that conduct there is qualified immunity the only issue is the testing in their mediation protocols that's the scope of the right here at the end of the day this is about whether it's beyond debate we respect that we've had quite vigorous debate here for several years thank you and what's the reason i'm sorry on a reason my terms are going forward it can be subtle very well could be your honor on the injunctive claims there were i mean that could be a possibility we have we have a testing directive i think there's a dispute over whether they're happy with that or not but we have a widespread raid on testing