may please the court michael patterson on behalf of the appellant jodie corey there are four separate reasons to reverse a district court on the failure to grant the summary judgment as  relates to qualified immunity one is the evidence relied upon and assumed by judge layton for purposes of denying that motion were not supported by the record number two even if those facts were accurate and we indicate that they are not not supported by the record there was no constitutional violation this safe room was authorized by the laws of the state of washington and i might point out that senate bill twelve forty which is going to be enacted at the end of this month once again still allows that safe room to be operated that could be unconstitutional that right the fact that some law says it's ok doesn't mean it necessarily is that's correct but that the crazy the issue is whether or not chile quake had an objective reasonable basis that's a qualified immunity issue i think you said it's not not unconstitutional because this law authorize wallman work there in that classroom for three years all the relevant events occur here between september two thousand and three and early january two thousand and four if you take a look at her declaration she does not specifically indicate that d p was locked in that room but if she says that usually a day or sometimes a door was put against it quite enough actual inference that you could draw from that summary judgment be we should think that this may have been locked some of the time and i think the better factual inference given the animosity that the new woman has obviously for the school district is that if in fact that happened when d p was in that room that she would have said that that's what happened to d p because she figures think the purpose is the fourth amendment the allegations are going to have to be specific as to d p s not just general i absolutely system and i think what could have happened to other children i believe so and ashcroft i think was clear on that and indicating that even to the night circuit saying do not rely upon generalities you have to look at specifics the third reason is obviously there was no clearly established constitutional district court thought it was locked and there's no specific allegation that the door was ever locked as to b p and with the other facts that you and he says in an a small room the record is it was five by three by five five by eight the other indication is it was in close while it was in close to the point of there was space afoot a space between the ceiling and the top of the safe room and then he said it was a dark room when in fact the evidence is that there was a ceiling light above this safe room that provided light into that room and he goes on to indicate that that was that he was put in there for indeterminate periods of time when the record clearly indicates once again deni wallman does not specifically indicate d p was in there for indeterminate amounts of time the only viable record here is from jody coy who indicates that the longest he was in there was five minutes it never exceeded five minutes and the record indicates that he was in there thirty one times during this period of time and i know there's going to be a question being asked well what about the in the room on one occasion that was one out of thirty one times and it did not happen on the first occasion it happened later after he'd been in there several different times and i might also point out in the record that that is not the only place that he woman indicated that he definitely did on the playground so if the inference is that he desiccated out of fear that is simply responded by the fact that he desiccated out on the playground in a swing tire out there i want to make sure i have this correct as the record reflect that d p urinated in the safe room four times and on the last time he also definite kid on the floor and that it was this last time that cory had d p assist in cleaning up the mess is what i just said an accurate statement from the record i don't believe so i was wrong with my record indicates that he urinated three times and that's  t thirteen thirty seven thirteen thirty eight thirteen forty and that the definition was not the last time that that occurred some time before january two thousand and four and that yes indeed she did have him assessed and the one time the one time and that's the only time that he ever definite kidded in that in that safe room once again he did it out on the playground area right and help me with this too please quite concluded based on her experience that v p did not your innate indefinite cave in the safe room because he was in distress but rather was an intentional act to gain attention my question is was corey qualified to make that determination well i believe she was your honor she's i think her testimony was that he was simply an teen up the the resistance that he was giving she has a bachelor's degree in this area from the university of washington and also have a masters in social work in this area so i think she's qualified to give that opinion what do i do with mrs paine's testimony that d p s behavior worsened as a result of the safe room you know for example biting his lip nightmares that sort of thing well i don't know that she's qualified to give that opinion relative the standards the state of washington evidentiary rulings she can certainly give observations but to make that call connection because of connection i don't think she's qualified to do that your honor if you want to move to  third reason yes and the third reason was there's no clearly established constitutional right against the safe room and i'm sure that the case of burke's will be are probably was going to be asked as whether or not that was a summer of similarly factual basis under which they've been clearly established but in that particular case the child had a documented fear of bathrooms and the child was confined in that bathroom for two hours and as i understand it from the record in that case that child was asked to clean up that excrement soley by himself so there's obviously the big difference there and the court might also ask with regard to these issues asked whether or not because we didn't strictly comply with i d e a we in strictly comply and i will concede that we didn't strictly comply with those issues that we didn't strictly comply on on the home journals mean provided those sorts of things that i think the couture case made it clear that for example in that case the timeout rooms were to remain unlocked and free and clear of obstructions and be clean and well lit it separate and that was not done in those rasmus versus arizona where an eighth grade emotionally stir boy locked it was locked in a timeout room locked the door locked violated the fire code in that particular case and the court held that qualified sits at that time the individual defense conduct was not so offensive that they would have recognized they violated constitutional law and i think it's important to recognize that the standard here is one that we there was cough item unity but it said that this could be a fourth amendment violation and the facts in reference are pretty similar to yours so once rasmussen's decided why wasn't your client on notice that this was a constitutional  could have been at least why it doesn't at least need to be at trial about that well number one is in this particular instance that safe room was authorized and did not have the similar restrictions that the state of arizona did as i understand it in the record at that particular point in time also in the state of washington you have some r c w s and wax that allows reasonable force to be used and working with students when that becomes necessary do the student's behavior and the behavior here was was pretty egregious i mean it was behavior that was dangerous to not only the people that were teaching period to caterers that room but to himself and also to fellow students and there's a whack that approves the use of isolation rooms in situations such as we have in this case but again that doesn't really tell us whether it's constitutional or not does it so i mean and rasmussen i think the key issues were that the room was locked and that the safe room was being used as punishment now i know you don't think that there's evidence here that the room was locked because you're talking about that before but as i read the woman declaration she says that the room was basically always locked or someone was sitting against it when it was used so it doesn't mention d p in particular but if she's saying it's always locked why does why is that not at least to some it raises  question of fact well once again i think the court's been clear that the generalities simply don't apply here and it wasn't a generality i mean she's saying i'm looking for the specific page here she says when the isolation room with used to punish children jodi quite would instruct that we keep the door completely shut by either sitting against it or wedge in a chair diagonally under the door now that sounds a lot like being locked i mean it's not exactly the same mechanism as an rasmus but if you're blocking the door and she's saying that's what we did why is that a generality for two reasons one is she was in that room for three just years not just all three zero for school year she's in their old two zero three zero three zero four zero three zero four zero five i don't know what she's referring to as to what particular year she's referring to but when she wants to be specific she is very specific and in the record seven forty one chair a deposition taken at her yes and did you ask was it always the practice or what was the answer what deal in pain ever physically abused hitter beaten or mentally abused the lashing by myself or any other staff member carton dale which include the times he was taken is safer that's a different question than whether it was locked as well the question is don't think i heard the answer to judge friedland's question as to whether during the course of whether it's deposition or other declaration she ever addressed specifically whether the door was ever locked us to b p it is not in the  there where there was no punishment and the standard is whether or not jodi coit had an objective reasonable basis for doing what she was doing and the accepted basis for doing that which was recognize was an adverse is behavioral intervention especially dealing with his behavior which was dangerous to her the students in him self and i'd like to reserve the rest of my time there's no other qu my name is kevin hastings and i represent the plaintiffs a police in this case i want to start out by just clear fine a couple things on the record ms woman's deposition was not taken so the declaration that we have in the record is all that we have in the record why was that did they try to take her deposition so we tried to arrange it but the it was it came down to a pretty short timeline and the notice of appeal was filed on the trial about a month before and they just didn't end up happening so her declaration was obtained for purposes of summary judgment and then it was just she just kind of seems like a witness for you but she was sarah they were the ones who would have taken her deposition that is correct your honor was there a second declaration not from this woman no there's a letter though in the record from this woman that she wrote to way around the around the time of all this was happening in that four or five time period about a year later and i believe that that is attached to the declaration of mr martinez in support of our motion for summary judgment opposition now look at the facts most favorable to your client correct me if i'm wrong or point me to additional evidence if you have any in the record you've got the fact that  is inexperience in teaching developmentally disabled children but yet was put in charge of the special education class you've got the declaration from a small man talking about generalized practice but it doesn't address specifically how the safe room was used at the at the d p right what else is there in the record that is correct your honor that miss woman's declaration does not address d  woman declaration can be interpret all the reasonable inferences that can be drawn from it i just want to make sharp i'm not missing something else in the record that could be construed in your quite favor some some evidence that's fair that i representative patricia lance in in around two thousand and four memorializing some of the stuff that that happened and that she would use it to break him in this also answers your hari about three of these occasions our son was left in the room for such a period of time without supervision that he stripped down naked you're needed and difficult in the chamber all right so it's that's that's another source ms paint information regarding how his condition worse than how it was used as to her child rape correct so so in i'm sorry could you repeat a question on anything else i'm trying to make sure i in the spring and it also discusses some of the incidents that happened in that fall six so so there is nothing that i want to clarify as well i understood when mr patterson opened his argument that was put it is shoe with regard to whether these instances instances violated the constitution and and i read the opening brief as that not being an issue here today for the court to decide and that it's limited narrowly to the issue of only whether the law was clearly established at the time and we can see that in the opening brief as well as in the reply brief w hundred six which which held that the seizure was was unreasonable in that certain situation that there are issues of fact as to that we believe that that is one case that would put provide adequate notice but so we see the court shifting from a fourth amendment excessive force analysis into incorporating it into the fourth amendment analysis and by two thousand and three we have the dovi hawaii case that says that excessive force against students for disciplinary purposes is a clearly established right and to the extent that that might be wasn't excessive force the right this is more like the seizure more like r that means they weren't beating him correct your honor they were not beating him but but it is excessive to the extent of how it happened so in that fourth amendment analysis we have the when and the how when when the seizures took place it's it's our position that they were not justified at their inception as well as how they were executed was also exceeding the bounds of law which would be more of a akin to an excessive force  analysis under the fourth amendment and then the fourteenth amendment we have in there and that is pertaining to the cleaning of of excrement because that doesn't fall under the rubric of the fourth amendment analysis what do i do with  s history of physically aggressive behavior would you agree with me that it would be appropriate for quite a place d p in the safe room after he did ms bowers sending her to the hospital your honor i wouldn't agree necessarily with that i think that it would depend on a few situations a few important facts well based on what we have in the records isn't there sufficient information to support the use of the safe room and certainly  to the to the extent that it was that it that it fell under that i e p and it was consistent with that and what was discussed so and what do i do with the evidence in the record that placement of d p n the safe room was consistent with this i e p so we do the evidence is that miss corey was attempting to break him and that she would put him into the room for reasons that aren't entirely clear and really the only evidence that we have or  declaration that would be problematic placing a chair against the door keeping it closed so that information could have been there but really isn't there and i think that the nature of fourth amendment claims as it has to be what particular rice as to d p and i see this as being a generalized declaration not specific as to b p so how should we deal with that well your honor the the underlying instance happened in two thousand and three two thousand and four ms woman's declaration was in a pain until two thousand and thirteen so there is an issue with with fading memories which if we do actually not trying the case will obviously be an issue even then  but you are going to try some case right isn't there still a negligence claim and an outrageous claim that are left in going to trial regardless of what happened here today that is correct your honor and in fact we have a minnow claim as well and but but the real thrust of this case is and has always been misquoted and her unreasonable use of the safe room on a student that that was shouldn't have been used in that fashion and it should have been used more carefully it should have been better documented we did our negligence claim an outrage claims not go to miss coyer and her conduct the they would your honor yes well the the negligence claim is against the district and i believe that they already mentioned fading memory if her memory has faded as to whether the safe room was used properly asked to d p at the time you took her declaration for purposes of summary judgment it's not going to improve by time trial for purposes of the fourth amendment claim right so the gap is still going to be there yet yes your honor i and unless there was something that she has a sudden memory of or but it's also a little bit unclear when exactly the i a p t and aversion therapy plan went in place and how many times dylan was put into the safe room during that period and in fact there's also evidence of the fourth amendment it doesn't really matter whether i use he was in place or not right we have to find that it was totally unreasonable some kind of excessive punishment such as some kind of an inappropriate seizure and then that doesn't really turn on whether the ip was a few weeks away or still being worked out or whatever doesn't that's correct your honor so so the inquiry yes here today is whether a reasonable official and in this case position would have known that doing what she was doing was unreasonable and and i would say that it is absolutely it would be unreasonable in fact we have the superintendent's testimony that i would i p team and you propose the safe room as an option to deal with disruptive and potentially dangerous behavior and the parent signed off on that that that would go to reason the moment so miss payne was clear in her testimony that she never gave consent for dylan to be in the room with the door shut in and she was also under the understanding that there was going to be stuff in the room like a beanbag something comforting that he could go in there not just a barren room where he would with the door shut in and in a dark room dark was also brought up as a disputed fact but we also know from  miss yours and miss holmes that declarations that in fact there is evidence that it was dark so maybe the light was not that was allegedly overhead was not maybe was taken out maybe the boat was taken out but but but the home journal does reflect that mrs paine was well aware the d p was in the safe room with the door closed does it not yes your honor the miss miss payne the she didn't know the extent in which it was occurring i would using the safer and it went on until january and they didn't they apparently didn't act like something so outrageous or unreasonable was going on that had to be stopped that day or that next day or even the next week well your honor and i think that this is just a situation where we have parents trying to do what they can for their children and being in a position where that's the school that dylan was going to she was she didn't want to sour relationship and she was trying to work around things and in the notes back and forth we can see that there is resistance there that she is trying to explain that this isn't good for dylan let's let's stop using it and we saw a deterioration needs to stop immediately but i have i'm sorry i have one last question if i can interrupt unless you want to finish your answer go ahead no i think your honor how do i reconcile the testimony of the classroom staff i'm going to set aside misquoting for the moment the classroom staff who were present with d p with the district court conclusion of child abuse and in particular we have woman admitting there was no mental or physical abuse as a record of pages seven for one and for two and by hours the same conclusion at the record two six to dash six three so we have coit we have the other classroom staff and i'm trying to find how the district court concluded but tell me from recollection if you can what i'm missing there or if i am missing something as far as the the educators in the classroom direct who were present every day with d p with co if not every day many days they're there and they're not supporting the argument that your clients are making here well i would say that that was w of the the of that the children in the classroom as far as that this is tantamount to child abuse and i think that we can get that from the pillow case that when we're considering these seizures that we're looking to the particularities of the of the children here and that's what underscores in part why this was was so manifestly unreasonable we have rocks out there that say you can't do this and if you do here the very limited six situations in which you can do it you have to maintain direct sight you can't lock the door if if you're going to lock the door then you have to absolutely maintain direct sight and these are all entrenched in in the back and then we have the superintendent who's deposition i took and said he said you wouldn't do that an educator wouldn't do that wouldn't put them maybe you have a good negligence claim and why does this need to be a constitutional claim why can't you pursue the regular state law grammys that you're already pursuing anyway well your honor it's  evidence in the record is there anything you'd be able to recover by convincing us this is a constitutional claim there's no qualified immunity that you couldn't recover with your other claims well you know your honor this is again the that the thrust of this case is violation but we understand your argument you well look i make thank you very much an argument just briefly i didn't misspeak i know there was efforts to set up dean as deposition and ever occur but there were two declarations one in two thousand and thirteen the record on fifty three one in two thousand and six at seven forty one  the key here is objective reason for this and i might point out that quotes credentials indicated that the s and developmental psychology and m s w ends with certification elementary school social work and if you take a look a rasmus and clearly they found qualified immunity there then certainly that could be a clearly established case that she could rely upon and you know that's not how it works right i mean a court could find that something i constitutional violation but then also say there's qualified immunity because it wasn't clear yet but once you have that decision the next case is clear something that there was qualified immunity rastus doesn't tell us anything does it process came first rasmus came in one thousand nine hundred six that's correct but in that particular case this was a boy that was clearly unequivocally locked in the timeout room for ten minutes the door was locked violating the fire code and the timeout violated sta educational department advisories and when we're talking about objective reason one is here we're taking a look at the ashcroft case and it clearly indicates that you have to have a clearly analogous preexisting case law and i might point out that the the night circuit p d versus cotch set out the standard and that's whether the force applied cause injury so severe was so distant fortunate to the need presented and was so inspired by malice or sadism rather than merely careless  excess zeal that it amounted to brutal and inhumane abuse of official power literally shocking to the conscience and my point is that given the background given the fact the safe rooms were allowed given the fact that an appropriate tool for educational purposes given the objective reason one has in the background of jodi coit that you're correct judge freelon that there may be issues with regard to negligence but with regard to violation of constitutional rights either under the fourteenth or fourth amendment it simply does not meet those standards i think we've got it thank you very much the argument is well matter