it is not a case of a bad guess and great area this is a case where the considered true facts at this litigation stage was that we suggest an intentional act for the purpose of creating or handsome a danger faced by mr t officers in a police department are a no only in really to mean way is right they operate duty delegated discretion from their supervisors or according to instructions from their supervisor and so we all agree and i  understand your milling that if the line officer was at the park and simply decided you know because of danger because i want to go have a donut or for whatever reason chose not to intervene you agree better call that you you will concede that or that we will find you but the next order question is is i don't know what i am having trouble understand i think the tears this question is why that's different if the supervisor calls him and say as for whatever reason the same reason i want to go get a donut or for any other reason i want you to not take action it is hard for me to understand how that creates the state affirmative or the state created danger alleged action was sort of the failure to report the abuse in the school or the camp i can remember in the plane just trying to turn characterize that failure to report as the affirmative act of issuing an order to hold the information close and we said you can't do that and it doesn't matter that someone else order the person not to turn over the information at the end of the day what we were talking about is a failure to act in so can you distinguish though from me each other the difference is the reverse might be true to that if you have a stand down or you don't have a confrontation with police and the crowd in there maybe on a logical reason to have a stand there or yes you're there to duck we what we actually discover this case and if you look at stand i know we're looking outside of this particular survey but there is a case has a very similar set of facts that is what your honor is suggesting and that would be the city of seattle the johnson case and in that case there was an issue of  and that's the line between inaction that's where the line between action and action is also important in the greater danger doctrine and i think this court has highlighted the importance of an actual action  the state of danger doctrine and has cautioned against or for real characterization of what is essentially in action into action by going to a higher level of responsibility such as here trying to go  us on the ground to a level of a stand down order or an instruction not to act that does not transform what is on the ground in ash and into action and for that reason on the merits the constitutional plane here that you gain turning in action and action by re characterizing it but can you give us any sort of guidance on how to think about that particularly in a supervisory context which i understand their argument to be of course  cases in which a state created in your have actually been found are ones in which individuals affirmatively conspire to aid the individuals who ultimately are the ones who commit the assault issue so in the hypothetically obviously these are not are the facts but if they just conspired so in other words the rallies organizer had gotten together with the police chief in they had agreed someone a conspired that they would not intervene right and so they reach an agreement to not act which i guess you would call a conspiracy to not act would that make any difference i don't think so your honor and the reason is because the question is with whom is the conspiracy so in robinson the conspiracy is when the assailants and they've been here it's with the organizer right i mean that's you know the organizer of the rally and the police chief  who is in a sense the robinson version of the person trying to evade arrest right understood your honor i think in that circumstance that that is materially different and that's exactly that's the sort of circumstance that would bring a case like that more in line with robinson and juarez where there is an active conspiracy with micio and as the conversations to say to say we're not going to intervene or this is our plan and expressing that land on one side is something much closer to the line of activity as opposed to an act and both juarez and robinson there was kind of this this conspiracy think that's where all it's important to keep qualified immunity in mind call and unity is an immunity from suit and so to the extent my friend on the other side is is looking for discovery you have to be able to overcome reason we win the second reason we went obviously as a qualified immunity in the best you can do this that seattle case when the seattle case they've had has a policing that was the decision was to have passed at least that's what you when you hear what happened and in that case they  by mr collins and the city the plant mr turner filed a joint brief however he had a footnote one in the caption said this is a consolidated brief but i'm not going forward on the city and that will be some other day or something but i thank you so maybe my command in the future which never did and then so then we come to the oral argument on march  second two thousand and eighteen and it page one seventy eight in the joint appendix mr lott year after hearing my argument responded to judgement and s and then it not being in their brief and argue and on their issues we take the position it's a banded and as a matter of fact judge whom did go ahead and roll out it and for the reasons stated it by  who is injured by that danger has fallen into the state created god i'm not sure it's dispositive but maybe you want to address in terms of qualified immunity am i right that there is no case from the circuit ever finding that the facts put a case within the state created injury doctrine is there any case in which this court has found that yes on these facts the state actors created the danger  not that i'm aware of your of i just don't know there's been a trial decision on that so it is sort of i'm not sure it's dispositive but in terms of qualified immunity there is the one on publish case and you can get past a motion to dismiss and that's a i mean