district courts qualified immunity ruling should be reversed for two basic reasons first there is no clearly established substantive due process right to bodily integrity in the particularly context of exposure to contaminated public drinking water and second even if you accept all of the plaintiff's allegations as true they fail to establish a violation of any such right start with the first question to avoid qualified immunity it is the plaintiff's burden to show that they have any clearly established constitutional right in the specific context of the case not a general proposition and as this court confirmed in arrington bay and the u s supreme court confirmed in white vs poly both last year you need a case with a similar fact pattern so what that means is illegal template that you can put on the facts and it's pretty darn close it doesn't have to be an exact match but it certainly has to put the public officials i notice that what they're doing is unconstitutional and without that limit public officials are exposed to unlimited liability because plaintiffs can make big allegations as they've done here now to date no decision of the supreme court or of this court has even recognize the constitutional right to a safe environment much less a right to safe drinking water much less the right that government regulators will act in a certain way when there is a crisis with the water supply in fact the only case that's even really remotely close to this is the two thousand and eighteen district of new jersey decision that we cite in the why and reply brief that page four and this is the branch case decided january two thousand and eighteen which also involved parents who filed suit on behalf of their children who had been exposed to lead in the water at their school and they sued the state and local officials who were responsible for that and you look at the allegations in that case and they look just like the ones here the plaintiffs said that the children were knowingly explode exposed to contaminated water that there was a government cover up that there was a failure to monitor that there were filters that would have prevented the problem and they were intentionally not replaced that the public was provided misinformation and that there were no steps to re mediate and yet the district court in that case appropriately recognized that there was no authority that would have established a clearly established constitutional right in that context in fact the cases went the other way and to the extent that there's any ambiguity or lack of clarity that's dispositive quality qualified immunity applies and that's the end of the story and if you look at all the cases that the district court cited in support of her qualified immunity ruling they're very different because they involve things like forced iation and that's that's the case where the plaintiffs lot they were receiving legitimate radiation treatment for their cancer and in fact even though they willingly knowingly appeared  hospital in front of the doctors that they were really subject to experiment by the department of defense to see how much radiation people could take during the war and there's no force there and the radiation cases are but well there really is because it's the government that's directly affirmatively taking some action to put that substance in their body and with respect to the defendant and d e q regulators there are no allegations anywhere in the complaint that that's what was happening well here they're allegation is that they are  public water supply in the public water supply goes to the point of homes and they turn the tap off and then they voluntarily drink the water supply that the defendants have contaminated i mean but with respect to the individual the e q regulators they were not the ones supplying water they were the target in general i mean right now of right and there's other aspects of this case you know where that question may come into play to distinguish these cases why is that so different from this radiation case because there isn't a case anywhere radiation or otherwise that impose this constitutional liability for bodily integrity and regulators who did nothing more than communicate with each other communicate with the a p a in rare instances communicate with the public all the context of not having any duty to anybody where they were trying to do the best that they could in very difficult and quickly changing circumstances there's no we don't get into the facts and walk to repeal or qualified immunity we accept the facts as alleged b with one cabbie we certainly accept the factual allegations but as you were pointing out in the pretty yes case to the extent that there are alleged conclusions you know things that people were lying and that they were hiding those are the types of things that under  accept the facts of the plea but that's excel it has to be plausible and you know usually those types of allegations have question will possibility but this case is a little different everybody seems to say this is the unusual case and arguably this case so is there a argument that can legitimately made that even though there isn't a similar case or a template case  would say that this is so outrageous that essentially the plaintiffs are saying everybody should have known that they that they couldn't or shouldn't do what they were doing right and it's kind of a hope for the pellets or are you really right it is and white versus poly the supreme court decision from last year made it clear that that's extremely rare selling a child into slavery for example might satisfy that type of standard but it's important to separate two things that plaintiffs are saying here the ability of the contract which is one thing and the alleged constitutional right which is the other so for example if you had school officials who acted in the most shocking outrageous manner possible to deny students a chess club even though that conduct is alleged to be outrageous and in completely unique if there is no constitutional right to have a chess club you can't proceed with the claim and here they're asking for a bodily right to integrity in the context of the public water supply that no court anywhere has ever recognized now if you wanted to exercise your substantive due process powers and expand the realm of causes of action you could do that and i would recommend that you could happen to have got the authority to do that but even then that doesn't mean that it's clearly established for these individual regulators the problem with clearly established  as each case is factually different i mean you have the forestieri a case where they sterilized people without their consent while the next case is pumping the stomach of somebody else the same argument you make today is that there is no case that says pumping somebody's stomach in voluntarily violates the right to bodily integrity all you have is you have a sterilization case you don't have a case point here that wasn't that defense wasn't sufficient for the supreme court they said it's close enough right now in charge close enough to give you notice edging ever every case is a little different from the preceding case and their argument is that they build upon one another and the  conclusion is that under this scenario you would know based upon these other different factual scenarios that this violates the constitution i mean those kinds of factual distinctions that's not our argument when i he saying is how i thought it was i thought you were saying you need a case that's almost right on point but what you do and what you're talking about is a situation where you have clearly established precedent that says a guard can't beat someone with a wooden baseball bat and then the next case comes along and it's an aluminum baseball bat and you say oh well the stacks aren't exactly the same we're not spending my romping is a lot different than for sterilization is it not i think it's a difference in kind but here you're talking about regulators who were sitting in their offices trying to do the best that they could in difficult and quickly changing circumstances they weren't acting with malice there wasn't force and if you look at these cases you can't find any case anywhere even remotely close where a public official was held liable for failing to intervene for simply approving a permit for failing to take some action i mean that branch court again in new jersey you know kind of ran through this and to the extent there are any cases that are even within the realm of closeness as you say the forced radiation versus the stomach pumping they all go the other way in favor of the regulators and the problem with accepting the district courts argument is that you open up for unfettered liability everybody in government who is approving food who is approving medicines and medical devices who are granting or even failing to grant environmental permits and you're going to end up in a different because all of those involve a third party right these are third party i'm representing the third parties that will all of the regulators all of those examples involve regulating a third party this case has to do with the government sending the water and then wait and then the regulators supposedly lying about it to be perfectly clear that individual d e q defendants weren't sending water to anybody they were checking off boxes telling the city of flint yes we agree with the plan that you're proceeding with or not that they're just like the f d a they're just like the medical device approve or they're just like anybody in the d e q department who's giving someone a permit for something i mean these are the consummate every day government officials trying to do their job the best they can and not always getting it right and the thing about qualified immunity is that you don't always have to get it right so long as you're not acting in such a way that the law clearly provides for him that's it i mean white versus poly says your honor it's got to be really  close would you if i understood ok let's say you're a regulator and you're trying to make choices between different options that's one thing now don't say hypothetically that you or supplying records or you are stating things that you know to be untrue to achieve a particular result knowing that people are going to be ingesting poison hypothetically we're going to reasonable regulator know that yes you can make mistakes but you can't affirmative you can't lie you can't say that something is true that isn't especially when you know that the result is going to be that people are poisoned right and but before i answer that question just to carry out how hypothetical this is  instance where they allege that there's some kind of a law which of course is conclusory is with respect to this bush e mail to the e p a about corrosion control and even there if you look at paragraph thirty three of their complaint which is on page eighty ten of the district court record all you said is that that paragraph thirty three of the complaint says that plant has a corrosion control plan and other side bar if you look at the way that they're alleging the facts in their appeal brief they're very different than the complaint because the district court took a lot of liberty with the factual allegations and drew legal conclusions from it and if you look at page is thirty one to thirty six of their brief when they're actually analyzing the facts as opposed to the clearly established right there almost all sides to the district court opinion rather than to the complaint and we lay out exactly what the complaint says in our briefings i want on that but hypothetically even with the law you know that's a fairly serious government act of misconduct no evidence of that here there's not a legal template that says that a guy officials false statement about something like that could lead to liability for violation of the bodily integrity right in the context of water quality it just isn't there and  i realize my time is done but just wanted to very quickly state that even if you would move past that and ask the second problem have the established right they would have to show that the force was inspired by dallas or sadism akin to what happened to the special ed more than what happened to the special ed students and domingo they haven't done that they have to show some affirmative violation not merely a failure to intervene the supreme court has said that there has to be some physical abuse and the other side cites a couple of contrary cases which we distinguish in our reply physical limited an after the fact role in the events of this case now there's alleged to have been involved in the decision to switch to foot river water or in the treatment of the water or even in regulating the treatment of that water instead plaintiffs allege simply that they did not alert the public  possible lead concerns more than seventeen months after the switch to the river and just weeks before the city switched back to detroit water but no court has previously held that a public health official violates the constitution by not publicizing a health concern promptly enough and not only have plaintiffs in the trial court failed to identify any factually similar cases supporting that proposition but there is nothing even remotely close so for those reasons direct line and dr wells are entitled making sure the municipal water systems were safe for sure so your argument as i understand it is that the department of health and human through health and human services has has no duty in connection with public water is that right that's correct i mean if you if you look at it is it is sort of levels of relationship to be contacted issue or to the injury issue were you a step even further removed and so you know what it what do they have a duty to do and if it's health seems like this one right to health sure role the big questions under qualified immunity analysis the question has to be tied to whether or not reasonable official in their position would know that what she's doing violates the law and specifically the allegation is that they failed to alert the up a step before you get up if you don't have a duty to begin with it's hard to say that you should you knew you had to do something if you have a duty to do something and you fail to do it it's easier to make that claim so what was their duty here with respect to the quality of the water we would say constitutionally they are not given a duty statutorily they're not given a duty with respect to the quality of the water but they dissent i think the allegation is that they were disseminating information that they knew was false well i don't believe that there's any specific allegations that they made public statements that were false and if you look at the specific allegations what they were what they're latching on to is an internal e mail from director nick lyon that occurs just two days before the department of health and human services makes a public statement that says in fact there is a problem with the water and what that e mail says is you know we've gotten this analysis from dr mona and we'd like to make a response suggesting what we think is in fact occurring here and so we asked lower level staff officials to engage in their own independent analysis which is a very important step so that as a matter of public health they know what's going on and that it's clear that they have correct information as to what the problem is before they take that to the public and just two to three days later on october first twenty fifteen it's paragraph three fourteen of the complaint they make a public statement that it says confirms dr mona's and now says so i don't believe  specific factual allegations that would support the notion that they're making false statements to the public but even if they were there is a case from the second circuit in lombardy versus whitman that is probably the closest case that you have to anything relating to a public health officials duty to report and what it says is that number one they don't have any duty to alert the public with respect to pub public health problems such as in that case air contaminants because that would be simply a failure to act which is not sufficient to support a violation under the due process clause but in addition to that e p a was specifically alleged to have been making false statements and the court said that even in those circumstances e p a was not liable for a due process cla violation because there was a countervailing governmental interest now with respect to empty h h s again there's no there are no specific knowledge that point to false statements that they made instead the limited role of director line of dr wells was that they were informed about a possible problem as a result of blood lead tests they asked lower level staff to conduct an analysis that analysis was conducted and ultimately just a few days later they issued a statement saying yes there are in fact maybe a problem here the type of conclusory allegation that it paul specifically disregards because if you look at it in the facts in that case the allegations in the pleadings in that case there was an allegation that john ashcroft was intentionally discriminating in intending harm to the  the specific factual allegations rather than conclusions as to the intent of the defendants or conclusions as to matters of law or arguments that they're making well i mean within that is a factual allegation that they withheld information shows so th supreme court did a number of years ago is it tried to move away from the subjective analysis where you could make those types of assertions just to get past a motion to dismiss and instead moving to this objective analysis where you say you know looking at the alleged conduct of these individuals the specific things that he did whatever not you can make out a claim on that basis and so if you looking at the specific things they did those are things like you know they were informed on september twentieth or twenty ninth that there may be a problem here they asked lower level staff to evaluate it and ultimately they made a statement to the public that's the interesting thing about paragraph two fifty three that starts with the word instead has to be read in connection with paragraph two fifty two to fifty two says where empty e q caused obscured and lied about the lead problem and should have discovered and revealed and then a go and then the next paragraph in light of that goes on and says instead they did something else so the claim reading those two together seems to be that they should have discovered and revealed current and we have to figure out is there or was there or is there a constitutional violation and was it failures to act the type of allegations that are really akin to negligence cannot support the due process violation and so given that that is the grubman of the complaint against m p h s it cannot support a claim let alone a violation flint water treatment plant superintendent i'm reserving one minute for because i have a very short time i am going we are the parties are relying on our briefs with respect to our eleventh amendment argument and we will speak only to the constitutional arguments with respect to whether or not the plaintiffs have stated a claim under the fourteenth amendment i have three points to make first it's very important even though the court has the option to choose which of the factors it will analyze first whether there is a claim stated under the fourteenth amendment of the plaintiff's facts or whether it's been clearly established we asked the court to deal with the constitutional question because the is the only governmental entity left in this case and it is not does not benefit by qualified immunity and therefore the clearly established prong does not a pertain to it a quickly when this court reviews whether a claim has been properly stated or not it should look to the case of collins versus harper heights which says a couple of things that are very important one the courts very reluctant to expand the concept of substantive due process because guideposts guidepost for responsible decision making in this uncharted area are scarce and open ended and also in that case it's perhaps the most factually analogous the municipal employer sent an employee into a job that it knew was purged cripps harmful it did not warn him and he died in the court found that that employee did not have a cla under the substantive due process analysis of the fourteenth amendment but in the reason it was because the the clause of the constitution is written says that it's phrased as a limitation on the state's power to act not as a guarantee intentional invasion of bodily integrity are specifically targeted at individuals who are there present before a state actor and being acted upon with intent by a state actor here we have  departments and a number of individuals all of whom have influence over a great big process which is the disk distribution of water in which a disperse harm has occurred to  many individuals as alleged that's not equivalent to any of the factual patterns that exist in any of the cases on which judge leavy relied and there is no case in the plaintiffs don't pretend that there is such a case where by this court can point to and say on a large scale basis where this kind of harm is alleged that a government has acted with the requisite level of intent that is necessary to establish a claim under the fourteenth with respect to the last point and whether it's clearly established first of all the plaintiffs have not alleged adequate conduct on the part of these individuals to to state that each individual defendant has engaged in unconstitutional conduct which is sufficient in order to establish a constitutional violation and therefore it's not clearly established against them secondly as mr birch said there are no cases and these this court as a matter of lot needs cases with factual similarities in order in cases of failure to train the city is entitled to have clearly established law in order to know what to train before the city can be held liable there's a entirely separate allegation prong with respect to whether the city is liable the city can only be liable if it caused the harmony can only cause the harm if it has a policy or practice or if it has a failure fail to train bait cases very clearly that that failure to train can't be established if unless there's clearly established law that says you're supposed to train in a certain way there are other cases in which this court has said the same thing  just finish that sentence in particular with respect to the court the court has said you know in so many cases you have to have clearly established law in order to just wondering if you're not complaining a couple of things here in terms of your failure to train argument which frankly i don't even understand how that applies to start with i thought the cases said that you don't have to train and less you know of the need for training that's essentially what what the new orleans case says involving katic that's a that's a that's different than saying it's there is clearly established law that tells you that what you have to train get to failure to train this is among l r u or this is a more an l argument basically evolving the city of flint there just simply has to be either a policy or i mean a policy or practice here is pretty obvious when you have a city council resolution or you have an emergency manager decision on behalf of the city council saying we're going to switch and we're going to start pumping the water so why why would we ever get to failure to train i think i can answer the court's question if the court were to say we are determining that  a claim under the fourteenth amendment exists and also say we understand we are not going to hold the individuals liable because it's not been clearly established however but because the city does not benefit by qualified immunity it is still it remains liable because it's doesn't have that immunity but they're not even claiming that the source of the liabilities failure to train and train who would be the managers water operators that wealth that allegation is good morning cross on behalf of robert scott your honour's may please the court please know that counsel for the state of michigan defendants did not take lightly having reserved this one minute for mr scott the lowest level state employee in this matter indeed we collectively agreed that it was important to reserve this time for mr scott as to one crucial point and that is to emphasize to the court to carefully look at and assess the claims against each of the defendants in this case as opposed to lumping them all together as plaintiffs in the truck court did each employee's respective role must be examined individually here for all court at least purported to analyze them separately not i would say purportedly yes  it's a very brief history as to mr scott it's a comprehensive opinion by her and she goes through all the counts i don't know are ten counts or something and all the defendants and i mean she did a very comprehensive job whether it's wrong right or not is another question but well i would i i am not sure in terms that comprehensiveness is is to mr scott as the lowest level employee in this case and and  honor so i just want to emphasize that i i can't emphasize enough that each of these defendants have to be looked at in their own respective roles particularly as to the conclusory claims and  morning may please the court michael cafferty on behalf of defendant nancy peeler i also have a brief amount of time i just wanted to essentially join in with the arguments the other side makes but i would like to point out that you miss p position here she is a civil servant she basically had mid level d michigan department of health and human services employee having nothing to do with the water system a very small portion of her job involved reviewing blood lead levels outs that are mandatorily reported by laboratories in physicians through a system where they get report it's a small portion of her job she had no involvement in this per the point of the complaint until some sixteen months after the tests violates the plaintiff's right to bodily integrity in terms of a qualified immunity analysis there's absolutely no case law that would have put her on fair notice that her analyzing blood test sitting in her cubicle and placing blood tests would violate somebodies right to bodily integrity and i do agree with your comments judge griffin that there was some care taken by the district court to talk about different people's roles but in terms of the qualified immunity analysis the district court cases cited for saying there's no qualified immunity with the same cases cited for the d e q employees as they were for the mt h h s employees and i think that was there because i think you have to analyze them specifically i don't think there's any case law that would put an employee in the position of the n c p or unfair notice that her analysis of this data which is this tiny portion of her job is violating somebodies right to bodily integrity government defendants in this case acted affirmatively to put plaintiffs in harms way over a period of two and a half years defendants made a long series of disastrous and callously indifferent decisions which poisoned an entire city through lead laden and bacteria laden water during these two and a half years defendants disregarded the risks of using the flint river as a water source then concealed and affirmatively misrepresented the dangers of continuing to flint river water mr what would be really helpful here at least is to me is instead of speaking globally that about what happened in flint overall and instead of speaking globally about the defendant it seems to there may be three separate discrete time periods and what allegedly went wrong during each of those time periods once the decision to switch a lot of these people are not involved in this isn't a switch at all right statement i would agree your honor that those those are two separate actions switching would have been ok had them improperly treating what i think i would agree with that you get switching you get them distributing it through a plant that wasn't properly treating the and now this water is out into the system and so then the third stage here is everything that happens next which is largely not requiring them fast enough to to to start treating the water  interpretation let in copper water rule and or maybe the fourth fourth period would be falsifying or or or misleading the public so if you get these four different periods at least the way i see it and you get different people that had different roles at different periods when we just speak about all it once you we really make it difficult to understand both the constitutional violation that each person did the source of it and whether it was clearly established well your honor what we tried to do in the brief and in the complaint as well is to is to divide the defendants into three general categories you have the empty e q defendants you have the defendants and you have the empty h h s defendants know the first two categories that your honor mentioned the the decision the initial decision to switch to the flint river and the evaluation of whether the  water treatment plant was was capable of adequately treating that water those were decisions that actually date back to two thousand and thirteen because the the decision to switch was  by the flints once prior emergency manager mr kurtz who's not not party to this appeal but even prior to the actual switch defendants had was capable of treating that water in the so is there a distinction constitutionally assuming there is a right to bodily integrity that's violated by contaminated water is are difference between making the decision to do it and and simply having had an opportunity to evaluate it in not having done it well your honor i think both of those both of those types of conduct can give rise to a constitutional violation especially in a situation like this one where we're not just talking about a split second decisions we're not talking about decisions that require it require a reliance on other information or conflicting information and we're not talking about defendants who were even subject to competing obligations at the time the defendants were not in a catch twenty two scenario where they were deciding do we do we stretch to the flint river or do we decide between that and this other potentially unconstitutional alternative there was nothing in the empty plate people either played a role in that or they could have played a role let's assume that for a second but the m d h s h s people than anything to do at that face today the the m p h h s defendants were not responsible should be producing water that wasn't treated in the early no your honor they were not another's when we're analyzing them this is it gets back to the problem here we have to figure out what each person did and how that violated their right to bodily integrity because they they they came in a different times during this proximity ten month period yes your honor and the complaint ladies and you think judge levy did that in connection with both the constitutional right and whether it was clearly established as those as to those groupings of defendant well actually the judge leavy did more than that judge leavy analyzed each defendant individually and found that the complaint sufficiently alleges what each defendant did and  drink that it was toxic even immediately after the switch from residents were complaining about the odor the smell the taste of the water and then you have independent third parties alleges that the m d h h s defendants worked to discredit this evidence and then proactively made false statements about the the the safety of continuing to drink this water the complaint quotes e mails were empty h h s employees are referring to the situation in flint like a third world country and wondering maybe if the federal government will step in even after the m t a h h s defendants confirmed  teaches findings they sat on that evidence they even developed a talking points memorandum that gently admitted dr hanna teaches findings but then said the lead paint objective indicators that the water was unsafe you have the general motors decision in october of two thousand and fourteen general motors ceases using the flint river water at its engine plant because of fears that the corrosion  corrosive nature of the water in the chlorine in the water i'm sorry the corret in the water would would corrode metal parts and yet the and that was a very public thing in michigan your honor it was a public news story through press releases and yet defendants saw no need to alert the public that water that is too corrosive for metal parts is not safe to drink instead you have defendants like defend b who writes an e mail to the other defendants saying that flynt rivers levels of chloride although not optimal are satisfactory and he stresses the importance of not branding flints river as corrosive from a public health standpoint  and you have other things other than that just that this is just simply bad judgment it's what do you have to support the it's unconstitutional conduct your honor that this is not just bad judgment like i was saying before the events here unfolded over a period of years so the defendants had the complaint alleg defendants had actual subjective knowledge that flew to the river water was not safe to drink that they were deliberately and indeed callously indifferent to the risks of actually right there for a second because it's interesting the enough is you know you've got a panel that's all michigan judges here we have live there through this too even though that we none of us live in flint so i think everybody in america has probably seen the newscasts of people showing up at city council or in the mayor's office with these jugs of brown water so there's no question that that that something was a amiss with the water i mean nobody could argue about that but this is a specific claim involving lead and there's suggestions in the briefing about legionella but you're not really representing legionella people aside or state this is less so we're trying to figure out when did people know that there was lead in the water or when should they have known there was a lead in the water and then what duty did they have to do something about it if they had a duty to do something about it and they didn't did that violate somebodies constitutional right at least the way i see it here so that's why we need to be more specific about this yes your honor and and as far as when they knew the question of when they knew and then the separate question of whether they had to do anything as a  that so the complaint talks about a two thousand and four study of the flint river as an emergency intake and found it to be highly sensitive and susceptible to contamination then you have another two thousand and eleven study which is a feasibility report which studied the use of the flint river as a primary water source and rejected it as a viable source it also found that the estimated cost of preparing the flint water treatment plant to treat flint river water in compliance with applicable drinking water standards was in the millions of dollars so you have the two thousand and four study you have the two thousand and eleven study then you have the year leading up to the transition to the flint river when the m evaluating the viability of the flint river as a a water source but if the plant had been properly equipped to treat the water than this none of this would have happened right i think that's right are so while this is transpiring this is another thing that i don't really understand there are engineering firms that are involved in all of this and you're you have sued several of these engineering firms if not in this case than in other cases and my understanding is you're alleging the engineering firms were negligent in the advice that they were giving to the decision makers right that that your claim generally speaking that's correct so if these decision makers are relying upon an engineering firm that now you claim that presumably had the expertise but now you're claiming in other cases proceeded negligently then how does that make them deliberately indifferent even though all looking back in hindsight reliance upon that engineering firm's advice of apparently went horribly wrong i'm sorry or are you asking if the engineering firms were deliberate deliber no no no no you're saying that that there was a lot of knowledge there were problems with the river there were people knew the water had to be treated but there was an engineering firm as i understand it that gave advice that the engine that the plant could properly treat the water upon if people that were making the decisions relied upon that engineering firms advice how were the people that relied upon that the don't know how to run a plant deliberately indifferent to somebodies constitutional rights well you're on to the complaint alleges that the defendants actually knew that they had actual subjective knowledge that a the flint river was not a viable source of drinking water and that b the water treatment plant was not prepared to begin treating that water on a continuous basis and i'll just give an example really quick of basically the engineering firm didn't tell him that it was ok or they did and they should never lie to pilot well what you have with the engineering  firms is that they they were definitely negligent in in the advice and their involvement in in trying to treat the water corrosion but despite all of that what you have is you have other factual allegations in the complaint that show notwithstanding whatever advice they were given from the engineering firms they had they also had actual subjective knowledge as to the the viability of the flint river as a water source and as two different water treatment plant is not being prepared to begin treating that water i don't get what the phrase actual subjective knowledge means what is that what it means your honor at action alledge of it right so it it's subjective as opposed to as opposed to an objective standard as opposed to saying that objectively  reasonable person should have known in their position that that the that the risk that they were causing to flint's residents or that the risk that that different water treatment plant was not prepared and not on line to begin treating the water so that it is closer to a negligence standard when i'm talking about actual subjective knowledge i'm i'm referring to the defendant's deliberate indifference meaning that the they knew about the risks they knew about the harms that their actions were causing to flint's residents and they acted in deliberate disregard to that over a period of months if not years and just going back to your other alleges on page twenty three that despite stating on march twenty fourth twenty fourteen that the flint water treatment plant was set up for emergency use and not prepared for continuous operation a month later in april twenty fourth when he e mails defendant were full to provide talking points for an upcoming flint meeting stating that the department is satisfied with the city's ability to treat water from the flint river and the complaint alleges that that was knowingly false and am i right just again sort of the global picture here state defendants and lump them all in together just for convenience here believed apparently in hindsight in correctly that under the lead and copper water rule if there did turn out to be lead in the water that you ran the plant for six months and you tested it again and you're at it for another six months and you tested it again before you came up with a core course of action that's what happened here is not  well what the complaint alleges is the defendants knew the the water was not being treated in compliance with the letter comparable in the state drinking water but can you answer the  question saying they they knew it but they thought they didn't have to i thought the problem here was and the seed it seems silly to even state it this way but it seems as if if you assume that they knew the was lead in the water and they knew that the plant wasn't treating it correctly and even if they knew that lead was harmful that they believed that under the rule that the course of action wasn't to require the city to begin to treated immediately because this there was a question apparently about how to treat it so the course of action they thought federal law required was to wait six months test it wait another six months then decide what to do that's what they thought right well your honor what the defendants thought originally remember that the river was intended to be a temporary source of drinking water so the flint would switch it would transition from the detroit one the what the defense thought was that it wasn't worth it to complete all the upgrades on the water treatment plant or to adequately study the water because they would be transitioning to another source within a year or two but even the e p a s and standard has admitted that the rule was not properly not clearly drafted and needed to be revised to make it clear you don't wait six months in a year while you're pumping le into people before you take corrective action in my i know i'm generalizing but am i saying that incorrectly well your honor if i understand your question are you asking whether the lead to copper rule in safe drinking water were suffici it may be but but basically these regulators believed correctly or incorrectly that they had a duty to follow the e p a laws and regulations and as i understand it from reading all this stuff they thought that incorrectly they were following it incorrectly they were following it correctly because it didn't require immediate treatment of the water now just saying that seems stupid but that's that seems to be what everybody says happened here well not quite sure what the complaint alleges is that the defendants knew that there was a need to to have corrosion controls in place prior to the transition to the river  and that they they knew the corrosion controls were not in place at the time of the transition and but the engineering firm said that the plant was was ok to treat the water well your honor with what the engineering yes or no what the engineering firm said is not it's not really part of the limited issues on this limited interlocutory appeal or whether the defendant reliance on that was reasonable these these are all to merely questions of fact which are better left for the summary judgment stage after there's been an opportunity to evaluate whether it would have been reasonable or not for the defendants to that and ask you whether it was reasonable that i ask you what did they say and you don't want to tell me so i get well no your honor with what the complaint alleges is that the defendants knew that the the river water was not being properly treated that there were not proper corrosion controls in place and this is true of all defendants it's true with respect to the defense that those allegations apply to so so these allegations are primarily primarily directed at the empty  and the flint defendants who are responsible for not only the decision to to switch but also to ensure that the water was properly treated after the transition and there were numerous allegations throughout the complaint  to support this you have a task force put together by governor snyder who found not only that the empty key empty queue filter proper to properly monitor or test river water to ensure compliance with the safe drinking water and the lead in comparable but they also found that the empty e q seems to have been more determined to discredit the work of others who ultimately prove to be right than to pursue its own responsibility and what you have here is and where do we look for cases for that i mean i understand about the switching i understand about knowing you should have been treating the water i get that but but discrediting somebody that's saying there was a problem with the water that is also a substantive due process bodily integrity violation here it is your honor because so badly integrity sub part discredit here here it is it is a bodily integrity violation because the defendants knew the risk that their affirmative actions were were imposing on the planet spottily integrity they knew about the risks of continued consumption of lead and your honor the allegation is not simply that they tried to discredit outside sources it's that they they lied they made knowing knowingly false statements to others within their department to the press and directly to the members of the public so the allegation is not sexism only maybe three or four of this whole group that actually made any statements to the press or to the public  back to your previous question about so where do we look when we determine whether there was a constitutional violation under the circumstances under the the clearly established prom a reasonable fishel can be on notice that their conduct is unconstitutional in a variety of ways so in our brief we cite numerous supreme court lower court decisions that involve analogous bodily integrity violations to those that have per current here where poisonous substances were in voluntarily introduced into individuals bodies without their consent and were the ones introducing those substance substances lied about about the safety of those but how do you link them together i mean you've got clinton maybe some empty queue responsible for introducing this substance had to you how do you get the other people well your honor the the complaint does allege that the that the defendants are jointly and severally liable what you have here is a situation  it's true that each individual's actions when looked at in isolation probably would not have led to the entire flint water crisis unfolding as it did but what you have is these individual's actions combining with the other defendant's actions which cause the situation that we now have where four years later when residents still do not have clean water that's a fascinating concept because i've never heard anybody say that somebody can be liable under section one thousand nine hundred three because they did something that in and of itself doesn't violate anybody's constitutional rights because parties b c d and e did something that then collectively that violates your cassiterite so do is there is there a case that even hints at that sort of an analysis maybe or maybe i misspoke your honor because that's definitely not what i was saying what i was saying is that each individual defendant's actions looked at in isolation do constitute a bodily integrity violation ok you talk about causation that some parts of all the actions differentiate them from the third party cases where you know they're monitoring in their not being a very good job that they're still not liable i mean you're trying to treat them as the same person as the m d q people or the flint people will your honor when when you're talking about monitoring are you referring to the state the line of state created danger cases because what we have here is we have a complaint that alleges that each of the defendants individually made affirmative acts that violated the plaintiff  but for let's say wells and lyon in essence right you want to hold them responsible i mean the the harm or the constitutional violation that you're describing is this involuntary bodily invasion of poison where it's critter ok and that happened because of the water switch and now how do you get the defendants who weren't involved in that respond with some specific examples with respect to those but really it is not just what they did we need to know why that makes them liable well your honor it is because what they did h h s employee just one example despite defendant scott is a fellow m d h h s employee having told her that his own review of blood led level data showed an increase posts which the front river  internal e mail saying my secret hope is that we can work in the fact that this pattern is similar to the recent past indicating that she wanted to dilute and suppress the different departments findings by attributing the blood lead level increase to seasonal variations now what makes this rise to the level of a substantive due process violation is that this was not mere negligence this is not a mere commission this is somebody who made this statement knowing  that as she sent his email for the residents lives were were being put at risk because they were consuming lead laden and bacteria laden water and this this statement and others which are quoted in the complaint are made in c understanding where is the constitutional violation because what it sounds like is that you're talking about these are regulators or people charged with monitoring certainly health risks that intentionally and outrageously didn't do what they were supposed to do but  sure that that is a constitutional violation or if it is what's the violation so the violation your honor is a violation of the right to bo which is a component of substantive due process rights and what that protects against is a government actor who interferes with an individual's bodily integrity in a way that shocks the conscience now you can meet the shocks the conscience standard in multiple ways you can either meet it through for example arbitrary government action you can also made it through conduct which is deliberately indifferent and the complaint alleges that that these defendants acted both arbitrarily and in deliberate indifference to the the risks to plaintiffs bodily integrity that their conduct was opposing defendants because of the fact that that the defendants including the put plaintiffs in harms way by making knowingly false statements to the public to others within their department and to other government officials who were responsible for preparing our press releases and right lumping a whole bunch of people together and it well i was just answering your question more generally but i'd be happy to go back to discussing the individual allegations about about the particular mt h h s to how is this different from the question whether and i know you're not alleging that there's a right to clean water but given that the government is the one who's supplying the water how is this different from a claim to a right to clean water that's coming into your whole shirt so i think a good hypothetical that would present a right to clean water would be a situation where you have see a lake or pond and it's not it's not water that's being pumped directly into people's homes now if let's say it's just part of a a nature reserve in that situation if if the government were polluting that pond and the  plaintiffs attempted to to challenge the pollution practices that would be an assertion of a right to a clean environment saying we have a right to enjoy see the beauty of this pond that's not what this case about in any sense this is this case is about water that is being pumped directly into people's homes water that defendants new would be used for drinking a that is saying then that you have a right to to have clean water pumped into your and no your honor that that that's not the right that we asserted in the complaint it's not the right that the district court's decision is founded on but i'm still a man asking you tell me the difference your honor i would i would character characterize this right as being in line with the long line of both supreme court and lower court decisions recognizing that an individual's bodily integrity right protects against government officials who knowingly introduce poisonous substances into those individuals bodies without their knowledge or consent so as judge griffin was saying earlier it's analogous to the the radiation experiment cases or  there's others like those like the plutonium experiment cases or some of the others so that if they if the one when they realize that the color that something was wrong if they immediately put out all sorts of bulletins that says the border is not safe don't drink the water you know don't even boil the water we're going to do we're going to get everybody water we're going to switch then you'd say would that be a violation your honor if if that's what defendants had done this would be a much different case and i think it would be a much harder case for us to be to be honest because if the defendants had told the public about the risks of of the flint river water and continuing to consume that water as i would consider in bolland it's for forcing the involuntary consumption of the poisons correct mr guess you've been way out of time and i was just as one worker so just to make sure that i understand where all of this is going the the end result i think of your discussion with judge white is that it's because they needed to rely upon water to live in the city chose to deliver them water in the water was contaminated but there are lots of other things that we rely and we rely upon food and in and be avoiding plagues and those kind of things so i just want to make sure that i understand rightly or wrongly that if you're right about this if the regulators in charge of air quality or food inspections or preventing plagues or something like that if if they violate their their duty as a state employee that doesn't just violate state law and maybe some federal law like the federal clean water act or something like that all of those things then it seems to me analogously would be exactly the same as this claim and would constitute constitutional violations of the rubric of substantive due process and bodily integrity because all of these play these things that i'm mentioning are all being taken into your body in some way am i right about that no your honor why not because in order to make those situations more analogous to this case say for example it's c d c an obligation to prevent  diseases in order to make something like that analogous to this case you would have to have a cd see official who literally went into people's homes and left bacteria left traces of diseases that he knew were contagious and that would be contrived but if the c d c knows that there is bacteria in the water and they don't they don't tell people that's a violation of bodily integrity if you then drink the water under your  well it might be but in order to sort in what is there could be a violation of constitutional rights by state employees by not acting properly in connection with any number of different things that are in some way enter your body right no your honor because it's just water coming from unmissable source that's all no i think what in the examples you gave i think one of the ones was air pollution so if you had a  government operated plant that was simply polluting releasing pollution into the air a decision in our favor here would not necessarily  implicate the constitution in that situation again what you would have to have is you'd have to have government officials who knowingly and affirmatively put individuals in harms way so you'd have to have a government official that maybe took that that polluted air and pumped it directly into an individual's home as as absurd as that might sound that is what happened here you have government officials who affirmatively i don't mean to cut you off but i  which of the defendants do you think are most removed from the constitutional violations which are most removed you know which as to which is the is the  a he's an m d q official and the judge actually dismissed the bottle integrity claim against him because there was actually a statement in the complaint where he said that if if the transition to the flint river is made and if if the flint water treatment plant is used to treat that water it will be against my direction and the district court found that because he and he had actually pushed back against other people in his department about the transition and attempted to raise flags that that the complaint failed to state a claim against him now i'm not saying that we agree with that i think in an amendment we would include additional allegations and an attempt to plead a claim against mr glasgow but i did i just raise it for four to draw a distinction between you really don't want to answer the question basic are you asking specifically about which of the defendants on this appeal yes the which group of the defendants if you why would we be asking about something before us well your honor he was a defendant like i said in the answer in the case to answer a question  which defendant is least culpable not least culpable which defendants or for this if you're looking at the spectrum of the bodily integrity claims i mean some are more immediate i think and some maybe are less immediate when you look at the constitution analysis but maybe you disagree i don't know your honor i would i would just in response i would have to say if you're asking for a category of individuals who are most removed i think out of the three that important to our underlying claims in the district court and let me just say a little bit about that the in the district court many not all because not this one but many of the class action cases involving the flint water crisis have been consolidated in the single action interim lead counsel has been appointed by judge levy for for those actions those are the consolidated actions include a due process bodily integrity claim but also include claims that aren't at issue here such as an equal protection claim and interim lead counsel as well as interim liaison counsel for the individual plaintiff actions have been referred to court mediation by judge levy i have nothing to report about the results of that at this point but this court should know that that that that's what's going on i'm happy in whatever time i have to answer whatever questions the court has i think it might be useful just to start with and kind of pulling together some of the questions judge mckeon judge white asked to kind of pull together what i think of as the concentric circles of liability in this case i mean i've heard a lot of questions about you know there are a lot of different kinds of conduct here and it is one big flint water crisis but how do we parse the constitutional violations against each of them and i think it's useful maybe to think about it in this way so at the at the very core we have the decision that's made to switch to the flint river decision that is made at least in the beginning in april two thousand and thirteen is accomplished in two thousand and fourteen as evidence accumulates including glasgow in particular putting his supervisors early and croft who are defendants here on notice that the flint water plant is not ready they rush to force the change to the flint water for flint water plant and the and the flint river that is the most core element of liability here i think that's the thing that people spent the least amount of time on in this argument one concentric circle outward from that not really that different is that those all flint defended so so croft and earlier flint defendants there were also if you look at our brief we try to detail in our brief all of the evidence here there were also a number of empty e q individuals who were involved in that initial decision and so and so they're also implicated in that count but it was it was crofton early who forced the change most consequentially one step out from that but really not though is there a contention that they knew at the time that the water plant couldn't treat this water yes there is there is that contention in fact that's what that's what glasgow that's what glasgow specifically said he said you know if this change is made in april it's over my direction they knew in their extensive allegations in the complaint about this they knew that when the plan was hatched to move to the flint river and to use the flint water to plant that prior studies have shown it was necessary to engage in several significant upgrade to the flint water treatment plant and that they had not been done at the time suggest that allegation is in the complaint obviously there may be factual disputes about that but it's just pointed out that that's not what we're doing here so one one step out from that is is the decision made in particular by defendant ambrose one of the emergency managers not to switch back and it's not a mere a mission because he had in front of him two occasions in january and in march of two thousand and fifteen after a great deal of evidence of corrosion including legionella and i can explain your honour's why legionella is important even for the we have a legionella claim in the underlying case but even in a lead focus case legionella is relevant to putting him on notice but of lead poisoning of legionella and of corrosion notwithstanding all of that in january and march twenty fifth twenty fifteen defendant made the decision to reject the offer of the detroit water and sewer department to switch back to detroit water even with the waiver of the reconnection fee in fact in march he overrode a seven to one decision of the flint city council to that extent so that's compounding the original decision that's a consequential decision and that's a decision that was made not just with the prediction that the plant water treatment plant wouldn't be ready but also with extensive evidence of corrosion having arisen through the next several through through the succeeding several months then there's an outward and outer circle of liability here and i think you know it's possible to map individual defendants within that outer circle probably in a way that i can't do here this isn't a closing argument in a in a trial but but the outer circle of liability is the people who buy their public statements or by their statements to regulators ensured that the residents of flint would continue to drink the poisoned water for months longer than they otherwise would have had to and naps the false statements made by  bush and i think mr bush when he was up here granted i think through an oversight the wrong allegation of the complaint the relevant allegation of the complaint is actually paragraph one fifty two that says unfair word twenty seven twenty fifteen in response to concerns  extremely high levels of lead in a residence water sample defendant bush told the e p a on behalf of m d q that the flint water treatment plant had an optimized corrosion control program so your average of what you were correct about that despite the fact that it did not if you read the succeeding michigan it's the empty e q individuals pushing back on that trying to defend their position of not having an optimized corrosion control program and judgment i want to get back if i might and i know i'm begging the courts indulgence to go over my my my redlight here to the question that your honor asked about what was the position of the defendants with regard to what they were supposed to do about corrosion control because i think your honor you are correct that many of the defendants in this case took the position that the safe drinking water act did not require the use of corrosion control until those two six month period that's correct and actually in the bowl or in may's cases in which i was also appellate counsel we litigated the question of well if that's what they thought under the safe drinking water act is that resolve the constitutional claims ultimately this court said no the constitutional claims can proceed separately they may have thought the safe drinking water act allowed them to do what they were doing but the question is whether given the information they had beginning almost immediately with the discolored water which is a sign of corrosion and then with the fecal coliform and with the legionella and with the signs of lead poisoning and with g m and with the university of michigan flynn finding lead in their water with the michigan state office buildings deciding not to use not to use the water in their office buildings in flint given all of that right could they have still thought that it was appropriate to not use corrosion control and obviously i mean we would suggest in these are facts that will have to be litigated we would suggest the fact that bush made a false statement to the they were using corrosion control suggesting they might well of they might well have understood that they requirements they're the sort of first line of defense here contaminated water right so basically what you're saying is even if they thought that what was happening was consistent with federal law they then still had an overriding constitutional duty that they should have known they were violating in if they thought they were in compliance with the law that they're charged with imports so is that basically the argument i think it's important to so yes and no and i think it's important to separate out the sets of defendants here so when you're talking about that when you know when you're talking about the municipal defendants the people who are operating the water system they had a they had a constitutional obligation and a statutory obligation those are parallel obligations discharge of one does not necessarily discharge the other and when they have evidence that they did but the interesting part is this you're saying the law was clearly established that they couldn't violate their right to bodily integrity while at the same time they harms by water so no reasonable official would think merely by complying with the safe drinking water act that they have complied with the constitution and so and i think it's really important to separate out the two different things here we had not just a general point not just a probab istic guess about what would happen we had actual evidence of what was coming in over the months following the switch and and over the months following the switch what we found was extensive evidence of corrosion in the pipes to separate out these defendants and i think the panel's been working to separate out these defendants the m d e q defendants i think it's important to know they're not being alleged to have violated the constitution here merely for not following up on something merely for not enforcing the safe drinking water act they're being alleged to have violated the constitution for their false statements made to the public and to the e p a that extended period of time in which people in the in flint were drinking poisoned water and and those false statements you know it's one thing to say we're complying with the safe drinking water act it's something else to say the water is perfectly safe these people who are coming in front of you to tell you that there are lead that there is lead in the water or eleven case about false statements by the e p a finds no liability but says shocks the conscience of applies here so they're applying a constitutional analysis it's an inference from lombardy again yeah so yeah and you can do that you can do the work after that but that's that's what i would whether there is a clearly established right of violation of bodily integrity under these circumstances at the time of the violation he says there was not and there was not that's the end of the game we don't have to look at everybody individually if the overall overall picture there is no violation that is clearly established and i think you start out by saying it was not clearly established give me your best authority in support of your position that it i think it's useful to explain to explain what this analysis is doing right the point of finding a case this close on point right it's not an academic or intellectual exercise that's precisely the view that the supreme court rejected  reverse this court what what this is about and the supreme court said it in this court said many times is determining whether it's fair warning to the defendants about whether their conduct violated the constitution is that the court would enter some verses created in light of preexisting law would the constitutional violation of been apparent to a reasonable official that that's really the question sometimes with some kinds of claims right we have a need for a very close on point kind of case right particularly claims that are highly fact dependent claims that are at the edges of the law i think you know judge mckeague talked about hope for spells or in the first half of the argument you know hope in lanier as well as some of this court's cases interpret those decisions linear show that and hold that when you have  something that is that is a clear violation of preexisting even general principles you don't need a close case in point i think the in recent seattle radiation cases highlight the fact that there that we can have an invasion of people's bodily integrity without actually you know physics without actually physically forcing something into them you know by touching them by pushing it into them but but and it's clearly established i think is soon as city of sacramento the lewis as well as a wall ski this court in two thousand and two that when there is an opportunity to deliberate and you have a constitutionally protected interest at stake tonight and some of the discussion is kind of mildewed together these two these two different points the constitutional protected interest in bodily integrity which i think cincinnati radiation shows we have that interest here it doesn't matter if you if you push somebody right next to them or shoot something into them from a distance away their bodily integrity is affected there's still not liability unless we can show that the defendants acted in a way that violates the constitution and that's louis in a wall scheme that show us that where there's an opportunity to deliberate and the state official acts with deliberate indifference to the state official knows that there is a serious risk of substantial harm and acts with callous indifference to that then we have a violation and that's been clearly established for a long time and i think it's important to have those two pieces of the argument as well the two pieces of the analysis in view as well because i think  answer some of judge mckeague concern that are it is what we're doing here essentially saying to state officials if you don't do your job so well if you don't violate state law if you don't comply with state law or federal law is there also a constitutional violation tacked on to it and you know the supreme court in cases going back to daniel's view williams in the one nine hundred eighty s and on and on through city of sacramento v lewis has said that the way we keep due process from being just tort law or just replicating state law duties is we impose this higher requirement of a mental state here deliberate indifference is a serious mental state i mean we don't have a case that's like this because we don't have a case of people with public officials with all of the knowledge they had here making consequential decisions in their actions not emissions consequential decisions that lead to poisoning of an entire community that's why we don't have this case ability also has to rise to the level of shocking the conscience right and it has to rise level of shocking the conscience and what shocks the conscience seems to me in reading these cases so this is where where i want you to give me your reaction that we're trying to figure out how close a case has to be sort of mr bush's template argument that the court seems to have a fairly consistent approach when you're talking about fourth amendment fifth amendment eight the moment and probably reese claims you know we get a little bit hung up on whether things were really fast moving in connection with excessive force but there's a body of law there to take that body of law and then imputed to substantive due process bodily integrity seems to be problematic in the sense that the supreme court seems to be very reluctant to expand substantive due process in general and bodily integrity in particular so my quote that's sort of a statement leading to a question i want you to respond to do we apply the same close enough analysis in these that we do in these other areas when we get to substantive due process and bodily integrity i think it i think if we had a case that were really at the periphery of the bodily integrity question then then i think we would have concerns running along those lines here and that's the you know the most candid answer i can give you  i think what we have here you know when we talk about substantive you process it obviously covers a very wide waterfront i mean if you know we're talking about when the court says were hesitant to expand some sort of due process you know sometimes we're talking about marriage issues right as some people in this courtroom know but sometimes sometimes what we're talking about is these very core questions about whether something is going to be put into your body that you don't want to have put into your body and that's been a core understanding of what due process protects the due process liberty protects for a very long time if the city you know if one of these city officials had made the decision maliciously to poison everyone in the community i don't think we'd say that you know we might say that's a stronger case on the that's a stronger case on the mental state than here but we wouldn't say that's just categorically different in terms of whether bodily integrity is issue so so i think because we're at the core of bodily integrity and because the supreme court has said you know sacramento  lewis they actually you know had a pretty extensive fight between the majority and justice scalia in dissent about this precise question how far do we extend subset if you process in the majority we're talking about arbitrary executive action shock the conscience is the test and time to  if they if their conduct stop the conscience and it doesn't matter how even though it's regulatory and they weren't involved in getting the poison to the people i think if you know if we can prove in this is the allegation right but if at the end of the day what the plaintiffs can prove is that d m d h h s defendants by their actions and not just emissions but by their actions which were taken with deliberate indifference extended period in which people were drinking poisoned water that invaded their bodily integrity then they'll be liable but ok but it has to be it has to be really proactive action taken almost for that purpose i mean it has to be they didn't do anything has to be beyond they didn't do anything to have knowledge and callous indifference that's you know what what deliberate indifference requires and i think that that's really important in guaranteeing that there is this line between you know people mess up on the job they're not constitutional violators they have to really mess up it doesn't have to be intent unless we're in one of these fast moving situations which thank you and i appreciate your patience with this complicated case and i want to start with your reference to the in re cincinnati radiation case because the facts of that case where that the defendants actually designed and implemented the program to push all of this radiation massive amounts of circuit first of all in a rare case you might look outside those sources ok but again if they said then you look other sources too may not have to wait for the four sources on the supreme court has never said you look to a district was maybe maybe but the point is that for purposes of the d e q regulators and the m d h s officials they didn't own the water they didn't make the decision to switch they didn't regulate the quality they didn't regulate the lead pipes that were in the system they certainly didn't inject letter or any other substance into the water it's completely different and what the u s supreme court said in the sheeny is that in a substantive due process case it's not enough to allege a failure to do something you have to be the actor and that makes this very very different now though this point really came through in the colloquy between judge mckee and the counsel for the plaintiffs because he brings up the c d c hypothetical and then he gave his own hypothetical about your pollution and in both of those cases the government official actually did something affirmative to put the poison there in the c hypothetical he said the official would actually have to leave the bacteria in the home with the air pollution case he would actually have to pump it into their home but with respect to the d e q and m p h s officials they weren't doing the pumping the injecting any of those sorts of things that completely distinguish evolved in the decision to switch that they had the regulatory approval yes they were on the backend but that's different than actually pulling this which ironically when you asked about which defendant is least culpable he points to mr glasgow who dismissed from the case well even though he's the one who pushed back to some extent to his superiors he's actually the one who said ok let's go ahead and do it and yet he's out of the case and the d e q officials who are sitting at their desks trying to evaluate what to do are the ones who are still in so so if you look at the cases that actually have templates we've discussed at length the branch case that's out in new jersey you've also got the case that's the california court of appeals decision that we discuss there the officials affirmatively put a contaminant that but if you look at the lombardi case in the second circuit there it was alleged and conceded that federal officials lied about the air quality in new york city after nine one one and intentionally put responders in harm's way an area that they knew was employee of the city he was not an employee he was the utilities administrator one time in a in a lab tech at another time so those are just corrections to the record with respect to the city and its position as to whether or not it was in a position most definitely does paragraphs thirty three thirty five in paris forty and forty four and forty five of the complaint talk about all of the things that the n t q defendants did with respect to interacting with the city and with respect to what