good morning good morning your honour's me please the court michael van leeuwen felt for the appellate curtis airs i'd like to reserve about two minutes if i can i think your honour's going to the immunities in this case are important we need people to be able to make reports to police and testify in proceedings without fear that they'll be sued in retaliation for doing that we need public officials to to do their job without being sued in retaliation for doing that and we need courts to apply these muties when presented to them that didn't happen here i think that the law in forty seven b and that the briefing on call fight immunity is a little clearer and i'd like to focus on the twenty one point six issue but of course of the panel has questions about the other immunities i'm happy to discuss that clearly isn't titles community under forty seven b in terms of age twenty one point six you know the california law is very clear there's i said thirty in the brief but it's actually forty years of jurisprudence and sullivan that consistently finds that immunity applies not just to prosecution itself but to actually going up to it including investigation and this court used to agree and in fact still does in many cases agree but well i think your problem is that not only do we have the carmen case but case the court applied immunity to a claim of intentional infliction of emotional distress and a claim of false arrest by reasoning and citing to the court of appeals opinions which this court rejected in garmin by reasoning that what matters is how the injury occurred and what that process was not the label placed on the cause of action and i think that there are two substantial problems with the analysis and garmin under erie the first is that the garmin court did not consider as garri at all and that's the most recent statement by the california supreme court not sullivan some decades later earlier the second problem is that court of appeals decisions court of appeal decisions in california are not irrelevant to the erie analysis it's not enough to say there's a supreme court case so we're going to disregard the dozen plus subsequent court of appeal decisions you have to harmonize them unless it's clear that they're all wrong and as i said in askari the california supreme court cites with approval both baumann and emmylou are which are the principal california appeals court cases discussing immunity as applying to investigations and their on off on all fours with the facts of this case their search warrant cases their investigation cases and frankly your honor so it's korea s from two months ago where this court applied immunity under age twenty one point six so is makovsky versus garden grove where this court applied immunity in december two thousand and sixteen after the garmin decision and if you go back further in black and warn versus orange in two thousand and six that's four eighty five f third for sixty three a published decision the ninth circuit recognized that a twenty one point six immunity applies to investigations and then suddenly in two thousand and sixteen we get garmin which doesn't discuss as dari doesn't discuss black and horn the previous ninth circuit law and it makes a completely different decision which essentially turns the immunity from an immunity to a pleading trap which is easily avoided as it would have been in all of the cases we cite and strips police officers and other investigators from any immunity if it's just malicious prosecution there's no immunity for searches there's no immunity for investigations there's none of the california court of appeals decisions makes sense as garri doesn't make sense from the supreme court and so what we have if the ninth circuit continues down that path and i don't think you're bound you're bound not to create splits inside the ninth circuit and again i would know this court in unpublished decisions has repeatedly disregarded garman and enforced immunity and i have a hard time explaining to my client why those people are entitled to munity but he's not because of publication rules if you do feel bound your own certain your time is running short can i have you talk about immunity with regard to mr ayres presence at the search warrant how do you reconcile that with wil versus lee i think wilson versus lane is about having a t v show like cops come along for a ride along that has nothing to do with any type of law enforcement or government purpose i think it's totally different so here we have a state  his government purpose was not related to the search his government for that's what the search for wasn't for his government purpose so why isn't he just the same as a reporter when you get down to it well he's not seen as a reporter for several reasons first he has an independent right under state law to inspect the records well but those legal provisions don't allow for a search as of this nature as i read wilson vs lame it's that the key is whether third parties presence is necessary to aid in the execution of the war it and so while the facts in wilson versus lane are much farther afield than the facts of this particular case ayers presence was really not in aid of the warrant that there isn't any argument that it was in fact an aid of the execution of the borg i think you're well actually i think the testimony and again it's not in the record here is that one of the reasons he was asked to come along is to show where the altercation occurred but if the question is is his looking for tax raises looking at tax records in need of the warrant i think with hindsight we would say no but this is someone who supervisor told him to go the search the supervisor by the way has not be sued which i think goes to the retaliatory nature of this lawsuit his supervisor told him to go to the search the police officer told him to go to the search i think from a qualified immunity perspective a reasonable person in his position would not have known he's not allowed to do this it's a harder question i'll grant you whether he should have been at the search in the first place i do think that the state tax law which no doesn't allow the c h p to come in but it does require business owners to produce these records and make them available and you know whether the state procedures are followed is not the same thing as whether there's been a constitutional violation but i think from a qualified immunity perspective which is what we're talking about errors had ample reason to think what he was doing was ok not the least of which is that his supervisor told him to  you look at your six fifty one and four eighty eight to eighty nine those discuss the supervisor's instruction and the invitation  he followed his supervisors directive while sympathetic to ayers situation doesn't change to qualify community analysis it does your honor because the facts matter in the fourth amendment context and the lane case is about a media right along it's not about people trying to do their government jobs and i think that distinction matters so and certainly i think it would matter to someone like harris who's not a trained lawyer who's not even a trained police officer and you were supposed to put ourselves in his shoes i know are supposed to put our selves in the shoes of the objective per the objective government official not what this person subjectively thought because that it was the other way  you know where we would be under the case law no you're having a benefit by having a good thought in his mind if an objective please officer or government official wouldn't have done it but that's it i'm not saying that at all your honor i'm saying you look at the objective person in his job you don't look at the objective district attorney or the objective police officer you look at the objective person in mr ayres his job and that person would have no reason to know he was not allowed to comply good morning your honor my name is polly and i represent apple leaves robert honan and his business advance building in metal fabrication let me begin by giving you my answers to questions unless you have something that he may to wilson and sheeley and regarding this investigation that of course does not apply to his presence and conduct at the warrantless search so i'll turn to that next so my learned friend discusses that wilson versus lanny is distinguished because there it was a dream was to the photographer and here we have an official doing his job but that's not quite right here we have an official who was put on notice that participating in a warrantless search was unlawful by several different authorities of which any reasonable state government official should have known first off there's the fourth amendment to the united states constitution which clearly states the sta actors cannot conduct searches or me secondly there's article one section one of the california constitution which also provides similar qualifications and then there's california pe code section fifteen thirty eight which goes right to the heart of the situation fifteen thirty states a search warrant may in all cases be served by any of the officers mentioned in it directions but by no other person except in aid of the officer on his requiring it he being present and acting in its execution so they've got to be aiding the officers and the officers have to require it here the warrant was directed solely to any sheriff marshal or police officer in the county of butte and said nothing about the board of equalization employees secondly they were only authorized to search for video and audio recordings they were not authorized to search through all of the papers both business and personal looking for any violation at all so that as officer wilson put it when he talked he employees we should not allow this business owner to get away with anything it wasn't fact retaliation on his part to conduct the search now council sites going which is not directly on point because there you have a government official who is actually acting pursuant to valid regulations and doing his job here however a reasonable officer in errors position would have known that he was an that he had to participate soley according to be o e guidelines which he violated there's eighteen c c r section six ninety eight point five which says there for us first be a pre adult meeting and the bua must send an information and document requests to the business owner gives the business owner a chance to gather all the documents and then meet with the business a previously scheduled meeting also under california revenue and taxation code section seven hundred fifty four it requires proof that the inspector was authorized in writing by the board to conduct an examination none of those facts appeared here they just simply showed up to look at everything according to them and they did just that they walked through not only the entire building but also the storage facilities out back explicitly excluded from the warrant now dress the twenty one point six we've got we've got sullivan and then we've got our own authority carmen but it seems like the weight  of california court appeal decisions are going the other way have gone the other way it certainly is if this court was the california supreme court we'd really have something to talk about but this court is banned by its own court decision that actually is directly on point is sullivan and this court quite recently and carmen reviewed it and as you know said that it thought that if the california supreme court were to revisit the issue even though there had been a slew of appellate decisions going the other way they thought it would still fall solvent and so this panel is back on the bike garman now counsel suggest to remedies to that for she says well you could certify the question to the california supreme court that suggestion number one came in an untimely manner and secondly california rule of court eight point five four eight which is what governs a certified questions has two requirements one of which is are other council sites unpublished opinions memorandum dispositions of this court there are no published decisions that conflict with government and of course it's completely inappropriate to either side or discuss submit that judge morrison in england when he applied his twenty two years of state and federal trial judge experience to deny these motions for partial summary judgment remember they c that the issues regarding theft of the gold and silver and computer equipment have to go back for trial that he was absolutely correct when he held there are a multitude of material questions of fact including issues o credibility on both sides precluding resolution of this case short of trial the factual disputes in this case are not only material they are overwhelming in nature so the bottom line request  affirm everything with the exception of immunity on the reporting the initial reporting statements on that we would have to reverse correct and we do what we can see that misunderstand yes to hit to his statement when he reported the crime the alleged crime on may seventh to officer sheely and then again on may tenth when he talked to officer wilson about the may seventh no others so you mentioned wilson versus laney and i just want to emphasize that although they have cited it for the proposition that the officers here are entitled to qualified immunity in wilson versus laney the court held that in fact a violation had occurred by bringing as a journalist a photographer along and the only reason qualified immunity was granted was the fact that that was not clearly established law yet of lopez versus l house as you know all of the facts have to be construed in the light most favorable to the non movement at the summary judgment stage and so he was submit that the record contains a multitude of facts as judging  seconds or i'm going to say three very quick things first off they did they are happy to hear that they're no longer suing for statements to the district attorney and statements at the plane air hearing and criminal proceedings because those are in the complaint and the summary judgment papers forty seven b clearly applies to those as well as all of his statements not just the initial report as garri is a california supreme court decision we're not just citing lower court decisions carmen is fundamentally inconsistent with us kaare and didn't discuss it at all and forty five f third for sixty three thank you anderson you very much for your argument very helpful just argued submitted now we have i guess you call it a companion case that's also advance building