right in this matter each side has fifteen minutes before i start the clock i notice one side has two people at council table we'd be sharing time or well one person be doing all the more in your honors may please the court sloan simmons on behalf of defendants and appellant i will reserve five minutes for a bottle and try to keep a close eye on on how i'm doing to be clear out of the gates here with this case is not about is for closing or closing the courtroom door to a student based upon allegations like that which are at issue in this complaint to any remedy where it's about is the closing of the courtroom door when it comes to a th amendment violation because there is not and has not been and is still not today clearly established law that would establish that what is alleged in the complaint in the unique context of the special education setting them program and student behaviors issue that this would constitute to these large group of ended very heated your client violated its own policies given this is not a negligence action right there are a couple responses that one it goes kind of directly to my mission point which is there was allegations of violations of the i d e a and it and the policy your your clients policy didn't even allow for there was part of the rd part of the therapeutic containment program at this at this program express lee provided for both restraints and seclusion but  not allow for seclusion and that is not accurate your honor that this that this program in general provided for these types of of interventions or cross in terms of the student's program when it when they're that does not defeat qualified immunity and the courtroom case talks about this concept specifically  qualified immunity and we usually get them on a summary judgment so we can only go with what the face of the complaint correct right and so everything has to be all in francisco in favor of the i'm just going to say the minor here aren't that that that side of at the party so when we look at qualified immunity st we have to define a cause there's two there's the constitutional right which they're alleging a th amendment right and then there is what was clearly established right right and so the judge in this case  physical force used on a student and the heat the court look to judging and look to the doe case it which what you had there was a student for purely disciplinary purposes the was that was taped to a tree the principal and this concept that in the public school setting whether teacher or administrator in the context of disciplinary punishment in contact that that type of physical force is is a potential violation of perspective but we only have the one thousand nine hundred and three here right right your honor which again kind of goes back to the idea that there were remedies for these types of allegations in this complaint whether it's on the i d e a file before a da so we're really specifically goin and so how would you define what does a child like this what how would you define the right right and i have clearly can't be the same as say a child that's not in special ed right and i  guess i'd be careful to use the term right what i would say is what's being alleged as the right here is is or what we would say what needs to be viewed from the court as to whether or not there was a clearly established right is whether or not a student with an ip with unique behavioral issues involved admitted aggression kicking hitting throwing objects that present safety to himself or others is placed in a unique and admitted to specific educational setting designed for the most emotionally deserved students and where the therapeutic containment and it's a term is not used nowadays but between six and nine the time period it issue a program specifically designed to address those behaviors which the looking at and i guess there are there's restraints and there's and the quiet room to it or any other things that were used no your honor all right so but technically i mean there could be facts where let's say someone was restrained for twenty days straight that might put a person on notice well i noticed here there are eighteen different people that are listed as having discipline this child over a three year period right right so what nine so that's a time period that spans about if you're if you're taking up a summer break about thirty four school months that that time period there is at that point in time no case that addresses this no cases came there after  tour from the th circuit comes in right at eight right at the end of august of two thousand and eight at the tail end of that time here that's the st case that talks about these types of scenarios from a qualified immunity context as you want to point out that was a summary judgment case there are other cases including the more recent two hundred one thousand nine hundred s the two thousand and sixteen parish case and the c n n case from two thousand and ten all of which were motions to dismiss and were cases that didn't involve i would say the amount of detail in this complaint in which if you look at the details and the reason there's great detail in this complaint is because in fact these eighteen defendants from the pasha county office of it and another group of defendants from the placer county child system of care educational mental health professionals working were recording each one of these incidents indeed till the complaint identifies each one time period all involved because this group of experts and professionals in this field were doing exactly what they assumed was the lawful program there at that school which in itself is evidence of how reasonable what they were doing was in light of the state of the law at that time notify suggests knowledge of wrongdoing knowledge of custody and violation of your alright i realize in part judge judy and i'm stuck with the complaint that way and that they allege that they weren't notified other parts of the complaint suggests that wasn't the case that in fact how they were being notified that the student there's a paragraph that suggests that what they were actually here was the student had a bad day and other terminology off but not part of the record so if we can consider about each of those reports was the complaint is based on shows the date and time of which the pair was notified after each incident i get that that's not before you but i think that goes to the concept of if they were providing notice because they were maintaining these records the complaint admits hundreds of pages which included these reports of each incident were turned over when asked for by the family if you thought if this group of twenty six educational professionals thought that what they were doing violated a clearly established law one that was beyond debate and which would establish liability against them on the th amendment they in their public getting employers or are quite foolish for having documented every single one of them maintain them a student records and having them ready to turn over as soon as the pair a question so i would say ju as a question about how you would define the clearly established right right and you defined it pretty factually specific which is kind of what the supreme court is or tells us to do we need to look at the circumstances of the case kid's head to a tree when it was worth playing which is not surprising right i mean that's you don't see that out there so how do we reconcile there's not a case out there that says you can't paper kid's head to a tree right when he's worth playing with there's not a case including cases by this court within the circuit that have shown that these facts don't i'm out either don't amount to a constitutional violation or which the don't defeat the qualified immunity defense and i know i'm getting so paine miller hold a whole host of cases post this time period have granted qualified immunity in a similar context and so i think one window sixto nine no case law in this unique context of safety issue that there are others simply note the restraint which i think is fairly koyo in terms of the drafting because the there is a explanation for each of those restraints paragraph eighty has a full paragraph which is more reflective of the type of are the individual defendants who at the time were employed by the posture county office of education those include two supervising educators in the program several teachers and at least two other staff members who were a non teaching capacity appellate sort of course like you to grant qualified me to every single one of them but i think if not there is an obligation from a one thousand nine hundred and three perspective to look at the allegations in the complaint as they specifically a lead alleged constitutional violations for each defendant and when he do that what you end up with is the vast majority of these defendants having participated with others because the policy required multiple staff to be of all that wants to protect for safety some folks have been those two claims were both dismissed for being untimely at the school districts here so these are just all the individual individual defendants employed by the plastic on the office of education the church the county children system of care individual defendants joined in and also moved to dismiss for the same grounds below but did not join in this appeal but i want to go back to the minutes a b which is a case relied on by the other side maybe involved three thousand six hundred minutes of placing a student in a in a restraint chair in a six week period i use minutes because that's what the complaint is that they break it out into minutes so a six week period for a student between september and october of a school year the students placed in the restraints to restraint chair are three thousand six hundred minutes that that one month period over a sixty six dollars week period the time there in which the only defendant in the a b case who who qualified immunity was not granted to us arrangement is is more minutes than were accumulated in full with all the restraints and the isolation leds here of the thirty four months of school that were at issue and in fact if you break down the number of restraints over the time period this is the student was restrained on average three times from the didn't happen that way because the student's behavior was spiking there'd be a number of restraints but it is not as bad as that as the may please the court if on good morning your honor christian rogan or for the plaintiff the only reason that emans or the plaintiffs ip would matter in this case is if the defendants actually followed it but they did all the discussion about distinguishing this case on the basis of the i e p is a non sequitur straw man you are asked what is the right here and does it differ in this context and i think the answer properly is known all students going to school have a right to be free from punitive disciplinary physical assault but i think the way that i would be inclined i think that is very different than the average student you're the best if he has a lot of issues and you know he's got violence he's got and these things popped up and so i guess you know i'm trying to figure out if it's over a long period of immunity framework for this would both be living in answer your question two parts of me the st part is emin's applies where factual situations are unclear that was where a man came out of an apartment close the door ignored the officer and was taken down without pain in handcuffed in that situation the court asked well is there a violation here we don't know it's not alleged with a nerd there's nothing specifically in the law that that an officer could look to hear the question is can you hold a seven year old child on the floor face down and without a safety reason the answer we would argue is clearly no and where it is absolutely clear to any reasonable public official what the law says you can restrain the act mean there you know what in these are restraints that are not allowed for safety for safety or honor and we have alleged specifically that at least some of these and we don't know which were not purely for safety that they were punitive that they were as punishment or they were just because the teachers or the officials were frustrated with all students are you alleging that by the number of times that had happened no no your honor and we've a and if all of the records were turned over to you because we can't tell your honor and the number of them in the fact is the i e p is a shield to the defendants but they didn't follow it it's not a sword that we're trying to use we're not saying they violated the ip so it's a th amendment violation what we're saying is without the ip in place and without them filing following it use of physical force of this type and of this magnitude is at least presents on a motion to dismiss official th amendment violation of which any reasonable public official should have known anyone and i imagine if in obviously this is in the record but i imagine if you go in ask a teacher in a public school if you're irritated with one of your students can you go ahead and put him in a number and put him on the floor no you can't that right is clearly established any reasonable public official would know that  there is but your honor on the complaint it is these are perfectly acceptable and perhaps successful summary judgment arguments from defense but this is a motion to dismiss and we are in the stage of qualified of medical and difference in the present sense and in that sense medical malpractise of say people prisoners that are in jail is not a basis for an one thousand nine hundred and eighty three it has to be deliberate indifference correct that they have to show deliberate indifference here had a pedagogical to go miss i know easy for me to say and pedagogical mismanagement is not a basis to because frankly we need to go through discovery to find out why ok you're listed on this date do you know teacher a do you remember this particular instance if yes why did you put them in there well because he was doing x and do you think that this was the only way because of course the ip says it has to be for non punitive reasons and it has to be as a last resort what else did you try what else you know what other steps are are in place to prevent you from having to put the little kid on the floor with an arm bar what is it you know and that is a matter of the law for this court to say well if there's an ip in place it's fine the cart blanche that the feds are asking for is exactly the problem that your honour's were hitting on when you when you were asking what is the right because the right cannot here be defined with any more specificity it is the right credit i think  is the right case here so give me another case well in fact there are several and i mean i don't think though is the same as this it's not the same your honor but it's the same as t l o or in groom or any of the old supreme court cases that say you have a right to be free from coercive physical force by the government now that is yet to have a generalisation but you're sure let's follow judge callahan's lead just just for hypothetical reason that it's too broad is defined by the district judge here help us to find the clearly established right that you would like us to write in order if you were to win because when i hear you saying is when it when the defendant violates and i and uses physical restraint for some reason other than safety because that's what i hear you saying some yes and i think that some reason other then safety or pedagogical purposes whatever that if it's for punishment if there if the if the i don't think even comes into play or are that's what i'm trying to get at and that's i guess the difficulty i'm having articulating the ip is there to guide the officials and if that was if they had followed it which is that which is true in i believe almost all of the other cases that go in the other direction in granting qualified immunity all of those followed the ip or the allegations were such that they know close enough it was it was a matter of i think i can remember which one it was i think it was pain where the parent just didn't like that the student was being held in the room for so long i ok but where or what what support is there for the fact that you get to go on a fishing expedition for a three year period of time you know why don't you have to put some evidence forth well where the be that it was for other than a pedagogical reason mismanagement well your honor i think that a the sheer volume does come into play there at this point they're different people so at at a point when you're confronted you know i mean this happens every three years and there are what i thought the regime people but apparently there's like twenty something people or whatever and let's say a child and it's i think it's fairly undisputed that this child does have issues in terms of behavior and so if the child is kicking are biting or spitting and you're the only person there none of these none of these examples have only one person there you are that's why there's eighteen people listed some people are listed actually have it written what we did well is that better or worse so does that mean that then they have to be in concert to do something pina logical to this person or is that they're responding to i mean the reality i don't know reality of this like police officers get qualified immunity when it turns out that a person didn't respond and they pulled out  a toy gun at the officer and the officer kills them well later the officer knows that it's a toy gun and he didn't need to kill he or she did not need to kill the person but at the time under those circumstances so all of these are flaring up and at the time you know what what it what do you do with a child that could hurt other children could hurt the teachers could you can't control what if that's a very good question or so i mean what we  and three we got in on one thousand a year at no i mean that is that is absolutely not saying he had a bad day does not say we put him down held him on the floor for twenty minutes and then put him in the closet for two hours no it doesn't he had a bad day is as vague and an informative as possible and that is the problem that was going on here so what we're looking at i think the answer to your question is where do we find this in case law i actually found a case in the it's a district violation citing t l o and also citing the idea that where where there is no clear case declaring you know conduct is unconstitutional they can still be liable if it's just educators a blank check to hold down students and throw them in isolation for extended periods and whether it's you know six hundred and forty eight minutes of restraint and two thousand seven hundred minutes of seclusion or three thousand six hundred or four thousand six hundred one thousand if it's not for a good reason then it shouldn't be allowed so here's has what i'm struggling with and i'd like to give you an opportunity to respond i want to hear what you have to say about this so it seems that what you're saying is we don't know that any of the things happened i mean we know he was the child is restrained and we know that he was placed in isolation at various times but we don't know which of any of those incidents were not for safety reasons or legitimate pedagogical reasons right so you don't you don't know you've told me you can't answer that question so when is it that the twenty six standard is so lenient that you can file a complaint that says we don't know but we think something may have been unconstitutional means you don't you have more of a burden to file a complaint that alleges sufficient facts that you have a claim well being if you don't know what i mean is this kind of we have a hunch that maybe this wasn't this wasn't because he was posing safety vest himself or others we think it must been punitive it seems there has to be more than that well there given the volume your honor and i think that the district court agreed even looking at these facts as alleged there's there's something wrong here and that of we don't know and i can't identify a single instance to the court where we're saying this violated or this wasn't done for safety reasons well i'm i'm looking at the record you are in on the complaint i can't say on the record point to a specific instance some if not all of them or beyond of the scope of the ip and their facially be on the scope of the ip from the get go because they didn't inform adequately inform the parents but you've already acknowledged that violating the ip is not a constitutional violation it's not it's  not but at the same time nor is it nor does that shield them that so that would mean that every time they had they took this child down or secluded him there had to be a safety violation there had to be something that they that the defendants can articulate this is why we did it and looking at the list of records and the district court noted when he dismissed the claim the st time and then we followed for so many complaints i see my time's almost up but if you let me finish  the idea that each of these individual people used to these individuals participated in some sort of act was required of us to plead from the district court after the dismiss individual liability for each defendant necessitated the pleading as it is and the certainly the parents would have done something with their child had they been informed and it would not have continued and spiraled in spite of everything else to the point where the child just didn't want to go to school and was it was degrassi a regress of parents did things because they had at they had you have what do you have an annual i p these parents obviously know their child and i'm going to assume that that this child is that's not the only school it's not the only place where this child has difficulties with the diagnosis that that they have and the parents did check separately challenge and had hearings and got many additional there are some other settlement out there and accommodations  remedies but here we are on in one thousand nine hundred and three so great and so i mean it took it took time because of course when you have a child who is this disturbed and who has problems they're going to be trying things and in fact the parents have to give them the benefit of the doubt so at some level it's not a you know a fish it's not a fishing expedition to go ahead and say there's something wrong because we didn't know this and we weren't informed of this the entire time but your i understood your answer to my question who states that the sheer number of incidents over time the number of times a child is restrained and the amount of time of each restraint the amount of time in seclusion all of that is the basis for your allegations even though you can't identify fs a particular incident wait wait fort ok so the so the worst the constitutional violation if it's the sheer volume of time in the number of incidents that mean at the st incident those defense did not have did not violate the constitution your honor we would have an expert say ok but will but where as a matter of constitutional law where the defendants on notice where would they have been put on notice that they were violating the constitutional right to clearly establish constitutional right when the a if it was used for punishment  be where it you know that's where you're going in understand the question in i would say that the the the place where it crossed the line would certainly be when it's used for punishment or for a non therapeutic reason and so we can avoid the pedagogical but for a non therapeutic reason do we know when that happen specifically perhaps but not in the complaint is there at some point a basis at which an expert can come in and say by this month you should have known that this is that this is a problem and you should not have been using these methods anymore so the claim is once the methods have shown to fail then if you continue to use them it's just for punishment i would i would say that yes and that is probably the can will answer to when does the when does this begin when you know you're not getting the kids not getting any better and he's not regressing if that is if that is a standard that's somewhat vague so be it but i think the right here the clearly established right is the right to be free from physical violence without a therapeutic or safety reason and so it's some point is that a matter for expert testimony yes it might even be a question for the jury after an expert but there is i think the right itself and emmons doesn't even go into that you know it emans us and touch this part because it's not a matter of when do you get qualified immunity it's do you get qualified immunity and freedom from suit complete freedom from suit based on having a naive in place and i and that's what the defendants are advocating and that's what i would strongly strongly urge this court to reject because once that i is in place it is not a blank check and you have to think you can add a lot of issues going on at the beginning of the case and there was dismissed and you're allowed to refile was there some sort of written discovery there revealed each of these incidents and so you could tally it up so that you could make these specific complaints because you have this is the school district turned over records your honor and that's what the new complaint was based upon were those written records so it wasn't like you just hypothetically made up these hours you know no no and let me if i may just add very briefly the defense mentioned a failure to respond to the individualized allegation argument that was not even part of the motion to dismiss and so is not properly before this court and i just wanted to raise it's not even cited there's no citation to the record for their argument about the individualized allegation so i don't even believe it properly before the court thank you thank you ari three minutes and the other questions we have thank you ron are three minutes until we let you go ok the records the question is posed just to the records there was no been no discovering this case those records were based upon that which is alleged in the complaint to have been disclosed pursuant to the parents student records request in july august of two thousand and nine the original complaint included the same numbers in tallies what it didn't do is specify who they were alleging was involved in each the complaint still lacks and i'll go to or the point where there is not one allegation in the complaint of physical injury resulting to the student based upon their strength there's an issue of him his neck on the window sill and a bruise when there was some of him in the staff member involved early on but there is not one allegation in the complaint of actual physical injury during this time period resulting so that's the st point i'd like to raise to paragraph fifty one coun that the that the bases for the allegations here is that the restraints are being used for punitive or disciplinary measures i beg the court to find one allegation in this complaint of all the restraints alleged based upon those reporters the allegation that it was to change future behavior right so there's one half of a sentence and paragraph fifty one that suggests that it was being used to change future behavior but it doesn't say it was punitive or disciplinary that is not alleged let alone in any detail whatsoever what what council's proposing in terms of expert analysis and discovery review risk turning every one of these which are always complicated cases from an idea a perspective and ones which can lead to suits based on the a d n section five of four but converting that scenario which there's several remedies available including claims that can result in monetary damages your argument basically that they each restraint in a special education context because there's a potential th amendment violation each time the ip is a fall when it's done and so i think to the to the extent the court wants to frame this right which i know it's an issue clearly that you're grappling with and i can understand the benefit for providing some type of clarity going forward i would say however the court defines that right it should not defeat the qualified immunity which is sought in this case  deserved by the individual defendant so if this court comes to a conclusion that in fact and the pells disagree that there is an update th amendment right that lingers here under these facts if the court does respect inclusion it should not defeat the qualified immunity describe the aggressive dangerous behavior it meant that it continued escalated with intensity and frequency and yes they can say it may have been because it was of the right program but that's an idea a five a four issue is not a th amendment long since passed as my area of expertise you went to law right so if we're looking at at march two thousand and six to june two thousand and nine and i'm going to take that later date even though the allegations of restraint stop in february of eight in the complaint that gives you if you take away two months of summer break thirty four months of school between those two time periods so if you're going to look at one hundred and twelve dollars restraints allez during that time period that equates  minutes of seclusion per school month which if you're to do two what that that eighty minutes according to one hour and twenty minutes assuming there's twenty school days a month that's four minutes of seclusion a day if it was occurring each day this is if you look at how their lives what happens is the student behavior spikes there's a couple of restraints and seclusion in a given day then it goes silent and it spikes and comes up and so over a three year period if you look at any of the cases from from miller pain any well in e c c any of these cases which in a be relied upon by the other side and you break down what we're talking about in terms of amount of time this