the the defendant's actions had a chilling effect in what way were you chilled by the alleged retaliation seems to me you were really active in protecting yourself were not chilled that all one of my missing well i'm include social workers in the she will the literature so that social workers would know that they were potentially liable for what occurred in this case well there's no exception to the rule that has to be a case in point and that's in the event that the case is obvious they've ok mother but in this case you got social workers they have a tough job you i think you agree with that even though you don't like these particular ones  they're doing what they think is necessary to protect children it's a tough job you don't agree with the way they did it but how are they should post and now based upon the status of the law that what they did was a violation of your constitutional right well st of all it's common sense and in every every social worker must know that it's wrong to fabricate allegations and place somebody on the child that these rights they think they must know that all don't they cannot possibly know the guy so that that's not so what about for example interviewing the children in school without your consent why would they know that was a violation of your constitutional rights i agree with your honor on that and i'm not i'm not alleging that person the libel for that there is  that well well yes it's a bit it's both in the sense i mean what they did was they went to the mother and they said you have to apply for custody or sense you will do it for you will take the kids from you and then you have any evidence that at the time they were doing that they didn't have real concern about the children i mean maybe they later figured out they don't have so much concern but at the time that they did that isn't their reason and even in europe the limited materials we have to believe that they had a reason to construction of the complainer unreasonable so if we take your view that you were listed how long do you think you were listed well i would say could have at least maybe two months something like that it's impossible for me to know without conducting discovery and that it doesn't seem that you have any allegations that in that time you were prevented from coaching prevented from chaperoning field trips or anything else is that right i wasn't prevented from doing that but i had to declare it to the place because  said have you have you have a you ever been if you have a problem and i had to say i'm sorry i'm just been listed to tell them that because that was about a week after i got is exhibit after the document that that says you know you're saying says you're listed there was yet another exhibit he says this was this was going on constantly for about two months when i was getting constantly harassed and when i told the police i was what was your basis at that point for thinking you've been listed as a received official correspondence maybe they did correct i don't know without conducting discovery what they really did but what happened was i received correspondence official correspondence from c p s saying that i had been listed subsequently i called and is that correspondence in the record i'm not sure  so it went from inconclusive to being conclusive you know for for i've no idea why that's why i'd like to conduct discovery of course then i subsequently called them and said yes you have been listed and they said by we like would you also prospectively be included in the list of those who can violate people's constitutional rights by committing a st amendment which allegation act of course all government actors can commit a constitutional violation but there is no clearly established precedent or there's not i was then that i'm right but so is your argument that there was no clearly established precedent that included social workers or that there's no clearly established precedent that said that these activities by social workers were unconstitutional it's actually a combination of both and that there are two prongs to the qualified immunity analysis and sometimes the courts to decide to look at the st prong whether there whether there was a constitutional violation in order to inform the  nd prong whether there was precedent that held that this particular constitutional violation was clearly salish then the reason for that is because the facts are so particular lies so here we have to look at the fact that this is a social work context that's a and we have to look at that precisely what the social worker did here so this is a social worker context where the social workers are supposed to be protecting the welfare of the children and the st amendment cases that  cited by mr cathy and that this school case duran for case all of those you have malicious prosecution malicious arrest you're a person said shut off his mouth according to those cases and then the police use their police powers and the rest of the person that's not what the social workers are doing here not exercising their police any police powers they're not arresting anybody they're just investigating and then making recommendations in order to ensure the welfare of the children but  can't made clear he hasn't been allowed to conduct discovery we don't really know exactly what happened i'll be honest maybe he doesn't have the strongest case but this case was dismissed at the pleading stage and don't we have enough to get beyond qualified immunity at the pleading stage the government official he's pled these are government officials who retaliated against him because he exercised his st amendment rights now can he prove that a trial or to recognize that i guess i'm hung up on the fact that how specific has the prior case have to be if we were required to be on all four you know on all fours then is is in any case going to survive qualified immunity  have previous cases that have said government officials in the role of a police officer or a prison official a school board and postal service inspectors and perhaps more can't retaliate on st amendment grounds do we have to have a case that says specifically social workers can't do it shouldn't they take notice that all government officials want to want to courts addressed this question they've always ruled that government officials can't do this no your honor those cases are not specific and particular lies enough to this context have put the social workers in this case on notice because of those distinct job of social workers and that there's a stink context in which they work they are supposed to be protecting the welfare of the children they are required under the welfare code and the penal code to conduct an investigation they had to go interview children they had to go talk to never kept they had to do these things so they are required to do some things and then they're also required to make recommendations as the district court found that perhaps in this st was just doing her job they're required to protect the welfare of the children so there needs to be case that in this particular allies this case no matter what it doesn't work if we conclude that social workers should not be excluded but there's no liability in this case therefore there would be qualified immunity is that something to which  you or your clients with object the words if we found that social workers should be listed among the others that judge bastion has listed as being potentially capable of violating constitutional rights under a st amendment retaliation theory but arguably perhaps not and they didn't do it in this case would you have any objection to that no your honor they did not violate the person and in this case so can you explain why so let's earlier we can look at the declaration of deborah cap which was attached to the complaint so it's part of the record and as you see miss kat stated multiple reasons that she was going to seek temporary sole custody of her there is the doctrine of the obvious alternative explanation was a recent supreme court case that talked about retaliation and arrest and said if there's probable cause to arrest we're not really worried about whether there might be also over television motive it seems like you're making an argument like that here as to the custody issue am i right it's a similar argument i mean i can see that you have it doesn't actually control this case but it is a similar argument that there are multiple other reasons with one distinction and there are multiple other reasons that in his st me this recommendation however in me of as the court also acknowledged that if there was some retaliation you also had to plead that there was no probable cause i don't think in this case there's no  retaliation at all all we have is mr kept saying well obviously because this st mean this recommendation that's retaliation that's going to be soliciting so what how do you explain the listing the cac i was doing it was a mistake and there are actual allegations in the record f e c fifty four dollars where one of our social or one of our employees this county's employees called him and said you were not listed on the khaki and then the letter which i believe is attached as exhibit i again said you were not listed on the khaki for this it's an unfortunate mistake but he's alleged other places that he was told he was so i think he has a pretty strong argument that charitably reading the complaint with inferences in his favor would suggest that these allegations are deemed inconclusive they sent a letter to the family court they made a representation a couple weeks later he gets a listing the calculus things saying these allegations are deemed substantiated you can look at those two allegations and then also the allegation that a couple of weeks later we had the person from the county call him and say sorry you were never listen and there's a letter the says sorry you weren't listed on the khaki look at those allegations an obvious alternative explanation which is more plausible in this case is that it was a mistake it was just a mistake but even if it's why is your explanation more plausible than his i mean isn't that a material issue of fact shouldn't the court of allowed him to proceed with discovery and perhaps rule in the counties favor we're digging really deeply into the it will totally standard but if you have two explanations which are just as plausible as each other which i don't think we have here because there's so much evidence that it was just a mistake but if you have two explanations for conduct that are just as plausible you have two obvious alternative explanations it's sufficient for the plaintiff just to plead this happened and it was bad numbers and various intend the plaintiff also has to plead facts which would show that the defendant's alternative explanation i implausible but that did not occur and all we have are his conclusory statements that obviously the social workers retaliating against him the question on all right thank you we could probably talk about this for a long time but we thank you both for your argument think of the case just