it please the court the central issue here is whether or not there are triable issues of material fact regarding the state created danger i want to address that issue first then i want to address to the district court ruling on qualified immunity and then third i want to get to the declarations because as my presentation will make clear i don't think we even need to get to the issue of declarations and whether the court abused its discretion i think there is sufficient evidence in the record already i was trying to kind of postulate where in my mind the state created danger in our view differ from the court's view and i could point to a specific portion of the court's summary judgment order that i will reference right here and that's page four of sixteen on the courts summary judgment order and let me read what the court says the court's referring to the sign up process for my clients in the court discusses that according to gill who was the palm springs police officer he put he had my client sign the confidential informant to sign up sheet they put it into a box for destruction destroy the confidential informant sheet and never alerted my clients that they were confidential informants for a two year period of time from twenty ten to twenty twelve my clients legitimately believe they were confidential informants they signed a sign of sheet they went through the process they would otherwise have gone through they were being asked to go through various missions and task that confidential informants would go through and they were never told one way or another and here's where the court the district court on page nine of sixteen says that plaintiffs missed the point here but i don't believe that we've missed the point here he says we missed the point by providing elaborate evidence about why there confidential informants that was done very intentionally because the state created danger that exists here is that you had officers who signed up my clients my clients reasonably believed they were informants and they ran very dangerous missions they were involved in the number one meth bust in pumps or you know cancel the new stuff here there i do want to make sure we're all talking about the same issue in this case as i understand it the claim you're making is that the officers at some point improperly disclosed that your clients were informants correct right i think that's one of the points that were made all right so i don't think it's any dispute that your clients for the purposes of today and your clients were informants for the police so let's that that's take that as a given i was trying to understand from your brief in this case what discloser are you complaining about are you complain about the disclosure at the a called the town hall for lack of a better word or you complain about the actual write up in the reports where are mentioned i know the nickels and that's why where i was focused on was this general pattern practice of how they treated them because there would be otherwise a policy of how you would go about protecting confidential informants would you  question here you have a lot of time are you complaining about the town hall or you complaining about being written up in the reports all where in your brief to this court do you argue that the town hall was a violation of their rights  to get into the town hall is or where you have to get into joy merits declaration ok but again the question is in the brief to this court where do you argue that the town hall was a violation of their rights what we argue brief that the state created danger or the affirmative act of believing that information was the breach and i could try to point to the because if here's why i ask is because seems i've looked at i could not find that being referenced i had my law clark look at it he couldn't find it where being referenced and so if it's not specifically in that brief then i think the issue is that you're limited to those two police reports and i think the question for this court is is there a clear case of the wording that would have put the officers on notice that putting the names of these two people that nichols in a police report could violate their constitutional rights as i understand this case and that's what we're looking at here and i framed this case incorrectly you know i think that the disclosure is obviously case and i think it's right accurately as you state ok so what is the clear if that's what we're looking at in this case what is the clear case of the already that says putting their names in a police report would violate their constitutional rights i think you have to look at kennedy and we don't focus on the distinction that's being made with the six or may have got those two wrong almost argue that if it's a confidential informant situation really purse that you can't create a state danger just because in those pacific cases those individuals knew what they were getting themselves into basically and to me this case has the distinction that's more like kennedy because you've taken these individuals that can be lined mongers woods where you've taken these individuals there was a policy and protocol in place for protecting the identity of confidential informants i think the record replete with evidence of these officers recognizing the importance of the identity of confidential informants and they're putting the confluent confidential informant identity out there and i think that's very similar to what we see  kennedy what we see and monger when it's kennedy the policeman was told by the neighbor don't tell me that i've told you that he as a sexual record is there any evidence that anyone other than the police officer who filled out the report and the district attorney read the report that sa that these people had been involved in actually end but i mean still not good so it didn't need to say they were informers or they said there were fences well you're either in the order itself that references the factual record where those specific individuals that they informed on were actually retaliating against them and for purposes of summary judgment an inference can be drawn that where's the evidence of somebody other than police officer rate and the district attorney ever saw this report the fact that the individuals who were arrested because of the work said all those words that we're going to get you because you're a rat twelve and to pick up whiting and have her arrest her whom were these people were waiting but in that report it seemed to me that all it said was the nic call the mother snitches well i guess two things the first thing regarding the status of confidential informant right whether they were citizen informants or confidential informants the fact on summary judgment is that the officers destroyed the contract so we don't have a copy of the contract let me point to the record though in terms of the other matters you're not answering my question where is the evidence somebody read the police report other than officer ray fernandez and the d a and that led them to unmask nichols as confidential informants tell me tell you the fact that they were targeted with violence after they were on that arrest we could have been targeted of violence without that being made known and you can see that the only reason they were targeted for violence was that and  true but that's a factual question in our mind for the jury to determine the speculation it is saying this report was written they were targeted for violence therefore this report had a cause it's not enough i think it's inferential but if we turn to the record which is eight hundred fifty three were i'm asking questions at this deposition about the report and i say here on july twenty fourth two thousand and twelve you submitted a report this is to write fernandes by the way containing the name of my client's correct yes at this time my clients were still citizen informants answer yes ok and you didn't protect their identity in their report no and you told me before that there was something that you would do out of the goodness of the heart would be to protect their identity correct i said i do that sometimes yes and if you look at it but that doesn't mean anything to do with judge phase question which is how it where and there's a public good and as we cite to the cases that we don't know but once it was made a public record anyone could have requested that but that i don't understand that at all i mean i think that it is clear that there's no evidence that anybody s but even if somebody had made a public records act request for the police report i mean it's common practice to identify confidential informants in police reports because the public records act california public records act says that that information identifying a confidential informant can be redacted from a police report in response to a public records request and there may be people who need to know people who are reading the report who need to know who the confidential informant is like the d n a for example so even if somehow the language in the report could be interpreted as identifying these people as contra confidential informants and even if there were something in the record to suggest that anybody did made a public records act request for the police report isn't the answer that they would have gotten a redacted police report and that isn't the answer that police officers are allowed to name confidential informants in police reports now because of the provisions to that that protect against their disclosure and that's if they're confidential informants and they are being treat and as such with all of the protections attendant with being a confidential informant the circumstance what does that mean i mean the why wouldn't why why should we assume that if somebody had made a public records act request for this police report that there wouldn't have been a reduction but what we're saying here is that that's  irrelevant what's relevant is they put our client in a vehicle not being a confidential informant and calling to them putting them in that danger and risk and not protecting them or not caring to protect them whatsoever and then within a very short period of time they're after they're targeted with violence by someone yes you know usually in these cases you know the plaintiff is somebody who has got hurt or you know it's the family member of somebody who got killed didn't think it actually happened to your clients no and that's a good point one of the issues is they went into hiding soon thereafter right after july twenty sixth on july twenty seventh and so the question that we always had and we think that that's not dispositive we don't think that you have to wait until there's a death or there's a significant injury if someone's leaking your identity and making that public or the affirmative act here as well as that they're bringing these individuals who they destroy the confidential informant contract disclaiming the fact that they're confidential informants internally therefore not providing them with any of those benefits protection that confidential informants when they're putting them on the street in the most dangerous of situations that the deliberate indifference element is met when he throws out and destroys the confidential informant contract  your prove your point of view then if the police officer wrote a police report and i spoke with judge jones and judge and they were very helpful in our investigation and that's what it says that we help them and that's made a public record there could be dangerous characters out there who could be conceivably get that police report would we have a cause of action and because the police said we were helpful i think you would if they made you confidential informants and they did it that way why would it matter if they made me confidential form or not of the state danger of this merely putting your name in a police report that's the danger why does it matter what other status we're granted because if you're a confidential informant they're taking affirmative access versus voluntarily receiving this information they're placing you into the danger to begin with they're putting you into the meth bust the citizen in the example that you gave the citizens not being thrown into those situations on their own yes their reporting but the state isn't taking custody and control and putting them into those dangerous situations and this situation they cloaked citizens as confidential informants told them your confidential informant with a contract ripped up the contract didn't tell the informants and the informants were to infiltrate a very dangerous underbelly of the palm springs community based on the reasonable belief as a i that they were going to be very good at going to school i know you run out of time here with us back to my first question so what exactly is the harm you're complaining about is to be named in a police report is it being asked to be an informant is being asked to infiltrate the underbelly of palm springs i'm still trying to thank you if you have any further question think by your question you kind of hit the nail on the head in their brief they focus only on the one police report that was authored by ray fernandez on i believe july twenty sixth two thousand and twelve and  claim is that that particular brief somehow exposed the nichols as informants although admittedly and they had met at the brief did not say the nichols are acting as informants you're saying the reason the police report  me it did not identify the nichols as informants simply said i know the nichols their owners of this second hand shop i talk to them about items they bought from angela whiting and it's not unusual for rape just to have that relationship with the nichols because in two thousand and nine when she first met the nichols she was assigned as a police officer to oversee all the pawnshops all the second hand shops in the city of pop springs to make sure that they were complying with the law when they bought confidential informants with the understanding that there i didn't these would be protected pursuant to a confidential informant contract which was later is that the nichols have been acting as informants for according to them from the evidence four different police agencies and different officers since approximately two thousand and seven two thousand and eight they started acting as informants for the a it wasn't until two thousand and nine that they came into contact with ray fernandez who was i said in charge of pawn shops and second hand shops in the city of palm springs and that's how they developed the relationship and then they started recording to them providing her with information regarding stolen goods and the drug trade but they'd already been doing that for other agencies why is this is there any difference between the protection and which the palm springs police department about that that under the policy of his agency that he was working for at that time which was not the city of palm springs it was the coachella valley and our cox tax task force that they would protect any informant and that was the that and so it was a police report about the nichols they were not identified as confidential informants they were not used as confidential informants in that police operation they were the suspects in that operation and that is why their names were in the police report but like you said no one made a record request for that police report it went to the d a and i believe in two thousand and fourteen it went to mindy nichols and those are the only people who requested the report and received the repor would be speculation but i'm presumably if there were informants named to the report that i didn't find information would be taken out but there was no general public records act request for that police report no one who has ever threaten the nichols ever said oh i saw this police report and i read it and i'm presuming that you guys must be informants that's all speculation there's no evidence of that i ask you a question about this affirmative act business discussion that has me a little confused discussion that in the briefs in this discussion of the sixth circuit case in the eighth circuit case you know i'm going to try to state what i think the test is and i want to know if you agree or disagree with this so i think with respect to confidential informants it's not enough to give rise to a state created danger claim merely to sign somebody up as a confidential informant the police must sign somebody up as a confidential informant and m during the course of their dealings with that person be deliberately indifferent to a risk to that person that is more specific and more immediate perhaps then the general risk associated with being a confidential informant do you agree with that statement yes and that that i believe is what the gatlin case and the soon our case held and then there's the deal case and then but lee if i could just follow up real quick so then there's this discussion of affirmative act and i'm i guess i'm having trouble understanding where this affirmative act concept fits into the framework that we just agreed exists because if you sign it like let's say let me i pathetically let's say that used the police and somebody on to be a confidential informant ok and then they're up on a wire and they hear on the wire that there lying in wait at the informant's apartment and they plan to kill the informant when he gets back to the apartment and let's say the police hear that on the wire and they don't call the informant to tell him don't go back to your apartment that would still i mean there's no quote unquote affirmative act right but that would still give rise to a state created danger claim what i mean i don't think and it's not at all the facts of this case but i'm just trying to understand the law and i i'm trying to understand what position you would take on it on the affirmative act issue as it relates to that the scenario that i just want to end it of course that has nothing to do with our case but in that facts are that you just gave the officers have specific information that would place the informants in danger at a specific location a specific time and perhaps because of those factors that would confidential informant not to go back to his apartment the officers have engaged in conduct that that reflects a deliberate indifference to a known and specific risk beyond the general risk of being a confidential informant and whether you want to call that a quote affirmative act unquote or omission or whatever they have engaged in conduct that reflects a deliberate in a difference to a specific risk that is more significant than the general risk of being a confidential informant fair correct that's fair ok that's and your argument in that is that there's nothing remotely like that in this case the suing for the sake of argument that they signed him up to be a confidential informant nothing that they did were nothing that they are no omission that they committed resulted in the plaintiff's experiencing a risk that was greater than the general risk   where where that came from there's no evidence that it arose from anything the nichols was exposed to by the palm springs police department there was evidence that the nichols had told at least nine other people that they were acting as informants they their children knew friends of their children new parents of the of the children's friends knew there was at least nine people out in the community but they specifically told that they were acting as informants prior to this july two thousand and twelve police report ever ever being written by ray sounds like they were really into being confidential informants well and in august of course they posted everything in their window about everything they'd done at that point they revealed everything you know they had text messages and you tube videos that they referenced and postings in their storefront window which they were advised by the police they should take down because it could expose them to danger in the end they did not do that so you referenced by the judge in his order by the district court judge there's no way of knowing if these people ever saw the declarations if they approve their content even after the objections no sign declarations were submitted as an afterthought so i think that that's not an abuse of discretion to exclude those unsigned question from the evidence and if there are no further questions i will submit thank you ddressing the point that my learned opposing counsel raised about there being no distinction between citizen informant and confidential informant i would point to the record at page a one seventy nine the deposition of ray fernandez where i was asked what about with respect to the identity of a confidential informant as part of your training did you understand that you had an obligation to maintain the confidentiality of a confidential informant answer is yes we go down in terms of how it would be rephrased on police reports it specifically says as a confidential informant or c i and not by a specific name later on page a one eighty three i asked the same question about a citizen informant i say we took question we talked about protecting the identity of confidential informants are you aware of any policy in place to protect the identity of a citizen informant at the palm springs police department answer there was no policy that was just that that was just incorrect the affirmative acts that we believe took place though and i agree there has to be an affirmative act kennedy states there needs to be some type of affirmative act and it deliberate indifference we postured postulate the deliberate indifference is when you destroy the contract and the affirmative acts and why i was getting to the course of conduct is that you have these individuals out there who you've ripped up the confidential informant contract you put them on the streets in the most dangerous situation the contract specifically say if it existed if it wasn't destroyed and we had it in this litigation the informant contract states the types of protections that they believed they were getting and they did not receive those protections and that's what happened and then going to page fifteen page fifteen of the order does not specifically address the timing in fact it references august and specifically states that it was after the fact was posting these videos on you tube what i have recommended that is there their lawyer no i would have been in the same malpractise case that preceded me potentially but no i would not have recommended that as their attorney they did it because they believe they were outed and now being prosecuted for stealing poky my cards