alleged in this case that a p a nd public schools created a danger by creating a series of affirmative acts that increase the risk that age and m j would be harmed by a  contact with with the hand and then before and that's also supported by psychological reports and by the way we did get psychological murder will is to go but i but i have a question about the state created danger doctrine and you know one of the requirements if you think of  who you know is clearly one of the more important defendants he or she she would have known it's fair to say she would have known about handcuffing and that that was a wrist say to m j but why a risk of being thrown against a wall or are being cursed at why why was that within the zone of danger that incentive would have known you know what i'm saying yes sorry what happened here is that then to a provided that room for mr hinton to do is act and that's what the court found and then she rather dand understand our stay around she left the building and you know so the court found that in fact that report cards in particular secondly the court found that the special education teacher sign out hidden to provide some type of discipline toward this child because he was doing backflips  the school grounds and then finally in regards to the private room the court found that that was inappropriate that was affirmed of the act and also then city calling him jay the mother was also immunity in this these series of cases run amuck be quite honest about it because to to say that there are one size fits all in regards to qualified immunity is inappropriate we don't have a situation here where you have a officer running down the somebody in a back alley that has a gun these are kids these are children and to say that the same analysis for this type of case in a police misconduct case is inappropriate and also in regards to this case we have clearly established statutes that identify here what the responsibility these teachers are clearly established but you do have to have a somewhat similar case and in your briefing when i'm reading along there where you talk about all the being white and so on and i'm really kind of with  somewhat similar case and maybe that was judge sutton's question as well what would be your best somewhat similar case to me where you have d in effect a principal beat up the child it's that these people did a bunch of stupid things that let somebody else do it and i'm saying if me your best case that you would call similar to this well that's where i have there is no some of the case to be quite honest now put it up front your honor and that's what the court found and i don't think we need to have that because if you read the qualified immunity requirements it says if that action punishment end of case no that doesn't get you to the off site or out of sight not off site out of sight physical abuse i mean so at least that's two separate arguments official who actually witnesses punishment corporal punishment is required to report it and we are relying on statutory authority here that's quite clear and all of them were aware of it and  they don't give a pass to a police officer even if they thought it was a police officer he doesn't get a pass for four for corporal punishment of a child and so our situation is here that we have statutory authority coming out  so to say saying that this is a situation that is inappropriate and it's abuse you know it's abuse you can't just turn your head and put your head in the sand and walk away and cindy given this man a room and then turning wow and then not knowing what's going on because you put their heads and the sand and watch the other way is inappropriate so in our view the qualified immunity issue is one that should be not necessarily compared with police misconduct one size does not fit all here and i think that the this court should make that clear that you do have situations here where you have clearly established statutes that they know about they had met in deposition they knew about in my god i mean what else can we do but to to say that we are are in the same boat as a police misconduct case i think it's really overstepping it way beyond b unds if i could continue on with the debbie h case the what the the comparison i think the tween the two cases where the court found the worst affirmative acts and the one which they found in the mh that there was no front of i think there's the correlation there is really interesting that the court really ignored some of the real facts here for examples in the st case we know that the court found that giving the secretaries giving hidden report cards about their students wasn't inappropriate that's the same thing to happen in derby eight this man hinted comes to be his home and has in his hand report cards from other students that he got from the school missing ingredient they supplied you didn't have well you know what's what happened here is that the testimony in deposition differ from the statements that these employees gate to officers and when i say differ they they were exaggerated in regards to the police officers for example of intensity says that mr hinton came there with mr with this guy named james which we  he was a psychic in forbids if you ask did you ask in the depositions about the statements that were made to the police during the interviews are going to be a deposition exhibit so were they did you ask them to affirm that everything they said in those statements risk i mean i don't know whether the now be appropriate or not but it was there it seems like you had a deposition opportunity so why not i guess go back to judge sends question why is there any did not mark them as exempt the this was fair game in the sense that we all had the same thing i asked them to identify whether they said certain things to the officers that's the way our approach that made a misstep you got to the post them who cares i'm sorry ron i didn't quite understand why do we care about the statements if you had a chance to depose them and you know you were not  able so some blatant lie it's it sounds like you really had a chance to sort out what happened yeah i did have a chance to sort out what happened and i did and i think what the court is saying the trial court is saying that i did go from the gut position and cited the deposition versus these statements and show the inconsistency there were numerous of them but i did have a deposition and quite frankly the depositions made the day i agree with you on that you know but my point is that that show that the other  statements did show the fact that they were exaggerating certain things that were some strains that were definitely inconsistent but overall the deposition didn't carry the day that is correct or there were there any of the  police tapes call them of people that you did not depose that is was there any of the evidence that we're looking at here or the talked about in your brief that is from anyone who was not specifically highlighted the police officers and our contention is that even when the police officers came in and according to this one person who observed some things that that was just inconsistent and that was not a critical clients are lifetime educators shows keep it like it is here deeply about their students in the school community christopher henderson so can i just ask you you know i don't know that it's the central issue in th case so i don't want struck it too much but i just want to make sure i'm getting this so the hearsay ruling i just wasn't sure about the idea that this was not within the scope of their responsibility i mean in one sense you could say well yeah it wasn't within the scope of their responsibility to produce a paid him or be witnesses to people doing bad things but you know it is within their risk over their responsibility to be teachers to be at the school and observe what's happening in other words the interviews were about things that happened at school so i i wondered if you had a back up argument that a response to it i mean it's also kind of seems to be hearsay within hearsay i suppose there could be a business records exception to the nd point that you know notarizing needs but i just want a few added thoughts about that yeah you're i can talk about that i did start out of that i think that these police statements and there are a couple different types are hearsay within years a there are some written statements that the police detective himself transcribed which are multiple layers of hearsay and as well as demonstrably untrustworthy because even the plaintiffs who had written statements taken down that if the fact of seven some there were something after season when the detective wrote down there you would you agree there's a party upon an exception right host and that's the way to think about this but i'm struggling a little bit with the idea it was not in the scope of their responsibility to talk about what they saw in the school when they were serving as teacher superintendent princip would say the school has a policy that they conduct investigations after incidents like this if it was conducted during an internal investigation then sure it would be a business record but in this case it was not a it was not conducted by the school these are this is during the  investigation all is a is a question not where they said it but whether the things that he said were about things within their responsibility if you have a time keeper who says i clocked sally and at six o eight i don't care whether he said it in a bar or wouldn't that be still within the party admission it's not that they were supposed to talk that it was there were depositions of the key players well your honor yeah i mean this is just simply not proper fifty six advents statements need to be swarmed there's a reason why  why is it have to be sworn it's not offered as a affidavit or a declaration or deposition right these are just statements they just have to meet the hearsay rule why do they have to be so long you don't think they do have to be sworn i matter is that it was specifically so that these departments would not get the chance to clear up their statements to explain in the context that they provided the statements and they were not confronted with the statements witness interviews i mean they're not that's the body they're not under oath that's right but it doesn't mean it's not competent i mean you can't it might be hearsay my peers say within hearsay but it's not just because you don't tapes the whole transcription vs tapes point seemed odd to me in the sense that if you had the tapes and anybody was concerned the evidence is the tapes that gets you out of that hearsay within a year or so unless somebody argues that there's a difference i mean is he right that everybody had the tapes and that there was some discussion of discrepancy rak everyone had the tapes and the case more specifically then there's an extra step of the page being transcribed and not of the tapes nor the transcription being shown to the witness during the deposition cindy witnessed that and had the opportunity to essentially say yes that's my voice yes i was telling the absolute textbook qualified immunity case there is this situation was unprecedented unanticipated is frankly bizarre and while you know it looking back on what got me ask you this question about whether it's a bizarre case or not i don't whether this guy was a fake police officer i mean he was but isn't that kind of a red herring i mean a real police officer wouldn't have been a wow to disappoint kids in a school or you're not supposed to do that like the right if he's a real police officer there was nothing that he did that would have been permitted in terms of disciplining kids or handcuffing them or making them do part of this case it makes it a little bit you know it's embarrassing for people but i think ultimately it is a red herring and that essentially have to look at this like this was a real police officer because that's what everybody everywhere including at leavitt school in all of that with just a cut to the chase your argument would be that it's this had been a real police officer the case should come out exactly the same way oh absolutely absolutely and absolutely the they see the fact each witness testified that it was a legit employee testifying that that the fact that this guy was a police officer  wall to handcuff children take them back and forth to the headquarters make them do exercises at least that part everybody knew about so d at least up until the point of throwing them against the wall throwing m j against the wall everybody was was on board about that were they not and you say that's still ok you know your honor i don't believe everyone was on board on what he was doing so occurred outside of school on a saturday with the express consent of his mother there was no handcuffing of and jase is it just to be clear eyed must of read things a little too casual i thought there were opinion the parents are the ones that make the decisions and so at that point she is a principal no longer had authority over what the parent agrees to do with their child even it is false and i think that back their shock open their legs and the principal says well their parents are with them and you just let it go i mean that it's astonishing to me well you're right i don't think she saw it so so i want to be very clear on captain school and just say well their parents were there not my problem well it is kind of your problem because they're in school and in fact it could be that the counts are doing exactly the opposite the parents are looking at the meant this case involving you can i ask can i go back before you get to another point can i go back to the witness statement issue and i just want to tie it back together to the police investigation at the time they were investigating was about whether he was a real cop or not i mean that was the focus of the investigation so when they were questioning or when they were interviewing the school officials the questions were about people signing another school and he got so far as to actually conduct assemblies in front of the school at middlebury cademy he also actually taking children from i believe middlebury to the juvenile detention center he actually and you know he says he's got specific pictures which so what i guess my question is what would the substance of the evidence what part of the claim would it go to the witness interview if they were fully admissible i guess maybe i maybe that's a question for the other side but is it is it is it just does it just go to his identity or not as always officer and how he got into the school or would it go how would it impact the condom so it would basically what he was doing and like it so it would it would involve why he didn't like it what he what the various defendants witnessed at the school what was going on in the school  and that was part of the criminal investigation into hand in for sensually taking these kids and i don't have the elements of what he was convicted for abuse convicted for a variety of things including basically fraudulent be bluffing his way into the juvenile detention center but also taking these kids i think there's a kidnapping charge or something similar to kidnapping charge in there although what happened like that and how he was able to take case or not something we covered before but if i were to find a case where it was a regular cop who was doing this and you can't do corporal punishment and the spreadable put them in the position in new in those tapes recording interesting taste because a number of the people were simply laughing and those tapes and they were saying are the things that this guy was doing and also assist us in knowing that they knew that these people  this guy here that was not a police officer why do i say that because there is no other person that cleats are sick came to their building that did what he ended did there's no real but mr gilbert you were you were going through the tapes and kind of hinting at prejudice give me the best statement from the tapes like that the statement that you you're really frustrated in summary judgment motions and in front of judge though you couldn't use this the statement what's what's the best one or two that really would have changed the flavor of the summary judgment motion well i as i said here i cannot tell you that just the there were a number of them what strikes me is then sente intensity and some of them saying that they didn't know he was a police officer but they did cover some of that in their deposition as well that the thing that we have in regards to  is that you notice the defendant never talked about this guy i mean james james is still on the run we don't know who he is but this guy comes and he assess him nobody else did we know that the the  contract specifically does not allow resource officers to get involved in discipline at the at the schools and they're not allowed to do any type of discipline they're not allowed to enforce the rules and this and this guy h a jury question as to whether he they really thought he was a police officer and the tome of those tapes the tone of the the that's what strikes me is that the items that they say that they were very loose in regards of their discussion with the officers and these these interviews occurred at the school legates go rob these teachers gate these statements and they were basically in the during the same room they were going around and they were saying things and they were saying they thought he was a police officer but there were things that he did that made us kind of question are those type of things in our view did show knowledge that they had it in their minds there was some question about it and the other thing is that there was the court allow selective hearsay here you know for example they they're claiming that they got some call from the parents saying that she was a boyfriend of this police officer well you know they'd they'd intentionally did not cause a person to do not question that person because there's some question of whether that is d in fact true but that's what they're and the court took that hook line and sinker and this be this guy james was a carpet clean mean how bad can you get there he was a carpet cleaner comes in and he gets school records they give this guy school records he's calling these parents and so forth i mean that is bizarre yes is bizarre case and in regards h case which i'll go back to the council said that the mother gave consent for her child to be had that's absolutely not true and she indicated clearly that it was the policeman that came to her and said court a quote hidden i am going to handcuff your child and the problem is that morrison knew this before she went into the to the room got this seven year old kid out brought him out to the how where h there if you would if that's not affirmative i don't know what he is and they and this kid is is handcuffed and cry boo hoo boy and they parade him through the screw to the office i mean what is that about i mean that is crazy as you get  and yes we have these are young unsophisticated mothers they happen to be african american these kids happen to be african american it gives them other point here is that there was there was no other kids are there now african american and kids there are disability that were messed with here and we do raise the point that this is enough to get us beyond eighty eight and also title six and also we do have in our brief and not cite that just  our point is that clearly look at the totality of this it is that it's a case that is bizarre and we shouldn't have to get a similar case but nobody in america deals with things like aca public school does