state created danger claim under the fourteenth amendment based on defendant rich or traitors conduct in the shooting death of her son state police officer david khadra and whether mr schrader is untile title to qualified immunity be exclusive we don't we have case right from the supreme court when both hope and former king that the obviousness of the risk when the supreme court has identified that is something to consider the training would otherwise be considered obvious even if somehow they weren't obvious he needed them by virtue of it being part of his training to do this job and then said separately by the fact that he pled guilty in state court to to bolster the possibility of our knowledge allegation and the new faces cited by the defendant involve a prohibition of his saying guilty plea as as a pleading fact to bolster the possibility of helps us get by the ruby trial p six motion but also would be sufficient to get by a summary judgment motion by the defendant the question of does the guilty plea a stop the defendant from basis for summary judgment against the pleading party on the elements of the charge that were pleaded to that question is not presented here because they're just not going to stop a situation they entrust cases we've cited address the use of arguing we're nothing nothing to add to that other then so now turn to the qualified immunity questions of whether the rights bettered issue in this case were clearly established established at the time of the the writ issue is the right of a person not to have a gun pointed at him and fired when he poses no threat of harm to anyone that and that that was loaded and we did not concede he thought it was unloaded we believe based on the training he had which said he would handle every gun as though it's mooted that he did have knowledge that it could be loaded and by the know that it could ok it is a reasonable inference that he would have pointed a gun that he thought had a among that the violations of protocol that preceded the tragic shooting there were were there was a question about should bulletproof vest be used and they were consciously chosen not to be used to that that the traitor was using here that i think that that's what makes this case different from what we're  say that right up front but that certainly should not over shadow the legal questions that we're talking about here which from our perspective is an accident excuse an accidental shooting that resulted in  thing that has to be addressed in a qualified immunity situation and i in view of the argument that was made in the reply brief then just now about the the case law about not not waving guns around in front of unarmed people i think it's important to right up front get away from that line of authority because those cases the ones that involved ninety three cases going forward against  enforcement officers who had inappropriate or used guns were basically furthur amendment cases where citizens were challenging the conduct of a law enforcement officer who misbehave during the  conduct of a of a law enforcement activity but nothing to do with a training class but i think that conception of the right at stake in this case and to him area school district which we cited in our brief but didn't discuss it in writing i think however that it is very analogous to the situation we face in this matter this court reverse it has already been touched upon focused on the elements of a state created danger case and stated that the courtin even have to get that to that point because it was looking at the right at stake and rate in l r was defined as and i happen to have that right in front of me an individual's right not to be removed from a safe environment and placed into one in which it is clear that harm is likely to occur particularly when the individual may into youth or other factors be especially vulnerable to the risk of harm and what's striking about that reading it aloud is how very tailored to the scenario in th case that description of the right is that really tailored to our situation as well it is not fully tailored to the situation that we have as well well right why are we dealing with something like a right not to have a allege that copper frater knew there was a gun at the bullet and the gun i don't see much difference between that and this alternative of saying however who has the responsibility of teaching other officers what to do would have done what happened here if you know there was a bullet in the gun he would not have pulled that trigger and expected fact that he pointed the gun when he did under the circumstances that he did cannot be underestimated because he was demonstrating the gun which he was supposed to be doing he held the gun up and he had his finger on the trigger because if the gun were sitting on the table he couldn't have shown what he needed to show i do think you're crazy argument that he had to have appointed an individual to do the because you didn't have like hours and hours weeks and weeks to think about a course of action but in the intermediate deliberate indifference less than a standard requires conscious knowledge of a substantial risk and i think well what was missing here due to the not lack of knowledge at that though it was a conscious knowledge explicitly that and even the eighth amendment context a player does not need to show that it an official act or feel to act believing that harm would actually befall him he made it's enough that the official record failed to act despite his knowledge of a substantial risk of serious harm and we've we've like i said it is a carby that you don't need to show that he harm was practically certain to occur you simply need to show that that  defendant is i'm aware of facts from which one could reasonably draw the inference that there is a substantial risk of harm but far more also says that the defendant in the case that kate type of case expressly disavowed but i still sit see a difference between that and drawing an inference that something is risky and about to happen i could go on but you know let's take the extreme example of it we go from the script court that a high speed chase of one hundred miles an hour pursuing a suspect with little time to work deliberate is not does not rise to the level of of of of of a violation right right right if you have the same situation of grace officer who is going to hundred miles an hour for just because they want to get back to the station quicker or something like that knowing that they don't intend to get in an accident they think they're safe driver with that with that shock the conscience every one hundred miles an hour for no good reason i think a state police officer or anybody else driving one hundred miles an hour is subject to the traffic was i don't think that that's a conscious excuse me  and a state actor engaging in a state created taint your type of activity it's it's not it just doesn't fit that paradigm state police officers and all kinds of other people drive speed at times and that that can be dangerous if that is a constitutional violation and any this behavior by a state actor becomes a constitutional violation too and i think what i want to get to if i could circle back is to why i think it's the right question was defined wrongly here by focusing too much on the abstract dangerousness of i was you for how would you describe the right question translated again as i started to say a clearly established constitutional right under review process clause in favor of a trainee in a state office which which requires affirmative compliance with all required safety procedures so as to know and these are the words that are helpful and spacey minimize the risk to the trainee is during a training decision said that there was qualified immunity because there was no way that the teacher could have anticipated or understood or understood it recognized that risk and taken the action to minimize the risk that ultimately would have been needed even though that teacher sent the poor kid back into the pool when he first encountered difficulty so there was an affirmative act i suppose you could see there but the  in question was it constitutionally required that a teacher's failure to take action to assess a non apparent condition that place the student in mortal danger there is a non apparent condition here to my analogy wasn't constitutionally required i'm not saying was it morally or as a matter of common sense required but was it constitutionally required for the defendant a training instructor to take and there isn't in this case either and one reason why i want to emphasize that is that it in my judgment is extremely important that this happened in an employment setting specifically held but there's a new right to safe working conditions and this court encounter however you say it clearly followed that you're suggesting this isn't working conditions case well frankly yes this is an incident that occurred during work hours it was a required training session it was attended by employees taught by a training instructor who was also an employee and the subjective standard of deliberate indifference is is what we've normally approved of and we have not answered the question of whether there should be an object of component also if there is no object of components then the should have known piece of the analysis kind of goes by the wayside because of the lack of subjective knowledge and qualified immunity company else in this case the district court was correct to reach that conclusion if there was not subjective knowledge then corporal shrader could not be held accountable under the fourteenth amendment state created a dangerous theory we're dealing here that i think that pointing to that and remarking on that at this stage is it's basically a legal conclusion whether you want to call it collateral sample or something else it's just assigning a legal does not in and of itself mean that as a factual matter he had now on that occasion of the risk that was posed i also would in a previous post of your question if i understood you related to the allegations about the training the safety procedures which were for trainers by the way they weren't just general gun procedures that entire occasion was that he failed to follow those requirements that is different then affirmatively creating not just allowing but creating a danger there are lots of state created danger cases that come through this court and others and the typical ones involve a state actor creating a situation which enables someone else and many of them to endanger the eventual plaintiff but it's always the case in these cases that there is a creation of the danger not just an  recognition of a possible danger and the end result frankly of most cases is that the state created a danger claim does not and to properly plead this particular case as horrible as it is is a case of negligence on the part of corporal schrader that is exactly what it is he's never said otherwise and you can talk about why he may have pled guilty the criminal charges as much as you want i think there are many considerations that probably go into something like that and it doesn't necessarily mean he or anybody else said the elements of the crime of this i did this i the words that he knew you know why why should the right to a man be granted here well i have to confess i am still unclear what this additional amendment would say that isn't already encompassed by the existing complaint and they reasonable inferences that you can draw from it but that the the district court explain its reasoning sufficiently but this record did not explain its reasoning i said in prior cases that the right to amend the court should explain their reasons i try to address that in our brief i know that that's the typical rule but it has been said in cases where this court has concluded that there was something worth and to add to the case and sends it back for that purpose i don't believe it would change anything here to few words to say what is in effect already said our position is you know is it that so you think the court was correct even though they are fully explained the trees on that point yes if it was correct on the on the ultimate decision issue that is if the district court thought if the question presented is was he aware that he was not following certain protocols was he conscious that he proceeded through the preparation and t the best way i can think of to respond to that is that because corporal schroeder is it was an experienced person with training experience in particular it can't be alleged that he knew he wasn't following them he has to have believed he was following him following them or he would not have done what he did there's no way you can infer that somebody with apparently and he didn't do them for reasons that are unknown but basically have to have been a question of negligence he was in a hurry he felt sick i don't know what happened to him that day and he didn't do th they would have taken it as an essential jury question it was a credibility determination of mental as to his mental state where they were already alleged is that she knew what the safety protocols were he had been treated them and he didn't follow the safety protocols can be reasonable gyuri with those facts draw the inference that he was aware that he wasn't following this if it were called and why isn't if that's even the right question to ask as the district court at some point formulates it why isn't that already sufficiently pleaded in the complaint if it's already fixed sufficiently pleaded then i lost track paper and today about the lack of seeing more kinds of cases to this one that that establish that there was a violation of a clearly established rate in this cited cases about putting something in writing is evidence of knowledge of the contents of the reading and that that's what we have here in the two points i've got to make one the commonwealth tries to collapse the the kind of intentional wrongdoing here but we do have knowledge of the risk that any gun including the army had could pose and actions to liberate indifference to it by putting it out a person and pulling the trigger homicide evidence that would get into even if this were a high a time pressured situation where there is no opportunity for deliberation that he could still be charged with intentional wrongdoing because the commonwealth  chamber correct yes all right but you're hearing that he knew that he didn't comply with the safety instructions right yes no good at a person and pulling the trigger and he's trained specifically bad you never do that period even if you check you still going to do that because your check could be wrong you might miss it and so on  and the court there to infer actual awareness of risk of harm the decision is rendered after the facts of this case relates to eventually could a year before those in question and holds the rights clearly established just the fact that it should issued after the events in this case precluded right the correct way to treat our decision is that it is wrong for the uk was a stab at what was clearly established in january two thousand and thirteen twenty months before the events in our case time of the teacher's conduct which is twenty months before the tide here and i just fall back on because the we know more about the defendant's training here than we did in the l r case this is an even stronger