care this case we believe presents the closely related contention that where county mental health officers deliberately refuse to exercise professional judgment and thereby do not come  dangerous mental patient for involuntary care that they have created a constitutionally dangerous situation the fact pattern here is regrettable but we believe that it is related to the crack patterns that have been addressed by this court in applying the same standard of when there is a constitutionally dangerous condition created in a number of cases the first of those obviously would a known dangerous sex offender a person working in the governmental facility where that person is being housed the the sex offender is then placed into the work environment of a lone female is what has his case history predicted he would do which is he commits violent acts against the female individual in this case we have a person who according to the complaint was identified as one of that small percentage of mental health patients who are so delusional so unable to control their own view of the world that they do in fact become a danger to others and that under california statute for involuntary commitment of welfare institutions fifty one fifty that the exercise of professional judgment by the county given the information available to them required them to commit that individual among other things that commitment would have led to the statutory obligation to remove from that individual firearms and other dangerous weapons under well for an institution's code sections eighty one hundred eighty one of three when the county failed to do that the allegation is that they failed to do it based on a conscious intentional deliberate policy that either for financial reasons or some other consideration that weighed more heavily in the county decision making process than either the treatment of their patients for the protection of the community that they chose not to commit this individual and instead continued to invite him month after month after month back into the workplace behavioral health services where the plaintiffs were employed it is that repeated invitation of the known dangerous patient into the workplace which we believe passes the threshold of constitutional dangerousness suggesting the county seat of the nothing with them not have a place for him to come for his followup treatments well you know we can't even larger policy issues there about allocation of money and so forth but we have a statutory scheme in california think you know we've we've created a responsibility the county has accepted the responsibility by creating this clinic the suggestion really is that they just have to do it right there in a constitutional sense they wouldn't get why it filippi under due process considerations if the first time the patient came in they identified you know this is one of those patients are so severely ill that he's dangerous we don't have the resources to treat and we better just tell him to go away i mean that that may be appalling in a larger context but it would i believe eliminate their exposure to this kind of constitutional risk of liability but the standards under tarasoff and civil coast forty three point nine hundred two are substantially different than the standards for municipal liability and the the extent of liability under the  therapist the individual psycho therapist the focus in the one nine hundred eighty three action as we have trained this particular one is really on the policy making that governmental involvement which  y not as a practical matter but it may theoretically increase the ability to pay damages but more importantly it has a salutary effect on the conduct of the government if it's one of the reasons for having government a liability is to try and convince governmental authorities that they should do things that avoid that liability but we know that the mainstream court has told us clearly that this isn't a worker's compensation law that you have in one thousand nine hundred three violation just because the polity or the or the county has provided a workplace that turns out not to be as safe as it could be so the policy in terms of the beneficial effect of encouraging the government to maintain a safe workplace that doesn't do it for  rights violation and the policy and i understand it's a motion to dismiss that their policy is understood and the complaint is not that the county said that we would not permit or would not launch an involuntary commitment but that such a proceeding w discouraged is that correct i believe that the complaint in that case i'd have to refresh my memory to be positive but i believe it indicates that in fact he was a valuated for such a commitment and they refused to do it that was that was in reality the case with used to do it by something other than a professional judgment of the psychiatry psychologist correct that there was a first and other professionals were involved they chose not to commit him not because that was an exercise of professional judgment but because of this other policy which did not take into consideration professional judgment there's only one of the things that mystified me about this is the other county officials including th of the doctor names the fan and presumably never putting themselves in the line of fire as much as anybody else i'm not going to continue to deal with this person are you saying they decided well it's going to be unsafe for me to be here but as a matter of policy we're not going to do anything to commend him and it's well i'm thinking through the consequences of one action one's actions is not always the way things are handled even in a governmental decision making process in this particular case but the way this potential danger became real with this individual patient was that he started at the front of the behavioral services offices shooting dead the receptionist and walking back to the office risk in this individual case but again that's not really the issue for the you have thought a minute left thousand two thousand and one was indeed tragic but we've been instructed by the supreme court in a number of circuits that we can't look in hindsight we can look at the consequences of that event with the bullets that he used to shoot according to the complaint mr thorpe was last seen at the county in july of two thousand and the complaint does not talk about repeated invitations back to behavioral health services into this workplace so that is not in the records the focus on the liability for a constitutional violation for heloise again has to be on not the consequences but the level of the conduct if the focus were on the consequences of the contact in a virtually every state court tort claim would be transformed into a constitutional violation the supreme court has told us several times that that shouldn't happen what the appeal once again are trying to do is take a state court claim which they are pursuing in state court and turn it into a federal claim and think a pursue here that can't happen in this case because there has been no state created danger they failed to do something they weren't required to do in the first place which is commit mr thorpe under health and welfare code section fifty one fifty the helens have pointed to some supposed policy him in july of two thousand and two they did spend that money yes they determined that he did not meet the criteria for involuntary hospitalization at the most that is now practice claimed a negligence claim but it didn't create any danger to the employees which would include the very people who are being sued because it left th  for budgetary reasons now accepting that is the premise and i know you dispute it that's that's what we have on our plate tell me why that wouldn't state a constitutional climate you're saying we absolutely have a policy that we're going to put dangerous a budgetary issue as an economic issue and both the supreme court and the circuit courts have indicated that these difficult decisions that local elected officials made based on social or budgetary  fifty one fifty commitments because of budgetary reasons that's a decision that should be left to the nevada county officials that would be my answer and you know the agree with that as far as th counsel in criminal cases that would be a budgetary decision that would not be held constitutional are similarly the fact that you have a budgetary decision doesn't immunize all budgetary decisions so explain me why you think this particular policy would not fire like the constitution even if you know i think this fall policy would not violate the constitution because it didn't create a dangerous situation because it's still it's not an affirmative act it's a failure it's very similar to the dick cheney case where winnebago caroline and its child protective services had the authority under state statutes to take this young boy away from his father they knew that this father was beating a school i think had the authority to take him away there was supposedly a policy of not doing that they left him there so they left him in the same position he had been in had they not removed him that's what's happened here even if there is for an economic reason and it didn't change the situation of use of the county employees and mr thor he was a free man when he came in in july of two thousand and two he wasn't forced into a hospital he walked out and he remained a free man after that decision and everyone else was in exactly the same position in relationship to him so i'm what i'm saying is even if this policy indifference why it doesn't in addition to not having a state created danger is true we also have to look at the level of culpability and kind of go hand in hand and level of recklessness or deliberate indifference has to be tantamount to an intent to injure there's no allegation in this complaint that the county of nevada or the qualify for as a yes and i am looking and i and i agree with that i was trying to think of some situation that would perhaps fit and i was looking at the case where they did close down the center for holding place for the criminally insane and put these people back into the general environment so to speak  alone with him exact could possibly be a constitutional violation but that isn't what happened in this case twenty six and date stamped page five in the record indicates that it was for an appointment that mr thorpe arrived when the shooting and killing and everything occurred so i think it's fair the fair inference to be is that he was being invited back into the it does state that the policy is in violation of the laws and policies of california and the professional standards of mental health treatment so the complaint i think fairly construed appropriately construe for this purpose does state that