means conduct our mission that could reasonably be expected to result in serious physical or mental injury are a substantial risk of death to a child the dca and florida supreme court and  dca decision says it's more than ordinary negligence it must be of a gross and flagrant character advancing reckless disregard for human life only the most egregious conduct done either willfully or real criminal arnold looks far worse for the parent in that case parents in that case than those in this case and the court even said the d child at risk of serious physical or mental injury even though there was decaying food feces smeared on the living room four were piled in another room plywood board with nails protruding outward where someone could step on a fuse box with expose wiring mold between the doors of the refrigerator's cockroaches running everywhere in their own court said that's not john neglect it  has to be something worse from then that it seems like to me the problem you have is the conditions in this case weren't is bad as arnold and arnold held that wasn't enough and  describe in arnold however stay were dangerous conditions in that home i suppose the most egregious conditions that would give rise to an arrest on this sort of thing we would say the two most egregious conditions would be the stairs that were directly outside of this bright or better bedroom where the child was no baby gate stairs without a baby gate correct ok so anyone who doesn't have a baby gate could be charged with child neglect now your honor it is more apparent that is unable to wake up a parent that is unable for twenty two minutes before rescue to become coherent when a parent does something to put themself in that position they're the only adult in the home where person said she smelled heavy of alcohol but that was a disputed fact the message she didn't that she wouldn't didn't appear to be in a breaded and she said she hadn't been drinking we have to resolve that in her favor by actually in his report in his deposition e m s said that he did put alcohol in his report as one of his indicators i thought he testified that she didn't smell of alcohol and he didn't think she was intoxicated i got that wrong no your h bill who is also the e m s that was in the room and also the one the author of the report from hillsborough county fire rescue the other the other the second one your honor other than the stairs is the open that was c p s said that  when the c p s person went there are that child protection investigator arrived about two hours later when he interviewed her he said he could smell the odor of alcohol but he was six feet away from her so he said he doesn't know whether she didn't not notice any signs of intoxication end of quote did not smell alcohol or breath and that she did not slow her speech and she said i hadn't been drinking i certainly didn't smell about call so we have to take it that she hadn't been drinking and didn't smell of write to the scene till five thirty in the morning that you're not come out interviewed him you're talking about his interview of her right ok so then there's the people that were in the room when she was finally able to wake up were cops as we thought she had been drinking because we smelled alcohol and she testified there was no smell of alcohol because i had not been drinking you never testified she didn't deny drinking but she's never well if she hadn't been drinking she wouldn't smell them people don't put alcohol alone as cologne if she said i wasn't drinking does that not create a genuine issue of material fact as to whether they smelled alcohol on her we believe it does not because they didn't arrest her for being drug i'm sorry no no no no if you're saying she was intoxicated and that adds into the mosaic of facts as to why the child was endangered and i point out to you there's a genuine issue of material fact as to whether she was drinking had been drinking cause she said she hadn't and therefore couldn't have smelled of alcohol it's not a valid response to say she wouldn't charge with being drunk and if we take what was there reasonable belief what was the information that they had at the time they couldn't have had a reasonable belief that she had been drinking unless they smelled alcohol right ok we're going on that and she said in effect they couldn't smell the car because i had been drinking very well and fire rescue smelled as well so there's another witness that has nothing to do with this lawsuit you can have witnesses who saw her standing on an old and she says she didn't and that's for the jury i understand her why it also doesn't matter is because what this case comes down to is the recent supreme court case district of columbia versus was b this court's decision less than a year ago in jones we franson and the prior decision from the supreme court about last january in white the poly all of which discussed clearly established law i think we're getting into the weeds here about disputed facts because unqualified to me a place cases we go and play as best case and we don't worry about disputed facts that's why i say if we just take away the alcohol finally give her the alcohol they all testified both the deposition in at the hearing before the lower court they weren't so much concerned about whether she was drunk or not they were concerned about her level of incoherence her inability to wake in what happened in those twenty two minutes will fire rescue what happened downstairs when she was unable to clothe the child that the deputy had to do it when she was unable to pour the child to drink the deputy had to do it in the conditions of the home they found when they got there three thirty in the morning that was unlike any other home in the neighborhood was concerning to them in addition to what they learned from from the father who was concerned standing outside what was the second conduct you said they did close off the stayers as a segue into the open windows were as also the biggest concern for them as far as a child being able to crawl out of the house someone being able to come into the house and hurt the child hurt the mother or anybody who sleeps can afford air conditioning sleeps in the windows of the screen and is in danger in the child's welfare and again your honor that's not what we're saying we're saying is when you take the totality of the circumstances when you take that's a tally of the house that they arrived it three thirty in the morning that was wide open everything was still on it looked as if somebody and gone to bed and closed up their house turned off their lights like everyone else does in the neighborhood everyone else does when they patrol in all their in all their years of experience you can ask your question about clearly establish law so i think i agree with the premise of where you're going that district court's clearly established law analysis is pretty skimpy there's a lot of grinding on the facts of the constitutional violation and then not a whole lot of discussion of what might really have established the law but the court gets close at i don't know where this is and maybe twenty six when the court says officers who find a mother and son in their bed sleeping soundly with no one reasonable with no one reasonable has a direct evidence of any neglect cannot arrest the mother for child neglect nor does the subsequent scenario in which a distressed mom surrounded by cops in middle of the night who struggles to pour tea and dress originally agitated maybe provide arguable probable cause for child neglect likewise the additional fact that the mother lives in a two story home kept her toilet seat open took a sleep aid after her child went to sleep did not provide other support singularly or in the totality for arguably probable cause so why isn't that paragraph sufficient there are certain facts that are missing out of that paragraph which isn't the court's not allowed to ignore certain m c s so this is helpful tell me the key facts that you think are missing from her narrative number one  they didn't know if they were sleeping soundly or not because there was concern for her well being part of their argument was she was sleeping too soundly you signed the fact that she couldn't wake up the other thing that i think  selvin said most eloquently is and up to craig i believe is when the child woke up the child was on her screaming yelling frightened she didn't wake up for that their concern is if you can't wake up with the child screaming next to you what would have happened had the child walking up gone on the stairs fell down stairs get heard screaming to bounce or she would be able to wake up for that that's where the child neglect in their mind came in whether they're right or wrong they're allowed reasonable mistakes cause that's or saying this at most is a reasonable mistake under the law i also side of this which was they found possibly a reasonable misfit based on the concealed weapon statute in florida and the court said there was no case law providing the guidance that law enforcement need to know that they were wrong such as in this case your point judge newsom there is no support for this paragraph in her order there's no case law saying this this is judge scriven saying this this is her belief there's nothing providing guidance back in december third two thousand and eleven in the middle the night to the officers a prior cases laying these this circumstance out suppose the officers are gone there in the only thing they found the mother was instantly awake when they walked in the only thing they found the whole house was the absence of a is that enough to prove perfect house taught in parenting class this is how to keep your dolls safe except for that gate on the stairway so i think i might miss enters your question well is going to say is they've all been asked that question that she woke up immedi would they have a restaurant they all said no we would have arrested her they can't fight the hypothetical any more than you can i'm saying they get there there's a gate missing there's no case that says if the only thing problem is a gate missing on the stairwell that violates that constitutes child neglect but suppose officers go to a house same circumstances exist except they get there the wenders a closer is no knife out there's no urine on the floor none of that they get up stairs just make sure everybody's ok and they notice there's no gate that's the only thing they find and they arrest her for child neglect on that there is no case saying that amounts to are they entitled to qualified immunity i would say into that scenario i would find a hard time arguing because you don't have it you could do it can you i mean you can just simply say that's ok some point i can do your honor but in this case there are so many factors a point that i agree with you and the point i think we're bringing is you don't have to have a case directly on point saying this clearly is not going right so the question is whether when you combine it with arnold for right by the standards reasonable let me ask you this and forgive me but i pulled up the arnold case i was talking say the age of tiffany arnold and that doesn't give an age doesn't it she's old enough to talk of the after question but i  it's a pleasure to be in front of the court time given two more minutes please your honor we start off with the fundamental principle that there are disputed facts which prevent this court from  upholding the district court's docket fifty five ruling which as judge newsome pointed out is very fact intensive and perhaps slight on the clearly established analysis however this court's well aware there are three ways that a matter can be shown to be clearly established it would be with clear preexisting case law that is similarly aligned with facts or the second could be w a broader more clearly established principle the key language going back to hope and pelter is in the case of novel facts so while the sheriff's office would like to argue in the pellets argue that this these facts have never been seen before the broader clearly established principle prong of clearly established specifically says in the face of novel facts the district court below relied upon the well established precedent that an officer must have arguable probable cause before and arrest can be made to survive or to win a qualified immunity challenge you agree right that at that level of abstraction not good not good enough to say the fourth amendment says you've got to have probable cause there was none here therefore qualified therefore clearly established you recognize that you've got to get sort of deeper down into the yes we have to go into the weeds judge newsome to look at the specific facts and going back to the narrative of disputed facts interestingly in the appellant's brief they state on page forty quote clearly no reasonable jury could believe app version as it is blatantly contradicted by appellants and e m s as bulls statements that's their conundrum the conundrum is that's right there are disputed material facts if you look resting places it is the s the bedroom or downstairs i do think it's important and it is certainly analyzed by the district court and there's somewhat conflicting answers by the appellant defendant first deputy sullivan says that the defendant confined her to her living room and did not permit her to move to any other area of her home so i guess in his mind the trigger is the confinement in the living room now looking at the facts they encounter her up in the bedroom and they actually allow her to walk down quote steep stairs on their own carrying carrying the baby that they're supposedly so concerned about and at the time they walk into the living room is when he feels the trigger is pulled deputy levein puts it back in time earlier she was not free to leave after the fire department left so we know at three twenty two  that and judge the district court is very clear that that's what standard she's analyzing in her order she specifically says what would a reasonable person think so the issue is miss bread better has testified that she believed she wasn't free to leave because they told her she couldn't even get up off the bed she wanted them to leave her home and she said that they said they weren't leaving and she couldn't get off of the bed they would not allow her to use her telephone they wouldn't tell her what time it was so requests for a frame of reference that she made were denied so clearly she wasn't free so a reasonable person would believe with three armed deputies in a room along with the hillsborough county fire rescue person attempting to assess them that they are going to be able to say leave my home and so that is a trigger for the rest and chief judge carnes it's consistent with what deputy levein believed at the time himself a craig says three to four hours after contact with brabender because they were waiting for the c p i so there is a difference between the deputies but the important thing to focus on is the disputed fact which as your honor said  judge carnes that she has said she wasn't drinking so that's a material disputed fact so what the case comes down to is somebody who has christmas lights on t v on a few open  windows some lights downstairs who's sleeping after taking a prescribed medication in her bed and at that point she hasn't had anything to drink based on the undisputed facts in our favor because she took a prescribed medication and the fact is the case law or the statute itself says clearly that culpable negligence is consciously doing and that the only conscious thing she you don't have to have an injured or dead child and sharon i mean the elements say that well but basically what a reasonable person know it's likely to result and our position  problem is that that would punish the order says all kinds of parents that are not actively supervising their child at the time a heavy sleeper someone who was distraught maybe a death in a family and they had a hard time waking and put your toilet seat down enclosure liquor cabinet and clean up all spills and make sure that you turn off the t v at night and it's interesting because when you break the case down your honour's and you ask the deputies their own opinions for example they said if we just drove by the house and we didn't have the non neutral call of the interested party mr mcintyre we would investigate that house if she had and then hard to wake up and we just whether we think you had probable cause in a criminal case and qualified muti is whether we think reasonable officer could have believed they had problems your only objective standard yes and but when you look at what they say they say we did not observe any danger to the child's mental health physical health or emotional health other then these prospected fears that they grafted onto the  reasonably expected to result in me correct but it's not reasonable when these are things that are seen day to day and houses all across america and it's in three dozen years since i ha are they yes they are highly mobile and but but if you look at these facts judge it is a fact in the record that it took three minutes for the child to wake up and according and in addition it's almost like the way they look at the houses they go through the house and make it a mother fitness test is there anything that we could confabulate into a possible harm and they just add that to their basket of facts until they get to the point where where there are so many risks in this home that it's possible that foreseeable that the baby could have been harmed and as a result we're going to make an arrest and what's interesting is at what point do they process those a lot of the facts that they rely on are after they've already detained her at a level that's the functional equivalent of it arrest so they can't retrospectively justify the with it is that he was not a citizen informant he was an interested party yes and actually deputy craig in his deposition testified that when he was talking with  mr macintyre he had was shown by mr macintyre his phone which had the court order on it so he knew that mr mcintyre had come down for court business on monday and that there was irreconcilable differences about the custody of the child by looking at the phone in addition we talked about king's lynn and our case where a police officer may not close his eyes to facts that would help clarify the circumstances miss bread then are told them all the court documents are in my trunk she told them the medicine is in the cabinet along with the prescription that i took they never went to the medicine cabinet they never investigated that they all testified that a breath test would have been helpful yet they administered none and it's uncontroverted that she begged for them to give her one i don't like mike in mcintyre either given what the state court found and how he parlayed this end of four months of custody that he was in entitle to and the state court found he'd lied to everybody all the way through but i have doubts about any proposition that you can't about but we can't hold that just because somebody has a reason to talk to the police and to say what he's saying means that he must be lying i wrote a case called craig based single mentioned i wrote it because we know then it's correct yes sir but that was a criminal case but we held in there that a codefendant flipping and testifying that the defendant it i was there when he did it he was the trigger man of one forget what the what the worst part of the crime was but he did the worst part of the crime in return for a reduction of course  is by itself anough without anything else to support probable cause even though he has a decade or more reasons to lie to get a reduced sentence and i guess we can avoid the question because they've never argued but i'm just why shouldn't i be uncomfortable with the proposition that someone with an interest to lie can't provide probable cause to the cops based on his own statements and the cops making a determination if he's telling the truth this is really bad and therefore we have arguable probable cause and arrest the issue would be that you can use it and it is part of the totality but it has to be corroborated in case says that andile says that so greg the singletary on boxes you can charge somebody with a crime without corroboration of the co defendants testimony and the co defendants getting a reduction senates for testifying the problem here is that there is direct evidence showing that what he said is not the case and that the child wasn't harmed because when they go to the house the child is in bed safe what was what was the time difference between his call in their arrival i thought i had that if i could tell you dr twenty six is a stipulated agreement of material facts so are you know six am he calls the sheriff's office he calls at three o six and a corporal of on his first on scene is not there till three thirty five so that's twenty nine minutes later but that in the interim remember hillsborough county fire rescue comes three twenty two so they're the first ones to encounter the residence to knock on the door but then they call and ask for a new disputed fact about where they looked in the wind i don't think there's a disputed fact about that i think that they did look at well if there was disputed fact as your clients favor anyway yes so to end in the minute i have i'd like to address westby westies a very different case than the one we have here because in west be there actually if you look at footnote one on the supreme court's decision says it does not involve disputed facts they took the facts as were given to them by the and that's not really i think the just of that opinion but justice thomas in his opinion does mention that plus they haven't pointed to any band ing authority in their jurisdiction that said that this was not probable cause to my going to rest of the party goers they haven't pointed to any binding authority that you've got to believe a suspect and what they tell you and so forth  s that's correct but they also said a body of relevant case law is usually necessary and it's not always and this is such a case and while we didn't argue it you probably could decide this case under the third very narrow obvious because the it's obvious that you can't just arrest everyone under a strict liability theory that you don't have a baby gate on top and you're sleeping heavy therefore you've committed child neglect our issue is under the obvious you could probably do it and i would encourage your honour's and i'm almost out of time to look at king's lynn because king's lynn is a very interesting case that doesn't  side in our brief where there's an automobile accident involving a deputy sheriff and when everyone comes or a story police officer when they all show up it's a dispute of who ran the light and the on scene officers immediately start interpretation everything in favor of the officer that they hope does not run the red light and cause the automobile accident including that they start saying where you're impaired well they don't investigate the impairment which could the court had clearly been caused by her head injuries which she complained of the entire time at the scene that's like the medicine cabinet that they don't go look in and the second issue was they said oh we smoke cannabis around the car but they never do a car search to see if there is actual cannabis in the car to support the case so that's like them not looking at and considering that empty bowl at three twenty two declares her able to sign off that she does not mean medical treatment and finds her aware enough to make that executive medical decision for herself and our position is at the time that she signed a refusal for medical care because the a m t had told her she did not necessarily have to have it it was up to her they should left the house as their investigation was over he's declared her cognisant he's done the glasgow coma score on earth she's fifteen and he finds her to be originally when that she woke up she was oriented to time and place the only thing she wasn't oriented to is the situation and she specifically testified she thought she was having a nightmare that these people were in her bedroom and that and the non club feel sense yes ok thank you counsel four minutes unless you need a little bit more who might give you more but i don't think you will think in going to the three ways to show clearly established law greg this is the first time i've heard that they're going to was a point in time where the officer tried to wake her up she didn't wake up fire rescue took in and us born his death was that it took him over five minutes said she was harder raul's that so the deputies witnessed that for themselves they then witness twenty two minutes between this bread banner and fire rescue where he says in his own deposition e m s that he had to wait for the clouds to clear in twenty two minutes for him to get vital signs and for him to get to get her to answer basic questions like her name what day is it who's a president where are you things of that nature they were watching all that so getting back to the point of does it matter if she was drunk or on prescription meds it really didn't matter to them which is why they don't do breathalyzers why they don't care to look in the medicine cabinet because they personally witnessed her level of an ability to wake up and her incoherence for a twenty two minute period was there anything in the record about when they had a field breathalyzer test with them they did  not they look at those still large way back in prehistoric time when i was doing that around that sort of thing probably only the only one of the big table talk machine is that now portable in cars i baby gate so every parent in america or in florida is guilty of child like that's not that we're not raiding people's homes looking for baby gates this was a situation they got brought to because of a father's concern for his child when they get there they become very concerned about what the observer she doesn't come to the door for fire rescue she doesn't come to the door for heroes office so they become more concerned we need to see mary she should make sure she's ok make sure this two year olds ok that led them into the house the entry was never s deposition and at the hearing and they stated that there was a deputy in front of her and a deputy behind her with his hand on her to ensure that they went down the stairs safely and so wasn't just gone head downstairs we're going stay up here and we'll see it downstairs they get they guided her down the stairs one in front and one behind with his hand on her going to i think the biggest part of this case to me is the second method of providing a clearly established law in an appellate brief page forty eight he basically argues broader principle he concedes that the first amendment the first method there's no factually similar case he conceded that so he relies in the brief on the second way and the broad principle is an arrest without probable cause is a constitutional violation putting defendants on notice that's the broad principle he relies on france in this court in france of the jones granted was an excessive force force case not a not a false arrest but specifically said on page nine of the france in case the fact that the fourth protects against of excessive force in this case false arrest is not provide any guidance as to what constitutes excessive force in this matter false arrest but in fairness right to him i mean this was in response to my question he said i get it judge knew some of got to put some meat on the bones it's not that abstract principle novel facts here they are and so this sort of gets me back to judge scriven paragraph and sort of is it sufficiently we'd see or not and i go back to the she leaves out they're watching they can't wake her up they're watching fire rescue not be able to wake her up they're watching twenty two minute exchange of fire rescue where she's yelling she's telling people come back to bed they thought she meant them she's yelling fire rescue get out she's not able to answer questions at first it's so we're all on the same page i think right i mean that's where this case is it's not in bucket one it's really not in bucket three obvious clarity it isn't bucket to broad principle as applied to novel facts held that district courts of appeal in the state level are capable of providing binding case law that gives the fair warning to law enforcement and does the i'm curious now does that apply that principle that it's