prep the horse to that race as a two year old in the spring paid all of the sustaining payments which were thousands of dollars been engaged in a twenty four separate races qualifying procedure where he was the fastest horse or had the fastest horse among all the horses that ran that day which is about two hundred and thirty head of horses he was the five to two favorite  going into that one million dollars race on the nd of april and what just abruptly took that property interests away from him was the fact that the stewards in this matter less a horse that ran i think on april th of two thousand and seventeen and post race testing was taken both blood and urine it was reported likely on the th or th of april to the stewards run the horse in and rendered a ruling against this trainer without notice without hearing about any evidence that he was summarily suspended as a result of the clint buter all urine positive and as a result of that any semblance of an opportunity to explain mitigate or understand the circumstances divested mr kaplan on of a substantial property rights as a matter of fact just by virtue of the fact that he was the position in the set forth in our papers that the ruling by the stewards here without any notice without any hearing and after a number of days of knowing the positive was a an attempt by them to disregard just basic conceptual procedural due process concepts and to divest mr kast amount of the right to run his horse which was a substantial  investment and we've cited in our papers but particularly it's the kind of claim that we believe even though there's not a good case on absolutely all fours it's the circumstances that was discussed in the call burne case that when that is clearly established by virtue of the fact that we have a situation that reasonable people under the circumstances could not believe that their conduct would not be unlawful particularly when you understand the nature of clean buter all which is a therapeutic drug widely used in the horse population and easily a contaminant for horses that aren't using it and the fact that guideline that they attempted to impose here did impose dealt with a urine positive rather than a blood positive like the directive required them and then even more important than tire action was alter a virus by virtue of the fact that this rule was never properly published on the oakland register and so they just acted without any authority whatsoever and i'm at basis we can we play this the court to consider the fact that this is a property interest that was quote clearly protected it was required at least without question procedural due process  we cited barry versus bargee which i think is pretty abundantly clear on a pre hearing suspension there has to be some elements in bargee for example a supreme court decision which is the hardest race case the the stewards had given notice for sixteen days they offered an opportunity for the owner and trainer to come in and speak and they didn't render a ruling until there was at the idea that it be any kind of an emergency the medication that was found in the urine was not found in the blood which i think the stewards absolutely knew they couldn't act upon other than in a perfunctory manner without notice threshold there's just no question in my mind that this was a calculated deliberate act in violation of procedural due process and truly an outrage to divest this man of his right to run the after receiving is initial ruling we tried to get some element of reconsideration even though he didn't find specifically that there was in the protected interest that was and perhaps entitle to due process he found that there wasn't a clearly established law in place i i mean so it's a good question i think we supported the record sufficiently for him in the decision and i you can make your decision one way or the other whether we were late in bringing that and should not be and titled to make that argument i frankly think it was just further examples of what rights should be protected analogous to  the circumstances here i'd go back to the supreme court decision which i don't think the judge paid really any credence to the bargee case where justice brennan in in the concurrence but with four of the other justices said a final full hearing after bargee had been barred from racing his horses and lost his clients to other trainers was an exercise in futility and the point is at least in justice brend sturm the fact that they prevented him from running a horse had real value and i think that that applies here particularly because it's a such a high pursed case senate unique or very rare opportunity that was taken from him context here the rules of racing provide an absolute mandate to the commitment to the stewards in the commission to give timely notice to the owner and the trainer and one instance the rule provides that if it takes more than ten days by the lab an additional time period was that they shall give notice to the owner for additional time they knew of this test and then held it back but if you would have challenge the test at the time it did not meet the directive nor did urine the directive states it must be found in blood and that is significant because there's a lot of contamination of a quite a bit are all from stall the stall from horses that are legally receiving it and you can have these trace contaminations and that's exactly what happened if they would have held a hearing they would have found that the horse had never been given current better off for weeks on end and it was a contamination that was traced in the urine  me this was a calculated disenfranchisement by public actors and it truly is our goal to hold them accountable here they disenfranchise this man  significant property right without even any time i'm not talking about some notice zero notice to the trainer or the owner yet you know i understand that and i just want to make sure of that understanding you're scratching ordered gomez from the premises nobody that take care of the horses i mean he was ordered from the premises mr cast on lives in far western oklahoma was driving to the side at the time to attend the races the next day immediately the previous week incidentally they had tried to suspend the trainer in this life and this in the court and you probably saw this in the in the under lying ruling the judge in that case as well that's unconstitutional so rather than allowing mr have a right to challenge the constitutionality of no no notice or no hearing they waited until four hundred and fifty dollars now this is on a friday night there's no judge available what mr cassatt on one being anecdotally told by mr gomes that he had been unilaterally suspended immediately tried to talk to the stewards they knew there was no opportunity for hearing reached out to the d executive director and they wouldn't allow him to have someone else saddled a horse or anyone else take care of the horses which is just absolutely extraordinary because there's a rule that allows you to transfer horses on the day of the races even in that and it was just a an effort to prevent any kind of consideration or any opportunity to get them to relent in some way for him to exercise his property tracks and nd that due process right is not clearly established rd there is no independent right to process itself at the district court nor is that clearly established in this case is about horse racing officials doing their opinion might affect the integrity or welfare for a team the rules allow stuart to determine or to ineligible and scratch it on race day and even to the time of the race and they are given the broad discretion and potentially to make quick decision that the guardian threats to the integrity of the sport and the health and safety of the great horses and both these interests are affected when the violation is the use of a banned substance on animals what i did not hear any of the argument for this was any interaction with the qualified immunity standard on the st qualified immunity for due process due process president makes clear that property interests are created by state law so we have to look to state law for specific objective criteria limiting official discretion to see if a property interest exists in the st place and general statements of law cannot create property interest and ya know i st want to be clear about what the interest in here because there was some confusion in the briefs i think no doubt the complaint of conduct is the scratch that's all that occurred here to scratch a political when nothing about trumpeter is being challenged here and a scratch by definition is the removal of one horse from one race scratch no more than that the interest here is just that spot and the race horse racing is not a government in title program stewards have absolute discretion in denying entry not everyone who is eligible for a spot in the race is guaranteed a spot in the race you know absolutely to the contrary a student can refuse entry to any race without notice under its broad discretion and want this and there's no objective in the fine practice for scratching horses and there are no rules or mutual understanding that discretion thus there is no property interest here and on the st prong that's not even where the inquiry and because this isn't a case where there was absolutely no opportunity to be heard beforehand  some sort of hearing with the administrative say so the next question is how much process is due process is not a fixed construct unrelated to time place and circumstances so let's consider what the scope of the hearing would be that would mean what would need to be determined for a scratch and two that we look to state law rules of racing and under the rules any horse that isn't eligible to start and any race may be scratched and under and another rule were talked about in eligibility i in addition to any other valid grounds or reason a horse is in eligible to start in the race if it is trained by any person who is suspended or ineligible for a license the rules allow for these determinations to be made on race day and up into the time of the race so the determination to be made at that hearing under these times constraints is whether the trainer's license was suspended if they figure that out then they are allowed to scratch the horse in the race and this could easily be made during the administrative stay proceeding particularly when the license was just spent of the day before because that is when they got the final report on the computer all test and that is when the trainer with the merrily suspended  but if we end moving on to the nd prong of qualified immunity i think that telling the case from the briefing on qualified immunity boils down to a single sentence on page thirty three of their brief they write no reasonable horse race official in the wake of barry malayan loudermilk moore and franklin and to merely interfere with the horse owners interest without giving meaningful notice and a hearing to effect the parties of these five kids to show that constitutional violation was clearly established at the time of the alleged violation only then is a horse race and fishel not entitled to qualified immunity clearly established law requires on point president clearly established walk not be defined at a high level of generality apply with obvious clarity to specific conduct that issue particular eyes to the facts but the question of whether constitutional violations are beyond the bait and such that no reasonable fishel could conclude that there actually was constitutional whether the hearing itself or the predictable entrance we have to decide if there if there is an underlying property interest because process process is not in and the constitutional purpose is to protect the substance of interest underlying property interest it will rip are pretty subject to the flight determination and the state created the process specifically to challenge that determination and so that that process became a part and parcel of that interest and  that's the same thing that happened in logan where the illinois created the hearing interest for employment discrimination claims nothing like that happening here there is not a special hearing or procedure for some for scratch determinations and and and mak investment logan did not turn every judicial proceeding into into a protective interest i think even even to the extent that there would be hearing that a particular hearing that's close enough that particular hearing would be in this case the administrative stay which was not denied and you know even even to get to that point for the stewards to make a decision that has to be a majority of the stewards that are on board for the administrative stay it then goes to the executive director who has to consult with at least three men members of the commission before ruling that we have at least officials that need to be in on the decision  argument that mention that the stewards operate by majority vote that whatever ruling they can be previewed by the executive director who needs to consult with the commissioners and just within horseracing it's in everyon interest to have a photograph strong race day better for plan to improve it when you're doing like scratches you know you have to deal with refunds and there and there are other checks and balances you know i think that the main things that come to mind when you know why a a course we scratch by for a bad actor for example would be you know for criminal conspiracy that would affect that would affect the outcome of the race for their own gain you know the check and balance on that is criminal law you know that's a felony that carries up to ten years and and there's also a discrimination claim they can't they can't discriminate for unlawful purpose and that is not dependent upon the property interest and i think directly to your question on on the process general hearing that you get before district court that has very broad jurisdiction and that those things in themselves are protect the border rights independent of any underlying property interest and that's just and correct what that mack investments would apply here i would also state that in this setting keep in mind this is quad zajac criminal because it involves a fine and a suspension and it certainly qualify judicial because it requires fact finding to make the decision of a summary suspension there was not there's no minutes there's no hearing there's no question with any licensee this was a subterfuge this was clearly in violation of the law and this is what civil rights cases