serious harm to an inmate now that the measure its report recommendation in this case conclude that there was certainly a risk that foreign and tarski were aware that a court might disagree with the only issue here is qualified immunity right yes there are so that's when when your clients were rendering their opinions what was the clearly established law as to this statute at that time tail overall into the larger issue of coffee pot unity and when you are talking about the issue of buffet immunity of course the issue for public officials is did they violate clearly and there really was no preexisting law here this is a case where both parties admitted there was no controlling law on point because we're talking about a case of  your would you agree and the am i'm trying to distinguish between two things in one being the process that your clients went through and the nd is the conclusion they reached i understand the plaintiffs to be challenging the process so for example had your client instead of like going to west long instead used one of those magic eight ball to make the decision about what the statute meant yes or no rights take  reaching the right answer that's the th amendment to the question and it's not just were they negligent in applying that they have to be true deliberate indifferent to something right the text of the statute for example right if they'd had written in the middle we're going to ignore the text of the statute but instead we'll look at some overarching purpose we might find it that was not deliberately indifferent or reckless yes sure are oh i would agree  me that they have to point or you have to point or somebody has to point to something in the record to show that was their state of mind when they were going about trying to interpret this statute and if they were just negligent  they didn't violate the statute but more importantly they were their music you're i would certainly agree and in this memo that they did was not a singular interpretation of this one stajan it was interpretation of that went on pages and pages there's no suggestion that there was some criminal intent behind the way they phrased so using the eight ball hypothetical up there there may be that criminal minds right now that's so derelict of their duty that involving that length of prison terms you might be able to drive that but the question is what is the evidence in this record about remember either off the top of my head but they of course did a memo and they did a presentation for of employees who are in charge of calculating sentencing of when they were putting together there were probably going to be back to what was clearly established at that time not seeing much of anything if there were more than that we see a situation where the dust the district judge sort of dismisses the the judgment of the court of they've misread law court that was  was unreasonable of wrong their right reasoning was backwards they didn't understand the principles to be upon here's a far cry from a mental state where they had some aspect of the liberals i would i would core chris kenny on behalf of marian campbell where i'd like to begin is with judge agee's question about what was clearly established and then moved to judge me my rage at rich since questions about the mental state of the sufficiency of the evidence and the process that i do think those of basically the three relevant questions judge a close clearly established in twenty and in this circuit and across the country that defends the constitution to prolong the detention of an inmate beyond their law that  and trying to deny the prisoners there their terms of imprisonment and that's a definite you haven't addressed at all i don't think in the record the intended the mental state that has to be operable and it seems to me have to start somewhere and a tremendous a good place to start another would be is where there was clearly established but when you talk about clearly established you have to do much more to rise you have  said on these people's conduct yet they're sitting there at a desk reading a brand new statute that has never been interpreted and they're trying to figure out what it says and they brought they do their best but they blow it and all of a sudden you're going to say they're personally liable now with prison terms of prisoners who sentences were extended because they blew it yes right look let me just push back a little bit  subject intact you can't have an objective standard and just look at what other people would do you have to understand that these people function with a man's right yes your honor so so look at this deal with what the evidence shows about what what friends on the other side that you would have to have a declaration as to this particular statute before these defendants under a certain set of lads to tell us what the best evidence you have of something clearly established in twenty t you know we don't stand on that proposition what i would stand on is you look at cases like a good or sample or any number of cases that the particulars of the facts on the ground may differ but the proposition and there ar book cases that you could easily argue negligence or delivered difference in those cases but when there's a failure to act by a prison official who is clearly on notice that that risks prolonged detention that is potentially an th a for a lawyer applying a statute any statute to rely on the taxed and it more or some amorphous purpose right that that that scenario if you had a case that said agree that if you say the right is a violation of the th amendment you might as well so them so tell us a specifically as possible exactly what you say the right is here yes your honor the right here is that prison officials cannot ignore plain instruction as to when inmates be released what the fundamental problem to bring back to the trenches case was against the lawyers yes your honor and they were lawyers for the department of corrections in the fundamental problem with it they did he i mean it what you just said i nothing more what you said in the beginning keeping somebody beyond his term violates the th amendment and that is not at issue anywhere there's no specificity so you have to make it fact really relevant to the case here  so you have to focus on the conduct of the attorneys and say what did they do in light of what law that made it clear that what they were doing was a violation they it yes you're right i've read the whole memo and what it indicates is that there was clear apprehension as to what the consequences of this whole role no parole distinction is now there's a clear apprehension the question then becomes that clearly shows they acted with the wrong purpose here it is the the fact the simple fact that paul does not mean no parole in the south carolina criminal code and there are very severe consequences i don't believe are disputed for that distinction and so what happened here is you had a lawyer who interface with a statute that says parole then interpreted and instructed department officials to apply right so instead saying call me is no parole instead i believed in the hypothetical that they got the text of the statute exactly right and the state court of appeals got it wrong in the hypothetical bolin differently than not decided differently i'm just saying as a matter of federal law right when i'm a valuing the mental state right i believe i'm just kind of what i'm trying to distinguish here is procedure right are you making a separate argument about procedure or is that if if that conclusion holds i'm not saying it is the hypothetical answer point if that conclusion holds then you about procedure we could lose this case at trial very easily if the jury buys into the idea that there's some testimony about this that oh we did a lot of work we debated this we rigorously analyzed it there is also evidence in the district court credited that evidence that essentially they had apprehension as evidence by their own memory they did based on the case file they produced in discovery there is little work other than the memo itself and you have to get around well if you didn't have bolin what if you didn't have those cases yes you're just coming to court and saying arguing these prisoners the same misread the statute and you demonstrate to us now they misread the statute and these prisoners therefore had a longer stay in prison yes yes trying to fight immunity no your honor i don't believe so and here's why it was i agree with you we would we would end up litigating that question in front of the disagreement or not just our own argument in other words there are no state court decisions yes we have the we have their opinion the latter yes and you're coming up here and prisoners have been released later than they otherwise should have you said man they got it wrong when they violated opinions yes sir on this record i believe you cannot find that when the general assembly set that these are now parole of offenses we should go ahead and instruct the calculation team at department corrections to release these court has to find that be it the difference between a subjective standard mudgett and the civil is objective but in the criminal there's gotta be a subjective state of mind will judge me more let me say i mean you know to their credit for them to tarski testified that they were aware this was a significant reform they were aware the general assembly was trying to alter a sentencing they were aware that this was going to have a huge impact on hundreds of inmates and based on what they can see it's not like we're inferring the subjective say based on you know pieces of evidence based on what basis to five to what they're aware of you know that a jury in and the district court of believes there's sufficient evidence here to find that they were they acted all these lawyers in the state various state agencies partner justice and the state agencies are giving opinions on a regular daily basis and they really blow on they're doing their best but they really blow one they're now going to be answering out of their personal pocket or the injuries they caused of well most starts that's not necessarily and again let me reiterate and you can look at all that the cases that we cite are brief there are plenty of examples you haven't cited a single case where an attorney gives an opinion that create that gives rise to deliberate indifference yes sure and that's to be candid i'm not aware of one and i also think that the whole test in other words to bring the  th amendment down to this case you have to conclude that their conduct in giving this opinion was clearly established violation if they were really wrong clearly establish violation of the yes your honor and to make that determination i don't believe their status as lawyers matters if you look at that header function they're performing the legal opinion absolutely but your honor we can easily have a case and there's examples of the correction the calculation staff or share  attention to administratively in other words the order says he's supposed to be released on the th and the and the warden says well of thirty six that are enough for me your honor i don't see a lot of deliberation or analysis going on in this record what see based on their memo based on their powerpoint is a conclusion but no explanation how we get there ok let's say they're not life yet but you know these guys may not be high powered lawyers on a one way them and the stuff that you're concerned about is on one of the six pages and they give their opinion there and use basically say they were indifferent to the amendment with a malicious intent as no meaningful effort to determine when these individuals should be released that's how i read the record and respectfully what i would say i did so but then we go back to night for make sure i understand your argument yes or the only argument you're making with respect to being of circuit cases to suggest that their general principles ought to be you know read into south carolina is clearly established that's the on that's the extent of the clearly established argument that you're making you're not making anything beyond   you know the question is should it have been apparent to reasonable prison officials that they were required to do something more than the wrong standard that's the wrong standard it has to be subjectively it's not a reasonable objective standard that's my whole point and that's where i think your whole grief and where your link goes you have to show intent and these specific persons judging her i was referring in if i was unclear as a reasonable between holding people accountable and allowing reasonable state actors to perform their work and the question here and what i respectfully submit the question here is whether this record would allow a jury conclude it is something more than negligence we understand that there is a tough road in the district court and that these arguments will be raised with the jury or journal have to decide whether or not the for lack of activity in our view was  was something short of recklessness we understand that it is a hyper weak knowledge but but respectfully the what what our friends on the other side and many of the questions this morning deal with is quarrelling with the district court view of the facts and then under this court's precedent that is not basically the district court said look at the south carolina court of appeals decision that said these guys were unreasonable i don't have a dressing thing i don't see where your honor the right is to be released based on the instruction of the general assembly based on a clear sasheer that requires no instruction and that's what act two hundred and seventy three was and the best give us the best reason there is a dispute about state law that gives rise to the founder to release there was still the jury question in that case and then it with respect to sample a situation where there was frankly there was a mistake about how to apply a statute those were both you know application of state to think you can rely on any of those cases or any of the other district court cases that we cited there's nothing you've got it there's got to be knowledge of a subsidiary of a serious substantial or excessive risk of harm to anybody and then you fail to act and so it brings us right back to the same question well how do we say they're not releasing the inmates they're not even applying the statute they aren't terminating the statute and hold it basically just address the notion that extending somebody is a time in prison e law as a reasonable person clearly understood the law of the time with respect to this particular statute and that they violate it and the record doesn't show that it and so what we're left with is  and so how we got it so you knew all that you knew was important and you didn't do enough well the question is not you know the question is the concept is knowing that you are doing something that's important and has consequences is not remotely the same thing is as knowing that you're doing it wrong or even suspected if you're doing it wrong and there's just nothing in the record that shows at the time they did their  analysis and made their determinations of what that was supposed to meet that it should have put them all knows that they were doing it wrong that immunity requires a showing that they violated clearly established law