this case is about whether adverse action by government actors plus a difference in race with a lack of personal participation by these particular dependents is enough to possibly plead a claim of racial discrimination sufficient to overcome qualified immunity there are three things that i want to address today and they are that the defendants did not waive qualified movie of the court never to this intermediate in a discrimination case because we don't even know what the facts are and you're wanting us to dismiss because you're immune or you're not immune to discriminate that's are burning having made a statement that they were acting in this fashion who are the plaintiffs based on race but that can't be the our you can't have to have that before approval from a board of commissioners to aberrate meanwhile there are eighty plus non chinese own laundries that are being that are allowed to operate three of these restrictions so we don't have any the supervisor and asking questions about national origin sabbat and something more harassing questions about national origin there's no harassing questions about reason national origin  think it takes something more because if it if all they need do is say avarice actually mistaken against us and we're of a different race that's a tremendous burden on  regulators any time they're dealing with a licensee that's part of a cyst protected class but there is a legal art art they saying more than that in in the in the complaint we have to discrimination because that is the common allegation and the reality of it is that any time you have i'm not sure i'm understanding what you mean by that common allegation the owners and the claim is that regulators fabricated by aleisha ins against them you've got a case that says that does not rise to the level of  allowed to look at the l g s findings on the points such as whether or not there had been there were made up regulatory violations that in fact are not eilish and and those sort of items and determining to take that information into consideration however i don't believe that decision says anything about maybe a violation it just found errors in how the violations were were handed down  purposes of jurisdiction determining jurisdiction well because i don't understand i don't understand your or your qualified immunity defense but i asked you before but you apparently were you're the state of colorado and you're arguing that it is not clearly established color under colorado law the state agency were not discriminate on the basis of race are you seriously making that argument now i'm not making that argument in this case the two individual defendants your honor did not have anything it's not alleged that they had anything to do with the white businesses comparatives and that's one of the key elements of an equal protection  the but but that's goes to the merits that's not qualified immunity i'm talking about qualified immunity you're saying the state of colorado is merely from being sued in this case and i understood you were saying because that law was not clearly established and i said what course it's clearly established and now you're telling me that you are arguing that it is or it is i don't know  sometimes those questions can overlap that's one of those times i'm sorry why isn't this one of those times at least on the question of constitutional violation i think because what they have pled is is not that we didn't by lation of a constitutional right what they've responded to in defense is that they just simply didn't discriminate and that is a situation where at the very least as that montoya the vigil case that both of us cited this is one of those instances where those questions are inextricably intertwined and bundled up with the facts and we're dealing with the question of factual sufficiency and when the ultimate conclusion is a question of whether what this evidence can be used to show is sufficient so we're we're we're only talking about the complaint here the facts alleged in the complaint correct correct your honor so we're not debating what the facts are we have to accept what  alleged in the complaint correct yes your honor i agree alternately this becomes a pure legal question as to whether the complaint adequately stated a claim correct i happened what else would we be doing well the defense that is being stated here is not that we have a failed it's interesting and i'm sorry because it does jumble up their argument is that we have failed to state a claim but the question qualified immunity is whether we have alleged a constitutional violation and at least a name that's the same question ok and to indulge in that argument if that's the same question then if we look at the facts that are alleged in the complaint we're not just making mere conclusory allegations and the defendants have said that a lot but if you look at what we have actually alleged we've alleged a clear violation of the equal protection right ok i didn't let's let's look at a couple of things in your complaint you pledge that these other agencies maple star colorado and kids crossing were similarly situated to brighter day correct yes your honor not that they have violations how are they similarly situated well i believe it's not necessarily on us to plead the specifics of whether or not they're true compared to wars that are not finance why not do you have a case that says that  let's hear some specifics ok specifically when the when the when a brighter day got their license in two thousand and twelve they sailed through licensing for four solid years with no problem tucker and bernie didn't get assigned question how are they similarly situated they are similarly situated because they are both child placement agencies as far as we know they are equal in size they have similar violations but the d equally enforce those violations or punish those violations as to make a star and kids crossing the way that they did a brighter day and it's far to i mean i think to get to the nub of what you're you're getting at here is what you're asking or at least you haven't alleged that why isn't that fatal to your client because we we have no idea other than what miss cali has said whether or not they regulated them or not well you know whether you have an idea or not you still need to state a claim you haven't even alleged that upon information and belief that they were regulating these other entities and again i think that what you're getting at is a defense issue of whether or not they're truly similarly situated  another i don't know why what i'm now what i'm asking is how could they have discriminated against your client relative busy to these other clients if they didn't have anything to other entities if they didn't have anything to do other and  enforce these neutral regulations against a brighter day when it has at the same time there were no adverse actions no inspections no harassment or targeted scrutiny of these other owners but don't have to show that the defendants you're suing tucker were involved there right yes i think that the personal participation involvement for these equal protection claims is you have to show that tucker and bernie were pretty personally participating in the discrimination against our clients and then it becomes their burden to show that they're not similarly situated within the ledge that they are similarly situated either but i don't want to belabor i've already belaboring the point but if we disagree with your argument relative to similarly situated does that mean that you have failed to state a claim or you have some other bases that have to state a claim for discrimination besides differential treatment we mean we have a pattern and practice of adverse licensing actions taken against black owners that are not taken against other white owners we have a new you know you have two other entities present where is the pattern in practice at this point your honor we only have two other entities i mean i don't they needn't make the allegation if you said that in your complaint had we said what specifically had or if you allege a pattern and practice of discrimination in your complaint i believe that we have based on repetitive scrutiny and if you loved element of one client of one client but of a multitude of violations that were not similarly ledged at other people or not similarly enforced against the maple starr and the kids crossing despite having either similar or more severe violations they were not treated the same way let let me just ask one other thing and i'm going to stop and let my other colleagues is there an independent basis for your discrimination claim to say that the fabricated by aleisha ledge against your client given its minority owned business that and that in itself is enough to state a claim in your complaint would you position or not and if you do if you've got any case support that i mean i think it certainly standing on its own i do think it is sufficient given the complete context when you've got a case on that is built on circumstantial evidence especially at the pleading stage we have alleged all of these fabricated violations i could take you through a few of them if you would like but in that ramirez case that we cited it's very similar evidence it's the rules are neutral but they're being enforced against ramirez and so it's the same i mean actually it's the similar allegation that you're making up claims against me you're taking these rules and you're not applying them equally to others based the only difference that is we can see is based on race and again just  or issue is an issue that is it's dealt with on a motion to dismiss it's not a twelve b six question because it's inherently fact bound about whether or not they're truly compare what we've alleged is that they are based on the fact that there were similar violations and more severe violations of a child placement agency and they were not treated the same way the difference between the two agencies one was white one was black now that may not be the case once discovery opens they may be able to make out their defense that they're not truly compared to ours but that's not where we're at we're on a twelve the six motion where the allegation is that they are comparative ors here are the allegations where they had violations they were not treated the same and so at this point i think to increase the standard especially on a twelve b six where it's not the same as a summary judgment standard even with the qualified immunity question to increase the standard asked for us to come up with a proof in the cleaving of how similarly situated they are i don't think that's what's required under twelve b six in this particular situation now i would if the court will indulge me just to get specific about what this target harassment actually looks like there's i understand what the state did here is they under the guise of bringing a qualified immunity appeal they start to argue all of their quote the six matters which standing alone because of all the spectral disputing the status the record would not be appeal at this point so we got to find out is the qualified immunity appeal legitimately  that and this is just like in in my opinion this is just like to say versus virginia case but the defendants did below was gave us a smattering of the qualified immunity standard and then announce we're entitled to qualified immunity and the reason we're now in entirely qualified immunity is guess what we didn't discriminate so they used a factual answer to answer the legal question of whether or not we played a constitutional right they conflated these two standards we did not have a well developed qualified immunity argument what we had was eight like he said judge cruz took it up in a footnote and noted that it was woefully underdeveloped because there was no question there was no discussion there was no citations as to whether or not the right to be free from equal or from discriminatory force six people and if so do we have jurisdiction at this point to consider it other then the qualified immunity shoelace and your honor and i do not know i did not look at the notice of at the very beginning just to see if the rules were complied with so i don't recall that specifically but i think that you are going down the right road there as we point out in our brief this did not really raise the legal question this is not this a legal question that's perfectly teed up for qualified immunity that's appealable whether or not what we've alleged in the way that the rules were enforced against the smiths and how they were treated differently from other rule violators like maple starr and kids crossing whether or twelve b six to really puts a summary judgment are you and that is my time and so i will continue to answer questions or otherwise i will let it rest you know but the state at some time judges there actually both sides are out of time that it's ok to appeal it yes if you have a basis of appeal on qualified immunity alone not forget the two of the six issues what is the basis of your qualified immunity appeal that the the court will sort it out in our panel discussions thank you councillors use cases submitted