the next case for argument is kooser v a docket ninety three thousand and eighty eight good morning thank you and i'd like to reserve three minutes and i'll try to monitor that on my own good morning judge hunter decision recognizing that a kansas sheriff is an arm of the state and the district court erred in failing to follow that nd published decision write it is an unpublished decision followed up shortly thereafter by a similar published decision in the land or decision  state and less the court would like to go a different direction i'd like to st start with the hunter decision and then proceed through lander and then that no one county so st with regard to the hunter decision in kansas there was an excessive force claim brought against and sheriff and his official capacity the district court found that the minimum immunity was appropriate at issue as a shield to this court this court was faced with an argument not that th amendment didn't apply but rather that a kansas statute had created a waiver of the th amendment immunity this court in a unpublished decision as your honor recognized rejected the waiver argument and affirmed the district court's judgment finding th amendment immunity was appropriate a different different inquiry in hunter it was specifically th amendment immunity and this court affirmed the judgment below two years later in the land or decision there was a kansas county attorney in which  amendment immunity on an official capacity claim was passed and this court in a published decision consistent with hunter found that th amendment immunity was appropriate we respect to this county attorney right as as we pointed out in our brief  of the relevant predicates of a county attorney and a district court judge in a county sheriff are exactly the same under the state law it's how they treat him the kind of like a three legged stool of the justice system and so they each have geographic limitations they each have funding that comes from a county and they reach created by the kansas constitution and their duties and obligations are derived and executed by and through state authority without regard to any local control over it and that's similar to the mcmillian decision that the u s supreme court had in one thousand nine hundred and seven kansas law is quite similar to alabama law in that case all of the factors that are relevant to the mt healthy analysis are exactly the same the sheriff in alabama much like in kansas and derives its power from the kansas constitution its duties are subject to kansas state law the funding is actually directed by the legislature in both alabama and kansas to come from the local effort and the obligation of the sheriff in both alabama and kansas is to enforce the law that the legislature has created it's important to realize that even without those cases that kansas law would suggest that this is an arm of the county offices and that campaigns you know of which is sheriff i do not believe that the statute ever describes the county or the sheriff as a county office rather what they're described as is as a sheriff and as this court recognized and sudden than in the name or label given to a particular entity doesn't matter the kansas supreme court specifically said that the sheriff is a state officer and so that's what's the political i think there's some confusion in the a confusion as to whether or not the kansas supreme court really showed that true well i don't believe there is any confusion with regard to that because the if you look at the new interstate court decision it says that it states the law i think the district court said well we think that the cancer supreme court erred in not identifying that this was an argument of counsel but if you read the neal and her decision at multiple points in that news new under state court decision it says counsel argues or a miki argues so the kansas supreme court was well aware of how to describe argument and apply state law the quote out of the briefs schnabel each of the parties positions i think it's consistent with judicial power to  take a correct statement of law whether it comes from the parties brief or fire case and if you look at the holding of the state court decision it reverses the judgment of the district court which would be consistent with respondents position in this case it actually said that the county commission has no power to direct the hiring and firing of the officer and no power to direct and control the budget obligation rather that power comes from the state of kansas but in other words the can the county sheriff is immune from local personnel and perches c functions wasn't a case about the sheriff's law enforcement it did it did your honor and i think that actually strengthens our point because the endor kansas law there is a difference of opinion as to whether or not the power to hire and fire is a power held by the sheriff or by the county in that case there was a better word a statutory tug of war as to whether or not that power resided within the county commission or with the sheriff and the kansas supreme court as you know unequivocally said that power lies solely with the sheriff here in contrast the power to create law enforcement power is exclusively within the sole dominion and control of the county sheriff and are there is no law that would suggest that the county commission has any ability to direct or control the law enforcement a ject of or progressives of the county sheriff so you would agree th particular function being performed by the sheriff is the relevant consideration not he it's possible for the sheriff to be a member of the state for some purposes and not for other purposes if you agree with that i would agree with that and i think that in some of the circuit courts across the country particular states law say that a sheriff is an armor is not an arm of the state but when the particular action at issue was acting pursuant to state law i think it was the th or the th circuit it's mentioned in my brief recognizes that share of the typically a county officer was acting as an arm of the state and so in this case i think that's relevant because what the sheriff was doing it was in acting the law enforcement functions that is in chapter nineteen article eight which derives exclusively from  the kansas legislature and so i think it's possible under kansas law that a county sheriff could beat engaging in non state action type of behavior i'm trying to give the court an  example maybe delivering i don't know of something that the county commission has asked to do ask the sheriff to do in the sheriff voluntarily does that i think i think that's possible it's just far afield from what we have here because what we have here is a county sheriff executing the law enforcement product of but exclusively comes from the kansas legislature and the county commission has no power to director control those progressives so so that's a long winded answer your question i'm sorry i  the other ne later case involving the county attorney why should the sheriff be equal weight it to the county attorney for purposes of the issue here i mean after all the candy attorney  appears in court in at least in criminal cases on behalf of the state why would that carry over to the sheriff i think for the same reasons that you have to do the same amount  analysis and look how the county attorney is described by the state the difference between a county sheriff and i can e attorney their power is derived from the same mechanisms they are so equally immune from local control  i think as we pointed out in our reply brief oddly enough the county attorney which still has the name county in its label is directed by the state legislature to represent the county in court so there are functions that the kansas legislature has chosen to give to the county attorney but it's clear that the county attorney exist in and respond solely to the direction and control of the kansas legislature much as a kansas district court judge presides over their particular judicial district but the county has no ability to restrict that budget and in fact as we pointed out our brief if the sheriff has insufficient funds to destroy the state obligation it has a right to file i mean the amos action and that's an important function under kansas law because a judicial order to undertake and nondiscretionary duty if for example the county commission could restrict or limit the types of powers that a sheriff would have it would have an ability to function with the budget but it doesn't and it has a duty from the legislature to fund the office that the legislature creates to do the job that the legislature creates it doesn't have an ability to say hey you want to do eight officers out on the street to enforce a particular law we don't think that's appropriate rather the sheriff gets to make that determination so i i think that's the answer is that everything comes back to the kansas legislature and that's why this court was correct in kneeling under with regard to a county attorney and that's consistent with honor and all of it's consistent with the supreme court's decision in the millions so i don't think there's any daylight between any of that type of behavior and that the funding mechanism and the geographic limitations and things like that were all discussed in justice r morning may it please the court my name is dan twenty and i represent the plaintiff in the epically in this matter i want to talk about the cases that appellant relies on to contend that this issue's already been decided which as we argue in our brief is not the case but before i dive into that i want to as a starting point just remind the court of what the purpose of the th amendment is is to protect the state treasury from being at risk in federal court is to protect the state from money damages so in some ways that begs the question here for this court to follow the money so to speak which i think is a useful thing to keep in mind because here in this case any judgment you can share of k is going to be paid by the county of county funds and there's no suggestion otherwise and that's quite different than the mcmillian case where the alabama supreme court had already decided that issue and concluded that any judgment against a sheriff or a sheriff's officer would be paid by the state so that with that as background to talk about the cases that  appellant principally relies on starting with the hunter case as judge telling notes it's a nonpresidential unpublished decision in which the court did not actually engage in any of the factors to be applied either later identified by the steadfast court or identified by the mount healthy supreme court case and so it has very little persuasive value for that reason alone secondly the issue that was actually very briefly addressed was only whether the state of kansas had waived th amendment immunity the court in no way addressed the question of whether in fact the sheriff was entitle th amendment all those reasons hunter is not of significant persuasive value here and certainly is not binding on this court concerned with this as counsel recognize its concern with this sort of statutory fight over who gets to make hiring and firing decisions at the county level is that the county sheriff has the county board of commissioners the court was not in any way trying to decide the issue that's present here which is was the sheriff acting as an arm of the state in making employment decisions and in making purchasing decisions it was a much different question that was actually presented  in addition to that as to kelly pointed out you know there's this passage in the new energy system that the district court here questioned whether that was actually the court's holding or  nat and so that there's that potential issue with the lender as well but perhaps more importantly the land or even if it were to be considered as addressing the issue of whether the sheriff was an arm of the state is actually in harmony with the with the position that we advocate here because all the land are held was that a sheriff and a county board of commissioners stand in equal footing to each other and might i'm sorry they're equal to one another they're co equals operating within the county and so the board of commissioners can't tell the county sheriff here's what you have to hire and here's who you have to fire instead both the board of commissioners and the sheriff have certain authority that was created by state statute and all that in the land it was doing was parsing out who has the authority to make the particular decision at issue there here we're not disputing the fact that the sheriff's office the sheriff himself was created as an active from the state legislature but that alone doesn't answer the question as to whether the sheriff in this case which involves law enforcement policy and practice it's essentially mon el claim whether in this case the sheriff was acting as an arm of the state and clearly went once you apply the steadfast factors the sheriff was not other new lander decision the republic can a decision that this court in which this court held that kansas county attorneys were entitled to th m m m unity also doesn't control our case here today for a couple reasons one that statement was clearly indicates the court specifically says that it was not an issue that it would raise below that goes out of its way to comment on application of the th amendment to county attorney nd the court did not apply either the steadfast factors or the mount healthy factors whatever you want to call them so there's no actual engagement in in the question that's before the court here and rd the three and seven hundred and two they specifically refer to the county attorneys as acting on behalf of the state and on behalf of the people of kansas statutes that authorize to the sheriff acting on behalf of the people or on behalf of the state in any manner whatsoever so even if this court were to you consider new lender versus republican is having address the issue the statutory scheme is very different in that case than in this case and finally with regard to the mcmillian supreme court decision alabama constitution  and at the time the alabama supreme court cases that were in front of the supreme court were quite different than what we have here alabama constitution expressly says that a sheriff is  individual within the executive branch of the state and also at the time the alabama supreme court had expressly held that any judgment against the sheriff would be paid by the state and not by the county and so again that case is not the same as we have here out that your honors just to hit upon a couple of points that are bandied about in the briefs the briefs go into quite a bit of detail about do the steadfast factors control does mount healthy control i think at the end of the day the steadfast court set forth a very clear four part test that should govern this court's analysis here but it's all a little bit of a moot point because even in appellants opening brief they ultimately have page twenty three say there are four factors and they refer to them as the start of an tractors but we really end up at the same i think it is just the circuit court applying mt healthy and articulating ways to understand mt healthy for the district courts here in the th circuit i don't think that it's deviating from mt healthy in any way it is your position that steadfast factors d are exclusive or could we consider other factors beyond the four listed in the case i suppose in theory this court could consider other factors that were consistent with what  supreme court in mount healthy had identified as the kinds of things that control these decisions but as we sit here today those are the only four factors that this court has identified and that are in play right  now how does all of the money th amendment area how does that fit into these actors if at all well i think very expressly stedfast the rd that the rd factor expressly says let's talk about how involved you know the checks and that the pay checks that the deputies get they don't say the state of kansas they say you know a county or every county sheriff's office the state in no way is funding the operations  v county's law enforcement and and i think it also is illustrate of your honor that any judgment this case against share of gay would be paid out of county funds and not out of state funds and there's no suggestion otherwise that the state would be responsible for any judgment in this case so the state treasury is not at risk in any manner whatsoever here which again is really at the heart of what the th amendment is concerned about in the st place it's the taxes i don't think so you know who's a state agency excuse me i'm sorry to spoken over you i don't think it is significant because that the question is really does the sheriff get his money from a local source or from a state source it's not whether the sheriff has some sort of independent taxing ability because otherwise only an actor that has some sort of taxing authority would be arm of the state which is not the case and here the sheriff doesn't fact receives funding from the county not from the state the state is not funding the sheriff in any manner whatsoever so  that was going to previously referred to the question that rose in the briefs regarding which party has the burden on these issues and it's our position that the burden and the application deal th amendment clearly falls to  the sheriff in this case every circuit court to address that issue has so held and there's no contrary appellate court already on that point the case that cited in the reply brief by the defendant is really bears the burden on that issue and that of course makes sense but that's not our case here here we're talking about the application of the th amendment in the st instance lastly your honors i would touch upon a couple of the other steadfast factors one being the autonomy of share of gay again share of gay has a complete autonomy to operate law enforcement policies within harvey county there's no suggestion that the state is managing or otherwise interfering with that autonomy so with regard to the conduct at issue here which is policies regarding the use of force  as his own boss on that there's no question about the state is not controlling that and the last factor in steadfast is the question of whether the defendant's focus of concern is primarily local or state in nature and here again sheriff k is a county sheriff the authorizing statute authorizes him to enforce the peace in the county in harvey county and he is not authorized ends at the border and so share very brave i'm sorry sheriff gay is not concerned and has no jurisdiction east west north or south of harvey county's concerns are solely with regard to be county  if there are no more questions we would urge that the court affirmed the decision  create a th factor and i think that was tying into judge kelly the funding mechanism as to whether or not the office of sheriff can taxes or set bond so issue bonds or raise revenue on their own and  i think that is a factor that would be relevant the nd thing is i would chafe a little bit at the notion that the th amendment is anything other than a right of sovereignty to prevent litigants from paling a sovereign into the federal court system and so i think that's been recognized repeatedly by this court another point i would like to make is that justice rehnquist in mcmillian versus monroe county recognized that the fact that the state doesn't pay for the ultimate judgment rather that it's the count obligated to ensure so that the state doesn't have to is not a factor that would suggest anything but a state actor it's just an incidence of state government how the state provinces have chosen to do a number of three or four i think the federal new lander decision i think there was a reference to the fact that that th amendment discussion was pure dicta to the contrary th amendment jurist is jurisdictional and there was an official capacity claim that it appears the district court did not resolve and so this  and i think that it's all my points if the court has any question that i'd be happy to talk about them but otherwise thank you donna but thank you for your arguments the case is submitted council are excused and the court will stand in recess until eight thirty in the morning and i think we call you judge mathis down here in a couple of m