to this stage of the sheriff and his normal course as an officer of the court on family court and the domestic disputes which are until quite often in the family car what is given a temporary order of protection  white every just serve on in this particular case the plight of the sheriff's deputies sort of that and during the course of that discovered that the plaintiffs had two shotguns too long don't they return hougaard on the the policy of the sheriff is that notwithstanding the naked vacating of the order ok action if there's a policy first i don't understand why you say action against them was hill to be valid because there was a policy which retained viz feelings he's long arms after there was no reason to retain him so why isn't wasn't the court below correct to say that this violates procedural due process because there is no attic with procedure for visit to get his guns back well the cammies position is the through is for the person requesting the return when the sheriff says that he cannot return them because she did say order from the family court or other court there's no matter pending in the family court they can't just do a free flowing order well that's the problem judge because two turns out if you know who that subsequent to the normal events we have the court went beyond that and directed the sheriff to hold a due process hearing yes no hold a hearing sylvette of the sort which would allow this person to get these guns back but the county set up a hearing and that's what the district court said that hearing has to be at the arena that allows of this person to come and say there is no reason now why you're holding my guns give them back to me if that's the sole purpose and the end result of it of the hearing we already know the answer the sheriff has no knowledge indicating beyond what i just s injunction was not against the sheriff but against the county yeah sure can so it doesn't make a difference if the sheriff had facilities or not it was the county that was ordered to hold this hearing but the order is against the county and i don't understand why you keep talking about the sheriff who won because he is not the subject of anything  given that he was granted qualified immunity a policy was vere you admitted it that v or for means that mon el law is and mondale lies against the county and there is no qualified immunity to the county issue the order because the judge now has all the information that anyone in the county has i do need a hearing and if this judge issues that order or if we issue of that order we've then to leave in place a policy that we have held is procedurally calls to to tional and it is our job to tell you that if there is a policy which is procedur unconstitutional you have to do something about it regardless of whether we order viz gods to be given back at this may i simply add that to the extent that the order predicated on the prior proceeding and the resigned no case which found as you said that is totally different and that the police were the ones who made the initial determination as to a danger and they could review circumstance to determine whether it still exists we are not in that position i assume or practice can ask more practical question why do you need in order to return the guns why do you need an order to return the guns the position of the county here to four was that the with this dangerous situation holding guns emanating from dangerous because a court ordered that there was an order of protection in place against the woman who owned the guns correct that order is vacated there's now no war there's no dangerous situation in more money give the guns back for whatever it's worth the vacating of the order was subsequent to the to the seizure and i understand that but now there's no reason for you to hold him you have a you do need a court order no you don't get it so let me ask you this when the sheriff sees the guns there was no court order requiring him to seize the guns in this case right well the temporary order protection recites various things including what it doesn't say seize the guns is a place i can check out you can check off on the form seize these guns and that's not checked off on this form right there was no check off and this form that was signed so so he didn't have an order requiring him to seize the guns and yet he seizes them what it's been that was always done in the right following the family court but he can't but he can't return the guns without a court order that's the way it has been you asked and now we know that for whatever reason the second department has said that the family court judge can't do anything beyond what he or she did would you would you agree with me that makes no sense that he can seize the guns without a court order but he can't return him without a court order i don't know whether i can  i find it to be a situation that is different let me just i don't know whether i could concede that judge let me just cut in that if you do not want to give a hearing you can always change  rather remarkable policy and just say we give it back if the hearing is too much trouble for you you can change that but you can't have it both ways but you can't give the guns back and  arms or pistols or whatever and domestic disputes and so forth that the county or whatever municipality must be scrupulous as to what happened there are unfortunate situations where those weapons then have been used for very serious repercussions and therefore for us so we have to be scrupulous and that's why the question of whether there is to be a hearing or not is an important one but here in this case it is rather remarkable because of this guy can go out and buy new guns he can have handguns you've given him back his head gun yes so the answer is now very good your honor love you perceive that your honor i just wanted to make clear that the way judge spat invision the hearing i'm reading from the result of decision third at the hearing nassau county shall have the burden of showing that it is likely to succeed in court on a cause of action presumably forfeiture or a cause of action seeking an order of protection although the court does not limit nassar county to these theories to maintain possession of seized long arms in other words the way the hearing was invasion and the rule is to return them according to the family court act return policy which we cited to there never was a legislative quenched the family court has a return policy stated it's family court act eight forty two a five b it explains exactly the process followed throughout every county in the state judge fairstein had us do a survey and report back to her what every other county in new york state is doing and but if you have a policy of that sort you must have been place a procedure which for a guy can get his gun back at you know i might think this is the silliest policy of world but unless it's unconstitutional you don't come to me exactly so your honor and it was judge as rock who cited to the krims stock hearing and the crim star case which of course is a very familiar way where the default would be to return the property most of these cases by the way involve ex parte orders of protection which are done without the other side even being there in the five that i've named in potential class so far and in temporary orders of protection so i don't believe we have any cases right now that are involving an expired order of protection these are cases that are decided in thirty to sixty days one spouse goes to the family court makes an ex parte statement the sheriff will go out and take the guns whatever the order says whether the order sent from move or not removed their taking them that's been made clear and then the property and then when i lose at the actual return date of that hearing they keep everything the are being returned posters and that was a problem but that's not happening overturning the handguns and now as people becoming more and more aware thanks to the internet that the policy is is not proper they are contacting my office and other offices and finding out yes i can actually go out and buy into the firearm which is like which is yes right so counselor you wanna know that portion of judges relax decision that either said return the guns or get a hearing right yes what else you want us to do your honor we have a class of members out there of people that are being sent to my office by the sheriff a few every few months more and more since this was decided where they're saying we need to be ordered to return these things back until the law has changed or or until the policy changes they're calling my office when it first part of that decision affirming judge is rex's that they get a hearing where the guns back accomplish that if the county treats it as a class action  now the judges just indicated that she wanted to deal with the summary judgment motion first and then denied it with weave through to renew so that is still an option in this case out there so we don't have anything to say about the class sta so let me go back to my question what else do you want us to do other than every you get across appeal right i do what's what's the basis of the cross what are you asking us to do when they cross appeal there are two points i'd like to make on the course repeal this is an unusual case where qualified immunity has been granted to the law enforcement officers but i attached to the record just so it's clear to everyone that these individual officers master perry have been involved in hearings where they have been named since two thousand and three and judge after judge and i cited the quotes have been asked to size them stating somebody would assume you and somebody were to sue the county to them individually again and again it's a little unusual can claim that they were ignorant of the rights of the person from  god yes your honor and that coupled with the fact that resign now was against the county i don't believe we should have to sue the county twice to enact a return policy that can resign always taking the guns without any hearing whatsoever right yes in this case there's a family court hearing and there is an order that says you can take the guns it should be there isn't in this particular case or others but you order says you can't have guns right you order dorner basically says in general terms you can't you can't possess weapons no now what they've been citing to his underneath the signature line in the temporary order of protection ex parte a form there's some general language which cites the federal law the mountain bark amendments that say it is a crime to possess a firearm while you there is this federal policy statement that it is role perhaps a crime to hold guns when you are under an order by the family of this short of a family court now why doesn't the existence of that federal policy so face to make a reasonable police officer or some reasonable police officer doubt because you're a man that does not apply until after the hearing date these are cases where there's an ex parte order and a temporary order of protection but the latin bargain men meant which is cited below is after the injunction is issued which is none of th yes your honor the second amendment crime which i'd like to just raise here after the new york state right from pistol association matter we call mo i think we have a matter here that seriously under intermediate scrutiny set forth in that case would apply because the county has known since all of these articles seventy eight cases in two thousand and three judge after judge has admonished individuals why is this actually anybody your client was able guns and people in the future will be able to because this is a unique situation where the sheriff is acting without court authority confiscating guns under an actual confiscation plan that the council stated it's their plan that when they go out they take the guns whether they're water to or not i think that's very very unusual so that's why i'm and invoke the second amendment claim there's an actual confiscation policy in new york which the county has an active there's no one else doing it now that affects everything  certainly affects the guns in my client's case she has a picture of her father holding a rabbit with the shock and these are very old guns these are hunting guns so they deprive your client of her property interest in those guns they don't deprive appendix where she says the sheriff told her simply go buy new firearms she sense that yes you're right he does tell her to go buy new firearms but she's under the belief because of this lack of a term she also stated in that affidavit they all state the same thing he didn't tell me how to get my things back and she was under the belief that the second amendment has never been you know to give a person a right to a particular firearm and as she said in her affidavit she can get another fire of the very same time you don't always but if there's a difference between her possessory interest in these firearms and her right to bear arms generally and i don't see how this infringes on the right if i understand how it influences infringes on her possessory interest in these firearms i don't understand how it affects her right to bear arms generally judge i understand that concern exactly and i've had as i say people coming into my office all of whom are under the belief that they can't possess anything now it is true that after her guns were confiscated by the sheriff that she was told go buy new ones but that's not much of a balance when we're looking at the second amendment if we feel that it does apply an intermediate level scrutiny then we have to look at the encumbrance and is this an unreasonable conference to say you can go buy something else but we're killing maybe somebody else but this isn't  interest is no invent that we've been pretty much agreeing with you your honor i understand but i also understand that under the under the circuit's decision which analyzed this in great detail that there is a balancing so we know that there is a restriction on this right taking place in nassau county it's very clear that they're taking everything when they go out that's their policy so the question is judged against that policy what is the reasonable us of that policy yes she was told you can go buy something else yes after the guns were taken there was been nothing given to her and writing nothing on the website nothing indicating whether or not she's free to get any of her property back but i'll tell you geno what she got her pistol back and a pistol license she could get another gun and there's something very very wrong when you and the county's policy you're making your argument all of the immunity weaker because you are asking the individual sheriffs to go against the policy of the county and you know in terms of how an individual cop is going to be held personally liable when all they are doing is following a policy which may be an improper policy but to hold the individual cop liable when they're just doing what they're told that they must do would be  going against the very reason we have if i may just speak to that very briefly your honor the my argument on that focuses on the objective reasonable ness of their belief now certainly after resign it was decided it's no longer objectively reasonable that they can just keep property indefinitely there was the case of canavan that we refer to where the sheriff did the same thing involving confiscated cars and they're auctioning cars before d we cases went to criminal court and then people  finding that the cases were dismissed or the car was sold so we've got a history of this in nassau county where a public officials say well my way was telling us nevertheless i ask you do we have jurisdiction this is not a final order except for the injunction is that correct is exactly correct and did you bring an appeal on the denial of class certification no because it's also not a final water you know on are still something that may be granted down the road but there's a time limit in which you have to bring that appeal that has long last they haven't tonight it as i said your honor so that will be something that the judge indicated to be bought at a later date and so i'm still confused about what you're asking us to do what did judge as rock decide that you are appealing from what is i know and what in that final order is adverse to the two parts of my across appeal relate to the second amendment denial of that portion the qualified immunity argument which we feel just admitted that you didn't we're going to appeal from the denial of class certification i did not you didn't bring it timely now you're on to the that there's no final order on the second amendment therefore it's not ripe for education by this panel oh no you're on the second amendment claim was dismissed my second amendment claim was dismissed so that is before the court oh what was just only thing before us the injunction yesterday have and may i also just respond that the class action petition was denied you just made no appeal from that that's what i from the dismissal of the second amendment claim before well i just as a matter of jurisdiction that as far as what mr labrador that he'll go on it's not a question of whether it's good or bad i just want to know whether it's before i can answer that question because a lot of the dollar that's his appeal i don't see i don't see that it is properly appealed it was never argued it wen and we as we argued in one have you resign no it's a totally different situation than what we're dealing with the year do next is the same situation is here right now very similar yes and do the accent give the guns back or give me a hearing right well i don't know whether you know the judge  what these were all litigation at the same time in other words all these cases which would be do dak plans are learned i think there are two others are all waiting the decision of this court it's all happening at the same time  and what have you well a better argument you may is of it this isn't the case where we order of protection has abated but we are it simply was lifted because a party took things the party said i don't want to keep keep it there and that might be a situation of danger of a different sort that might be a better and and why incapable of holding a hearing because as it does not have sufficient knowledge to make a determination however we have practically suggested that the share of could do that