they were well we'll use the word fighting the strongest argument they were acting under color of law on the evening in question as to the yes it was rather than hypothetical under these facts what's your strongest argument i mean they they weren't wearing uniforms they and you know the laundry list as well as i do and nobody had bad as what is your strongest argument they were acting under color i think it really comes down to that the strongest argument is the fact that they were supports of opposition that if it's ok if it's a comment about how you perform your job that makes it under color of law you know i didn't find a case specifically on point your own if i said a judge kozinski as i never would well that's one understanding of that subject to another understanding that's where the question of factual gone to the jury but i think that even if it's a personal issue if it's because of the power vested that the pretense is under the authority you are are you changing your argument that i thought your position was that the idea was this was sort of a spy a sponsored that would be an office if you will party because the captain was retiring and somebody else is coming in and they had been told your client and they were to be good for their careers to go but that's not what you answered when i ask you what's your strongest argument i understand that your honor and that is apologize that is the emphasis of barbary well but there are a lot of what i think there are stardom it is and i think it's the fact that it comes down to the fact that they were criticised of the manner in which they performed their job the rest of it fits into it gives gives meaning context to you know that i do think it's important that it was a yearly event they were celebrating the incoming new captain there was no question that that there was an element of control exercised by the supervisors over them evil albeit how was the control that's to side by the supervisors but urging them to come how was their control exercised over them by their supervisor well in traditionally the past there has been and was because they make speeches about what they're going to do you know about how they're going to captain crew said one of the meetings he said what do you have to  there at the cop house and and your client turn to another policeman and said you're a terrible policeman expletives cetera et cetera in the guy had him was not under color of state law so i don't i'm willing it's workplace violence at the state i think unfortunately you have a point your honor it's inextricably tied into it we can't completely separate it from the fact that we have a group of deputies here called the three thousand boys a click there's there is the custom and policy as opposed to the quote official put into custom and policy unfortunately as you allege the custom and policy is to be brutal to inmates it is there any custom and policy to be brutal to big reference only in the commission report not a not in the record not on not specifically on our now in that's why if i may i come back to the fact that i don't think that is and is important and certainly not in the context of the custom and policy here that relates to the violence the culture of violence that's going on in this this department has been subject to the cult's commission from the early ninet all the way through to the two thousand and two thousand and three there warned you can't have these cliques they have these cliques gangs who is what they really are and yet the supervisors condoned approved and even former sh baka came out and condoned and approved these form the formation of these cliques because they create a culture of violence this is a situation that resulted from the culture of violence just because someone happened to be albeit off duty a police officer a deputy at a function and he's the one who subject to it he shouldn't be excluded from the consideration of the aftermath of the culture of violence what do we do with the fact that you're one of your clients through the first punch well i you know there's a loser there's a real there's two sides to that story you know if we have code of law you know this i don't could the other guy suman say you were acting under color of well because you had a party and this was about official duties and i overreact i don't i don't think so so why not well because in this case again we come back to see  client was not a member of the game but to turn the facts around that's when i had a different turn the facts around to have this discussion your client least from the point of view of the other guy unreasonably throws the first punch had some it hurt some right your client you the explanation as to why which is that the member of the three thousand group was a click and this was a response to an objection to the actions of that click so the culture of violence permeates not only those individuals that are in the click but also my client their member of a culture of violence yes but was that act a proximate cause by my client of that culture of violence i would say in these factual good morning good morning your honor paul beach for defendant lee baka and the county of los angeles the defendants are represented separately to answer your honor's question the question was in response  what's the best evidence of color of law the work related insult i believe that that is not sufficient i believe that's covered by the huge case cited in our papers and which was cited by the district court judge below in response to your honor's inquiry as to whether or not there was evidence in the record of violence by the click of deputies on the answer is no with regard to it is that because the read this report the citizenry report came out after the district court had ruled or or is your answer that you think there isn't evidence in the citizens report there's not evidence as to these gentlemen the defend the individual defendants there's not evidence as to them in the in the court's ruling on the motion for a new trial the district court's ruling on the motion for new trial first city it's an ide the motion because of failure to comply with the local rules in the court standing is a standing order and that issue was not briefed in this court so it's been waived the actual basis for the denial that motion it's a different  it's a different response so to tell me that you think that that is wasn't in the record and wasn't properly considered than it would be if your response is to tell me that you think that the citizens report doesn't give one cause for pas about whether there's a culture of violence in the sheriff's department with regard to these individuals and that's what we were talking that he doesn't name the individual he's talking about a culture of violence council so you know what i'm asking and wasn't fazed on the motion for new trial ruling the court went in to then look at the the the c c j v report and said that these people were not discussed but the why these individuals were not yes i said what is your response given that opposing counsel position is that there's a culture of violence it to name individual officers what's your response to that well first of all i don't believe that on summary judgment there was competent evidence of a culture of violence but as the district court judge explained in its ruling here they were relying upon a practice theory that was the plaintiff theory and they had not put forth evidence of a practice of violence by deputies against deputies and looking at the  van or opinions and other rulings from the ninth circuit it didn't bring it under the color was the wash of fission evidence here i'm not sure it was enough to get to the jury but there was evidence that these three thousand deputies if you will i had a reputation and some practice so i was acting in a aggressive fashion i want to be politically correct originates correct there was that assertion in the c c j v report which came in on a motion for new trial ok wasn't there didn't the didn't the plaintiffs provide a declaration giraffe a david so depositions to the effect that we knew about this reputation and this is what these guys do i law is absolutely or ok so that's different so what you know my question is what you said initially and the reason you're having this uncomfortable few minutes it's because he said there isn't any evidence of this culture of violence and and the record i agree to judge her but there there is a different different question about whether or not there's evidence here sufficient at the summit judgment stage to show that these folks are acting under color of law i think as your honour's pointed out the very beginning of the of the argument of this case this case turn on the color of law he said and  now you get me to the question i wanted to ask you before you went to different direction at what point does the county sheriff become liable for having out there some are used bad apples as you know and who are who are violent what point do their actions that might otherwise be viewed as private turn into state law actions displayed bad whether they were following a policy of the department whether but let me give you a hypothetical and it's a hypothetical so you want to tell me it's not the facts of this case the the sheriff knows that he's got a deputy who loves to beat up people  does it all the time to sheriff takes no action that that deputy goes to a party with another deputy the day the deputy says one says to the other you're a terrible cop and the guy who hit the sheriff goes likes to beat up people beats him up law i don't believe so if it happens at the station house does it under color of because it because again it would not be that was not the purpose for which the person was retained that's not presumably that's not part of their job third job of killing innocent civilians to take a different example is not the purpose for which somebody is retained but we find all the time the policemen act under color of state law when they gauge an excessive force no doubt your honor if if if if a police officer responds to a call for service and in the event shoots someone and kills them and it's deemed to be unreasonable that person is on duty in uniform trying to now he may be wrongfully trying to just charges duties and so that would be on the color of law but it would still be and the county would be responsible for that so i guess judge judge kristen asked your opponent what his strongest argument was your strongest argument is that they weren't really on duty at the time no  it's many things it's that they were not actually discharging a policy of the department actually acting contrary to the policy the department they were not on duty was entirely a private event that was on you're just wasting time you're wasting my time and that does not help your client's case do you understand the question i asked yes a question just on the same page does the record show whether  we have to take that as possible so if there is a culture of violence that is in play then the question becomes if you have sheriff deputies running around carrying badges and guns even when off duty do you then the spillover from this cultural violence creates a situation where when they do stuff like that it becomes an extension of the job and that's why i'm asking the question whether deputies while off duty are required to carry guns on them it's not in the record but based on my fifteen or some odd years  indirectly not in a record is probably the end of the answer right thank you it's not in the record and it's not in the record because i was i was i was going to have you raise your