this case another in a serious case is this court has been addressing it recent years regarding the involuntary civil commitment of citizens for mental health evaluations and treatment the process is typically initiated by the police who are cold to the scene and the courts cases on this subject tend to divide into two broad categories cases where the police are called to emergency situations and have to make snap judgments in the moment and those cases where the police are called to a scene where there is no emergency or exigent circumstances and this court in its decisions has been more willing to provide state actors with more constitutional slack in cases involving emergency situations and extend qualified immunity to the state actors involved whereas in the non emergency cases the court has been more scrutinizing of the state actors and this case before the court isn't phatic lee falls in the non emergency line of cases and we asked the court to apply a greater scrutiny to the actors in this case then did the district court and reverse the district court's decision to grant qualified immunity to the actors in this case dr barrett is a fifty nine year old highly educated researcher she has extensive experience working overseas since the seventy's and the eighty's into the ninety yes she's worked internationally on national security issues of law enforcement issues helping other countries with law and order type issues including civil justice reforms and the like in two thousand and twelve to thirteen she was a p a a econ tractor working on a state department contract in afghanistan where she was training pakistani gang moved into her neighbor stood it moved into a neighborhood which happens in that part of the world and the pakistani gangs began to stalk terrorized the women in the neighborhood including d barrett and the question is going to the allegations in you our complaint here what support is there for the notion that these officers number one knew that he was not a danger to herself and others coupled with number two that they went ahead and and conspired against her anyway to get an emer well the evidence in the case shows that the police officers folks st were called to the scene in a non emergency situation they took they talked to chew p a easy officials there mr horner who's disk you're the agent and wilburn who was the h r person both of those individuals testified in their depositions that dr barrett did not pose any type of threat did not pose any type of danger to either herself or anyone else  then when the police met with the police when dr barrett met with the police she walked into the conference room voluntarily she thought that the police were they are actually to help her  to investigate her claims of being stalked here in the united states which is a phenomenon she went early or to the fairfax police who confirmed the existence of this phenomenon they were versed in it they provided her with advice on how to handle the situation she was calm at all times with the police officers she was not to shovelled like in some of the other cases she tried to educate the officers as to what she was going through the parts of the world that she was at including the fact that she went to the fairfax police she gave the arlington officers copies of the fairfax police's a business cards and invited them to call the police officers she was dealing with fairfax to confirm that that this was a real thing and that she was concerned about it she also provided miss will born and mr horner the security agent and the age or person with  d witnesses who saw the stalking the nd amended complaint describes several instances where p employees were at a restaurant with dr barrett or were in a parking garage downstairs with the p a s offices where they sort of middle eastern men approached dr barrett and an act in menacing ways including at the restaurant and also causing damage to her car and there's a witness who saw a middle eastern man running away so she described all of this to the police officers and she tried to make them understand as to what she was going through she was asked specifically do you plan  on harming anyone anyone do you plan on harming yourself she emphatically answered no this was a non emergency situation there was discussion about a gun during this conference room meeting she confirmed that she was the owner of a gun that she boarded eleven years ago in albuquerque new mexico that she never used a gun that the gun was in its original box in her home that it was not at the office and that she would never bring it to the office and one of the police officers testified that they concluded that dr barrett would not use the gun to defend herself there was also other discussions with the  know the police officers never contacted the fairfax police to confirm what dr barrett was talking about never talk to the p a employees who were present at the p a office where the police officers were to confirm that they saw the stalking along with dr barrett and again dr barrett at all times in this case presented herself in a calm demeaning that this is in direct contrast cohen appreciate that recitation of the evidence with respect to what the officers may have seen and perhaps that may be enough to suggest that they may that the officers may have violated  your client's civil rights but on the nd part observers backers question was what is the evidence that there was an agreement between these officers and mrs behrens employers to violate  rights i mean that they didn't know each other before this it just seems kind of odd that a pair of officers would show up at someone's place of employment and say today i'm going to conspire with the employers to violate this particular employee's right barrett we have asserted that in order to have a conspiracy or to have joint action here that all that needs to be shown is that the police officers entered into a conspiracy with the p a u officials to seize dr barrett whether there was probable cause or not and the evidence of that is that it will born and and horner both testified that they told the police officers that she was not a danger she did not pose a threat to anyone and also the discussions that they were having between the two between the july  detail of the all of the things that have been going on with your client but we were and did testify that she told the officers the things that were in that report and one of the things in that report is ms barrett's saying quote they are an uncivilized society and they have to be killed when wilburn asked her what she meant by quote them her response was quote our pakistani one million they just have to be killed like trump said we just have to turn the key lock them out and drop a bomb on pakistan is a quote  isn't that some justification then for the officers believing he may have been a danger to others our position is no because of what she testified to her deposition st off on that report your honor is correct the police officers never saw that that was an after the fact report but and but but they did tell them what was in the report well what she testified i deposition is that she described a conversation she had with dr barrett about the way that people in afghanistan handled matters of stalking not her  that that that came up in the context of simply discussing president trump's remark and that doctor and that miss wilburn did not conclude that based upon that based upon their joint discussion of president trump's comment that d barrett was in was going to bomb pakistan or that there was going to be any type of at you know violence taken against anyone including pakistani men you know there's a big divide here between information to the two police officers both confirmed during their deposition that they did not tell the two police officers that she was a threat and did testify in her deposition about the president trump remark but that ms will bore and did not conclude that she was going to bomb pakistan or that she was going to take any any sort of violence against herself or anyone else mr horner also confirmed that  deposition that he never told the police that she posed a threat either to herself or anyone else and we have documented all of that testimony in the brief we were  concern statement don't you think again what ms will born testify to was not the doctor dr barrett was saying she was going to bomb pakistan but rather they were discussing the comment th president trump had made and that there was no conclusion that she was in the process of gauging in any type of violence you know the police officers you know unlike the other cases where the court was willing to extend qualified immunity to the police officers or to the mental health evaluation this was not a situation where dr barrett indicated she was going to do any harm to anyone she was she was trying to bring she was trying to educate the employer as to what her experience was including with the fairfax police invited them to talk to the fairfax police who confirmed the phenomenon she was experiencing she showed no indications of harming anyone and she actually when she walked into the conference room she thought they aren't the police they're there to help or i think it's do threat is that right i was correct ok then go on back to the others earlier question how could they have been conspiring with the officers to  committed if they told the officers that he wasn't a threat the conspiracy was to seize her regardless of probable cause and that is what happened the uncovered a large amount of fraud that was going on the p a the state department contract and that p a easy orchestrated this with the police it order to remove her from the scene now the politico what no one is alleging that the police officer shared in that boat of what for joint action and or for conspiracy under one thousand nine hundred and eighty three they don't have to the nature of the conspiracy between the police and the p a individuals was to seize her without probable cause which did occur bolder she even believes that she had a face to face confrontation with a stalker who somehow they did security at a work walk up to a desk and said hello or now ms but want us to fight it is highly unlikely an outsider would gain access to the office and locate a break or a parting point that escalated the situation and she caught a man in the courtyard or on a cell phone talking to the husband divide and she went after she didn't leave him alone she let him follow or and she followed him and found out that you works in the building next door in the it every day she believes she's in a war he said there are uncivilized society and they have to be kill that she's been advised truckers never give up and the only way to deal with them is to kill them and with regard to the officers how do we where in the record is there any is there any indication that they say they so it's a allegations that they solve the w this for thirty horner says when he talked police he told them everything that was in his notes and everything that was in this little one statement he said he discussed with them all of those matters so they the police it's well i curious to me why why that's not in the police report know your honor it st of all mr leeds out testified he did not hear the troubling statements that were made in this is your heart and this i will go on he could not comment on he didn't say i can't believe she said that he said i can't comment on what she said to those other people because i said that she needed to get somebody to go over there and arm these people eat and say something like that but as more mochas on what was the galway told us that leads about whether or not he should in fact whether in fact he had any reason to keep miss verity even after seeing all this information well he was still in the process of gathering information he was talking to other people he talked to the two doctors at the hospital she said that she was hoarse prating with him she was trying to give the right after that he would let her go so this is always instant work arac that of despair of not being sincere in a statement and that she was trying to say what she right he mr galway and saw that with the two doctors and his mental health and food consider whether or not less that fit the measures were available and included unanimously that given all the risk that she owned a firearm she would side of self improvement and didn't seem to be taking it very seriously that that was not an option there's certainly no pace law that says if a person makes a statement that they will seek undefined tre horner i think our position with respect to the dismissal is pretty straightforward these are private actors these are not state actors and they cannot be liable under section one hundred and eighty three dollars for any alleged mean that standard despite its varying this great length and in detail of his allegations there is no  meeting the officers agreed to remove dr mary from the workplace regardless of her answers to the police officers questions based on her as a stance only meaning a threat and danger to others so that  to prevent her from was alone and that they knew and that what was being told them was false there's no allegations at all but we have our independent actors acting independently and i think in the grand scheme of policy in this concealer context i think the standard needs to be meaningful and should be meaningful because you have the public interacting with law enforcement you the p a nd amended complaint pleads allegations of a conspiracy between the p a eep personnel amongst themselves to to engage in this conduct because of the fraud that dr barrett uncovered a couple of weeks before the events in question and we would refer the court to those very specific allegations the joint action slash conspiracy with the police officers is not that it is that they entered into a conspiracy or joint action  to to seize her without probable cause and with respect to that i would ask the court to take a look at joint appendix page seven hundred and sixteen when it gets a chance this is an email from mr horner to the two officers after they left the st day that they were called in a non emergency call in which mr horner says to the two police officers we feel the best course of action with the greatest chance of success is to have a p the arlington p d police take the employees statement in our office with the hope that the employer will provide that same concerning statements made previously to our h r personnel allowing a p d to take the necessary action to obtain an and then the police would then would commit her that the evidence i mean that's appropriate that's not a lack that's not for no reason at all but the evidence shows that she did not make the concerning statements during the conference meeting with the two police officers and they seized her anyway if i may i'd like to move because you can't have made the statements if she they were concerned they made admissions during their testimony we've documented it in or briefs where they had mid that that that she did not pose a threat to herself or to others at best it was a concern over mental health issues but as we know the standard in bailey and goings is not just if the police officer with a mental health evaluation believes that the person is in need of mental health assistance it's got to be more than that and that is that the person posed a threat to either themselves and an imminent threat either to themselves or to others with respect to mr go away he should not get the benefit of goings the reason is twofold  one is because he was explicitly told by me it's a list southminster lets out confirmed during his deposition that he told mr go away that she's not a threat and contrary to what opposing counsel said they knew each other very well and this are lets out was aware of the stalking phenomenon because the evidence in the case is is that he and his family experienced it when they were put on a list for isis the other diff the other difference with mr go away is that he misled the the evidence shows that he misled the judge because he failed to indicate that she suffered from any mental illness in this petition and he also confirmed that miss that dr barrett said that she would see a psychologist for mental health assistance and  also would be voluntarily which would give up the gun even though the gun was not an issue here on the virginia statute that was enough not even to seek the petition so for those reasons just go away should not get the benefit of the going to decision thank you very out that all we can do is offer a virtual hello but no that we really appreciate your arguments and thank you for continuing to do the to help us do the important work of our course so with that