three minutes for rebuttal time your honor and we are here today primarily to ask the court to reverse the district court's finding that the  appellant do not have personal standing or individual standing to sue the f b i and agent or of it the district court also found that the bare crane family failed to state a cause of action against the f b i and found against the appellant on treaty issues and substantive due process i'm going to argue or posit that if the court does find standing it should send those issues back to the district court the district cou and assuming we were to find that they have standing to bring a claim against agent or a vector does that have to be remanded to the district court to determine whether he's entitled to qualified immunity absolutely or i think all the issues all the other issues have to be rebranded to the district court the district court specifically looked at the issues of failure to state a claim treaty and substantive due process in the context of the plaintiffs suing in a representative capacity have a question about the victim statutes that you know allege yes sure and ok with respect to your claim that defendants failure to adequately investigate m denied you benefits under the victim's rights statutes does your client plaint allege that your injury is the nihil of benefits or the denial of the opportunity to receive benefits it's absolutely contracts or something that but i don't consider this exactly the same type of thing because there's a speculative nature to whether you would ever get the benefits at the end of it so i mean it has to be you know for article three standing at their need it can't be a totally speculative injury so can you respond to that yes your honor i'd refer the court to cases such as and northeastern florida chapter general contractors and in those cases the court said that the injury was the barrier to the services not the denial of services themselves the specifically the government cannot set up barriers for certain classes of people to services that might otherwise be available to them the court said in baki that bucky may not get into med school but that's irrelevant the grab them in of the complaint was the denial of access the denial of compete turning if that sufficiently answers your question your honor turning to the issue of harm and i think that's really at the center of the standing issue that the district court defines the harm as a failure to investigate some specific deaths that's not the harm the harm here is the racial classification the psychological sociological and economic impacts of the a illegal racial classification that is the f b i has a a pattern and practice of providing less law enforcement services to native americans living on an reservations than to other citizens and that harm or or that injury leads to very specific impacts for the the appellant's and going into a little bit more detail psychological harm would include merely the or include the stigma of a racial classification that was recognized in so many cases in brown in the other i'm sure and i think we are familiar with those pattern practice so you're saying both the entity the f b i and the individual agent or liable for this  what is your proof of your allegation i should say about the f b i as a pattern and practice what we've we've said in the complaint your honor or what we've tried to establish is a sort of cascading proof and specifically that there is a an acknowledgement from a number of folks including a senator  and the congress in the tribal law and order act that there is less law enforcement on indian reservations as a whole then in other communities then going more specific we have testimony from the chair of the fort hall business council fort hall the port hole reservation is in idaho with in the jurisdiction of the salt lake city office then your honor getting even more specific we argue that there are numerous instances on the crow reservation of an equal enforcement of the law so what we're doing is trying to show not through some national statistics that there's this pattern in practice but through a cascading series of proofs in the in the motion to dismiss is that correct yes and no you're on your can that are either a the that was dismissed on motion to dismiss or wasn't well the equal protection claim against the f b i was knocked out that equal protection claim against agent or a pick was not knocked out that remained and what we're talking about now i should clarify is the twenty ten finding of the magistrate as adopted by the court and she said she found a failure to state a claim on behalf of the f b i because of the pattern and practice the motion to dismiss stage against the f b i to reverse that yes your honor yes well i'm actually saying that that may not properly be in front of this court because the  district court found that there was a failure to state a claim against the f b i within the context of the appellant's serving as personal representatives what we're asking obviously here is that the court many didn't want you your suggested at the outset if you prevail on standing everything else you go back to the district court yes you are individual and yeah yeah i'm saying it's more appropriate to go back to the district court for an analysis of the claims as brought by the appellants in their individual capacities so if you if you if you don't win here what's left that this was too generalized harm and we think that that really she she miss characterized that theory the fact that a harm or an injury is done to a large group of people a certain class of minorities does not deprive a specific individual from bringing a suit and i guess i'm arguing that this is more a kin to the  the redistrict redistricting cases than anything else and in the redistricting district sorry cases the court found that just because everybody in the district had been affected by the gerrymandering of the district it didn't preclude an individual living in the district from bringing suit thank you  decided correctly by the district court below in its two thousand and ten and two thousand and fourteen opinions which for clarity's sake i will simply refer to as the first and second opinions the first district court correctly found that the bare green family lacks standing to bring any claims against either h or of or the f b i for violations of their own personal constitutional rights second that neither the estate nor the family stage a claim for violation or substantive due process or equal protection rights and third the agent or really address the syria of qualified immunity that you now preserve and on agent or or a fix so don't we need to re manto for the just record the opportunity to address this issue and make factual finding clearly under god and he did not the court never reached the question of whether the family had a claim against it or a vote for damages for violations of their own constitutional rights so if they don't have standing and that's the end of it is your hon but if they do have standing you're saying for this court to address qualified immunity even though it's on a different theory than was originally articulated even if even if they do have standing to bring a claim against it or of act violations of their own constitutional rights qualified immunity would still attach and obviously this court could affirm the district court's ruling that the family members could not bring a claim against it in orbit for damages on any ground we believe that the standing round is obviously correctly decided we also believe that regardless of the a family member of a crime victim their own constitutional rights can be violated by some unequal or unconstitutional provision of law enforcement services to the direct victim this would be an expansion of the right to sue to essentially an issue in this instance your honor of course we don't believe that he could have known he was violating anybody's constitutional rights because all of the actions took place in the investigation after mr bear prints that there simply the contours of the right to equal protection of my question how you would meet that standard he said the issue was whether he wouldn't have known that the family could sue him for his and constitutional actions i think our argument is that under the current state of the law no reasonable officer could know that their actions during an investigation could amount to an equal protection violation to some other third party they may take actions that they believe are reasonable with regard to the investigation but how are they to know what is reasonable or not reason so tell me just tell me how you're defining the right in that we're always cautioned don't define it to generally what are you defining the right that was not clearly established as the family members claims we believe that the constitutional right at issue is whether or not a third party has an equal protection right to provision of law enforcement services in an investigation of a crime against a third party that they were otherwise entitled to receive benefits under the victim's rights statute to have standing to bring an equal protection claim or as said a nuff that they were denied the opportunity to seek benefits under those statutes your honor in this instance i i'm not sure that the thoughts not a distinction without a difference if you look at the specific rights that are provided by the statutes most of them are hinged on the bringing of a criminal case against  only relevant under other specific circumstances to victims of a crime or in some circumstances a representative or a success or a victim of a crime in order to access the services first it's speculative that any of those services would ever have been available and it's not a perfect there was and they had to be if they had to be victims of a crime i'm sorry and then to be victims of a crime the statutes provide benefits potential benefits to victims of a crime but most of these in here that would analyze standing under say the carroll court described northeastern florida as requiring that the plaintiff demonstrate that it is able and ready to bid on contracts and of the just discriminatory policy presents that is ready and able and prevents it from doing so on an equal basis so is that how we analyze standing or do we analyze standing in a more traditional way say for example like blue hahn versus defenders where a party has standing only if he shows that he has suffered an injury in fact i believe that standing should be addressed under under normal standing principles that's the harm you know i mean and she appropriately cites to baaki and other similar cases i don't i think we don't agree that there was any sort of barrier created to prevent the family members from exercising any rights to which they would otherwise have been entitled there's no for instance there's no evidence in the record that they ever sought any particular benefits under the statutes there's no specific benefit that there's talk that they are referring to when they say they were denied the opportunity to access it and of course many of the benefits would run only to mr barak himself or would run to in the instance of so is there is there argument as you understand it if a proper investigation had been done then the prosecutors would have charged and you finding the flaw in that argument because it's purely speculative that they ever would have had any right to access any particular benefits under the statute and we can't really point to any actions that agent or effect took that put a barrier in their way again they could have applied for benefits under the statute some of them some of them rely on the bringing of a criminal case and some don't we don't know that they did that so to simply say because the investigation wasn't done well enough we were denied a particular of service constitutes a barrier cross the board for adequately accessing the precludes them from accessing these kind of benefits but again you're out for standing purposes we need some sort of concrete particularized injury that the crew be able to to redress obviously any claim against the f b i would have to be for declaratory injunctive relief as a damages claim could run only towards agent or  the injury that's being claimed here is that there is generally an unequal provision of law enforcement services or that had things been different they might have been able to apply for benefits under some federal statutes i don't believe that that is the sort of harm in the past that the court could redress through some sort of declaratory judgment that would be prospective in nature there's there's no argument here i don't believe there could be an argument here that there is any imminent danger any particular injury or any injury that is claims against the f b i or attack we still believe the district court's decision should be affirmed because they correctly held that the complaint failed to state a claim for either you or protection or substantive due process violations as well as the treaty violations as an equal protection  brought by the family members of the district court was correct the complaint simply did not contain any not conclusory factual allegations that could show that the f b i deliberately discriminated against these plaintiffs in the provision of law enforcement services on the reservation the only factual allegations in the complaint simply concern generally higher crime rates on the reservations and to stephen equal protection claim of course we have to plausibly be able to infer from the factual allegations both  to the billings office siding or vacuum self his own statements and then they the ratification if you will by the office of his actions after the barry crane's actually complain about it so why isn't that sufficient to allege a failure on their a discriminatory intent on the part of for instance the statements of legislators or persons who are not and not in the f b i are not decision makers in the f b i certainly can't be used to show that the f b i itself has a discriminatory intent when it's providing law enforcement services on the reservation further simply the fact that there may be higher crime rates on the reservation that can't be fairly linked list for at least for purposes of sitting claim here i think to the specific actions of the i as they balance themselves acknowledge in their brief there are a lot of factors that can lead to higher primaries well what would be the kind of facts that you would say would have to be alleged in order to state a claim for instance your honor if the parents could point to other cases comparative cases where for instance a similar crime was conducted was committed on the reservation and off and they could show that different investigations had been conducted or different resources had been allocated i think from those sorts of facts in some circumstances you could argue that it could show disparate impact and discriminatory intent we don't have any of that here all we have is a vacuum in a vacuum and allegations that there's a lot of crime on the reservations and that the f b i must be responsible for it because they're a law enforcement organization of course they're not the only law enforcement organization on the reservation and they certainly don't have a do not have jurisdiction over every crime that occurs whether the relief they're seeking here again the injunctive relief if it's not clear exactly what they're asking the court to do the crime seek is not going to direct the f b i to allocate services differently they're not asking for specific things like some more officers just finish up so we can play we believe the district correctly help also failed state substantive due process claim against the f b i because as a general principle of law private violence cannot give rise to a substantive due process claim unless there's a custodial relationship between the victim and the agency or a government agent takes some sort of affirmative act to place the victim at the in harm's way of an injury that they would not otherwise have faced here the family members don't claim any affirmative action taken by either the f b i or asian or they don't claim that they are themselves have ever been a victim of a crime any specific crime they only allege that they're generally at greater risk because of where they live nor do we believe as we argue in our brief that the relationship between you know again your honor this is a racial classification in which the f b i has a pattern in practice of providing less law enforcement so there is but what if there's more crime ok and people are just committee more how is that how it's just that there's a high crime rate how does that get you where you need to get what what specificity do you have what you're most specific allegations i think you  what you heard what the government said i'd like you to respond to that the most specific allegations your honor come from the testimony of the fort whole business chair saying the status of law enforcement has resulted in much higher crime we have the tribal law and order act which says that there are like three thousand agents to that how do you link at the f is making people commit more crime oh we're certainly not saying that's making we're saying it allows as as the court said in elliott park it goes it's beyond dispute that if you don't enforce the criminal laws then crime is going to rise we also have the same and of senator barrasso saying the low level of law enforcement is so much less than anyplace else on indian reservations and that that causes increased crime so much akaka how do you comparative chicago i mean it's you know you're not on your might my understanding is the rate of crime is higher on reservations than it is in chicago the primary federal agency that's in charge of major crimes in charge of investigating and the f b i web site says that their mission is to detect and investigate crime that major agency is simply failing in many many respects to detect and investigate crime which comes back to the crime victims act and that is if you don't detect and investigate crimes specifically that he told the office of victims assistance don't talk to them any sort of victims assistance had to come through him he wouldn't allow them even to talk to the of rolling that's not even before the court affirmed the summary judgment ruling in the twenty thirteen findings and what's before the court is the twenty ten finding and on that regard or in that regard we would certainly say that the right to equal provision of law enforcement services is clearly established and unlike the case in unlike elliott park here you have an agent who is alleged to have destroyed evidence specifically interfered with investigations doing less investigation or a less adequate investigation