before we get going on you know that we've got these cases consolidated so i'd like to know how you're going to divide up your time how you would like to divide up your time our intent for appellant is i will argue for ten minutes  cases and then my colleague mark campbell will argue reply for five ok you're going to try to save any time for rebutt oh i see so you're going to do the rebuttal yet understand ok so you're going to have a ten minute argument they're going to argue then you're going to do your five minutes is that correct no no that's fine i mean i just want to know basically how we're going to go so that but we understand it's deliberately indifferent go still and i look at case for your says snap money sheriff's department and it says we're violation of policy does not equate to deliberate indifference home many miles away from his social worker without any local services he start looking at times to kirkland for example a minister start with kirkland well  o was deliberately indifferent because at the time she was supervising id cas she had actual knowledge that this child was going to be placed in a home without which he is free from harm that as i can understand free from harm that's general but it's my understanding looking at oasis he speaks with  the say that that way i did about being the permanent placement he allowed for a week's visit import angelus after moving to chatter ojt they offered to be the he she offered to be the permanent placement cos conducted a walk through collegial home found it suitable the court ordered the extended stay and his supervision and it is our back to the policy point made by my colleague does it not there's no statute that says that he had to do that a court approved the placement all the things my colleague talked about that he did but it seems you're and thirty four pretty high level is it not to have specific and difference what what statute would you refer to that meets the facts of this case with respect to it's ms o correct what what statute do you have that meets the requirements there i believe that looking at the totality of it that again the the the child has a constitutional right to be free from harm and placing my position would be the place placing a child into an unvented home was not invented if there was no home study done it was that well that's all home walk through through the home found it suitable then after the walkthrough this is from laurie when he when she went collegial offered to be the permanent place for the july two thousand and fourteen then case pass walk conduct the walk through found it suitable and immediately august two thousand and fourteen the court ordered the extended stay with the permission of the tribe i would also not that in the records that the court's in september and in all actually in august or if we're talking about september we're moving into kirkland's i'm going to point out that the court in august had actually made comments that it was concerned of the hastily undone nature of putting g b into this extended whatever the court said it ordered that this would be fine and not only that but the tribe agreed well then i think the appropriate thing to do is to move on to look at mr kirkland ok and just so you know you're down to three minutes and fifteen seconds are i am you but your partner over there is just about to have an office party with established mr kirkland mistakes that he did know that there was no home study being performed and in late october or early september is the st signs that miss is actually falsifying records of her health and safety this is this is a health and safety that is the only time that anyone has actually seen g b i believe that that knowledge if you look at the admissible statements of dr burns that if i'm wrong i thought when that knowledge came through that prompt action was taken that isn't several different things were done to check it out and to get her totally off the case it's not true am i wrong what occurred was is that she was taken off the case and new social work was put in place but there was no home study there was no crazy supervision that did not actually occur until a mandatory reporter in december of and fourteen report in this was a staff at his school made a report to c p s that was the st time that spokane actually had knowledge that g b was actually within their geographic region that was the st time that anyone set up courtesy supervision and that was the st time that anyone even contemplated starting a home study and that was and that was steiner right correct in two thousand and fourteen and number that's correct and that was the rate as soon as science steiner was reassigned in december two thousand and fourteen immediately he started and thereafter conducted regular help and safety visits at least once per month and sometimes more  he he never had a concern about the safety he request of the courtesy supervision for spokane he ensured a home study would be done vance to help and safety visit desmond commands the homestudy expressed concerns about it being able to do it because there were too many children but nothing about g b s safety nothing about the safety in vance's safety visit i think the issue here your honor is that ultimately the supervision been requested in a timely fashion a series of events would have occurred one of which would have been this home study the home study would have actually then been completed prior to g b s death the record indicates very clearly that mr dead desmond said that miss cleo was not going to pass the what did not pass the homestudy and had also stated that even if miss had not passed away she would not have passed the homestudy the reason that is relevant to your honor is that even if we assume this is an urgent placement if you read the the internal workings we're going places and a home study the purpose of the home so used to make policy would violate liberty interest under to mosques and as your honor has correctly pointed out there's a lot to the contrary that a policy violation does not rise to the level of a constitutional violation and rd neither us nor kirkland personally participated in the alleged deprivation of g b s liberty interest like to begin with deliberate indifference speaking briefly us to us and then turning the attention to kirkland plaintiff has to show that not only was there an objective lease substantial risk of serious harm to g b but also that it was subjectively aware of facts from which such an inference could be drawn and at no time during her supervision until august th were there any such facts that there was an objective least substantial risk of harm to g b a background check was completed on miskelly although it revealed no criminal history and  founded findings of abuse or neglect miss had supervisory meetings with miscasts in may june july and her deposition testimony she states that during those meetings she would discuss  well being safety permanent see the overall plan for the child she was supervising the dependency court approved an extended visit with miss cleo in august one with the support as your honor noted the her tribe as well as the court appointed casa and then during the month of august while g b was an miscall hills home no collaterals no mandatory reporters ever reported there being any issue in the home and then miss us was no longer the supervisor after our august th so it does not meet the standard of deliberate indifference i'd like very possibility is to call for the courtesy supervision in the home study the caseworker your honor which would have been miscast in this  case and courtesy supervision miscast actually did call for courtesy supervision in december there's testimony in the record related to that and courtesy supervision was received by spokane on december thousand and fourteen that request it was approved and was going to be assigned out the nd social worker who was g b s caseworker mustaine or she also requested courtesy supervision and january i believe question before you get to that soom that we would decide that the violation of the policy or courtesy supervision and setting up the home study is a violation is there any evidence objective evidence of serious harm to the there is objective evidence that the district court cites in the record related talk to burn november as to some bruising this was submitted related to the riverside school district's summary judgment but none of those facts were known to the social workers  certainly when december twelve the c p s referral came in in the spokane office investigated that was closed as unfounded so there was no obvious risk of serious harm to g b at that time what's the status of other litigation involving the death of this child i know there was there's this lawsuit against the school school officials maybe you can you know one of the gaps here share so there has their claims against gross negligence i'd like to point the court to the patel case which was cited in the riverside school district by just judge callahan i believe in dissent which talks about it's talking about deliberate indifference and it notes that there has to be a culpable mental state where a defendant knows that something is going to happen and ignores that risk these social work supervisors did not know that anything was going to happen imminently to g b they did not ignore g b kirkland when he took over on september th teen he had his st supervisory me being with miscast the day after the dependency court had placed the child in the school eolas home until that time he did not know that g b was on her caseload he never met g b he met with her like he does all of his social workers i believe he testified i'm following up name and kirkland do they have any personal responsibility with each of these policies there under the policy that was a political i don't believe they do plaintiff is relying on policy for  thirty one time which does not apply in this type of placement which is a relative placement which by definition under policy for five dollars to seven dollars excuse me i'm getting the numbers confused but there's a special policy policy requiring about seventy two hours to make the request but as your honor noted during appellant argument policies are immaterial to the question of deliberate indifference to the question of the right the trial had  liberty interest right and social worker supervision and protection and there's no clearly established law that would have alerted either of these social work supervisors that failing to institute a home study or failing to institute courtesy supervision and any particular point of time what have amounted to a violation of that child's liberty interest and at the end of the day both were instituted in again in january st the courtesy supervision was accepted in december but then the homestudy in january as to kirkland he did become aware at a certain point that miss kos her october visit note called into question while whether she had actually performed that she was a fifteen year social worker he approached her he didn't ignore his suspension he asked her about that note and she gave a reasonable explanation that she just missed the documentation and she had gone on a week and  wasn't until later and his deposition testimony identifies the end of october where he was approached by a foster parent juvenile litigator who gave him information  disingenuous to in her testimony to the another dependency court in a different matter that caused him then to do an in depth review of all of her cases he acted promptly on that it took some time but then by november or december he was elevating the issue to his area and then the straighter he had read confronted miss costs and she had admitted to him her his testimony that she had falsified the october notes in mr kirkland's deposition testimony and he testified that he did not know he had not connected the dots that the november visit had a problem with it so again he had no facts that this child had not been seen it wasn't of social social work notes so the child was not being ignored there was no deliberate indifference and for that reason qualified immunity should remain in place for both him and  already touched briefly on the fact that your honor of policies were violated and now we're just looking at the acts of the supervisors having policies violated why isn't that a jury issue as to whether that's the liberty deliberate indifference it is it's because there's no question of fact underlying that whether it's gross negligence or deliberate indifference is this court's role because qualified immunity isn't unity from suit not just immunity from liability it's qualified immunity as a doctor and as i'm sure the squares where is to allow government officials to undertake discretionary acts and act reasonably and so it is for this court to determine whether that if there was a violation of policy whether that violation  concentrating on the birth mark they're concentrating on what the supervisors allegedly failed to do they did or they failed to do we're not talking about what their agents failed to do or did c why i didn't know why hashed grow up versus a couple really had anything to do with this were only talking about the supervisor's actions as well and whether those supervisors actions reach far enough in to see whether there was a constitutional violation i think that's the issue here is that they they don't reach far enough to be directly involved in the alleged constitutional violation qualified immunity a pretext all but the plainly incompetent or those who knowingly violate the law under mally there's no evidence that defendant oser kirkland did either and so we would out of that so for our purposes back to my colleagues question because this is a ninet constitutional question we deal with the different issues and say what a state trial court might deal with in a jury about whether there was negligence involved correct absolutely her that's correct  again looking at the constitutional question the liberty interests and what deliberate indifference would be to that liberty interests there just aren't facts to support that either supervisor of or supervisor kirkland were deliberately indifferent  interests under clearly established law so we've asked that the court affirm unless there are additional questions i'll yield the remainder of my time for questions i think not i think very much thanks all counsel for your arguments this is a thank you again mark kimball working with james ware of my office on this case so a question was posed as to whether or not deliberate indifference really is a determination of fact or maybe next fact unmixed law and i think it is and i think it is something that can only be resolved by a jury focusing specifically on some language from what i think we all would acknowledge is probably the most relevant case  to what's going on here today is the to mosque a c and then to moss on the issue of qualified immunity the court actually wrote in determining whether officials are entitled to qualified immunity we enquire one whether the facts taken in the light most favorable to the party asserting the injury show that the officers conduct violated the constitutional right and to if so whether the right was clearly established such that a reasonable official would understand that his conduct violated that right so we're getting into the realm of what a reasonable official would understand that's an object of standard and a reasonable official that's a determination of fact and that's something that has to be made by the jury in this case but your honor i want to go a little bit farther on this issue because there's been a question raised about does policy rise to the level of a denominator of what a person's obligations are while i don't think there's a question about it i'm only citing what the law is and i'm saying come on if that is not that is a violation a mere violation policy doesn't equate to deliberate indifference i got to have more than that and your honor i understand the body all i'm trying to do is say don't rest on this violation of policy because that's not going to make it i can easily based on case say you lose i'm aware of the case law that says policy does not determine what is a constitutional right i'm well aware of that good but what i think that the reason why it's been cited in this case and why i think it's relevant and this goes again squarely to the heart of the issues which relate to and f r c p fifty six motion when you have policy established and then we look at what are the obligations what are the has to be applied for this indifference to house then i think it becomes relevant and i think when you look at it you're my colleague those a case that controls whether policy covers from my perspective i think you've got to gather that from our questioning if you look at the specific facts of what these folks knew in terms of any statute or ordinary kinds of things in some cases they weren't even involved when things occurred so you feel like policy is your whole case basically and my colleague has pointed out there is a case that suggests that that will not bring you to the level that you need in a constitutional issue like this why is he wrong he's not wrong what i am arguing is not that policy sets any kind of constitutional standard that's not what i'm is so dealing with the very issues in front of the court is that when we are looking at whether or not a person reasonably did what they needed to do whether on earth we were at trial i think that argument would be very very persuasive but we're not a trial this was a dismissal in which all of the inferences have to be resolved in favor of an on hold ok let's do that let's just assume that they violated the policy no courtesy as supervision no setting up a home study what is the evidence that there's an objective risk of serious harm to g quote the language from thomas and recall i don't need thomas because i know what the law is what is the evidence here that there was an objective risk of serious harm to g b if i just assumed that they violated the policy so in her brief now at age thirteen if i'm not mistaken we outlined the problems we outlined the risks we outlined what if i've looked  going is that all you want me to look at page the jacksons i was looking very seriously i was saying to myself that's wild line what these people did and when and i said to myself what is there here that's evidence of objective risk of serious harm every time anybody went out there to see this problem there was never a concern about g b safety never not from desmond not not from steiner not from kos not from anybody responding to your question on page thirteen of our opening brief in the kirkland matter that's all you want me to read principally that policy doesn't change the constitutional standard but what it does do is it informs whether or not an official information leads to an inference that cannot be overcome for purposes of the two motions were granted ok thank you thank you very much to all counsel for your argument  consolidate cases just argued are submitted