facts if nothing else deserve their day in court to pursue justice and to the extent possible make matters right forty three u s c section eight hundred and eighty three promises that when the oppressive and overwhelming power of the government is used or abused in a way that inflicts constitutional harm upon a citizen there is a remedy it cannot be an empty promise or one that is so difficult to enforce  court ignored the facts and the evidence in fear to rule and when you're dealing with questions of constitutional dimension and the crushing the rd the government can exert it would have been a better approach t correct approach to either permit a nd opportunity to correct a defect that in fact it also made evidentiary rules that contributed to the determination in summary judgment that were incorrect she keating was shaken baby when in fact she was not so well it's just there is there anything in a record to suggest a motivation for this i mean you're suggesting that they either lot or they grossly exaggerated why why why would they do that that that is a major question in case my kenyan was admitted to southside hospital and over a period of minutes ministers enough drugs to drop their blood pressure from one of makes this into a constitutional violation to me that this is this child this baby was presented with with these in terrible shape serious  condition and without any reasonable explanation and was it unreasonable for the defendant for the doctors to be worried and suspicious that something are the only people who are in a position who have in a position to have firsthand knowledge of this were your clients and they they offered nothing they all they had no is no explanation for how their  leading the way was absolutely outrageous misconduct quick question mr dell called the procedure here i read your brief several times especially noting pages twenty seven and twenty eight where you do admit that the fifty six point one statement that you hear that was filed on behalf of your client was deficient but i'm a little at a loss to understand your argument that we should review this solved and overall it looks to me like the question whether that error that you admit was fatal to your claims given what there was that missions did to the issue of qualified immunity the question that comes up in my mind here is are you raising on appeal a direct challenge to the decision to award summary judgment based on the deemed admission of those facts and other words are you are you saying that judge the judge appears being here abused her discretion and invoke an deeming those admissions deeming those your opponents fifty six point one that as the north well defendant's facts to be admitted are you saying that was reversible  that this court properly  the morning you're on as chris christmas the north well defendants i have to agree with mr del call on one issue and that is this is a very sad and tragic case as it involves the death of a three month old infant but i guess the best way to start here hospital you know already had been dead for at least six minutes what's not this is you have to read no hamburgers reflection hyperextension but you never used anybody of that that she never she never accused the kenyans of doing it she merely said this is this is consistent with a non accidental injuries consistent with trauma nobody disagree with that  was no chom a is there no there there were definite was a trauma nobody disagrees that this was this was dramatic this is a three month trial and if i can get to a few things about the motivation their original motivation to me and maybe i'm not reasonable health care provider would have been suspicious that there would have suspected abuse there is actually no question about that just this was a this was a this was a necessary this was a this was  six minutes in critical condition when she right at the hospital two to retinal haemorrhage is you have to look at this at the time it's occurring it doesn't matter whether the injuries this trial were were called is deliberately or course negatively it doesn't matter it was an unexplained trauma and it was and they abandon those claims because they never we commenced the action in state court because the court declined to exercise of many jurisdiction so those claims are gone there is no medical malpractise this case is not even a motive they don't need a motive but there isn't a issue in this case and the other caseworkers whom i represent or those who conducted the investigation that led up to the child protective proceedings on one of those caseworkers morning petersen found creepy titian's and it was in and for that reason just a court focused on the right issue for summary judgment and that was not the purported harshness of the caseworkers actions or it's all their alleged consequences but whether that alleged violation of appellants constitutional rights as a matter of law and therefore there was no necessity for trial now there is no factual dispute that the kenyans were not seized and their physical liberty was not restrained in any manner and since their movements were not restrained they have no section one thousand nine hundred and three malicious prosecution claim case law does not support their position that the removal of the children from the parent's home can substitute for a restraint on liberty is as you're saying this was not a prosecution it was not a prosecution your honor it was a family liquid is it not a qua a shade of a difference i would submit your honor in any event if the rule you have dress qualified immunity i mean your brief was had one page on qualified immunity i mean what why does qualified immunity apply here to better understand that judge i think we have to recognize that there are two separate outcomes of got case workers involved here one is joy de cordov did not file the petitions and the wrongdoing that they can see to attribute to them was an inadequate investigation it is our position that i considered a constitutes new violation although in a malicious prosecution would be so there is a distinction between the two levels of conduct further alleged misconduct is likewise not a substitute for restraint on physical liberty there is also no factual dispute but that the parents consented to placing the boys they were not permitted to see their baby to be with their baby in the last month of her line is that not some kind of a restraint yes your honor but the kenyans do not appear to be challenging that aspect of the court orders on both i think they do i mean they have i read their brief as us arguing that that was a significant injury depriving them of  the ability to spend any time with their baby in the last month of her life did not disagree before district court that was pursuing to an order of the family court and therefore the case workers could not be held liable i don't think that they are and we believe that that result or that thinking should be affirmed by this court the remaining caseworkers who are alleged to have only engaged in a substandard investigation were afforded qualified immunity at minimum their claim conduct which is deferring to the medical opinions of doctors is we would submit objectively reasonable now thank you well here are the car crash this was not it was nowhere and including a for a full blown forensic pathological exam on her neck and spine that indicated this child was ever in saying and please correct me if i misunderstood you that there was no evidence that this infant had been injured arrival at the t yes she was in serious condition but there was no indication hero of trauma it was an accidental choking incident like she had in the hospital we went to trial on this issue and they couldn't even meet the burden