thank you for reminding me that request would be gr all four of the appellant's appeal the denial of qualified immunity and miers in tory's appeal the question of the denial of a motion to dismiss based on personal jurisdiction as to the qualified immunity the clear case that is leading case is the eight ball case about which sets forth the pleading requirements this court dealt with this most recently in a different slightly different context one thousand nine hundred three but in the something i go vs warminster township case in which the court highest arguably the two highest law enforcement officials in this country and in that case i don't want to yield on that i think miers was at the same level as the f b i director so there's there's no distance between those two and the other for the other three torres was equally high in that washington headquarters i mean i guess my question is did did it all restate the law where did it all lessen the scope of the liability of supervisors for their acts which essentially involve to subordinates well as gentlemen i think it lessened the scope of it of supervisory liability as a general matter to the point where the court said don't only for their personal involvement and personal involvement in his direct participation where that's a direct participation on that equipment is the right thing and it says it can't be liable i supervised by reason of what's important to do if they take and questions well indeed the court talked about the fact that knowledge an act the essence was insufficient in the context of that case and then made one other juxtaposition of the arguments made by it all it all at one point said well knowledge and acquiescence is sufficient and the court said it at page nine hundred forty seven forty eight of believe in the context of that argument that or liability which is strictly vicarious and other kinds of liability that gets called supervisory but which involves knowledge and acquiescence or directing of subordinates to something problematic it paul says there's no such thing as respond yutz period or but the only comment makes about supervisory liability requiring more than knowledge and acquiescence is in the context of the specific bivins claim made there isn't it well that's why i like to say that that's that's a point of argument here but if you go just a few sentences earlier where the court is discussing the knowledge and acquiesce that there is no such thing as responding superior liability of supervisors well why would that why would the supreme court quote with a proof apparent approval done what versus monroe something that your opponents hit a few times  where the the a as the supreme court describes it and it's apparent that it will this is indeed in the same stone of the opinion that your throw line on that the federal officials liability will only result from his own legal act in not properly superintending the discharge of his support and studious that's cited by the supreme court as i said with apparent approval as a basis for someone to be held liable what what are we to make of that well i think it's yeah i think i think that's not if it's if that's what the court is saying there and i don't read it the same way i think what the court has been saying and nine criteria to make classifications or were in other words straight and and then they say well that's not going to be enough because in this case it takes purposeful discrimination for this kind of claim but want to focus on the piece i'm trying  goes through a series of cases it's as based on the rules of our precedents our presence established respondents correctly concedes that the government officials may not be held liable for unconstitutional calling it of their support it's under a theory of responding out superior they say and that's out the window and then they cite a series of cases one of which is done up versus mineral which has the parent that which i just read and which is quoted at various points in your opponent's briefing it's it seems to me that's an odd statement for the court to make because neglect of course is a tort theory which wouldn't be supported in abeyance action seems to me done by versus monroe which is a very old case here doesn't adequately state what the court is saying in this case in it all but let me let me move from that because it's all right let's move to another point without having a whole forum here on a ball that's moved to another point here appeal the i'm interested in whether or not the med complaint sufficiently pleads a constitutional violation and whether or not  bold decisions on those points would you address those questions yes so i think on a narrower basis in this case really only calls for the court to look at this now only the plaintiff start out with allegations against webern and rodrigues that  are virtually spare hour or nonexistent in terms of what they actually did wrong the only thing you know the key paragraphs in this case which it urged the court to look at a paragraph five of the second amended complaint paragraphs one thousand to twenty t twenty eight to thirty two and then the key paragraphs one forty four to one fifty two titled defendant supervisory responsibility and in those paragraphs one forty four one fifty two there are four paragraphs referring media or were knew about a media reports none of them media reports the statements that he would make of the media certainly are lawful that's part of his job description so there's nothing wrong there and storming a home we see it as trying to locate someone but if you look at page three seventy four of the joint appendix which has the article where that came on are you can see in that article it's not clear what he was responding to first of all when he said that number two he was just making a comment in relation to i suppose some question asked by the reporter but three days and few paragraphs earlier in that same article on page is three seventy three or three seventy four he stated we do these operations constitutionally are agents are trained in the constitution of what it requires in order to enter a house so they will know how haitian that's the allegations in the complaint though or that in fact that is how it's happening and that there are small not just one or two articles but multiple articles in the press in reflecting assertions that they're not following these procedures and that there's an inspector general's report from v h s there's a phone call from the mayor of a city in connecticut there's questioning before congressional committees there are multiple instances in which the supervisors  were put on notice that's the assertion and and and they are not in the range where you specifically cited but earlier in this very lengthy complaint they talk these various ways in which the four supervisors information was out there that they certainly had to know about that that's in essence the assertion what's so it's not in that respect i guess it's not like the attorney general ashcroft and director mueller they're saying here are specific instances where knowledge is being pushed toward these supervisors why why is that why should we view that as conclusory well the knowledge first of all none of this can knowledge actually works towards either weather or rodriguez because they were in new jersey only and most of the information regarding these press reports and so forth are either on outside the jurisdiction lawsuits or outside the jurisdiction where to the extent they are articles inside new jersey about conduct in new jersey ability i mean i think that's what i would be hearing from the other side as they would say you're making us prove our case at the pleading stage you know if they do is make it plausible well they're arguing that  will give you an additional five so with respect to that argument first of all again this is a nationwide program in which there are only a scattering of lawsuits some of which none of which welled up with a finding of any constitutional violation and one in fact the areas lawsuit in which miers and tories were dismissed number two the law much of the media reports ran total and they were certainly generally with respect to the program to act on a scattering of information but whether they are personally liable for the conduct of a scattering of suppose of alleged misconduct  which it's events we get but what there is a specific allegation that tora's i thought there was a specific allegation that he was told that he made a response you know if i could put my finger right no you're unsubstantiated allegation about something in connecticut that does not prove notice of any unconstitutional conduct in new jersey and therefore certainly shouldn't isn't plausible that that would give notice of any unconstitutional well contents of the ideas that whole system was out of control that was running while i was writing about about the same thing was happening in new jersey was happening and that happening all over the country and happens and that there were some notice that if you are aware of that on your supervisor you let it go should it be any difference under of the line i mean why should state officials be treated any differently than a federal official is your position that similar agents in the same or similar place repetitively in which and in the courts do not tolerate or at least give a cause of action in one nine hundred eighty three so if you wanted to say that there was some sort of parallel between the two and ivins you don't have the same or similar actors being accused of misconduct repeat it repetitively in the same jurisdiction with with respect to this conduct in fact we have allegations based on  well there is a goal obviously is not a quote it's it was something you hope to achieve a quota of maybe doubt if differently that if you don't or you don't manage the quota for some reason there may be some action taken in terms of your evaluation but girl is the word that's used throughout supervisors acted constitutionally they did what they were the taxpayers hired them to do in force the law so there's nothing illegal about that allegation in and of itself and not many of the statements point us make in their miers and tories were involved some of them were official capacity suits in which the individual defendants aren't sure of their served on the u s attorney so to say they have actual personal knowledge about such  correct it's conclusory to suggest that they have knowledge of unconstitutional conduct because we're dealing with allegations in the complaint again i'm over my time finish they're talking about and the same thing finished many of the newspaper reports were after either five to four or all of the actions in this case they all dealt many of them dealt with arrests didn't say anything about unconstitutional contact they just honor so we represent nine individuals primarily united states citizens a lawful residents who were subject to what the district court properly characterized as quote a strikingly similar pattern of forced entry and dragnet home frankly we have a discovery conference tomorrow with respect to the thirty one individual define the but with respect to the supervisory defendants we sue them under longstanding third circuit law for their personal involvement in these violations standing third circuit which you can hold the supervisor liable for the acts of subordinates if that supervisor acts with deliberate indifference in the stablish in imitating a policy that causes individuals harm or if the supervisor has knowledge and go through and tell us why did hearing before senator menendez is relevant here if as he says it occurred afterwards and why a phone call from the mayor in new haven is relevant to what's going on in new jersey if there's not information that there are problems in new jersey thank you your honor i would like to do that and i but i first want to put the knowledge and acquiescence allegations in the context of the policy which we also allege produce deliberate indifference because i think that's what also makes the knowledge an act without patience that much more plausible and so a judge count pointed out we allege that miers and tours adopt a policy requiring an eight hundred percent increase in the quota how does this policy create deliberate indifference the context of a home entry in an act and in fact in new jersey if you that you added the two teams there were a less arrests per team than there were before that but your honor each time the this policy created but it's clear from the publication of the report that julie myers had commented in the on the report and so therefore it must have occurred without assume that you can assume that the report was read before it was no she was she that she responds in the report and four of the raids but nevertheless as we as i've just explained she had participated in this report clearly before because it's published with her comments and that report tells her there's a fifty percent database an accuracy rate and there's insufficient train if she is that this is all ifs but i guess what you're what you're trying to persuade us is that evinces and is a method we're directing law enforcement policy that this is bad policy no your honor i individual lawsuits personal damages lawsuits by plaintiffs are the way to direct the united states government in its law enforcement policies that i know your are all bivins requires and this is the question of qualified immunity is is that law enforcement officers official do not act recklessly when they gauge and policies and so so now to get the knowledge and acquiescence allegations i think all of this these these policy decisions were reckless under canton and the carter case and member current carter that the court said off the train officers in their obligation to tell the truth on the stand may result ex ante and liability so in that to connect these two thoughts we believe that the policy as an act in produce a high degree of predictability of wrongdoing and what triggers liability here is that when the wrong doing actually occurs and the officers are weren't one and you tell us specifically how they were on notice yes your honor in a number of ways and these have this quantitative and qualitative component first there were a number of press reports including national  the cases involving the nine plaintiffs sciri main in this case involved illegal entries into their homes not the one place that we don't have to show that on the third circuit lawyer and we just have to show knowledge of a pattern so in addition to what i wrote about already what about distinguishable because in this case it is their own policy marching towards that they're implementing and so would be on notice about failures regarding that policy eroding the government the governor is just this is really respond yes we are he is just a high level official who immigration forum to to secretary chertoff that defendant miers answers then there is describing the exact same pattern of misconduct we allege then there is a couple of months later a letter from the congressional delegation of connecticut warning her again about barging into homes and treating children and women in appropriately and then there is the  second how can you attribute the misconduct in connecticut to the ice agents in new jersey because your honor it's a national policy there listen if you thought of other reasons there was nothing in that policy that came from either secretary chertoff or miss marr's or anyone else the other three defendants it said in carrying out this policy you should also burst through the doors whether you have consent to come in or not there was nothing that said that you're right or wrong and when they learned that that was happening that was when they learned not it in connecticut i learned about her all over the country from the same command and control structure if i am a supervisor and i have a policy that that as a result of my decision harms people in california in the exact same policy would affect people in new jersey i i i'm on notice i don't want to see the connection between i don't see the connection between policy no i'll acknowledge i agree with you that somebody ice develop the policy and the connection between policy and illegal conduct by ice agents and when i say agent goes on the side you know what we didn't get a yes come on and we're going in anyway that's illegal conduct i agree your honor and i think that but we have alleged that they produced an incentive structure that that created a high degree of predictability of wrongdoing and then the predictability came to fruition and they were warned about it over and over and over again i so it comes down to would you agree that to be to be plausible that they knew there was a problem in new jersey it has to be the case that you you have to have alleged sufficient facts to show they these people knew what was going on jersey right we have to allege sufficient facts taking all reasonable inferences in favor of the  how can we make the leap from that because you have a lot of f b i agents that occasionally do things which are improper but does that mean that every supervisor is responsible unless you have a situation where there's something where the supervisor is indorsing the conduct or approving the conduct in some way but the mere fact that you have some lower level officers who are gauging an unconstitutional activity or the legal standard here we don't have to show that they intended anyone to be harmed that we only have to show that they have knowledge of a prior pattern of misconduct and the knowledge sure goes directly to miers and or s from director responsible for the agent's conduct your it depends on the the level misconduct the level of knowledge and for pleading purposes we we have plates of sufficient facts to show that margin for us were on actual notice of a widespread pattern if i can add to this discussion that if they have actual notice does that mean that they that they intended that conduct to go through have happened they don't have to intend the conduct to have happened they merely have to have known that would happen and that it had some proximate cause logical to assume and therefore i think plausible to assume that when a supervisor is told of repeated misconduct they that that constitutes a official tolerance of that misconduct so for the pleading stage we think all of this notice nationwide you're saying so you're saying if there are press reports or contact from connecticut from texas from wherever that the conclusion knowledge i guess i'm going to have to ask you your your assertions about knowledge and acquiescence then you you say i guess you did mit that they are dependent upon the conclusion question was you have to understand the knowledge in the context of the policy which was if i remember your answer and i certainly know it from your briefing was highly likely to lead to abuses and yet you've got one has to accept that this was inherently a flawed policy write one doesn't your honor it just it just heightens the the idea that they were on knowledge because it was their policy and because of the possibility of the knowledge because it was their policy and because we believe it's but we also allege knowledge and acquiescence and i would think that the knowledge becomes more plausible because it was their own policy that they themselves and acted and they had acted in light of an o i g report that said there was insufficient training and high levels lobby involving supervisors and that's iqbal and you can argue what if paul says and it doesn't say how it applies and this is the fourth amendment case and that was a first amendment case and there are some differences but one thing that strikes me and it's part of the it's part of the supervisor's arguments on the request for qualified immunity is that it says on the one nine hundred forty nine absent vicarious liability each government official his or her title notwithstanding is only liable for his or her own misconduct now in reading that state determination unless supervisors are personally liable because of their own there because they're liable because of their own misconduct that they shouldn't be part of a case if they are to interfere requires the supervisors be liable for their own misconduct and it was dismissed in that case because there were no allegations of the state of mind required to state a claim for equal protection and that our circuit in our circuit the same in the case the vanko versus fisher the courts as we reject this argument in the context of make in the context of equal protection or one has to show a discriminatory state of mind it makes no sense that your argument absolutely your honor and that's an argument that six circuit courts of appeals have now accepted the first in supervisor liability still exists where a supervisor fails to meet his duty of care and in the third circuit that duty of care still turns on knowledge and acquiescence that you've you got to make it to your negative conclusion where plausible than the positive no i don't think so your honor i think that's very very important in order to evaluate the government's argument the defendant's argument we do not reports as only to plead our case not to prove that it's not a probability requirement so the fact that there may be an alternative explanation that is plausible does not defeat the plausibility of our claim and that in fact is the matrix decision decided unanimously by the supreme court two weeks ago we pried a twenty eight j letter on to that effect in that case nine justices thought the possibility even under heightened pleading standards that there were another plausible explanation for the defendant's conduct would not defeat the plausibility of and the matrix decision was a very narrow decision regarding securities law and i would ask the court to clearly read that decision regarding what was some sort of statistical significance sample of adverse reactions  do report which plaintiffs heavily rely on encourage the court to read it has nothing to do with does not say that there is inadequate training it states all the training that there is and makes only one suggestion that there be a refresher course for agen notes the amount of training the agents get in constitutional law etc with respect to these kinds of operations and that's the only comment made there so to the extent plaintiffs in their complaint their second amendment complaint allege things they allege things that actually support the lawfulness of the conduct here the policy is lawful they don't dispute that you know i g report nowhere states that these f o t a operations are conducted on constitutionally and makes no comment about that and then indeed as i said simply reinforces the statement with respect to the that there is a training on constitutional aspects of conduct in conducting these operations  i think the roady decision is an excellent decision with respect to what actually constitutes notes and notice and i would urge the court to note there are legislation oh complaints to various we were to agree with you and say these supervisors there's just not enough light at this time and that it had to be dismissed would that be a dismissal without prejudice since further information might emerge in the course of the litigation against the officers who are on the scene where we would have to be with prejudice i think following it what's what's the basis for saying with presence because it all makes it clear that plaintiffs have an obligation to plead when they fail to do that they are subject to a motion to dismiss and that's it in the case with respect to the supervisors we're not talking here about online agents and and if the basis for if the basis for rejection is the one you press which is these are conclusory allegations or is insufficient factual basis and they are able to develop a factual basis should they be permitted to to bring their claims i would say no and i think if paul following on harlow versus fitzgerald talks about the balance and the weighing they must go into having supervisors adequately do their job without fear of lawsuits and on the other hand the well or the other balance which is to allow individuals who are injured on some sort of remedy in this situation to allow i would argue the supervisory defendants to be dismissed without prejudice of that that he brought in again he rails or detracts from their ability to do their jobs as they're required to do and is on the side of the scales in which i think if boeing harlow versus  say courts ought to be very clear to protect the federal officials in these situations remember this is not a case where plaintiffs have no remedy the remedy they have an injunction action in fishel capacity and they have actions that are still proceeding against the line all one of the possible easy ways to look at this if i may is that if the court wanted to look at it in its simplest way webber and rodrigues the virtually no there are no allegations of notice for them tories and miers there's no personal jurisdiction for the reasons we set for this is a national program not enough to support personal jurisdiction and failure to act certainly shouldn't be a basis for