well believe me we have spent a lot of time on this case so there are basically two issues for the court on earth the state says the evidence i insufficient to get to the jury and on any claim on state created gained her on with the failure to respond which shocks the conscience secondly there is the issue of qualified immunity and whether the law was clearly established perhaps you could deal with that clearly a question earth and on after that out i'm going to ask you some questions on precisely what your causation theory is because it's a little on clear to me which of the officers failures to act are part of your conservation theory so let's start that there has got to be some kind of condemnation by some ranking state of florida your honors the common elements that go all the way through those cases are at the  difficulty i have is that conscious shocking i suppose in some extreme case would be evident and clear to anyone that something was and maybe the claim that simply that this is that the the li difficult the here it seems to me for you is that the after the affirmative access which i assume is the placing of the phone call that creates the danger after that we have a failure to just the affirmative act is not a thought constance are in the country talking behavior them comes after that right in the form of the deliberate indifference in response to the creative danger is that right that's part of it but the activity your honor is that district court short is you are saying that whatever knowledge they had beforehand and whatever danger they created me were deliberately indifferent to it afterwards is that right  and i guess my question then is it clearly established that merely being deliberately indifferent to it is conscience are yes you you said so in  put it which i think is a good way to think about it you are relying on the consensus that some that can be derived from the nine other circuits that there is such a doctor not withstanding the st circuit has never clearly endorsed that doctrine and that's i understand  a way of thinking about how something can be clearly established do that my guess my question is is it clear from those nine circuit that deliberate in here in the face of the created danger is constant shock because i would think it would have to be clearly established that that's the case from those circuits in order for your position to be clearly established but maybe that's wrong but that's my question i agree i agree with that position that that bombing thread and all those cases is the deliberate difference and that is clearly established minutes remaining in that case law council i read the case law the that they didn't do any background check on mr lloyd which would have told them he had he was on probation and he could have been picked up right away they message on his cell phone and making no effort at that point to apprehend him your client then has a number of xchange with the police telling him increasing evidence that he is going to kill someone and it may well be her her boyfriend her family her children that the response to that was in adequate as i understand it you are also but i'm not clear on  tell her as soon as they knew that it was likely he was fifteen minutes away and had just stolen two guns which he then he uses to not quite sure about your causation theory and what has been argued to the district court so could you lay that out for us please  the direct action and the deliberate indifference and looked at the rd circuit elements as being the most the most common and rd step to test a very stringent one of those tests your honor you mention the work causation or see they were on notice that mr lord was going to make good on the threats that he made about cutting somebodies throw about dragging them into the woods and that his wrath was going to be directed at the irish is and  that the phone call recording the phone call didn't mention the sexual assault allegation but the court concluded that it was quite reasonable based on the one on one nature and even tom yes well that's don't mean to anyone and they're right they go off and she gets increasingly worried and her mother claws the eight hundred number and she's told no don't leave your house stay at home she wants to drive to the police station and they say they do two thing but mind you it's not at the two defendants who give this advice they may be in the background we we don't know we don't know from his record they say do not leave your house you or save her there  we have officers in the vicinity when in fact the records jazz that that one is not true that the officers  very long day they had gone home and nobody was there close and not to have provided her and protection your honor having created the danger still have not provided her with protection at her house is that correct yes your honor and i would draw your attention to the two points on the timeline that are important that call to the warren foresman to  austin and hold was it about ten pm about two hours after the barnyard and it wasn't until one thousand one hundred and thirty eight you know forty two hours into this investigation that they talked to the probation officer who has an incredible detectives i am mindful of the hours that they put in but once you create a danger of this kind of prostitution of magnitude for her believe you have to put out the fire on i interrupted there and i think he had a question so i understand the disturbing facts and with respect to the deliberate indifference point the idea i understand the argument as to why there is at least a jury question as to whether they were deliberately indifferent i also understand that it may be the case that every circuit has recognized the deliberate indifference to be a necessary component in other words you would least would have to show deliberate indifference in order for any state created danger playing ultimate lead to succeed in showing its conscience shocking behavior but i want to return to the reference that just so you made to you about at least one circuit that has required official state condemnation of conduct because i'm not quite sure that i'm seeing or maybe you can help me how we could conclude th evidence one is the i r t investigation they concluded that there may have been a violation of the m four protocol and nd the protocol itself which in bodies you know the government's position is because it is in a state regulation it doesn't rise to constitutional magnitude but you can a matter of the local concern in a civil concern county concern state concern  condemnation by the state police of not protecting domestic violence and we're not taking their their their complaints seriously it i do a lot of family lawyer honors and a lot of criminal law at the local level it's very rare that you have a victim that does not have mixed feelings this sometimes even though these are still so the law enforcement diminished and didn't take parent stair case that's it's one of the quotes from the th circuit and basically what the government always argues is this exact case has not and this circuit before and as you said in which again predates the activity of these officers it's a two thousand and nine and you emphasize it was underlined in the opinion just because this court has not spoken on the other side is facts there's not mean the constitutional principle does not exist for instance the continent north america was here before someone said there's no continent of north america this constitutional principle existed before the circuit simply announce would be sent to this woman's house to protect her he told the detectives to not to tell her that there was not manpower if you look in the district court opinions though  crane out of this case because i wanted to be true to the elements that this court has previously adopted and it's discussion and analysis that you have to have an affirmative act and as in this in this last term you decided the case  they tried to draw a comparison of sit in my case is a complete failure to act there was no affirmative act the reason our sergeant crane is not part of this case any longer is because i remove the district that you must pass in bright line tess affirmative back conscious socking behavior because i know the court is trying to strike a balance between of the wording it reservoir poor law to satisfy constitutional claims that's but obviously in state police employee no stay where you are and we have officers in his senate he who can protect you ok is there are enough evidence for a jury to draw an inference that that dispatcher had information from the two defendants in this case which led to that advice there's enough of the jury to draw that inference but if i were to tell you discuss it for instance if every teaching a class on trial strategy i would say ninety percent of the focus should be on what gets in the fall or did after they created the danger in the knowledge of their charge but with the information you provided your author is factually admissible the jury and i think is the just jump right into the issue of the curly established problem of qualified immunity and i think i want to start by addressing this issue of a consensus of cases in other circuits and it's certainly true that there doesn't have to be a case from this circuit to make  which a court has found a right clearly established just based on the fact that there was a majority of circuit cases in that way when there were other circuits that had rejected the very and i just want to point the court to pearson versus callahan from the supreme court where the court said it judges must disagree on the constitutional question it is unfair the subject of police to money damages for picking the losing side of the controversy so we would say that in this case ye and that there was a constitutional principle involved in fact and there are two or three cases rather like this one but as a legal proposition i believe that argument is simply wrong you do not need a case identical on its facts to find the law is clearly established i say that just to clear that d toward the plaintiff what is the contact content of the test that is applied here well i guess i'm not sure how to answer that deliberate indifference that shocks the conscience in your view is that sufficient and if you think it is not sufficient what is your source in the case law on knapp well i mean i agree with mr lynch that in the rivera case this court said that when officers have time to reflect and think reason decisions about the analysis and i don't and would want to address them but i don't see that there's any case first of all i completely agree that it was not the case on all fours you don't have to have some sort of identical set of facts but all the plaintiffs have done is  into a bunch of pieces from other circuits that just at the most general i hope possible have said that that there is a substantive due process right to people to be not subject to state action that creates a danger but that it missed the t requires on the nation put that in a separate bucket for the time being but which all of the cases that seem to require as a condition for  that runs through all those cases that recognize the state created danger darknet you just said you understand them to recognize so i think it is common that i'm in denominator is that there has to be some sort of affirmative conduct on the part of actors that  creates or or are intensifies a danger to a rd party and then the state actors that gives rise to it didn't protect and then this the state actors exhibit conscious shocking behavior and not protecting the person from that wraps and on that last for the conscious shocking behavior is there a irreducible minimum or at least common denominator that those circuits use to assess whether somebody has engaged in conscious shocking  for example is deliberate indifference capable of constituting time to stalking behavior in the eyes of all those or i have to apologize or i i haven't looked at those cases closely enough and recently enough to be able to answer that question and  rise to a secret cause of action now obviously very carefully many times that this court's decision in the irish case when i was up last time around and my interpretation of what this quote was saying the nd the last time around with this case different when they're when they're used in an unreasonable way or or in some way that's just plainly unreasonable or deliberately indifferent or whatever the standard is so it's my understanding what this court was saying is that it's going to run an inquiry into seminal a qualified immunity cases the supreme court said right at the very start in in manly versus big the qualified immunity doctrine is not because i think what we have here is is we have two decades of this court discussing but never adopting the created danger theory and then i think in the in the one case from the circuit which i think comes closest to the facts at hand we have this  expressly rejecting the nine thousand and ninety one act as your brother says the law has evolved since then i have a couple of questions the way i read your sufficiently like this to have clearly to have a clearly stablished to the officer is one told you what i thought of the nd one as to the st one a comeback to that but you did not bother to argue in your brief to this court that the facts a do not as stablish deliberate indifference as to the qualified immunity point you did argue earlier that the trial judge was wrong in saying that there was a jury issue here as to conscient shocking behavior so let's go back to the consensus of the circuits and deliberate indifference may well be and if it shocks the conscience as specially if there is time to reflect all right this is not an armed robbery with the police having to make split nd judgments this was an investigation that took place for a number of hours there was no absence of time to reflect to as to what the appropriate steps w to be cake and there was also no absence of time to reflect when her request for protection was passed along there was also no absence of time to reflect and the close to two hour delay and telling her that no protection would be affor do we agree on that point do we agree on the two hour delay no that that this is not the split nd judgment situation adds to any and the action that this is not a constitutional violation so if you're going to deny qualified immunity you're you're sensually going to be holding these officers to to a standard that they should have been better able to protect the law than it just record judge was so that's a that's just  to let me just put the question this way and see if this helps suppose we agree we were to conclude that given the consensus of other circuits it was  established that you could be liable where he said it's a due process violation on a state created danger theory suppose we agreed that a common element of that theory is an affirmative act and that a jury could find based on the phone call that the affirmative act occurred here and suppose further we found that the evidence supported the conclusion that notwithstanding that they created that affirmative danger they were then deliberately indifferent to the danger that they had created right if we concluded that all of that was true would the officers here still be entitled to qualified immunity what are you relying on as preceden for the conclusion that all of that being true is still not enough to show that it's clearly established that there were suddens of due process violation so i mean i think the st point is that is that it's not just the not to establish that affirmative conduct can lead to a subset of due process violation pre qualified admitted there has to be some some corollary between the actual facts that are present and the other decisions so i think that's that's that's that's point one i think i think point two is that is that in the americas again which is the closest place the court didn't apply it there i think i think point three is that even if you were going to find that that would in difference in i mean even agreeable to go all the way it has all these other that they were going to get sort of this the winner in difference there's nothing in the record that would that would demonstrate that these officers were deliberately deliberately indifferent when they got the phone call from britney arash that that's  point i look for in your an appellate briefing and it it isn't there so what are we supposed to do well your honor i we we did talk about th deliberate leaning to print underlined as is the question of whether the jury is ever going to have the opportunity to answer those questions you the officers might very well win should the jury get those questions but that's not the issue poor us well we didn't trust the river in differen family no they did not leave an officer there to her but but also that was their supervisors decisions had to tend to not post an officer there and i also want to point out that yes they didn't do the thing that the measure of protection that the pla was asking for and obviously in hindsight with perfect you know two thousand and twenty hindsight clearly it would have been the right thing to do post office there but they didn't do that thing instead they took other measures and yes there was a tragedy because they didn't cause an officer there but i don't think that rises to the limit and difference they were taking other measures they didn't just ignore the risk to to the point of and i repeat my time is out so unless you have any other questions  irish it may strengthen the plaintiff's argument that the officers exacerbated the danger that lor posed it may also speak directly to whether the officers acted in deliberate indifference to our issues safety so much so that there condor shocks the conscience i believe that is counsel for the plaintiffs we follow the instruction discovered that m fo was directly on point and said what should be done in all domestic violence cases but especially alerted them to what they should do and all the more important when they had engaged in affirmative act that created the the honorable united states court of appeals is now recessed until the next session of the court god save the united states of america and this author of all court counsel you may now disconnect from the meeting