the individual capacity claims should be dismissed on the basis of qualified immunity but it's become just a test target our individual capacity claims should be dismissed on the basis of qualified immunity because it was not clearly established that the alleged established that supervisors and high level officials at a college could be held liable for subordinates security guards failure to intervene or prevent access to prohibited were restricted areas at the college on the with a case that shows that the alleged misconduct would have been a violation of a constitutional right in accordance with the president of this court and the united states supreme court hearing from pla order for it to flow upwards to the supervisors but it needs to be defined with specificity and just yesterday the supreme court of united states it should be another unit on qualified immunity and reversed and remanded for the ninth circuit for theory constitutional right and just use general a state created danger case by way to address that even in terms of supervisory a liability it's less whether there is an underlying constitutional violation and you're you're opening brief can seem to be focused entirely on that issue that is whether it fit the definition of state created danger or or there was an absence of affirmative act right now arguing that we should look at this as a matter of whether something is clearly established which which i caught with what you were raising as part of your reply addressing the claim for deliberate indifference those are the arguments that appear in your opening dormitory that he had no credentials to get access to but as we know from l r u q you can characterize in action in some instances as involving action don't we see a criminal law are there the right question is whether there was a change in the status quo that rendered the victim more vulnerable than he or she would have been otherwise that's exactly right your honor and why haven't they made they've made a valid point here that that there was a change in the status quo somewhat to the night case where the officer pulls over a drunk driver look takes the husband in the custody leaves the wife who is an clearly intoxicated walk home she ends up with a significant brain injury you had somebody that changes the environment on behalf of the mc that's not what we have here it's what they were there were officers police officers what have i have no idea of interaction in this case and that's exactly what we have here we have in and there were security officers here who should have seen the condition that she was in that should have taken action and should have taken action is different than affirmatively taking some action so for instance if the plaintiffs would have told one of the security personnel that she's in grave danger and nobody did anything that would be an affirmative act on behalf of the officer because they now know that there's a danger and the status quo may change but merely maintenance of the status quo and buccal being able to drive through scenario and if that were the case here and we had an affirmative act of security guard actually giving access to the dormitory i think we'd have a close a closer to case of affirmative action creating a danger and that and changing the status quo but that is exactly their claim as i understand it it's bad to be not neither the abuser nor the victim and how identification to allow them into the dormitory it was unauthorised access it's akin to unlocking the door and allowing them into this location where it would be apparent given her steve that there would be an unreasonable risk of a constitutional violation continuing and i would disagree just because the fact of the show that the perpetrator gained access to the dormitory by getting a plans identification card and in scanning in and going into the dormitory there is no security personnel or interaction with security personnel and as i stated before if there was some sort of interaction with the security personnel with the plaintiffs here we have a closer case but all we have is allegations that the security officer should have done what we've met her the problem dealing with this on a motion to dismiss because you're saying it's scanner not a person those are facts questions you're seeing would be if they were able to see her state and it was clear what state she was then but again those are back to terminations and credibility questions that they would be could you know could be elicited in the course alleged failures of the security officers could be could maintain that could be a violation of the substance if you cross the force it's there is no longer warning that shows that what happened here is a violation of a constitutional right the only question for us is on the fourth right whether whether there is what happened could be construed as an affirmative act that's the only question we have as far as the constitutional rights violation but then we go further where the supreme court has clearly made clear in casella and just yesterday in this escondido case you have to define the right with specificity in order to establish the clearly established law and that hasn't been defined there's no precedent on point here there's no persuasive there could be a liability under this new created in your theory relying on generalized secretly danger law is similar to relying on x generalized excessive force law which just yesterday the supreme court rejected it ask anita in saying that you just can't rely on general excessive force of law the facts need to line up and this court in souers just recently in october and twenty eighteen in a high speed chase it's their decision reversed the district court as well because they defined the time in this conflict and the same goes true here where they were it was a sexual assault on care and then a second sexual assault on campus if you're she drives through the security position of the college is  state needs to change the status quo it needs to create an environment where danger hers and that is not what happened here where there are any other purposes at this particular fraternity not that i'm aware of you are if you realize we spend a lot of time on the qualified immunity on sovereign immunity the judge will be said that you know there may be a very good case this case has to be considered on its merits of the judge that just doesn't have enough information here and your response to  the state law are no different for the same exact thing under the circumstances and where the district court was wrong is where they said they needed more discovery on the funding issue we didn't argue the funding issue in the lower court we're not arguing and now law there's simply no difference from among their state university therefore around those entitled to sovereign immunity based upon the status of the law all the relevant statutes in the public information that's available to th the individuals as well as bad at their at their access level as well as supervisory liability and back out what about come seven there's another claim for deliber indifference it's a freestanding count separate and apart from state created danger and the turn the liberating difference to doesn't even appear in your opening brief have you waived any objection to the district the secret danger plan you have a special relationship theory in the deliberate indifference and then office to create a danger but there can be no special relationship in the high level education area because the d r case is that there's no special relationship in high school cases in sample embarks we recognize the basis for supervised oriel liability where there is a policy in place or at the absence of a policy and it would be apparent to each supervisor many cases in that context you have a custody issue where you don't have that issue and in the college setting and that was also a basis for the d r case where compulsory attendance wasn't didn't necessarily create that relationship where the top the top management had the control over the lower management who also had them control and custody over the point so for those reasons i think that could be cases are different and the deliberate indifference clearly failed as a matter of law because there's nothing clearly established college setting that it for debate as to whether a different constitutional violation is viable and that is why there is no clearly established law on point that says that a substantive due process violation based upon the alleged misconduct is viable there's stronger arguments that it is very similar to montclair in the montclair statutory analysis but the statutory analysis i thought this court concluded mile yonder that it was very close case and that that second factor was almost teetering when it was just a term in the way heavily in favor munity here we've other than that then the defendants and i think this is this was rejected by this court molly and this court said at the start of molly and we have to be careful to ensure that eleventh munich the doesn't extend beyond its reach and you can't ignore the unique factors or the pretty peculiar circumstances of each university and what the appellate want to do here is to have this court just say because the same statutes we're just going to say the same thing well i think the statutes are the same i think the differences are that we've argued in our case that it's not you don't go just based on statutory indicators the second factor the second way to look at the second factor of status under state law is to look at the case law and we've presented case law where the state attorney general's taken the position completely contrary to the end and that it represents here that universities and university officials and university administrators are not state actors that's the position that the state took and and and this court said new jersey supreme court rulings case law that second factor would be very important here we have their own words via the trustees of both institutions are appointed by the governor the state of new jersey's a significant victory in terms were all the defendant the apologies want to rely on is just citing to the statutory store sources themselves they don't get into the specifics of how how around how actually works or how it's actually govern and who has level we don't get we haven't gauging discovery to dig in to find out how it actually works and how they actually carry out do they only hand do they can they have these pseudo other people have they involve themselves independently we know they have an independent  defending themselves in this case not state attorney general's office we haven't been able to begin to a lot of the real specific fact is all we have is a general statutory language it says that i put this court's interpretation malyon it was it was sort of lurking at the end of the day most of factors we've been waiting for in favor mockler state here we don't get to dig any deeper and what we do know is that simultaneous in two thousand and fifteen and fourteen right when the events in question happened here the state attorney general was telling everybody in order to gain immunity and not be sued everything administrators and management at the universities and state colleges were not state actors precisely the issue they want now this court to say they should get sovereign immunity because they are state actors not state actors but those are questions that state law where we're looking here and in different indeterminate federal munity and how is a position that this state has taken with regard to people being state actors for particular state law said in my leander that after you get past that story indicators you want to look at the case law and yes in mali and there were some cases there were pieces on both sides defense against that sometimes in that one state law they said they were state actors one state law they said they were sta here it's not the supreme court or in a poll division saying that they're not state actors it's the state attorney general's office themselves arguing that employee that high level management employees and administrators x date colleges are not sta statutory factors that seem to apply on all fours here that need the status under state law tilt in favor and i grieve that it was addressed and yeah i agree it was addressed there i think it's a little stronger here with this because it's not just a precedent it's actually their own position and i think there's an inherent unfairness to be able to argue we're not state actors so that we can be immune from these laws and for these purposes but we are state actors for purposes of sovereign immunity the third difference i think is the autonomy in the record we point to their own financial statements our own documents that say we operate autonomously from the state why do they do that they tell the public so in the cases i say they tell that they tell the state and i think that's a distinction i don't think that will there's no doubt that their medical college receive significant money from the state of new jersey i think there is a big money factor they've conceded but more importantly when we attached part of the factual record  decreasing in state aid to state aid factor has significantly decrease ng and they emphasize that as a point of pride but i think that favors the idea that they don't satisfy the test here i think that's what distinguishes this didn't we acknowledge in mali or india as well that about academic independence in the end we all want to know that our colleges state colleges have academic freedom and are independent that's a little bit different from the radical college representing itself in its public filings throughputs on its as operating autonomously from the state they they are themselves saying we operate autonomous from the state and it's not they're not limiting it to academic freedom they're talking in general terms of their financial fiscal operations i think that's a distinction is it i think it's and it may not be as significant as thinking i think it's enough though given that mel ianto was so close call i think it's enough to make a difference here and i also think the lack of a factual record here a deep rational record is we before we let the men immunity small's up all agencies they can't just come in here and say it looks like montclair state university there should be some factual digging here so that we can have a more detailed discussion about what the differences are   who didn't know that is jones was the party they didn't take any affirmative backs that we know of state created danger is a very faced was over the rapist and who unlocked the door the people who allowed them to come through the security gate when they were neither one of them were permitted in there they didn't have the sure employees of the university they were security and then the next step is worse and we didn't talk they didn't talk about that at all it's the resident life people this isn't a case just about someone sneaking in the back door to get in the door of the freshman dorm and neither one of these two people are freshman there's supposed to be a resident live person there that's one of the and they were supposed to make sure they didn't they can't allow anybody access they allowed them access so the sexual source could continue with a girl that couldn't stand up in the hallways that should have been obvious to anybody that you need you know that you don't allow these people in there where they don't belong as like person and see what was going on in this case and we let's leave that they do we don't know those answers yet because it's premature based on not having complete access to the criminal files and and all the discovery  conduct in the victim was in fact in a secure environment wherever in the custody of the state whether a club or police taking control of the situation in an alternate situation throughout the she's in the custody of the abuser i greet she's in the custody of a vision i think that is a distinction she's not in the perceived custody of the state but i think where it is that the case law permits this to happen it's law on that what was presented in count seven of our complaint i think that's still out there but even if it is i think the pleadings in this and they haven't addressed the pleadings at all the pleadings are detail that off that it's we do oblige the level of under section eighty three policymaker deliberate indifference what constitutional rights issue i believe something due process it's not it's not an equal protection clause it's not that's really more addressed in the title nine  course of action because there are several circuits including the most recently the fourth circuit just a couple of weeks ago that it held that there there is a cause of action for for liability of school honor and i want to backtrack a little bit because and to be fair to myself they didn't brief this issue and so before i can see the equal protection issue whether or not that was part of the deliberate indifference claiming count seven i honestly i didn't wasn't that wasn't briefed i know was briefed below but it wasn't briefed up here so i don't know that i know that we grappled with and briefed extensively to castell of dealing with rapes appear on peer sexual harassment so if i briefed all those issues i think those were my claims but i saw ball if the answer is maybe it isn't that isn't that addressing so squarely the question or whether it's clearly established or not well i think it's clearly established i think the issue is is a little different i don't think it will decide whether or not it's just the constitutional right and the deprivation theory exists i think it will stab this is the level of pleading with the elements need to require with it for purposes of clearing out that it's the think i think that's why again they don't really address the detail pleadings we presented in our complaint you know you have of the claims that you mr whalen in this case that is direct claims against the users if i'm not mistaken the fraternity itself status of rambo college and its employees yes ok and that's that's solely on that constitutional claims right and i will ask your your adversary a general but there's no dispute that the at the level of a policy by the university i would not agree i don't think they favor the liberty of indifference claim as a matter of law because there is no violation of the substantive due process right under  special relationship periods where that the liberty in different language come from as far as a fourteenth amendment claim you have a special relationship which we didn't recognize in this certain d r with high school students and then you also have to state created danger aspect  unreasonable risk of a constitutional violation so this is separate apart from the issue of access along the way for this particular activity they've they've pleaded a deliberate indifference claim that seems to go as they list the itemized failures to the existence of an overarching culture policy is or the absence of policy is as to alcohol abuse six hour why isn't that enough on the merits  state a claim for deliberate indifference as to the supervisory liability on on on a policy it's a different question whether that's clearly established right man to the court yes but i don't think that there's any case from point that under the fourteenth amendment you can state it deliberate indifference claim based upon our few practicing supervisory liability and that's because ball has created this is this world where we don't really  a clearly established law that says that there's a fourteenth amendment violation under these circumstances so i don't think that they put a violation because i'm not aware of any case that says there actually is a violation under a similar set of circumstances which also goes back to why it's not  of supervisors who control the guards the prison guards prison guards are controlling the custody of the inmates we don't have that control factor by the state and under the circumstances on a college campus setting for the policies that are in place and there's a deliberate indifference in that circumstance because the individual in the custody of the state and it can't fend for themselves so for those reasons that's why the deliberate indifference policy claim stands under under the fourteenth amendment or the i'm sorry the eighth a