of her to be tied up and raped having it occur she there was a report of the threat to do precisely what it is that occurred and the threat was conveyed to the defendants in this case who took that information and did nothing with it now the crux of why we're here to talk to you today is with regard to the operation of certain immunity as they relate to doing nothing with that information the at issue as well is the operation of r s m of two ten one one five which is a mandatory reporting statute that mandatory reporting statute does not create a civil cause of action however it has been held both by this court and by the western district court of case same case came up here three times and it went to the western district three times to basically establish and refine the law in missouri and deal with the the issue of an insurance policy as to and whether the the previous cases in terms of whether or not in the set of circumstances that we find ourselves in whether or not it is reasonable and in accordance with the established law for the plaintiff to be denied her day in court based upon those what claim are you referring to judge the obviously there's the i can't answer that question judge i wish i knew the answer and i can tell you obviously that would have been i wish i could stand here and tell you the answer the question was yes but i can't they were just sure that they i think it can make a difference on the constitutional issue because then it it's more state a state action the only problem with the and i'm pretty candid with every court i'm in front of and i think you're supposed to be but i just kind of got it in my nature to have a little extra helping of that but the issue i think which may create a problem with regard to the constitutional issue is that the program that they were and was not mandatory if it had been mandated by the school district then i think that i would be in even stronger position with regard to that but be that as it may they not a banding i claim it's just a fact that i recognize that is a that's a weakness in and are an issue in my mind how do you get around the discretionary problem with the immunity official immunity since the duty depends on reasonable cause ok i think judge simple thought well that and involves some discretion in determining whether there's enough cause excellently judge and when like some people the idea of thanking you for asking the question is very sincere on my part because it was a first point zero on my cheat sheet that i was get ready to go to let's hear it judge it boils down to this you can call an act you know in the act that we as humans do other than anything in our heart beat has an element of discretion and so if you want to you know if you go she you know it was a discretionary act to blow off your duty then you know what your right it is the marshal could go you know i think it looks good on the western front i'm going to go over here and  watch out the the windows and see how the cardinals are doing today he could blow off his job but they are not intimating that he would but you know if he did judge it would it wouldn't make that any more sion ery then these guys blowing off their job and here's what i think and this is what i would really like to see that this court do i think you read the language of the other opinions and i think what we need is there i think we need the distinction between in essence gross negligence and ordinary negligence there is a line because the said the case of splay really say judge that these are all fact specific so you know whenever you have discretionary versus ministerial and facts specific those are two things that you have to be real careful drawing bright lines on because those two concepts are themselves to a degree mutually exclusive so what i think we have to do is have a line and i wish our courts in missouri done a little better job of interpret ing arab law but i'm asking this court to to do what it is that i think that the cases would indicate should happen which is pronounced say a line which is there is a line at where it's minister ariel namely that you know you present those facts and go and and in this case the statute and go guess what if anybody out of that and i think it's whether or not and i think what what helps us is do you need to be an expert in your field to be able to make that determination  person of common and ordinary experience presented with those facts could make the decision that's ministerial if it requires professional expertise in order to make that judgment and whenever you discuss discuss or whatever has been discussed the  parents how much policymaking or professional expertise we're back into it they're the judgment the act involves and i don't know that a person can say in this circumstance that being told that a kid in a stretch and to tie somebody up and rape them i'm just not thinking the you've got to be dr phil sometimes it's discretionary but it tend to that i judge i think that the i think that the case is basically say that it is a case by case basis and any time you have to go through nature the duty policymaking and the consequences of withholding immunity those are factual determinations those are factual determinations and balancing but as to this particular statute that has the language of the person has reasonable cause to suspect and i think judge there the bugaboo in the language in that one is the term reasonable cause to suspect and there's where i think in my mind that's where our problem resides is the idea that we do not have a clear statement on the reasonable cause to suspect correct but i do think missouri law of course that case came out the other way under nebraska law so you're kind of fighting against on bach opinion there well i'm trying to get some back being with regard to nebraska law so you're saying but i'm not a serial the same decision we should construe missouri law differently than nebraska and that if as a matter of law there was reasonable cause then the act is ministerial right yeah and judge as i said because i think that the idea that you know just because you throw a phrase reasonable cause with that without a standard of what that phrase means then you know it's obviously well i didn't care  cause whenever the facts of it and in particular these are some fairly brief just facts are that if that doesn't if somebody telling you that they're going to do it in a fairly specific way who has had a history of prior assault salts and contacts of a sexual nature isn't enough to give you reasonable suspicion i'm a little short on what it is that that person's looking for but with that judge vs winnebago county not every try to g involving state actors is a contains a constitutional violation in the summer of two thousand and three plaintiff was sexually assaulted by a minor identified as the summer and the program that they were both participants and was a during school program further also the fact the records are the three to six months prior to the assault happening sh made a threat to the plaintiff that he was going to sexually assault her a third party became aware of that threat being made and within twenty four hours of getting that knowledge made that third party made a call to the child abuse hotline maintained by the missouri department of social services food show munity qualified immunity and the public duty doctrine under qualified immunity a doctor cannot be held liable unless the plaintiff makes a showing that there was a violation of a clearly established constitutional right into shany vs want to go county and the supreme court determined that a state actor does not have a generalized duty to prevent private violence some exceptions creating a duty to that have been where the state has control over the individual or where the the state actor took some action that caused or increased the risk of harm to the planet in this case none of those factors are are are pre by by the plaintiff mr miller's argued that the actions of the defendants in failing to make a call to the child abuse hotline increase the risk of danger to the planet but the evidence on the record shows that within twenty four hours of this threat being made a call was made to the child abuse hotline there's no evidence that additional halls would have changed anything so in essence it's sort of a moot point that even if if these individuals had made this phone and from that it was recommended that the boy get counseling but that doesn't the parker doesn't show that it happened and i don't believe that it and i would argue how specific it was he didn't give a specific time frame of when he was going to do it or that this was going to happen at the poll and in two weeks he made a general threat about how he was going to  did come out to be how he was going to conduct it but that didn't happen for three to six months down the road at a location not related to the the area where the threat was was made maybe i miss say to that you know certainly for his one thousand nine hundred three claim there's not a constitutional duty on these parties to notify the parents and i would say even under missouri law the basis that mr miller cited here is the bradley rate case which deals with psychologists getting knowledge of a specific threat to a specific person there's not a duty under missouri law placed on just general state actors and even if you were to say that there were some duty to warn the but what do you say to mr miller's argument that in under missouri law if the reasonable cause is obvious and that no reasonable person could conclude there was not reasonable cause then the duties ministerial i w gets his argument right i would say the missouri law is very clear that ministerial duties are type of duty that specifically described by statute of saying you know if a county court stamp something is being filed when somebody hands it to them there isn't that distinction isn't what exists under missouri law and the statute clearly asked for more than just a a ministerial duty under under missouri law where it is so bright line of just being things that are specifically described by statute there's nothing in the two ten one fifty five saying if you have a specific threat about a specific time then then you must report it's left up to the discretion of that of that actor so i would say that it surely isn't a statute imbuing the state actor with discretion i guess i want to address the official munity discussion that we're having one point i want to bring up is the legislature very easily could have said if there is any cause to suspect you duty to report instead it decided to use reasonable cause so in my mind legislature was making this a discretionary statute by using that language the legislature is well versed in statutory construction and drafting and i put that terminology and on purpose and frankly it's not unlike what a police officer would do which is undisputedly discretionary in this court which is making determinations about probable cause making determinations about reasonable suspicion these are things that my client a police officer does and that's the language that the statute uses and mr miller said well it doesn't have a specific definition and the reason is it is discretionary and that was the purpose of the statute the court made this arms  made discretionary on purpose it could have used a very specific language if there is any allegation that can be construed to be a threat you must report it doesn't say that it says reasonable cause it mirrors investigatory language involving not be protected by official munity there is no official media case in the surgery that would at that has adopted so this court would be adopting something new that changes the discretionary versus ministerial dichotomy it  is based on the language of the statute is not based on the facts of the case my recollection is there is a license issue case that mr solt discussed it's something that is in the statute if we were to do what mr miller discretionary versus ministerial so essentially get litigate the facts the first time to the term and what the extent of the duty is and that is not how any missouri case analyzes discretionary versus ministerial function they are all based on the language of the statute  and there's not been a single departure of that i'm aware of from that in this case reasonable cause clearly invites the person to make the discretionary determinations about the nature of the threat of child abuse and that is where the inquiry stops it doesn't stop go to the actual facts of the  to the general public as a whole that's already been decided by the case there for the public to the doctor and would prevent any common law negligence claims against my client oh or the other actors in this case that they had they have already held it's missouri law is owed to eat to the public as a whole so official minibars the claim to the doctor bars the claim and i don't think there's much dispute about those those two facts you know i find it interesting that the rush for shoes the so that which is inside and out of the rush version of senior citizens home district or a county can be so easily ignored i'm a little appalled around the edges that the state is taking the position just because we can say that it has to be that we have this reachable cause standard that that creates no standard at all that it's only in the officer's mind officer walks out here see somebody walking over by the shoot him well he had some reasonable cause to think that maybe the same person had same weight but can issue them no i mean this is we're not talking about arresting a person for jaywalking and i want to talk about one of the facts here because it did not get decided on the facts this austin symbol called of the child abuse hotline supposedly heard and left on an answering machine guess what they don't have one so they don't want to get to the facts