inquiry i first would like to address what i believe are the three of the most pertinent cases and i'll follow with what i believe is a summary of the evidence that was presented in a motion for summary judgment that we believe danger that the court should take into consideration specifically in sylmar it to involve a confidential informant an informant who based on the previous argument that the defendant and i believe th district court is one is a status that enters into voluntarily but with that voluntary the mission i believe it requires for the court to determine a baseline risk level that that person is subjected to without a baseline risk it's impossible or near very difficult to determine whether the government has created or more importantly increased the risk to the plaintiff from violence by a private party specifically in the summer  on is instead of perhaps summarizing the cases what cases are there in which the claimant won in other words someone in your position where they didn't name the confidential inform if that happens well i believe the art is that the completion of your question your honor yes ok i guess specifically i don't know that there is a case with the exception of call strome that has found an increase or a creation of a risk albeit with a privacy a constitutionally protected privacy interest but if i could just finish with it within a small our case the informant agreed from the very beginning that he would be risking disclosure of his identity by agreeing to conditions on counsel but that's why i phrased the question the way i did i want to focus on cases in which your side won it's very hard to establish a holding which is what we're focused on in qualified immunity helpful to your side if the claimant lost th case that makes sense so and then if it makes sense who prevailed on a constitutionally protected privacy interest because as a group these undercover police officers stablished that their risk position the result the state after their personal information in the course of discovery now i apologize for coming back to it but the baseline risk that tom shits assumed by becoming an this by boston heard was the equivalent of telling scott walker who ratted him out it was done in such a reckless manner and then it was done at his place of employment it was choice and a you know an affirmative choice that done her dog and making undercover boss and they did this with such a show of force that it was immediately clear to scott w had set him up which makes the case in our estimation the equivalent of nelson with non verbal communication the by bus itself was the communication and it was done in such a way that it undeniably revealed chits as the informant and it all played out exactly consistent with what happened so we believe that the government increased at a minimum the risk t eship it when they conducted this by boss in the way they did it distinguishes it significantly from some are who assumed a baseline risk of disclosure from the very beginning the only evidence in the record confirms that chip it did not expect and did not agree to have his identity revealed when he took the jerry williams what's going on i thought we were keeping my name out of this this happens at the place of work is that where the drug sales occurred but both both by occurred at time shift a place of employment right so i'm what i'm trying to the point i'm getting at is it just seems to me question begging how much that revealed i mean if you do it at the place if you do the drug sales and the placement fine then why isn't it a surprise that the arrest is going to be at the place of employment and why is  unusual to do drug sales at your place of employment that's where you are convenient well i would submit to the court that his place of employment is a and identifying factor township it being involved but more importantly we believe that the fact that they mediately made the arrest they did nothing to create any space between that identifying location of shit and the bypass which is which went down right in the parking lot it is common place that that arrest is made some period of time later or is made the basis of filing charges with the lauren it's the only means of protecting the informant when you bust him right in his backyard occurred just as it did but did not involve ship it says the informant that it just happened through other means well i guess might my answer would be introducing the undercover officer who made the buy to mr warren so the undercover officer created the link between m car it was just it was in the parking lot but not in his car and immediately and present also at the scene where mr warren because girlfriend and and a drug dealer who immediately on behalf of mr war started the threatening calls to mr shipman they were present when the arrest occurred and they all knew because they started calling tom shit while mr warfield was in jail waiting to bond out so there was no effort made to protect the identity of tom shits whatsoever at that scene there was a callous like it sounds like you've got about ten minutes we'll give you your full fives and we'll hear from the other side correctly granted summary judgment and found that she was entirely qualified immunity due to the fact that there was no state great danger it's our position your honor that there was no constitutional bright line that knows that individual decision to become an informant is what puts them at risk and i don't believe there's any case law that indicates that an individual's decision to become an informant supports a state greater danger cause of action and i don't think that for example the timing of the buy or the use of the word copacetic or anything related to the by bus that occurred are any of those things are implicated the all of his conclusions limas conclusions are not supported by any anything in the record i suppose would be different if someone could have pine and state that every police department in this part of the state of ohio does it is third way and we didn't do it that way that that's not what happens plus there's case law there that says the violation of a manual or aspirational guideline which was the sol basis of the expert's opinion was is complete reliance on an aspirational guideline that does not form the basis of a constitutional tor either and certainly there's no this the fact that  forward that says officer williams ever reveal his identity in fact that she went to some like to protect his identity you know she it was an undercover operation he was never going to testify the anybody ever did with  informed upon by so on so for no reason whatsoever other than he did it just didn't happen here that believe that the main difference  continue i i do think again i'd like to emphasize that i feel that there was no there was nothing advising officer williams of the time that you know her conduct relative to anything she did violated his due process rights i think the case you know burly versus get he is important you know talks about the fact that you know you know that all the planets burn to show she violated a constitutional right that danger i mean i suppose any time somebody gets arrested think they are informed upon the standard though is whether or not she affirmatively put him in danger i mean if we start assigning liability to police officers because you know the manner which a drug by went down then and certainly i i don't think will do undercover drug wise anymore well you don't always arrest them on the spot you well sometimes we do sometimes we don't manner that you know affirmatively puts them at risk knowingly doing so then then perhaps that's the case was no case law to that comes close to saying that you know the timing of the arrest implicates the due process clause of the fourteenth amendment i guess are you familiar with the case of ours called mcqueen the beach or community schools as of two thousand and six was that the one that was that the one where the kid got shot a classroom your hon in danger the individual and then it goes on to say that's equivalent to deliberate indifference and deliberate indifference is equivalent to the subjective recklessness and then it says subjective recklessness can quote be proven circumstantially by evidence showing that the risk was so obvious that the official had to have known about it so that i think maybe that drills out of the key here is that so you know was the conduct so obvious here that the officials that was really williams in this case should have known remember right even though they don't think the prevailed in that case but no i don't think subjective recklessness is the standard that's a political here i mean i i don't think you know when the bias occurred in the manner in which the curd would have put off hawaiians on notice that she may be violating his constitutional rights i think it creates an impossible standard this is a that would have put them on notice but you know let me ask you this one once she has got calls in the threatening call that the notified william so that did she have any obligation to protect them no i don't believe show because then we're going to talk to shania versus want to beg go i mean it's a private she's being informed of a potential private active islands the police are routinely were informed of those type of events and i don't have an affirmative duty to stop it from happening you know he decided to become an informant he chose to do that line of work he was a willing and eager informant no i think it's i don't have a duty to protect him from private act of violence in this case law that says even even if i know it's coming i don't have enough room to stop it was no bright line a lot of cases that we've apprised her that either either not doing something more you know when she received a phone call or or planning the arrest differently would put her on notice  out there are distinguishable because those are cases in which the officers the state or city specifically identified you know sometimes even with addresses as being called strong confidential informa and and what's going on in your case in your argument is there's a bunch of facts and circumstances that make it pretty easy from your perspective to infer who was the confidential informant and i think your basic theory is why shouldn't those cases be decided the same way as kallstrom analysis and where confidential informant is specifically named what bothers me about this position is used as you must know in the criminal justice system confidential informants are not the only people that cooperate with the government and fattened the the article three the federal courts just did a big study on cooperators which would pick up everybody confidential informants included and what happens to them in prison and there's a website called who's a rat and the gist of the investigation was the found lots of assaults and including some murders that grew out of inmates finding out that other people were quote cooperators rats whatever you want to say now all of those situations were ones where it's the same type of deal you they were able to look at a five k a safety valve departure they were able to stay high why on earth would you get a five k but the fact you cooperated with the government you therefore must be a cooperat don't know where your position ends but i can tell you there's a lot of salt in prisons against cooperators and i'm going to suspect a lot of those individuals or their families would have a similar claim if you're you prevail today or at least during  undertake when you are a cooperator your cooperation is going to be documented and it's going to be included in a plea agreement and you have assumed that level of risk with my personal experience is that in federal cases which you know these were not at all cases but that by take credit in the plea agreement and i am sorry but i can address what representations are made to those defendants and terms of confidentiality but i do know and the district court specifically found in their decision that shits had no conditions attached to his act as an either going to have tried a car just dropped or when charges were brought against him he'd get a reduced sentence and would need to be in the same position as a cooperative i don't believe so because if you believe the city terry williams detective terry with liam did not have that authority what would ultimately have transpired regrettably you know we'll never know  i'm just making the point that i think you're right i said if working as a confidential informant means you're never sarges at all yet there is a good chance there's nothing there's no way to figure you out other than the kind of speculation inference drawing that well how well the officers know to arrest but quite often it's going to happen that being a confidential informant just means you're going to be charged with less and then you're you're what i what i may say in response to that is the lack of any informative agreement in the city of toledo mary to be somewhat at the heart of this this issue because it's it's loose half a guy on the shoulder in the jail we have some clarity and some are and even then nelson because those police departments present and informant with an agreement that gives him some description of his obligations the city of toledo doesn't have any such agreement and frankly if it's reflected and it is consistent with how careless leigh and how recklessly they made this bye b ok judge gilman and judge for hundreds do you have any other questions you know nothing else they're all right i think i think we're good thank you mr richardson thank you mr charles for making yourself  appreciate it and the case will be submitted