well just home off a minute while everybody is heading out it seems that you're losing your audience well everybody everybody who matters is still here thank you thank you honorably could they please the court my name is don ok thank you very much may please the court my name is lawrence schaefer and i'm here representing defendants and appellants lima a malaria and you suppose thank you and this is an appeal for the very limited question of whether or not qualified immunity should apply now in the case and this is an ongoing saga with respect to a situation that i'm not going to get into the detail of the facts but with respect to qualified immunity the law provides that there has to be a statutory or constitutional right and that right has to be clearly established at the time of the deprivation but qualified immunity goes deeper than that it's broader than that the purpose of qualified immunity is to give breathing room to officials so they're not judged in twenty twenty hindsight they have some arguable differences in fact the law says you can be mistaken as long as your reasonable qualified immunity protects all but the plainly there is a protocol laid out in informally during that timeframe and that the protocol was a conference with the pro probation officer officer the supervisor and maybe a regional chief at that time there was a meeting and they concluded based upon review of the facts that the removal from the home was appropriate later on another parole officer came in  met with a social worker met with some others and decided to overturn that and the husband father was allowed to return back to the home subsequently there was another meeting principle that the right can be infringed only upon satisfaction of strict scrutiny right correct all right so what do you think strict scrutiny required here in order to remove him it our officers should have complied exactly with the protocol laid out they did not know protocol what would one strict scrutiny require at a minimum some cause to think that he posed a danger to his own children and then a narrow tailoring of the limitations in order to infringe the right only to the greek necessary to deal with that problem i believe that officer lima laid that out in his letter setting forth the reasons for the deprivation the past was that the individual is highly manipulative that he groomed the individual that although was not his child it was in the family constellation and all those factors he also talked to the victims of the first offense as well as bronx county district attorney's office bronx family court and other individuals involved consider did anybody ever consider the possibility to step in the no tailoring issue of supervised visitation no as far as the record indicates it was an all or nothing it was how do you think the defeat qualified immunity isn't there at least a question as to whether strict scrutiny can be satisfied when it was an absolute bar and no consideration was given to supervised visits plaintiff requested the supervisors the unsupervised contact as far as the father living in the house are individuals reviewed the case over and found that it was appropriate to have the father removed i said before it was an all or nothing and that's what they want they wanted him to continue living in the home but for purposes of claiming here that you're entitle to qualified immunity how do you satisfy the  least restrictive limitation on this right i believe it was again just them going through the protocol and laying out the factors in approach they they did it but not in a timely manner in accordance with the has a problem too i mean if you want to rely on it i'm not i'm not making any predictions about how this would come out if it went to trial but i don't understand how you think you you've established as a matter of how the parole officer laid out his his decision and the basis that was the brass chief he was that yes he was a senior officer and let me let me just make one point i see my time's up if i could just say with respect to valero valera was a the parole officer for a very short time from september two thousand and thirteen only to december now that the facts are much stronger admittedly against officer officers i'm sorry chief lima but valero did not make decisions he was not involved and i know i'm i'm i'm i want to be stepping over i don't want to be stepping over limited jurisdiction on the appeal but as far as going into the qualified immunity area he did not make decisions to dep or deprive any rights so with respect to officer valero i asked that also based upon that morning strict scrutiny or not there has to be in this circuit conduct that shocks the conscience in the in support of a constitutional violation under the fourteenth amendment a substantive due process violation but then that is that qualified immunity question whether the conduct rises to the level of a constitutional violation well you know i'm that's a part of this appeal your honor that i know has been addressed by the pointer and we have a summary judgment decision by by the district court by the motion court that basically ends this case for all but the consideration of damages and the at you have to wonder at what point the merits on appeal are going to be addressed the in the context of johnson which was cited by the point of food right gree with you i mean the district court considered and was obliged to consider that all the facts alleged by the plaintiffs would be proved now maybe you agree with that but to the extent you don't at trial you have the opportunity to dispute those facts it's only for purposes of this motion that there is the original trial here though your honor because summary judgment has been granted on the liability aspects of the case in favor of the plaintiff appellee that when there's a final judgment what is the resort i don't want to argue with you take up your time if you think that we can take the merits of you're going to have to give up part i think your honor that because in a situation where we have my client specifically who is involved only in the first deprivation which the code which your honour's may have noticed which was in a deprivation of the right or the privilege of john doe to be with his infant child and new wife  after he was released to parole in november of two thousand and eleven the fact is that this individual was dealt with by my client mr cap only for the period october through november the initial four months and i'm speaking only about him now we're talking about a person who my client met for the first time on october fourth two thousand and twelve according to a bronx county jury in two thirteen during that period and not an infant boy no not an infant boy but the sate as as indicated by my co counsel the idea of the way this person conducted himself is not necessarily going to be limited some minimal form of hearing it's a well it's important i think just answer my question first and then i'd say the answer to that would be that it wasn't required and the reason it wasn't  there anything that i'm missing in this record well i'm having here i know there was definitely not an impediment your honor but there was what the people were doing i mean this is a real world situation in which a group of parole officers for the first time on october fourth two thousand and twelve are confronted with this individual john doe and they learn many things about him on that day that are very disturbing including the fact that he hasn't inform them about this newborn baby including the fact that he has a very vicious history of heinous sex crimes against a twelve and thirteen year old woman a girl rather who is in a few kinship forced room arrangement in his own home his wife's nice including the fact that he has a seriously violent criminal history of violent felonies that resulted in sympathetic to their predicament is that we've i think clearly established some requirements before you deprive someone of their right to visit or to be with their kids i would say and fight because of maybe a red white and so on that there is a where someone is deprived your honor with without a hearing on to these circumstances for four months from his infant son where the the universe of information that the parole officials learned and my client of course is a supervisor he's not the parole officer he he participates in the separation the parole officers responsibility is to supervise to conduct direct meetings and direct involvement with the parolee and to do the investigation my client and his personal involvement which is important in one nine hundred eighty three action is to participate on october fourth and then are on february seventh two thousand and thirteen four months later she he she's put back in he the this john doe is authorized to return to the home my client doesn't do anything to try and stop that he doesn't act maliciously or with ill intent toward that he has he is not dealing with this parolee on a day to day basis it is or is it required for my client james cappiello to do anything more than cure the violation that exists that day director pa officer who deals with him to conduct an investigation he's not doing the investigation he supervises parole officers and when i ask here co counsel which is what about supervised visits during this time it's past ok i mean you you are the clearly established law is that there's an established right that can only to be deprived in accordance with strict scrutiny which means the least restrictive means even if they felt given his past conduct he could not be alone even with a newborn what is the basis for thinking that he could not participate in supervised visits is no basis the only question but the not necessarily if you do i would say it's a question of fact whether or not these parole officers and specifically i'm just talking about my client in this four month period should have taken steps to tell or some kind of  individual program for this person to have some contact with his son what's retail really means it doesn't but if it depends on the other side of the coin is the compelling interests the other side of the coin is the the the or wasn't debatable among reasonable officers that he that he could have had supervised visits with this child but otherwise you have an argument in other contexts but i'm not sure how you have a qualified established right what should have occurred here to say that a deprivation like what if in the fifth month they had decided to to give him some kind of methodology for or structure for seeing his child who's to decide that four months is a period during which i think a jury that's really where i'm going that that stritch crudely required something less than four months for something to be tailored that's what i don't think that there's a fact question for a jury you're challenging the summary judgment award you're not challenging qualified immunity in fact you're almost conceding that it can't be qualified immunity because there are questions of fact in this qualified community is is something also is not the fact that there was a doctrine of qualified immunity that perfect protects government officials in their work when they have in have met many stiffer tests qualified immunity can it can be determined can go to the jury i believe george i mean can yes and so we can say you can't you cannot say how and the summary judgment award but you can't i'm challenging the summary judgment award because judge the district court the motion court relied on a bunch true i'm sorry criminal cases mickey arg and myers which were before this court on direct appeal of sentencing issues the only and you can make this court is we're entitled qualified immunity as a matter of law and we didn't get we but that has what i'm saying i'm saying we're entitled to qualify it there are there are questions of fact you go to a jury now i'm saying that they qualified immunity in my client's situation is clear because it's not possible to conclude as a matter of law that my client and the conduct that he engaged in in this four month period i think you've got the standard wrong it's you have to show your entitled to qualified immunity as a matter of law they we have we have done that your honor because judge because the district court relied on cases that had nothing to do with qualified immunity and he applied a standard that didn't consider the elements of the torch that were involved your argument that for months is not that long yes it is and if there were case law myers said of other cases that says ten days is too long and we relied on that case law you would lose but your your argument is those are separate different issues arising under different contexts for months is not a law it would depend on whether those cases were distinguishable because that's to standard is shocks the conscious the conduct of the parole officer has to shock the conscious as has been described in many different process argument that's the part that's what we've lost on for that's i understand that but you're here saying you're entitled to qualified immunity on the substantive due process claimed that familial relationship was was interfered with without there being without strict scrutiny sure i am said we are entitled to substitute yes absolutely that is what i'm saying ju consider the peculiar facts and circumstances that confronted senior parole officer result oh and that informs his decision regarding the restriction of john doe's access to his determination involving multiple factors including the protection and security of society the protection and security indeed of john doe's family are in making a decision whether to allow an individual as john doe was a convicted sexual offender to cohabitate with with his son the district court did not adequately consider all the adhere to the constitutional standards and therefore there is no issue of fact but in fact the there are there are issues of fact there may be issues of fact but the question is whether there are issues of fact with respect to qualified immunity i mean if the officers involved here did not consider didn't consider less restrictive means than absolute prohibition then i i'm not sure what we're arguing ju st let me address that that particular point because there were other individuals and entities involved in this decision in addition to the parole officers including officers  our investigations were initially conducted by the parole officers which included obtaining records from the bronx criminal court attaining records from family co in reviewing records from ny katz which was these the sexual offender program that john doe was in at the time all of these things were done by the various parole officers and senior parole officers involved here now why should we say that senior prole officer rezai over cap e l o of the leiria why are they the ones that are responsible cats here where where were other entities here you're putting all of this on these parole officers who are into taking into account issues involving protection and obligation  should determine that's the basis of qualified immunity we say that qualified immunity can only be decided on a question of fact you're agreeing that you're not entitled to it is a matter of law my position is that this is a jury question that's a challenge to the summary judgment decision you're you're only appeal here can be that you were entitled to qualified immunity as a matter of law on the facts viewed most favorably to the plaintiff that's the standard right that is correct so how do you satisfy that i mean it almost seems to me a cure appeal is premature you you want to argue about whether they were entitled to summary judgment by presenting this in the context of an interlocutory appeal to understand that judges that is that is our remedy here on qualified immunity or only or only remedy for an intellect or any contact whatsoever with his newborn son and us forcing dough into a homeless shelter and leaving jane doe without the companionship of her spouse or a co parent to help raise a mass in the earliest and perhaps most difficult stages of parenthood the ban was complete and total no letters no phone calls was not even allowed to keep a photograph of a mass for all officials imposed this ban based soley on the fact that one of those par conditions required him to obtain the written permission from his parole officer prior to having contact with anyone under the age of eighteen so the default is that he doesn't have any contact with anybody under eighteen correct the exception it's inherent in the in the wording of the condition by its terms the parole officer has the discretion what is there that supposed to guide the parole officers in making that determination well the constitutional analysis where if they're going to  deprive somebody of their constitutional rights to interact with their child because there is a compelling government interest in protecting the child nobody is disputing that then they are required to make an individualized assessment as to what conditions are reasonably necessary to protect the child while also respecting the rights of the parolee of the focus on the second deprivation component of this case is i'm trying to understand exactly what the position what you about that forty five day period and they had conducted their investigation within the forty five day period and made an assessment for whatever reason that but you know some real reason that  entitled to visit his child would you then still have a basis to defeat qualified immunity so only on the procedural deprivation or no i think the procedural violations are tied into i think that the protocol is designed to protect designed to mimic the constitutional standards i'm not sure if forty five days is too long if you know if this were where you had to attack the protocol itself before you could attack officers who were following it but that's not i'm sorry maybe i'm not understanding your honor are you asking specifically about whether the forty five day period in and of itself is does not meet strict scrutiny personally i don't think so case the parole officers here gave no regard to the fact that the condition by its very terms gave them the discretion to approve contact and no attempt was made in either period by their own admissions to narrowly tailored the restriction on parental contact and they certainly provided no opportunity for plaintiffs to be heard again by their own admissions the qualified immunity doctrine as defense counsel pointed out rightly so gives government officials breathing room to make  mistaken judgments about open legal questions if there is an objective lee reasonable basis for an official's decision then whichever way they make that decision the doctrine properly shields them from liability but if the district court determined after a full airing of the undisputed facts on cross motions for summary judgment this is not one of those cases defendants don't dispute that the parent's interest in maintaining a relationship with his or her child is a fundamental liberty interest protected by the due process clause of the fourteenth amendment so i won't address that here the crux of  action is brought on behalf of the child you are right the act the lawsuit is being brought by the julie and on behalf yes m s is a name defendant and why ask me about that there may be an obvious answer to this but are john doe and jane doe suing anonymously you know at the time i think we were just concerned about there he was under he was under parole supervision at that point i'm not sure that's  grounds for him to sue anonymously i mean we do the public business and it's usually that people sue in their own name might might we ask for something within ten days on why this suit should be maintained anonymously sure absolutely we're happy to brief that for others do it as i said there may be an obvious answer it's just not apparent to me at the moment it's not apparent to me either so do it by simultaneous letter brief parole officers violated plaintiffs clearly established constitutional rights their actions were nevertheless objective lee reasonable in light of facts that they argue were not considered by the district court these arguments are outside the jurisdictional scope of this interlocutory appeal defendants must accept the district court's assessment of the factual record and for that reason the vast majority of their arguments must be disregarded and even if their arguments were properly before the court appellants are wrong is a factual matter the district court did directly address many of appellants factual contentions and found them to be entirely devoid of support in the record and to the extent that some of these arguments were not expressly rejected by the district court that does not mean that the district court  didn't take them into account in rendering its determination and i should point out that in a footnote in the district court's opinion it did know that it had reviewed all of the exhibits that were submitted by the parties but you don't have to take the district court's word for it to see appellant's actions were objective lee unreadable on the disputed undisputed facts including appellant own admissions both to the district court and in their appellate brief to this court they made no effort to narrowly tailored the deprivation of plaintiffs fundamental rights or to provide any sort of opportunity for plaintiffs to be heard in the first deprivation period doe was barred from all contact with m s based soley on the fact that the special condition had been imposed this was a blatant misreading of the condition which by its express terms gave the parole officials discretion to permit contact but even assuming that a brief period of separation was reasonable to give the officers an opportunity to assess how to exercise that discretion that is to assess whether doe posed a risk to his child and whether a restriction on contact was necessary the officers effectively conducted no such assessment they didn't even ask those wife whether she supported contact and most importantly by their own admission and this is from the joint statement of undisputed facts this is the first operation in the joint statement of undisputed facts that was submitted to the district court they did not even they admitted that they did not even consider whether limited contact was appropriate and they did not consider their decisions subject to change at that time in the second deprivation period no new factor circumstance justified removing dough from his home again the decision was based on the mere fact that the special condition had been imposed and that point doe was paroles knowledge had lived with his family for seven months without any issues concerning messes safety but there is no evidence that any consideration was given to whether  restriction on contact was necessary or how to narrowly tailor any restriction and when lima belatedly considered goes requests for parental contact under the protocol as he admits he did not even consider whether to allow limited i don't believe he had counsel no mr lima admitted that he did not even consider whether to allow limited contact because doe sought full contact and did not express the request limited or supervised contact this flies in the face of constitutional standards and you don't need to read case law to know that it is apparent merely by reference to a basic human commonsense understanding of parenthood that any parent seeking contact would prefer some to none and this line of defense also is particularly troublesome given that the protocol expressly contemplates that a request for print or contact can be approved in modified form and in fact it expressly requires officers to qualified immunity well i think that the test is whether it would be objectively reasonable for a parole officer to believe that his actions were lawful so if he had reckoned well if he had recommended contact then he would he would be correct in his belief i suppose so yes in that case i think he would be entitled to qualified immunity briefly with respect to plaintiff's procedural due process claims it's virtually undisputed  procedural due process protections in either period in the first period again even assuming that an emergency warranted removing doe from his home without a pretty desperate patient hearing the parole officers undoubtedly were required to provide the family with a prompt post depravation hearing that never happened the doe's were never advised of any procedure by which they could contest the decision and in the second period the abject disregard for procedural protections was even more egregious because at that at the time that they removed him the second time that was at least a month before the protocol had even been initiated they did that on their own own regard ok thank you thank you thank you we will