say could you before you get too far into the facts could you back up to the procedural posture of the appeal it my understanding is this is a qualified immunity appeal that's why we have you say we have jurisdiction  but we don't have any ruling from the district court on qualified immunity as i understand it on any of these claims so my question is should we send it back for ruling by the district court on qualified immunity on going our cases don't we usually say where we want to ruling from the district court st before we delve into these facts intensive cause i mean any cases it's unusual i also think that this six year long litigation  maybe you maybe it's been adequately pleaded as an affirmative defense it's in the case but i just wonder whether on the motion for summary judgment you've got to argue about qualified immunity by its terms and know genuine issues material fact what supports summary judgment in the absence not just the pleadings for the defendants on qualified immunity don't you think there'd be some obligation that alert the court to some of these facts  that it should not be re considered because there is qualified immunity but i understand what you're saying that it was in the motion to dismiss of the judges going back to square one you think you adequately raised  but you want to riginal it just on the ground that there was no adequately pleaded constitutional violation right the judge didn't get to qualify unity is to court or so you might have responded to the motion to reconsider by saying you were right the st time  immunity so if he was going to go back and reconsider that shouldn't he have ruled on qualified immunity before denying the motion so it is it is certainly the case that the proceed deral posher so to speak between these two orders is very different reason and i understand that here's here's what i have for you on that point number one the in the motion to reconsider that i filed i invited the defendants to to make an eat to raise any substantive defense qualified immunity as an alternative reason to deny the motion to reconsider were to sustain or maintain the dismissal of those claims and then there was a nd time after the court of buys the pardons that the motion to reconsider was being granted that would it we were in the run up to trial at that point the defendants then filed a motion to continue the trial citing that the granting of the motion to reconsider is the reason but never arguing that the reason that as a result of that granting the motion to reconsider they wanted to raise qualified immunity as a defense and one of that that legal defense heard so there was an opportunity to ask judge wines to weigh in are different but it's also the case that the plaintiffs filed a there were up to thirty men did at this point there so there is an original complaint filed pro se the the plaintiff amended in my office got involved was appointed on the case we've initially filed a nd amended complaint and then after some litigation the final complete which is the rd amended complaint filed in that we've already had the ruling on the motion to immunity defense raised in the affirmative defenses well let me ask you this though even as to the other claims you heard the language that i read to opposing counsel earlier at the district court said you know to the extent these are raised again by reference i'm going to deny them for the exact same reasons that i deny these privileges and immunities before isn't that and that is technically a decision at summary judgment on qualified immunity i would take issue with the construction your honor respectfully  we raised in our opposition to that there is it is a one line sense of course a shirker will say we raise in our opposition that that preserves nothing those are motions to dismiss to prior now superseded complain my reading of the courts rule ruling is not that for the same reasons i dismissed then i'm dismissing now my court's reading of the ruling is the way you presented it on summary judgment as preserved nothing for this cour review so it's a a waiver ruling not a procedural ruling not a substance i think that's very very that stretches that considerably maybe you can commit to me that the court also  mess perhaps i had have to pull and i don't know at the time i do remember certainly in the briefing discussion of you're obligated to come forward on summary judgment with with argument and facts the well he goes on to say the defendants failed to properly plead to defenses in their answer to the operative complaint and then he says in the briefing on the summary judgment motion they didn't offer anything related to their but in some respects that that's invited if you will by or is made possible by the fact that these these points weren't clearly raised by the defendants like they could have in which case i'd right now judge winds just has one  sentence that's not breached in fact in our opposition which is all of the summary judgment briefing is included and sometimes i know it's getting into the weeds on these things but when we're dealing with these perceived or real questions the timeline in the back and forth between the parties get another break for a reply brief at that point to the defendant's raise specifically qualified immunity make a finding back to release are you argued on the clear clear question of law no it's not it's not addressed at all  was it is less a question about jurisdiction or more a question of forfeiture waiver then do you think i mean at least the way at least the way i'm reading this to my mind it's still a question of jurisdiction i understand now this is my st ever eighty three case so i am off i apologize for not being the subject matter expert on it but my understanding of the case law on the point is that the question on an interlocutory appeal that it is jurisdictional of whether or not the the order raise is qualified you don't speak to qualified immunity that's a jurisdictional question not just a preservation question or waiver question and  language as having affirmatively did not qualified immunity no your honor my my position is to read the court's language that the courts position was that the defendant did not raise qualified immunity but you think it's still in the case so that at trial the defendants are preter raise qualified immunity that's a that's the stickier wicket so to speak your honor the question there's going to be whether or not the incorporation by reference of the legal arguments which is the only affirmative defense so to speak that has been pleaded is is sufficient i presume that they will be making that argument qualified immunity of course is both a bar to suit so to speak and muti from soup but also an immunity from liability and so to the extent i give you're trying to say it's a way for all time that i'm not currently authorized to concede that that is not  are none of those things are currently before your h you know on the the other reason that so of course i'm hesitant is as you always would be right to get into the merits when you know your lead in and frankly best argument is that we just don't have jurisdiction but i'd be remiss to at least not point point out a related concept here with respect to the all of the claims that are covered by the summary judgment order right which is another reason that this court will not have jurisdiction to take up in a lock tory appeal is if i'm qualified immunity if the decision tons not on a narrow question or it or a clear question of law but on disputed facts and of course at least with respect to the clear that on in a locked atory appeal that this court has no jurisdiction to take up decisions that turn on disputes of fact and so that is an independent reason why there is no jurisdiction at least with respect to those cl and then i would just make one point and then close of course if there are other questions i that's that's why i'm here but the the complain and the pleadings make take pains to  articulate for your honour's the substantive law the well established rules that apply in these circumstances and for each of the claims that was presented to the court and for each of the claims judge winds noted those those basic rules and then later found questions of fact on all of them with the exception of the again the motion to reconsider this just isn't a situation where we have a trial judge who is you know over his skis or refusing to engage in analysis that this court has found is you know can be problematic  reversal this is a situation i am not going to do it justice but i heard it best explained by chief justice roberts when he explained that a court does the best job interviews itself as the umpire in the baseball game so to speak in this situation on the on the orders that are before you the defendant simply did not chose not to throw out the qualified immunity pitch as a result of that judge why was never asked to make a call you know on those those on that defense and in that because of that there's nothing here for your honour's to review there are no other questions so the question for you as so we seem to be at least on affirmative defense is a little little more lenient on whether something has been repeatedly plat pleaded or repeatedly raised and so we have a case i don't you may not be familiar but it a body the general principle yes st union national bank vs picked it overseas for seventy seven after  where there was a failure to bring an affirmative defense up at one stage of the litigation we said look it's constructively pleaded why shouldn't we do that here where it was raised sort of repeatedly the district court sort of knew it was raised repeatedly and yeah they probably dropped the ball on summary judgment but this kind of seems like up a pick that type case well your honor i would say the reason that you wouldn't do it here is because there's no need for you to reach that issue defendants will be permitted have done enough to at least raise the issue given the posture of the tyrell the entire case and all the litigation that's happened to present that defense a trial is one for the trial judge to make and then ultimately perhaps be subject to review a seated this is the only opportunity we have was why he brought it on the market for appeal to avoid that burden of the now how we got this motion earlier we wouldn't had to file this in october appeal on the eve trial but we were left no choice why not appeal after the motion to dismiss when you squarely raised except for in count two in which it granted on different ground but the issue had been raised several times three separate times four and then we raised by ref so you raise the by reference even to the operative