violation of his substance to due process right to bodily integrity number to address the issues with respect to the state created danger exception whether this court even need to consider it and how it if the court wishes to consider that exception i will also address appellate wots claim for municipal liability and finally also address the qualified immunity defen obviously and this court is well aware of the right to bodily integrity of that language and that right it's been cited in many theft circuit opinions the th amendment states that no state shall the prime any person of life liberty or property without due process of law the fundamental interest here of what is his right to bodily integrity and that is a well established right and it is a well established right to be free from state actually actors and state action and minutely coach ray to not physically run on to the field and tackle capello was however there's no question that a coach pointed out in the briefing is that he pled guilty to criminal assault as pointed out in the briefing it states that i confess to committing assault causing bodily injury i plead guilty so there's no question that we have objective evidence of the mindset of coach reid when he carried out these pain or how to clarify for me how does that guilty plea for assault demonstrate state action because because under texas state law that is it that is an act individually himself of coach britt so that intent that a state action independently right demonstrates that their state action was just well as you pointed out in many opinion that's difficult for us to do when we when we look at the specific the specific cases and your honor you pointed out that it's very difficult to find that one person president and you have even stated that well that's a free pass for the lead was not in the qualified immunity context and as another question i have it is right that guilty plea demonstrate that breed should be denied qualified immunity but my question is how that guilty plea should demonstrate that there are state action here well the state action is certainly his acts as a coach objective evidence of what he was thinking as a state actor granted the players are the ones that mr watts and knocked him to the ground but as judge wiener has pointed out and other opinions that there was a sufficient nexus between the overt act of the state actor causing the independent action and the non state actors and i believe here and  that we have a sufficient nexus between that overt state act of the criminal assault is there a specific case on but certainly that is a law that  any person would be aware of and certainly the right to bodily integrity as well established so if we look at the nexus issue that's been addressed in these opinion that we have an overt act and we have certainly bodily injury carried out by the players and there was a sufficient nexus between those two acts creating the state the state action so what my st position in the case on behalf of  was is that we have a constitutional violation and we do not even have to address state created danger because we have a constitutional violation  do because we have the right to bodily integrity violated either independently by coach reid or his overt act of pot telling the players to do what they did it and also it's worth considering what the football players to middle what they do what the coach said and the coach said go you know go make him pay because of quote if a coach said that the players are going to do it and there and if they don't they're going to be pulled from the game and they're going to sit on the bench so that's a constitutional violation outrageous and extreme and deliberate absolutely and that's i think where the plea of the assault again demonstrates goes to show that coach breeder never instructed players to assault referees or any other sports officials prior to this assault on on was no year or there was not this pleadings talk about this one instance and this is the only one instance that we're aware of and i touch on if it is one instance half how do you connect this to liability for the school district assuming you have an actual constitutional violation and that's that's the issue obviously i'm in a civil liability in mono liability i'm reading them into that and i might sidestep the state created danger because we're pretty close to that issue anyway know whether the school district or the minutes pal of the is responsible for that violation so i believe that we have stated that cause of action with respect to notice putting under the ashcroft and twamley line opinions we have stated that this is constitutional violation number one and number two we have stated that the missile penalty is responsible for it and i believe that's all we need at th juncture i think it's important for us to look at the doping it in the doe opinion the reason minnesota law though it was not found was because there was no constitutional violation judge wiener said in his the senate he disagreed players beat up referees are not saying that are you know i'm not your honor and that's why i have to show somehow that you know they knew he was doing this is going to judge will it's question and they were just not they were turning a blind eye to it and letting it persist which it sounds like you don't have that either this is a one off events it is a it is and one offense that we have we have we have pointed out in our pleadings with the new i hope coaches code of conduct and we've said that conduct is a number of things that it's five or six different things and the coach has to be mindful of his condition the coach must refrain from just disrespectful and promote sportsmanship and there's a number of things that in the latest that we  case they primarily rely on in the gene case versus elite independent school district and that the summary judgment i think goes on to you know you have to have a policy that is a moving force behind  violation and it goes through a lot of different but we're not at that step we're not at the summary judgment level and so that's why i believe we get all of us may get caught up in the idea of specific  that number was just consistently with the number one that there was a constitutional violation number one and one of the issues one district after do with that constitutional by we are said that they are responsible for that constitutional r the conduct was illegal clearly i believe i know that we have alleged that number one and number two that is sufficient to overcome the qualified immunity to that at this juncture again w got a violation of law with respect to model integrity we've got a criminal assault and judges judge well it's as well as judge winter has said before that if we have a cost to show violation that's enough and that's what we have here i believe clearly those laws who were established sometimes we know that the court's job to determining whether there was a reasonable act and they skip our constitutional violation our pleadings do not do that and when you think about the reasonable officer if we look at another look at that issue with respect to a reasonable coach any reasonable in america practical question because there's also the state claims assault battery tort claims what does what does a constitutional claim give you against mr kind of practical answer i was looking for i knew i knew i don't think we'd be here if there weren't that result of this like i said there's also the the you can get them try to get the municipal liability through ninety three which i'm sure is a factors all right well thank you and you'll get your  it constitutional rights that all counsel is acknowledge the actions that are complained of were committed by two student athletes who are non state actors who are for there to be a constitutional violation go with that student go beat up that other student that's not state that some of the teachers obviously a state after state official their instructions are not state action i believe that there is a that there is a responsibility inc even even if i maybe you're right maybe you're right the football players here shouldn't known better no doubt but what i mean if the coach is a state official and he's giving instructions if his instructions support a constitutional violation maybe they don't but that's i mean why isn't that state action and he's using a government employee doing something that the doing something is ordering players to go assault the rest employment but i think state action is just looking at more they were they a government official and then give you know the hypothetical a police officer will know that state action of a police officer engages in excessive force by for example shooting they do that that one of the state action attributable to police officer  earlier threat or consequence he not complied i think that would be a very fact intensive i can see why that matters to whether the force was appropriate or not but i guess i i guess i don't see why that matters to whether it was he was that state action giving that guy and have him beat the crap out of this prisoner you'd be saying that's not state action on the on behalf of the i did you can't you can't sue the private actor i completely get that under the constitution but you're saying you couldn't sue that prison guard for with respect to northside independent school district although i also represent mr breeden in its official capacity the court is well aware that the claims against the person in their individual capacity to use an employment of an employee of  the this is not an action taken under color of state law it was not a state actor who committed this now as mr allen pointed out mr reed was certainly free within the criminal context to accept the plea but he's not free to create sti state liability by accepting that plea and so even if he is this case will fail on each of the points there to the failure to demonstrate a violation of rights cured by the constitute constitution there's a failure to establish that there was actually state action at all if the action is by rd parties and that really is undisputed in this instance it was that the actions were that order not not the beating i mean but the order excel create a constitutional violation and maybe it does maybe it doesn't but why isn't that order he gave something from a state actor well with respect to so i'm going to make the argument elements are not present personal mr brady does not have the authority to make that to give that kind of directive that is not within the scope of his authority to give that kind of directive now your honor raised a couple of examples but the examples could be even more egregious if you think for instance the n r o t c instructor who is instructing students with risk with respect to the use of firearms suggested to them that one of them lots of take their firearm and assassinate a government official there is no way that a law billet is going to extend to a school district because and clearly he's acting outside the scope of his story so i think it's very clear that when he makes this decision  going to look at ringback that we're going to look at is whether or not the person acting in the scope of their authority created dangerous and the environment will clearly coach bre did not have the authority to create dangerous of their authority i think that makes it even more and particularly on the on the scope of the authority question does northside doesn't maintain any official school policies regarding the of athletic team for purposes among l i the districts for trustees which is the sole rule and policy making authority for the district that's clearly established has no role in creating new i know rules but even if they had the the interesting thing about appellant's argument is that those rules would preclude and not be the moving force behind the injury that they would actually preclude the actor from engaging in th purposes of argument that those were northside independent school district policies they don't help in this case they are d victims destroyers case and so there is no way to reach liability on the basis of  the policies that exist because the policies any policies that he did that he could point to and that's you know part of the plating is you he in essence says well i don't have to come up with all the specifics but what he does have to allege for purposes pointed out to be in fact that there is you cannot point to a policy and you know no amount of discovery is going to to lead to that because he's already recognized that any policies that would have been adopted by the governmental jehovah's witness and we all know since barnett the job was witness does not have to stand for the pledge of allegiance or the national anthem and so the coach says to the team if you know if that player is a jehovah's witness if to be actual physical action it can be it's often you can violate the constitution by your words right i understand and you know i have to agree with mr allen that the intervening decisions made by the rd party something illegal i'm not going to hit the referee in the back those intervening actions certainly and i understand you know you just console your point is well taken there may be a line somewhere down the road where giving a direction to a four year old in a pre k class you know although because we all know that that's completely different mentality but somewhere down the line that's a possibility  issue so we know that unless we create unless a court order to accept basically the state created danger theory of liability then there's no responsibility to protect against injury from rd parties and so if there's no response but that's the end of the inquiry if the court were to for some reason conclude this were the st time that it were willing to state create a danger the that this be outrageous conduct and what is evident from this and plaintiff has not provided any authority other than just to label it as outrageous conduct but and this instance what we know clearly from the record is that coach brady resigned from his position with the district and he surrendered his teaching license there was no suggestion even in connection with the criminal plea that has been repeatedly discussed but he was even never in carson reported this conduct or spend any time for that so the if we look at the cases that analyze the issue of outrageous conduct you can see that even unlawful conduct violated if you ever got past the threshold question are we going to adopt state created danger and when they talk about close nexus and what that means they talk they they flagged instances of where the state provides what the court called significant encouragement in order to say that something is fairly attributable to the state and that's why i asked earlier about whether the school knew or condoned or encouraged because the supreme court talks about significant encouragement when they talk about clo this at least to monetise and tell me why it's not more personal vendetta and why it's not private vengeance rather than an action of the school was totally an action of a state actor i mean there is there no no question that this are you saying that every action of a state actor is a state action well i'm not sure that everyone is going to but i certainly believe that because we look at it and we try to try to say well that's with not within the scope of his officer alyn the job you know on patrol gets out of his car and just randomly for no reason whatsoever start shooting citizens which you know no one would say that's part of his duties that's within the scope of his employment of course not one that he still has to be state he's still a state actor as a police officer i would express to him whether you know that the city is not going to be liable in that case because they you know they had no idea this guy was going to go crazy  out on patrol that's certainly state action and i believe we have state action here because we're going to look at the context we've got we've got impression oil young men could be ladies and some other gang but here we're dealing with young men and football but we do have the earlier case in the th circuit with respect to that action the student during the football player that poked the other players i in the cause of action at this junction with respect to those allegation that is not a summary judgment case like the eugene case and finally qualified immunity i believe we have