the or avallone family is a few parents young parents with three children at the time who ranged in age from either ten or eleven to thirteen he lived in a probably over forty the facts in this case are that this involved the police were involved in the investigation of a relatively innocuous crime that is possession of marijuana at a different location that has absolutely nothing to do with the outlands family although the officers who searched didn't know that of the time but it was the wrong location that that's correct your honor they didn't have knowledge one way or the other and merely had an address of fifty eight tiger drive or tiger i think is driving that there was no risk involved based on the information the officers had it wasn't that you're going t that there were little kids in the one deputy's statement he referred to them as little kids who opened the door they ultimately found out that they were in fact at the wrong house that this woman they were looking for had nothing to do with that place perhaps perhaps sometime in the past relatively distant past she might have lived there or had that address but there was no information and when they got there they found out she didn't belong there  that they then entered the house without announcing themselves at least one of the people in the house if they found out that she didn't live there before they enter the house you know your honor once they got one state the house and they found out that she had there was no connection another word was after this whole incident with the showers and all that there is a vast correction on that it was ours when they went in and they were conducting a search of a suspected marijuana the shower takes place down the corridor of this mobile home or try to get a sense of the size how big do we know what the square footage is there in square footage i'm not sure but mobile home can only be fourteen feet wide you go down the highway and i don't think you can have anything longer than sixty feet tall ok so that when they then come in their family is sitting up in the front and three part where the  normally the steps are they come in they're in the family sitting in that area in the living room right with the two officers go down the hallway and they encounter fully in the shower they find philip their toe in the shower and  so then they have those the scuffle in the beating and everything else that involves him and that takes place where and how far away from the family in the living  on the head with a gun takes place immediately in front of them well it starts in the hallway and grab the change into where the family is either in whatever state they're in under arrest do we have  if you look at the respondents  bush's question tell us what the distance is between the bathroom where real america was taking a shower and the area where the rest of the family is being detained the distance no it doesn't your honor so we don't know that when he and savile's was in the living area that's where he was taken to the ground and then later put on the couch and that's where the testimony which that's where his testimony puts the beating in his presence well  i could not remember anything in my reading from the actual record that corroborated your description of the evidence as he was being beaten he moved from the bathroom down toward the living area and that was not made clear your honor but it's not and it's not in the record well i think if we look at everybody everybody's testimony your honor and taken into the living room that's that was a mistake on the part of the court your honor because that was not in fact case in fact the case was and it's never been at issue that he was actually  in the loop in the living room where the children who were the only ones who could speak spanish explained that they were police and that he had to get down on the floor but i apologized to the court not me clear in the record in fact that  answer to the contrary but unless you've got ever contrary on the record or your honor if we look at well i'll submit it to the court when in fact we know that it was in a mobile home these children talk their observations were and what was the range in ages two so i either ten or eleven i she would have been one of them the youngest would have been at least ten and perhaps eleven in the oldest was thirteen  raised by mr holt mr holby nets to pistol whipping mr like the eight to ten times that he was bleeding that and it's also in the record that these are spanish speaking people in fact the children all spoke english but the adults were spanish speaking people did not speak english or at least the option didn't know if they did or not that it in the long  those not the one who's before us the issue before us today as i understand was what do we do about the claims of the family who were exposed to all of this and as i understand seizure and i would compare the case of franklin v foxworth your honor i where they speak in that case it was an elderly infirm individual in this case of children they talk about children in the in the franklin foxworth case there were dealt with somebody who was in i believe in my recollection as you're talking about somebody there who was a gang member there was somebody a younger person living in the house they had something to be concerned with in this case what  seizures and franklin versus foxworth foxworth and liston versus riverside county they both talk about that a manner of serving the search warrant in this case would be a quantum leap used there's some testimony about they didn't know that these were police officers they just thought they were being wrong so is that your contention that in order to show clearly established violation you have to prove that the children the police activities were implicitly directed at them as well or is it simply along the lines of your emotional stressed claims that they were exposed to violence directed family members which were do we fall in that range for purposes of the constitutional both your honor very simply there's a case and it's mentioned in here about  where what you have to prove to push it into the fourth amendment constitutional only if we look at list in versus riverside county and foxworth where are these people are subjected to this treatment and listen versus  riverside county involved family it's a family where the dad was strong to the ground and treated very roughly and it didn't just involve the dad it involved the whole family this was not a bystander case but part or fear on their part that the somehow is directed that rather than simply being exposed to maltreatment of one of their family members i acknowledge that i don't know if i can say i do acknowledge that your honor what i think i'm saying is i know i'm saying this is we don't have to go there because these kids were there when it happened they had guns pointed at them and they had this occurring in their presence and in this case they they stayed in there in their answers if any evidence that they were afraid or least one was afraid that she was going to be killed so ok it's mr let's say transfers to the entire family it's not a bystander case but it transfers to the entire family and it raises this fear it is made clear when you read those answers and if i may your honors i'd like to we're already at  these officers went to this residence not on a whim or conjecture but because the search warrant was issued for that address and the officers who went there did not participate in and taking the warrant they had the warrant and they went there to search what they did know though is that the genesis of the search warrant was the discovery of not an innocuous small not of marijuana but over one hundred pounds of marijuana  van and in a storage unit at least or own body the woman who gave this place asked her address so they had a reason to believe that it was a very serious crime and that the people in this place might be more than just a family or people who had a small amount of marijuana that there's trafficking type amounts of drugs there when they went in and we know from michigan  summers that they have the authority under the constitution to exercise complete control over that situation in the home and that's what they did with respect to the family members as opposed to  but i want to distinguish that from the aggravating circumstance of having them pointed at their heads or something like that certainly the officers went in with their guns out in doing you know pointing them around as they always do as soon as it was seen as the family members were compliant and they were very quickly compliant they were all seated on the couch and there was nothing further degrading about it in the in view of the cases that we're talking about less than any fair skate in my mind right now but in those cases people were kept for long periods of time two to three hours  deprived of their clothing and that kind of thing but what he was driving at is that the guns were out pointed in the direction of these kids and then this violent activity takes place spill into the living room it was over very quickly but not nothing was done to the family members ok now the district court found and i guess there's even been a resolution of the case involving phil grabs over that there was excessive force with regard to him well i think the district court found that there was a dispute a dispute actual that has already been to preclude summary judgment but in any event at this point the record is that there was a scene with the not for along with that puts them in apprehension arguably and yes violent activity that escalates right into their immediate presence why doesn't that create enough of a tribal issue as to whether there was an unreasonable search execution of well or at that point ok first of all i think it's important to distinguish between the family members and philip barito lefty were here because the family members allege that they simulating and constitute an unreasonable search as to the family as well well i think you know i think in an extreme case that does become an unreasonable search but in this case as to the family members of this encounter is the family and finance phase with guns drawn as against the family and the severe beating of one of their family members takes place in their immediate presence why that bundle of activity disputed as it may be but why that doesn't create a sufficient case to go to the jury of whether the search as to them was executed in an unconstitutional man well again your honor i think that the facts of the case show that the search warrant was not unreasonably executed against any of the family members and that it wasn't until phil a veritable lefty became involved with the police that this other r the officers were not there doing anything and reasonable they didn't detain the family too long they didn't treat them poorly they didn't make them stand out in the cold or stay for hours on end or any of those kinds of things that lead us to believe that doings your levy had no control over how that was going to be done nor did they have any information about him or why he was acting this way they had to get control of the situation for their own safety and for the safety of others so that didn't become something else they didn't they just didn't have a choice to say there's children here we're going to stop fighting with this person the detective hall i'm still employed by them so he's not he's retired and how long was he a deputy he was a deputy for many many years and i think one thing i might say about that and i i  hesitate to bring it up is that but it's in the accounts brief that that he was the subject of previous excessive force claims that went to trial and in both of the cases he was exonerated of using excessive force by a jury so i don't think that there's anything we know about deputy halabi in this record that would suggest that he had a history of it that he was prone to do it his employer knew he was going to do it or had information that you know believe that he should have been disciplined in the past or anything like that he was you know just a person that was put in an unfortunate situation by this  warrant and all these officers when they got there didn't know what they were getting into they didn't know it was only going to be a family and they believed based on the sequence of events leading up to it that people were in there who had a lot more to lose than the family did by the kind of for the warrant they were on high alert i think because when we're talking about large amounts of narcotics what do you how do you think this case is different from franklin versus far i think it's different because the treatment of the talents here was not harsh or unnecessary in any way it's a completely normal part of execute to go into and guns drawn and to you know use them to gain control of the situation there's there's no claim here that this conduct went on for anything but a brief moment lolly while they gain control of the situation in the living room and went about their business searching the rest of the house nobody's search that it did nobody asserts that it was a crow longer uncomfortable situation for the family so as to the family members i don't think there's any evidence in the record to show that it meant that the level of and reasonable ness that appears in the other cases that we talk about if i were to do just as the hypothetical realism and summary execution  enough to create an circumstance where now that has in fact become part of the facts of the detention of the family well i understand what you're saying in i think what you're is that the totality of the circumstances can then become an actionable claim by people who weren't the target the target of it and i don't think we have a case that says that i don't think there's any any suggestion that that your constitutional right under the fourth amendment can be infringed by having somebody else's fourth amendment rights violated this claim was brought by them because they believe their rights to be free i'm saying that if you look at this case in general and you asked some questions earlier about what the record shows the record just doesn't allow us to get to the point where the fourth amendment rights of the family disputed there are claims against the city there's no evidence in the record of a custom policy or practice of conducting unreasonable searches that's in this record long time but when you compare what happened in here in front of these children and with the children said what they're going to live with the rest of their life is strictly turns on the fact this is a case of facts and we asked the court to take