before you begin i i believe that we have allocated fifteen minutes on this so if he'll change the clock i don't want to deprive you of your time but i just wanted to check my records i appreciate that ok now we can start all over thank you for help indicating that she had consumed a large amount of alcohol had taken an unknown quantity over one specified pill and that she was feeling extremely distraught and suicidal and she expressed a clear desire to commit suicide she related to that i want to operator that she would be willing to bat and that it was her hope that by willing bad she could provoke the police officers that would respond to this call to shoot it kill her now the context of this calls important is defend section fifty one fifty involuntary mental health hold so misquote various mental health disabilities were well known to the defendants so defendants brought the wire and wolf responded to the apartment and perhaps setting up a perimeter and it's tempting to deescalate the situation and exploring alternatives other than lethal force the officers obtained the key open the door and just as she had related to the not one operator she would be missed call bear was willing a bat and the two officers in the front defendant's mcguire a wolf fired their weapons and fatally shot mrs cole where it's notable that defendant bronte had a biological son of deborah called where he was put up for adoption nine months old and he did mean to close relationship with him is called fair throughout a lot of his childhood and then when he became an adult the relationship closer more consistent and mystical bear had a relationship with his real there's a child with her biological grandchild there are four principal reasons that we respectfully submit the district court's order dismissing this action under rule twelve b six should be reversed first the district court face the prospect of a section three action filed against him that's it page five ninety two and it's notable that the court robert zubrin says wakeman pointed out on page five ninety four of the opinion that its ruling was narrow and only applied to that scenario because in that situation the constitutional violation did not cause death so that case involved what amount malicious prosecution type of case against several government officials and the plaintiff passed away about four years into the litigation or so from unrelated causes and the issue there was whether or not the person representative could maintain the action which was not permitted under louisiana law when i hear from the head so i hear there is no personal representative you have a california statute that provides a mechanism for somebody like you know mr wheeler someone who in his situation there was no personal representative designated obviously prefers to pursue the survivor claims as successor in interest because there's no other successor in interest available well we know he might prefer that but that also could possibly resulting in the him having no ability to pursue this so going back to the survivor i mean to the personal representative i mean i soon perhaps they're not much in terms of assets of the deceased but is there anything that would prevent him from being the personal representative there's nothing that would prevent him acting as a person minors ending and so we could solved all of this if he'd been named as a personal representative and then you wouldn't be here at least on that issue right well on that issue your honor that that is correct in the sense you do look to see what is underlying state law we often do that in one thousand nine hundred three and a lot of issues and in particular you then look to see well is the state law such that it would be wholly inconsistent with the federal notion of recovery and so i would appreciate your elaboration on that as to why it would be wholly inconsistent to apply the california statute in this instance under nine hundred eighty three as we've done in a number of other cases involving similar claims judge in response to that issue the california law if applied to this case which would cause this action to abate and there's a strong public policy interest in doe individual named as the to be identified person the result of that was that was done so that if if it was determined that state law would preclude mr wheeler from pursuing this action and he was and he was barred then the procedure could be done but you see that these may be too late for that is there any reason  and sort of the belt and suspenders notion of preserving your claims he couldn't have been appointed the personal representative and then also file suit also in the name of his successor in interest while you're there is there any procedural here to doing well from our perspective when we got the case and we we got involved in the clear let me just why don't we start with their yes or no to their and then they go back and explain and understand that it's not necessarily if you're making ok i understand ok so with respect to that question i guess the issue of be that that could present that could present issues but i believe you know in theoretical sense i think that the answer is it would be possible to do that i believe it would be possible might might but the problem is you're some years down the road and given the statute of limitations i don't see how a successor could come in now i mean give me a personal representative ok now i think i need to save the rest of my time but let me let me answer this question with respect to the personal present of we are we would submit that the interest of the such limitation have been satisfied by virtue of with the complaint and there's really no reason why if if this court were to permit leave to amend the complaint to add mr wheeler as a person present of there's no reason why the defense we prejudiced and good morning your honour's my name is john haberlin and i represent the appellee police officers as well as the city of santa clara your honour's in the context of lawsuits involving damages being claimed as a result of someone's death the law appropriately requires that the plaintiffs have the legal capacity to assert claims on behalf of a deceit and in this case mr wheeler lacked and lacks the legal capacity to bring claims for his biological mother's death due to his adoption to other parents when he was an infant the district court therefore appropriately dismissed all of mr wheeler's claims your honour's we know from the u s supreme court in robertson vs wegman that there is no rule of absolute survivorship in section one thousand nine hundred three cases one of the questions to my friend mr schmidt was about that issue and his response was there is a policy in preventing police actions in going forward with the same argument was made by the plaintiff and roberts and you can always argue that a cli should be able to proceed for every any given plaintiff but there must be some reason not to enforce the state's survival statute and there's two reasons the robertson course gave for potentially not enforcing the louisiana survivorship stage statute in that case where one compensation to the victims of the civil rights violation and to deterrence in your honour's in this case neither one of those policies would apply if this court were to follow california law c c p section three seven seven point eight thirty on the issue of the of compensating victims as the court said in robertson the goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of an estate and think about the nature of survival claims these claims are not personal to the plaint their claims that someone is saying that they have such a degree of relation to the deceit and that they should be able to come into court and collect damages that that to see incurred before death  appropriately in california very propre allee requires that you have some relation some legal relation to that deceit and secondly on the issue of deterrence your honour's no california police officer is ever going to be affected in their day to day operation by the application of three seven seven point thirty no california police officer is ever going to be able to know the ins and outs of the family tree of every person they encounter and they're never going to be able to predict that rare occasion that we find ourselves in today when it is seed and unfortunately leaves nowheres now in this case the allegedly unconstitutional conduct change because the mere fact that the that the incident the alleged violation caused death is not going to serve that deterrence effect c c p section three seven seven point three opens up a number of categories of classes of people who can bring and who can bring a survivor action including a personal representative including and i think it probably depends on how you define the deterrence because if if suit can go forward then of course there's not going to be any deterrent effect if a suit could go for way then the issue of the officers conduct the course would be in play and that fact it as in terms of could any particular suit go forward of course you know you can always make the argument that in each and every case we should just let survivorship rule but i think you have to analyze the issue in the abstract and that is is application of this survivorship statute california survivorship statute going to have not just a meaningful effect but any effect on a police officers day to day duties they're just never going to be able to predict this anomaly and the reality is in use of force decisions and it's especially in the very difficult decision of whether to discharge a firearm the last thing on any california police officers mind is going to be that subjects family tree and  their heirs their thinking on the spot because there's a threat being posed to them or someone nearby and they have to make these decisions on the spot so this is this is dan and i think you're talking past me because  making on that spot is whether to use force and i agree with you they're not wondering if if that person is a potential blood relation but it's the decision and the fact that they may be subject to that mr robertson should be his heir should have the opportunity to continue with that claim and we haven't gotten to the point since robertson where all cases survive i mean this court has had heard moreland versus las vegas metro hayes versus county of san diego there are there have been subsequent cases where these claims have not survive and we again we don't have a rule of absolute survivorship and again i just think this is such a rare case reuters they waited to literally the last day of the to your statute to file the action they did not they have never taken steps to appoint a personal representative that was clear from the reply brief it's clear from the argument this morning they didn't mention a lot of quote john doe plaintiffs in their complaint i frankly have was unable to find one that supports that we obviously know about doe defendants and there's various rules about whether cases relate back in terms of doe defendants so frankly they just didn't take the steps to perfect that and we cited some case with ortiz in our reply brief which suggests that new actions argue or offer any evidence that they had been formally appointed as representatives of douglas's state your honor your view is that the time passed a long time ago yes and if somebody came forward now miraculously as a personal representative it wouldn't matter yes i am representing three police officers who have been accused of violating someone's civil rights and the four year anniversary of this unfortunate event is friday and my  officers my clients are entitled to this to your statue of limitations and should not have to wait around for the plaintiffs to perfect their right to a personal representative so do i understand your argument in part to be that because  revival statute from its personal representatives or successors to to bring an action the statute tewari scheme is not inconsistent case in robertson and so yes we believe in addition to all of the classes of family members and again a distant cousin would it would have been would have sufficed as a successor in interest so long as there was no one closer to the disease so yes california validly reasonably gives a number of categories of people the right to bring this action and this is this is not like chowdhury in some of the cases where damages have been limited this is a case where the opportunity to bring a claim is out there you just have to be the right person in a case like salary where if you negate pain and suffering damages for every single fatal section nine hundred eighty three case i can understand that that may have some effect on law enforcement operations and i understand why the why this court did what it did you dress the fourteenth amendment question yes you are the fourteenth amendment liberty interest that is being asserted here and i think we have to start from the framework that the plaintiff bears the burden of proof in all claims including standing that was told to us by the supreme court in lieu on versus defenders of wildlife it was really incumbent upon them to come forward with a case or an authority that says that someone in his position has a direct fourteenth amendment liberty interest in the death of his biological mother and this court in other context has considered other family relationships things like siblings in word versus san jose and concluded that siblings were not close enough to satisfy that fourteenth amendment liberty interest in the court adopted this court adopted in ward the reasoning of the seventh circuit in bell versus city of milwaukee and it said quote obviously  human relationships stem from the emotional attachments that derive from the intimacy of daily association but we are unwilling to attach constitutional significance to such attachments we all can agree that various family members often feel close enough feel very close to one another but in ward and in bel what they called daily association relationships were not enough to justify the court finding relationship with the mother biological parent was legally severed there's not for close to the possibility of fourteenth amendment claim no words could you imagine a situation where the relationship between the child and the biological parent was close enough even though there had been this  severance such that there would be a viable fourteenth amendment claim i certainly would agree that specially in this day and age of of adoptees sort of locating their natural birth parents that there there's there's certainly probably more of that happening and basis for standing not irrespective of the legal adoption my view is no because there is no there's no authority providing for that and i think in the it wall any one particular parent child natural adopt natural parent adopt a child situation there could be situations where they'd be they reunite and become very close intil until we have an authority telling us that's the case i don't think that they can assert a fourteenth amendment right here and it seems that you're focusing on the language in the cases that refer to their only intimate relationship to why the pendency relationship of the child upon the parent and you're saying that that's not what we have here but my my point is that wasn't enough for this court in war to say that brothers and sisters should should have that type of a liberty interest and so i think it's rights claim how would we articulate the level of closeness the degree of love and affection and i mean that you're really asking you know what's the limiting principle here and where does it stop and and which i think is a good question because parental relationship so i'm just really wondering what do you think the court meant there if if biological alone is not sufficient but but then you can add to it some other kind of parental relationship that's in a they're arguing isn't and well i i think that again i don't know that there's a feasible way to lay out the rule if we're going to expand this this class of plaintiffs which for all the reasons i've talked about before i don't think we should do not to mention deference to state law and as as the supreme court said in washington versus glucksberg we must accept exercise but mostly care the u most care and extending these rights in the site for there is five twenty one us seven twenty one but i just question how how we can articulate a rule that would and how we could lit gate the closeness of a relationship that in order to achieve standing i mean it's a big deal to make a civil rights claim it's a big deal to say that somebody is has violated your civil rights in the in california has justifiably said ok ok you can do it but you've got to meet the certain criteria and and i just concerned that we're going to open this up to other plaintiffs who have a more tangential relationship and i just question how  articulated and i think the court should exercise restraint in that regard thank you thank you the cases cited in the section of their brief which is towards the end are on pages twenty five and twenty six addressing the john doe issue nearly all those cases involve plaintiffs who completely failed despite being between the complaint and the argument today between the complaint the argument has been a major delay and there's we can see that you are right however we had no reason to name the person representative before because we have seen this such limitation had already run we had named john doe and our position was that mr wheeler should be granted the standing and obviously the fallback position and if that argument is denied it would be to go and go through the procedure briefly have the person preserve a point now on the fourteenth amendment issue i think that the court's questions on that were asked because there is no authority cited whatsoever by defense counsel for the idea that the adoption severed mr wheeler's liberty interest now the law is very clear and there's no need for any kind of a new rule to be an ounced regarding the fourteenth amendment claim because parents and children have a recognized legally cognizable liberty interest and there's there's absolutely no authority for the idea that that liberty interest is a creature of state law which that is in effect what the defendant's argument is because their contention is that the adoption severed d'alembert interest but the only interest that was severed was was that legal relationship that mrs cole bear who is disabled was not able to provide in terms of the way of financial support and so she did the responsible thing of putting mr wheeler up for adoption because she knew with her disability she was unable to care for is essential needs but that didn't sever the emotional attachment of the companionship and all the other interests that the fourteenth amendment liberty interest is designed to protect and mr wheeler did have the relationship as a child and also as an adult towards the thrust of your brief and seems to be that the relationship was forged when mr wheeler reach majority that's the thrust of your argument well your honor in the complaint it does point out that mr wheeler had had a close relationship with her for part of his childhood and then the relationship obviously blossom when he was adult but it was and it was what is common these days which was an adult and open adoption scuse me so he was aware of this call where he didn't discover her later after becoming an adult he did have a relationship with her we have a whole file full of letters and other correspondence between the two obviously that could all be fleshed out in an evidentiary hearing but i would submit there's no need for any kind of an ad hoc analysis here with respect to the fourteenth amendment claim because the rule is clear one of what is your best one is your home run fourteenth amendment case where your honor there's there's no case that says that an adoption that liberty interest so there's numerous cases cited in both the opening brief and the answer in brief that recognize the fourteenth amendment liberty interest for parents and children so i would submit that by but by finding that that liberty interest was severed that would actually be a new rule that would be announced which there's no authority if there was a case saying that that liberty interest was severed i think i can assure you that the defendants will have cited thank you thank both counsel for the argument today wheeler versus the city of santa clara is submitted and we'll hear argument now and i am a multimedia versus