injury we got out there right away and found out that the fans had not been maintained now fences in rural areas prevent serious injury and we're talking today about qualified immunity in a metaphorical fences it's an important doctrine it's a robust doctrine it protects legitimate police functions fences or rules and without rules for qualified immunity  qualified immunity bullshit on the row they can harm innocence and they can damage constitutional rights rule number one qualified immunity is only for police work for to protect their discretionary functions and l reverses hollowing us us us supreme court said that the central purpose of qualified immunity was quote to protect them from undue interference with their duties that furthers no public interest now in this case trooper robins his own words said that the stop was a joke between friends on the harassment he said situations you don't have that here and you and you don't need qualified immunity to protect an officer from personally for patients and any legal steps and let me let me see if i understand what e there's no qualified immunity here because it wasn't a police function that's what i'm saying judge and that's what you've said that's what this court has said in the st well when not if we don't go there can we go back to the requirements that judge garzon has just  that is what what is what is your violation of constitutional law and what clearly established law do you have to support good question the violation of constitutional law with a traffic of traffic stop law that says that you cannot pull somebody over unless you have reasonable articulable suspicion and that's pretty clear in the law as far as a sexual harassment the heights said the hope decision shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts thanks now the trial court in this case found that the stop violated the th amendment the that he thought that she consented and she didn't respond to the last text message or put that in the brief and she goes somewhere else does her business and comes back two hours later you're honest two hours later on a different road on a different location and she's scared to death because the officer turns on his life he's a motorist you have to pull over she can't just ignore flashing lights and then  said she was quote creeped out when he showed up how do you know where she was she says she is a single woman single mother at home with three children she's going home and this officer pulls her over for no reason great if you polio her i mean it seems to me at best the text string establishes that she didn't respond to him saying i'm going to pull you over she didn't respond you are absolutely right every women every woman will be a greater risk for harassment and abuse and worse and it in genders great disrespect for the law it was it isn't your position that what we have to  thank the on the on the traffic stop  let me let me focus since we're almost out of time i want to focus sexual harassment elp side of the tracks so if you have two state employees we're going to do all this together be especially if the the the state knew about it and tolerated it that certainly would be well i'm not talking about that i'm talking about just that would be for  a offensive work environment hostile work environment but i think our cases indicate that if it's just one employee arrests in another there's not a violation unless there's some sort of supervisory relationship rights and so it's a matter so what what's essential here it seems to me is that there be some sort of extra power extra fardy conferred on the harasser by state law and that would be the case with the traffic stop but i don't understand how it is with the other activity that you consider sexual harassment he's not acting in that circumstance that harassment he's not acting as a police officer with law enforcement he's acting as a contractor it's to people who are who are once a provider of services someone's a purchaser of surf and that's their relationship there and i'm not aware of any cases saying maybe you can help me on this saying that that provides the power imbalance that can justify that can support a constitutional cla any cases where the authority is that conflict by contract every case i saw all was either a supervisor of the employee or someone who had law enforcement power could deny a license or something like that awesome person martin you have any cases in which the relationship involved is a contract relationship well i'm not quite sure what you outrageous you have sewage nurse constitutional violations ought not to shield their behavior behind qualified immunity simply because another official has not previously had the audacity to commit a similar transgression and that's what we've got here in that case they haul some little girl into an office at school and try to persuade her to switch custody you know and there were no cases and i would just close by saying one more thing as you sat in bon robin's first begin by noting that this is labor's burden to show that the law was clearly established and if i understood counsel a moment ago said conceded that it was not enough for some and justice to the psych case law saying you have to have probable cause to initiate a traffic stop  said that's not enough that's exactly what he gave the district court he just gave general hornbook principles about probable cause to initiate a traffic stop that's what he's done now on appeal we submit that he's failed to meet his heavy burden to show that the law place that they have talked about potentially is doing that and he's pulling her over without reasonable suspicion probable cause or anything well with that a flat out th amendment violation well as the district she says come for me over a reasonable officer if it would not be obvious there's no case putting that officer on notice that he could not pull her over in response to a direct request an explicit request please call me over i want to see it let's say she says  that what we're saying here is that the facts are that far removed she may will rest on the conversation but it just of lee she concedes the text messages for themselves that they speak they say what they say and that is he says i'll come she says i have a document he says can you give me the documents she's a stand by him on the freeway use of a polio over she gives him the mile marker number she tells her what color car she is and critically the next day he says i thought you were sort me for pulling you over and she says no i think in the context of all these circumstances she consented to the end result officer would have seen that is consent or over and most importantly there is not a case putting this beyond debate that every reasonable officer in the text messages that he can pull or well i think that objective late there's enough that any any mistake in how that was interpreted as a reasonable mistake and qualified immunity should apply ok well you're not you're dodging my question  right right and so would you agree with me that at best she was silent about whether he could pull her over or not whether she agreed that that was ok well she could have not responded at all but she did she gave him oh mark a number well i think it's consistent and i think it shows what she was sick of the day before it's a detective record of what she was thinking i mean a reasonable jury could determine that her statements from the next day were an attempt to try to get him to leave her alone and not you know continue pestering her if she just said no i'm not mad whereas if she said yeah i'm pretty mad about it then he might have made attempts to contact her to make a man's yes gets a script and the judge in fact it specifically held that he held that there was a concept that a reasonable juror the jury could conclude that there was a st amendment  th amendment violation but that's a different question of whether qualified immunity applies because qualified immunity applies if the law does not put him on notice so if we had agreed if we find if we if we conclude as a court that there was no consent the jews that at best there's a fact issue as to consent do you agree there's no qualified immunity no because even if they're well if you're going to go into the facts and construe these text messages even if a jury might conclude otherwise but could could or reason mistake happened such that this appears to be consent i think that's all we need to get to qualified immunity is really what you want us to make that germany and soon as a matter of law and not look at look at it and say wow this seems tied up with facts here i well meaning whether and i think more to the point is that even if pull over without reasonable suspicion well yes but he also knows that the supreme court has said that consent consensual encounters do not implicate the th amendment that's a that's an equally valid pillar of the law you have you have numerous statements by the supreme court in this circuit consent does not implicate the th amendment so here he is faced with a parent consent and you have this other form of principles that you need probable cause to put if it most favorable to labor could find a violation or not we're not disputing that let me ask a question i thought you were arguing that this was a prank and it's not clearly established that prank can't be a violation or is it sector those types of prank could be a violation but you're not arguing that we're not arguing you're not arguing they're sort of that the that engage in those three cases on appeal she didn't even take the district court to task and say well here's why this case applies but this one doesn't just so we believe that she's failed completely to meet her to persuasion i appeal by not in paging with the district court but the ones to decide that but what we're saying is what if the jury is the one that we decide that well well i think let me try to phrase it this way judge when you have text messages that on their face objective of objective  lee give implied consent that basically on their face the objective lee could be reasonably mistaken as consent coupled with the fact that there is not existing case law saying that consent never factors into the equation what we're saying is that given both of those there that this is not it's not opt doesn't there's not there's the st moment surely similar circumstances and there's no obvious clarity if there's no case law that applies obvious clarity to this situation that courts can also make a decision on reasonable this too and that these text messages speak for themselves and that we're faced with these text messages in our going back and forth this is not just something out of the blue this is after the st ride along which after she saying that there's the he was not acting under color of law in any of this and therefore section one hundred and three doesn't apply i mean i'm not sure exactly what point he's stipulating to in that regard he was acting under color of law that's what they allege of the complaint lights you initiate a traffic stop yes and i guess i just sort of wonder how there could ever be consensus and that the i understand it about if a police officer walks up to someone on his green and starts talking to them but that could be a consensual encounter encounter but i tropics not seems remarkably different to me and i'm not sure that it's consistent that consent is consistent with a traffic stop i mean i don't know  an express statement by the person being pulled over yeah bowled me over and i'm still much still not convinced and it's certainly not proper policing standpoint well in the district court agreed with you your honor th a court said i don't think you i don't think you could ever really consent to a traffic stop but it's a different question was it clearly established qualified d immunity question is a different question if there's pork were to rule d in this case then yes it would be beyond debate  demonstrated case law from this circuit or the supreme court that would but the issue beyond debate so that again that's a separate question you could you can have a constitutional violation but the law was not clearly established and so prospectively going forward everyone's on notice me still applies in this case because it was not clearly established at this time so we again we asked the court find that labor has not met her burden to show the law was clearly established the district court got it forth like this when there's no evidence from her asking him to stop no evidence that she expressed that it was unwelcome she never asked him to stop she never told him it was unwanted it was clearly a back and forth she was initiating as much contact as he was that case this case pales in comparison this is a text messages he hugged her one time but unlike the johnson case there's no sexual assault there's no asking for sexual favors in response to doing his job there's no evidence that he sabotage speak for themselves it was yes it was a whole lot of nonsense we're not revealing now and you know she asked for is out you're saying no no i'm not saying that but she didn't say stop she didn't she actually initiated much of the conversation she initiated some of the becomes a jury question as to who said what to whom and whether or not there was some kind of on y relationship she consent so all of this and we're here on qualified immunity which to me seems like bit of a stretch for this kind of a claim well again what the what case put off the robins i noticed that this back and forth was unconstitutional in this context and again we say there d is none just a court said there was none and labor cases submitted thank you both