the morning may please the court my name is john white plate i represent corporal whitman and this appeal regarding qualified immunity in the context of the fourteenth  amendment we would submit that there is simply no king case that deals with the use of civilians in the context of responding to a nine one one call much less the contours of that case law and so we would submit that because this court is silent on those specific factual issues not only is this court silent but the entire federal  system is silent on the use of civilians within the context of nine one one call that this necessarily dictates that the contours could not be clearly established for purposes of the fourteenth amendment due process why is it have to are i believe that it's not sufficient for for example to rely on the general principle of state created danger particularly because if you look at the specifics of those cases for example  kennedy was really a matter of a promise to protect the individual and so the manner in which the danger was created was completely different if you look at for example would versus austra that case was also completely different in terms of an abandonment issue so that the danger in creation was it was abandoning this woman in a high crime area those facts are simply not present here didn't this officer by his request to the guns placed him in significant danger as alleging the full story as ledger on or that the fact is is those are omissions and whether the creation of the danger is based on omissions as opposed to simply asking them to check on a neighbor what case provides the contoured judge wardlaw said where is there where is the requirement that the case has to be on all fours we would submit there's not even on what language a reasonable officer think that this was a lawful thing to do under the when the call is you know the call is i need help i voice that's the way it's represented help help and the other allegation and then it's not related that that that that represented is not related to the guns when they caught one when your officer calls the guns officer somehow knew that there was some danger involved and why would an officer ask neighbor to go over and investigate anyway what i mean tell me about that i mean is it common practice in  call a neighbor to check on your neighbor it's not in the allegation but your honor just for by way of background this particular officer was several hours away and there was no one else around and so he was attempting to gather additional information and now we disagree with the what the underlying allegations but for purposes of a review it will be six that to be considered as true and so that the officer says check on the neighbor isn't necessarily under the allegations isn't necessarily somehow putting them at danger simply because there's no allegations he knew that there was a drug deal going on or there's a third party reason that maybe the guns might not of acted as they did he represented the foo as he relayed the fool message to the guns they may not have gone over that he the husband may have walked up to the door with the full story and we would submit that since that is an omission there's really no case law that says the officer has to say everything to invoking some means of having a civilian check on a neighbor to say oh by the way here's all the information you decide whether you want to do it or not their job your honor while we disagree with the allegations that a lot of the allegations that we're dealing with ok which particular ones in terms of the fact that the officer it is claimed that the officer asked the plaintiffs to check on the and the matter is stayed in the district court as well and it's going on the concurrent state matter it was dismissed by way of summary judgment and they're now currently on appeal as well in favor of defen are it's simply a matter of the more difficult i think question comes from where the the guns are asking this court is to proclaim that it's an obvious violation of the constitution and we would submit that even in the cases in which this court other circuits have looked at the contours of what makes it obvious there's something there in terms of factually that does place it on good morning your honors me please the court my name is benjamin means i'm counsel for james a normal gun point is an apple ease in this matter as mr whitely indicated the question before this court is whether in a nutshell preexisting law provided fair warning to corporal whitman that his conduct in asking the guns to respond to a nine one one call where the caller was whispering for help where the caller was subsequently and reachable and where corpora whitman was informed by the c h p dispatchers who took the call that the dispatch was of the opinion that the caller was trying to avoid being heard whether sending civilians to respond to that call under those facts was a denial of their fourteen the moment writes a substantive due process appellant in this matter have in essence argued that because there is no case before the court that deals with the exact factual predicate in this case utilizing civilians to respond to a dangerous and i'm on one call that this court should grant no excuse me this court should find a qualified immunity a pluggable that with respect is not the standard that this court has indicated applies in qualified immunity cases the question as in essence whether there would have been fair warning not whether an exact factual predicate exists which cases would have given this officer fair warning now by doing what he did here he would have known it is actions violated the constitution your honor i think first and foremost the wood case from the circuit would and that being from the wood case officer excuse me corporal whitman should have known that inserting a civilian into a situation a high crime area so to speak without with conscious disregard excuse me deliberate indifference for that citizens well being should have warned him that doing in essence the same i would submit that there is no constitutionally significant difference between sending someone to a high crime area and leaving individual in a high crime area so first from would the that's discernible second the grub's case  also i think provides fair warning to corporal and that his conduct was impermissible in that case as corporal excuse me in that case the issue there was whether or not the employee of the state prison a nurse there was properly advised the dangers that she faced being exposed to an inmate with a violent past one of the issues in that case was whether that person was properly l w was properly informed the dangers one of the allegations in the instant case is that the guns were not that they were in essence given misrepresentations of the nature of the call they were told it was weather related and likely no big deal to paraphrase what  corporal whitman stated so for those reasons what case law from both woods and grubs and established also in in kennedy this court has indicated that an officer has the body of law to inform him or her that inserting an individual through affirmative conduct into a situation more dangerous than they left her or him is a violation of that citizen substantive process  amiss just just go check and call me back i don't know i think it depends on the facts known to the officer and here it's alleged specifically that the officer is of where facts that would to an ordinary reasonable officer fact that she tried to call back you know she couldn't reach the caller and and then the second question is if she dead can animation be deliberate the question i think to paraphrase what just as it was was indicating and to the second point the omission of not giving the guns the sufficient facts to evaluate whether or not they chose to as promised in the mission and kennedy failing to inform the kennedys of the fact that officer shields in that matter had in fact contacted their neber about whom the kennedys had complained the court in kennedy and in grubb's both found that that conduct significant both defined deliberate indifference not officers part and deny qualified immunity but i think as well your honor it's important to not lose the verbal forest for the trees this conduct plaintiffs do indeed allege is so outrageous is so obvious a danger that without the body of law from excuse me from woods to grubb's to monger to kennedy that this should have been extremely apparent to  corporal whitman that what he was doing was exactly what the court in all of those cases has proved previously indicated is improper and that is the fact is clearly explaining kennedy that it is beyond dispute that since september one thousand nine hundred eight that state officials could be held liable where they affirmatively and with deliberate indifference placed an individual in danger she would not otherwise have faced there is no clear example of placing an individual in danger that they would not otherwise have faced to send an individual to a crime scene one issue that mr white fleet raised in his comments to the court just now was the question of what was foreseeable what would the officer have been required to know and what the court require the officer to know under when evaluating a question the question of qualified immunity in each of these cases starting with wood it was not required by this court or any  for the officer to have omniscience about the harm that was being faced it was not a foregone conclusion that woods would be raped when she was left in a high crime area nor was a foregone conclusion that l w would be raped by the inmate it was simply a scenario where the officers conduct place to those individuals in a situation where they were faced with it enhanced danger a high crime area so to speak that is exactly what has happened here we are sending the guns to respond to a nine one one call and the facts as alleged here that is in essence sending the guns to that high crime area and woods to the intimate involvement of violent inmate in grubb's and when into the house they had their throat slit they found christine who is the neighborhood called number one her boyfriend murdered they managed to escape fight off the governor and run away actually and to a neighbor store and get help the police as expected then responded there was a high speed car chase and thomas governor died in a vehicle impacting a tree as he was fleeing from from c h p  i think you're on or that the facts of this case make it such that there should have been fair warning there was fair warning such that corporal in should have known that his conduct was improper too though it's not an issue that was raised in the pleading your honor indicated some questions about what is a practice in trinity county i think it bears noting for example that this is not the first instance where this is happened there but prior the distinction here is plaintiff's are many are saying that there should be some basis for this court to say well merely checking on the neighbor is enough and to establish that that should be obvious you don't ask a civilian to check on a neighbor instead what they're saying is you don't check on that ask the civilian to check on the neighbor and omit information and the reason that the i think the obvious thing is that if they get a potentially dangerous situation existed which it sounds like it did from the facts that were amended they wouldn't have gone over there they would invoke subset of liberty due process or not or is it you know there are places that they were to their safe home right there at home when they get this call correct there in their home they're in a place of safety right well presumably well they're in there on my i mean you know let's be honest about it they're in their home and i get this call go check on your neighbor might not be important i might be a miner my phone might be down because security could be endangered if you go over there possibly possibly not merely having whispered in a call hang up when the allegations are that it could be weather related ness and necessarily invoke a dangerous situation otherwise were  engaging in twenty twenty hindsight we would submit that because plaintiffs are looking at woods are relying on woods the fact that the eleventh circuit in course in versus mcmillan that we cited in our opening brief page on a footnote one of the eleventh circuit essentially disagreed with would saying that the abandonment issue is not necessarily a constitutional violation we may disagree with the judgment of the officer we may not like that