similar case that at twelve the six motion was brought it was before the court of appeals at three and the district court summary judgment proceeding was brought and the second annele said that the judge was free to depart under the law the opening brief it was in the pleadings before the district court as i said it's part of the record we admit the of the record in this case it's in the excerpts of record so from that standpoint the issue has been in place from the you're committed his crime to say that a inmate could not refuse parole further to this day this actually has been greatly changed that allows the board it's every valving process allows the board their arguments simply had no foundation that they were pleased that i can think of the term they used the second issue is this that if not for the underlying statutory distinction we certainly know that applying a later in act that statute the o r s one forty four to forty five's up three which wasn't in place in the time when ballinger committed this crime we know that applying that retroactive an ex post facto violation of the law if it increases that person's punishment and it clearly did that so we would argue under either looking at the statute the change in the statute and what question is could the board have given them him some time versus the balance of his sentence which they automatically did under the existing statutes even though they were in conflict with his issue of refusing parole they could have given my i think it was it was later changed the twelve months but at the time that they released him they could have given him six months and they did not do that as i said he did serve an additional one thousand eight hundred seventy one days i believe the record shows ye not fair to say that what the district court ruled on because reading the opinion there was no oral argument and there's no discussion in the opinion about that evidence that was presented it's a very perfunctory qualified immunity analysis with objectively reasonable for them to assert that they they could basically ignore what they knew about the state of the law and i think the appellee was asserting that there's a lower pearly or panel's decision earlier not second counts vision on that case really just focused on whether on the four corners of the complaint and whether qualified immunity could be determined based on the far corners of the line well that complaint motion and in one of those it was developed that there was a policy that that the pro part had a policy of ensuring that all inmates were were subject to some sort of parole and it was also alle he committed his crimes a reasonable board member could have believed that he never had a right to refuse parole that's a legal arguments to let me tell you why i'm having this trouble rule it's my problem you what the courts response to that is well that depends on what the law the state the law was at the time he committed his crimes and under those statutes our position is that it was unclear at the time they made this decision m the first place and so that's why the litigation in the oregon court of appeals in oregon supreme court shifted to that question well but if you offer a different explanation as to why it wasn't the denial that's clear right but in a qualified immunity an well what's important what was what would a reasonable officer spot at the time you know if you you were right i think if you look at the context in which these officers roll officers or for that matter speed up you know police officer on the street you look at the context of what was going on at the