thank you your honor i'm going to speak for eight minutes on the richard glover tissues and then give the rest of the time to the county so on our qualified immunity issue i realize that that's been before the court twice but here's why i'll make two points on a qualified immunity number one we cited the white vs poly case from the us supreme court which says hey you know you have to look at the qualified immunity cases where you have a case that factually similar in order to reach the clearly established prong of qualified immunity in the two thousand and eleven opinion which was from an appeal from judgment a civil forfeiture case none of which involved an authorizing statute for public administrator or anything even close and so mr glover as he goes into this house he's called by the deputy  ortiz to enter the house secure the property which is what is required to do understand the statute all he's trying to do is follow the statute well let's let's assume for a second because we're talking my fourteenth amendment qualified immunity here you're your client got fourth amendment qualified immunity you don't think it's clearly established that you can't keep the property and never give it back to the never give it back to the the heirs i think if we're talking about a substantive due process when we're talking a day we're talking about a day due process allegation in this case that appropriate notice wasn't given and that there after your client retained the property hid it from them and sold some of that auction improperly and mikey's which is a desperation deprivation of property do you really claim that there's that there's qualified immunity for that action so that the way the the  way that the fourteenth amendment claim was articulated what it was just on the pre death provision notice that that was a given that wasn't given because the statute makes it an exit in circumstance if there's no one there to go in the house prevented your client from going to a court and getting an order late at night he could have gone the next day i don't know if he would have been able to get the order the how many days did he know that the property of the of the he learned of the death on the between the time that he learned and the time he entered the house i don't know if it was a full day but it would have been within two different days that's correct your honor so why isn't it clearly established under those circumstances and our case law that you need property my question was when did your client give notice ever it didn't your honor he didn't isn't it clearly established that a public official taking property from someone must give some notice to the two two people whose existence he knows of it's not in the statute your honor and that's not what i'm asking i'm asking under the forty eight constitutionally isn't it clearly established that a public official may not take property without some notice i agree with you on that point your honor i just don't think post depravation he was ever given an opportunity to because as soon as the brothers came the words that glover used is that they became hostile towards him when was the property removed to the storage locker it was removed it was removed the same day he was there so there was passing when he knew that the brothers were coming but not there he knew that they were coming but he knew that there was going to be a delay and so that's why i wanted to secure it there was there was an unlocked door but but he comes in the day or so after he learns about the father's death following a well being check he gathers up the property and takes it to his own storage locker did he ever inventory it yes there is an inventory list of when was that created that was created around that same time your honor because when he gave the property back and the end when he gave us some of it right that's correct the inventory list and the inventory that's when the mathis brothers said hey wait a minute as i understand you what you're describing facsimiles he removes the property before the sons are scheduled to arrive takes it to his own storage locker puts it in and and at that roughly that time into the inventories what's in the locker room record correct did he ever give that inventory to the brothers i believe you did your honor and and that's how they found out that there were discrepancies and then they asked for the sheriff to investigate and eventually file their loss i thought the record in this case was that while your client had a routine practice of photographing items that would he did not do so in this case would be what he testified to at trial your honor is that the batteries in his camera had died and he didn't have any spare batteries but it was whether or not the jury believed in this sort of a separate question but he did not photograph in this case correct or on and i want i want to get the chronology straight the mathis brothers show up and they say essential they give us back what you took yes and your client says no correct i don't think that's accurate well what does he say does he say yes well they hired an attorney and he gave it back to he gave it to their attorney who they had hired how long did it take for them to get their property back i'm not sure exactly on that time i mean so my question still remains let's just you say look i was justified in temporarily securing the property they show up and say let's have the property and your client and your client says what he says you know here it is all given i well if someone comes to you know where the brothers came to glover and they said you know we're talking about a criminal investigation we're talking about a lawsuit and he's you know he wants to give this property back his inventory was wrong i mean i'll agree with that his inventory was wrong there was about missing by his own admission and how was he supposed to give them notice i mean what would notice look like here's the inventory of a good place to start would be a complete and accurate inventory correct and he didn't provide and so it was not provide that correct that's correct he provided the inventory but the inventory was incorrect so are some of the property that was taken by your client the mathis brothers the errors if you will never received notice that it was taken they inferred that it was taken because they knew it was there and it wasn't there anymore put your client provided no notice whatsoever that he took some of the property and beyond what he did i'm just not sure what else he could have done in terms of providing that notice your hon i see that my time that i don't know let me just ask a question yes or if you want this court to revisit the twenty eleven to stations that right well not necessarily the twenty eleven decision because the twenty eleven decision makes an assumption that the door was locked and it was secure and he had no reason to enter the the twenty eleven decisions based on the allegations the complaint the testimony at trial from ortiz and glover was that the door didn't have a lock on it and so that's why there was there any contrary testimony that had a walk no your honor so but you're still asking us if not to revisit both of them to revisit the first one yes the two thousand and eleven is the saying the facts or trial were uncontested and the judge therefore should have granted you qualified immunity at the end of the plaintiff's case based upon either a mistaken law based on the statute or mistaken fact it should have been it was a mistake  trying to figure out what's new here and so if if if we made a mistake in law in the past i think you're stuck if we got the facts wrong in the past you may be stuck i'm trying to figure out if something happened at trial that undermined the qualified immunity analysis so this is we've outlined these on page twelve of our reply brief and it's basically the mistakes in fact which meant should have made it a jury question based on the tours versus case whether that door was unlocked was a big deal because that's why glover went and secured the property why he entered the proper point that's a fourth amendment issue on the notice issue what difference does it make was that the door was locked or unlocked well it's because he was carrying out a statutory duty to secure the property so if the door is unlocked and he has no fourteenth amendment obligation to give notice but if it's locked he does i would argue your honor that he had no obligation to do it pretty deprivation notice but that you can but what this court said previously that you don't win on that one you don't get qualified immunity for that and so now you're saying well what we didn't know was the door was unlocked and my question is what difference does that make on the fourteenth amendment issue where we didn't we didn't know that but in two thousand and eleven the opinion based the facts upon the allegations and complaint you know i really do need to sit down because i want to give the county a chance please the court brian brown on behalf of lying county your honor i believe the face to separate claims at trial and leading up to trial that was a fourteenth amendment claim that your honors to talk to counsel about and a fourth amendment claim prior to trial vs summary judgment the court granted summary judgments to the plaintiff on the fourth amendment claim and made several findings including the finding that the plaintiffs had a privacy interest in the home in which this property was located another finding that the court made and that motion for summary judgment was that richard glover in carrying out that specific act was acting as the final policy maker for lying county when he did so we proceeded to trial on that issue with liability established so the fourth amendment issue at trial was merely a damages issue right that was tried to the jury the court initially held that there was an issue of fact related to the fourteenth amendment claim as regard to the county at the close of the plaintiff's case the court granted a directed verdict and found that mr glover was also a final policymaker with regard to a specific acts of the no prior and rightly so as a result so let me just summarize because i want you to get to the joint to with respect of the counties liability it was it was premised entirely on the notion that mr glover was the final policymaker absolutely there was there was no separate allegation that the county by itself did something cited in the brief you have to look at the statutory scheme you know we and we related to the court looked at that and we've all looked at it so right who if he wasn't the final policymaker with respect to how we exercise these functions who was the natural question thank you very much your honor what it was how we've postured the argument in the brief with regard to lyon county he was not a don't i find a policy maker other than him and so tell me who it was with regard to the statutory policies or the statutory guidelines that created the public administrator the county was the final policy maker with regard to certain and numerated responsibilities they would they were able to be the follow policy maker on investigation of any claims that were made against him they were also the final policy maker in regard to whether or not they would require reports that would be generated to him or play maker until i asked to ask the specific question i did it on purpose with respect to the acts that he undertook who was the final policy maker the final policy maker under that analysis under the what he took in the case of going into the home and not providing no deciding that it's the state of nevada who is the final policy maker to the state itself there is no person there is no state public administrator that oversees him no there is not but the state articulated through statute the specific act for him to do lying county did not enact any ordinance or direct any guidelines or anything with i agree the county didn't do any of those things which is why it's hard for me to believe that the county was the final policy maker and i think a policy maker probably has to be a person not an not an entity but why is this the state overstated was passed a statute correct  make the statute and the state can give with regard to those two issues the state made the policy the person is mr glover himself but not as a final policy maker for lying county as a final policy maker for the state of new housing so your argument is that he was acting in effect as an agent of the state here not of the county yes yes he's elected by the county voters he's paid by the county well why why does that make him and agent of the state because this issue your honor is really a state policy that is driven by statute the nevada legislature has determined that individuals that die unaccompanied without anyone around the pub they wanted to make sure the citizens of the state were protected with regard to their property so they created a system in which each county based upon their property may be located would have a publicly elected public administrator what and that's what to do state tell mr glover with respect to whether or not he should give notice inventory items not returned to the errors or sell them without or sell them at public auction was th is gets to make policy doesn't the s do as to how he's going to execute those duties right on behalf of executing the policy and the statute of the state of nevada not an ordinance or anything to do with line county you  look at the fact that it occurred in lyon county that his name's the lying county administrator you have to look at the specific authority for what he was acting under and what he was acting under was purely the statutory authorization when he is notified of an unintended death he has to come to that property he has to secure that property he is then to do the proper proceed ings to ensure that in the state is opened in the state court and at the same time simultaneously he's going to do an investigation i mean you don't know when he arrives he doesn't know if there's a will if there's if there's you know what the status of the property is at the moment that ever came to the property and hypothetical is not locked and that there's items inside the home value if he had taken out his cell phone and calls to get directions on what to do who would have there was no one to call because he had the final authority via the state statute on behalf of the state in the vatican he the county employee is not a county employee he's not paid by the county he is elected in the county is a separate elected official he is not paid he's not an employee no benefits with just the title this lying county administrator but as the court as hell doesn't mean anything it doesn't it's not controlling in the  decision if you look at the mcmillan decision the name of what you call a person in the government is not controlling on where their authority comes from and who they're acting on behalf of if the state's statutory scheme and failure to put someone else for him to emphasize to report to doesn't automatically then come to lying county the statute created certain obligations which lying county did with regard to the public administrator it didn't have anything to do with directing him or anything else related to going into these homes and how he did his job pursuant to that statute it had nothing to do with what want for the purpose of filing the reports why would the administer file the reports the county i think those reports would serve the purpose to ensure that  states were being opened that ensure that is states were being closed well that at least suggests that the supervisors were exercising some authority over the it ministr would as i've said pursuant to those parts of the statute that gave them the authority to act they acted and they acted a properly i understand the value of the order you've got to alternate arguments and you're entitled to make them right one is that he was an agent of the county and the county he wasn't a final policymaker the board of supervisors was your second argument is the county had nothing to do with it it was a state that was the ultimate policy maker i mean that in your title to make both of them it's just it's just hard to  i think when you look at the analysis especially in the mcmillan case you will see that that is a proper analysis that you look to whether or not that they are acting pursuant to the authority that is given to them by the state or the county the county granted him no authority the county has i would know something i understand your point but you also do argue in your brief that the county board of supervisors was the ultimate policy maker on issues that they were so loud under a lot to exercise that power and they weren't they're not authorized to dictate to him under the statute all the things related to going into the home and to providing notice we've taken you over but i damages against a county is quite large but you don't your brief on appeal unlike below doesn't attack in those numbers is that right that's a that's not an issue for us on appeal that you  court with regards to evidence that they allowed in writing we show up now how does the basis just for those awards i understand what you're saying is you're not what you're not saying is that if the judgement against you was appropriate that the jury awarded too much money i think we are saying that now you're saying we should reverse the judgment because the juror the judge let the jury hear it approach and hand the improper evidence is what influenced the high number if you can show me it may perhaps you did go in your breath if you look at the end in the initial brief i can tell you what it's an evidentiary argument you say the jury heard a bunch of stuff they shouldn't have heard and shouldn't been allowed to do right that's a separate is therefore the judgment should be theory ok i understand that i misspoke you're on yeah so you're right you're not on the hook for failure to train that's correct and what happened at trial from the opening statements through the witnesses the plaintiffs continued to tell the jury that lying county failed to direct that lying county failed to try to give information and training through the district attorney's  office continuously through the trial they do that and at the conclusion i request of the court to provide a jury instruction consistent with his legal ruling that said that there is not a claim in the county cannot be held liable for failure to train or supervise mr glover the court amazingly advocated that back to me finish up right now and there is no way there's that would be contradiction if i was to tell the court or tell the jury what the law is that this that governs the case that's in direct contradiction to the very first jury instruction that the court gives where the court says i provide you the law and it's also in violation of the of the very next tattoo or the jury instruction that states that the arguments of counsel are not the law on the facts it's what you heard you were in at least seven minutes violation of your time and thank  the third time this case has been up on appeal before this court it's an eleven year old case that involves agree just constitutional violations by the final policy maker richard glover is the public administrator for lion county  glover entered the mathis home after the death of joe mathis without a warrant he effectuated an unconstitutional search and seizure of property and he did so without providing the mathis brothers notice and an opportunity to be heard well let's talk about the search and seizure claim mr glover got qualified immunity on the fourth amendment quite correct he did john and one of the and but did the county didn't correctly because the county can't get qualified immunity i'm happy trouble figuring out why under our case law any of the individuals with the trust had a reasonable expectation of privacy with respect to the search not the seizure or the seizures a separate issue we have this case called united states versus some amount of currency to get with the amount is the united states versus currency and it is a woman says i've got standing to object to it in that case a word search but it really doesn't matter because it's my mother's house and i kept stuff there and i had a case how at least with respect to everybody but the but the brother who claims that he was also for me doesn't that dispose of the individual expectation of privacy no your honor for a number of reasons first perceived really lyon county has failed to preserve its argument that it not that the plaintiff did not have an objective a reasonable expectation of privacy breach of the heck out of it how did they not preserve it well they brief the heck out of it but they missed it the summary judgment stage if you look at our supplemental excerpts of record at page seventy one you'll we cited in our brief the jefferson case the davis case the waller case and the harwood case what i've read of those cases we have a case that says merely the fact that you store property in your in your parents home and have access in that case the woman had a case i don't know with your clients and keys or not but not part of i can't find that in the record they visited occasionally was what you said they did so how do you how can you distinguish that case  you can tell me you cited cases that you think supports your proposition but i think i've got a case on point here tell me why i'm well your honor i think it was they had ownership of the property at issue they had permission as you said to store the property from their father had  county has preserved this issue on appeal for a couple of reasons i said before it just simply wasn't before the court at the summary judgment stage properly such that the facts could be developed for appeal they simply didn't present the proper evidence to the court summary judgment which didn't then raise the they didn't raise the argument it didn't allow us to prevent provide declarations and like i understand was an issue of trying to endure what i understand your waiver argument i'm not sure is that it waiver argument a hypothetical ok i don't have to tell me this isn't what occurred because it's a hypothetical let's assume this share the sheriff the public administrator did precisely what he did yes and your client showed up the next day and he said here's all your think that's probably right but the the judge instructs the jury it seems to me that your damages flow from the fourteenth amendment violation of failure to give proper notice and so i'm trying to figure out why the failure to give proper notice gave rise to the large amount of damages that your clients had as opposed to the subsequent retention of the property and disposal of it it's certainly well i think i think the answer to that is that the the constitutional violation which is the the the administrative taking of the property without proper notice was essentially the vehicle that allowed him to commit other torts for sure for sure and it also allowed him to take the property in the first place but for those constitutional violations they would have been deprived of any of this property permit so your argument is that your damages your emotional distress damages don't have to simply flow from the initial violation in they can include things that occurred later on along the way well i think it's all part and parcel and yes yes yes i think that the jury can infer that from the circumstances here i'm not asking what a jury can infer i'm asking a legal question ok i'm asking if let's just assume that improper notice was given no notice when otos was given and that was a constitutional violation to your damages or your damages limited to the damage that flows simply from not giving notice or that are they or can you now recover all the damages that consequentially occur because the public administrator started off on the unconstitutional path i think you better say the number one or you get a nominal damage not exactly no i think we get damages that flow from his to tell me tell me what case law says that bear with me for a minute your honor i know we cited some of it in our br believe that they have that issue on appeal your honor i think that would be a new issue here they didn't argue that there should know that there was an improper jury instruction as to that issue they simply said that the jury was inflamed by passion or prejudice and obviously this court has to give deference to the jury's damages award as long as there's substantial evidence to support it especially with regard to the punitive damages because the pain and suffering damages are so highly subjective i don't think that there is an argument before this court that there was an improper jury instruction with regard to well if there aren't there was a show a little your arguments really based on it the argument says the jury was told that i i failed as a matter of law that there's a constitutional violation by not giving or so we always have a sheriff in these nine hundred eighty three cases and i think they flow from not giving notice your honor the facts of the case show that mr glover was notified that anthony mathis would be arriving in the in the area on may thirtieth  mr glover got to the house at the dark of night on may twenty ninth when he knew at the new math is going to arrive he knew how to contact anthony mathis he could have picked up the phone and called him given him notice that he was going to do that anthony mathis testify they certainly would have said no had he received that call so but for that lack of notice which allowed mr glover to essentially creep into the property and and take that and take the property none of this would have occurred so i think the damages do flow from  constitutional violation of no provision to do even you i think what you're saying is that the constitutional damages flow from the fact that mr mathis would have said no had he gotten notice would in fact that he said no it made any difference we'll never know i mean he wasn't given that opportunity i mean so it's i guess i'm just to pop my problem and just get one of my problems with this case is figuring out how will your damages flow from not getting notices a post it's easy for me to figure out how your damages flow from the stuff that the public administrator did later so we'll lose some of the property sell off some of the property you know it's true but we would certainly argue that but but for the constitutional violations none of the other stuff could have taken place so the damages given the totality of the circumstances that the jury was presented with their substantial evidence to support the jury's findings on both the property damage which was derived from a spreadsheet that had high lumber a low number and a middle number the jury picked the middle conduct your honor i want to answer a couple of the questions that were there before judge hawkins i believe you asked a question about whether the property after mr glover had taken it was removed storage locker immediately it was not he removed it from the property and placed it in the back of his pickup truck and left it in his driveway overnight which he believed was more secure than where it was in the home i just wanted to correct that for the record if you put it in storage locker the next day he put it in a storage locker the next well not a storage locker it's basically a big metal building just yet he put it in there the next day the inventory list that your honour's were father's home and found that it had been ransacked he noticed immediately that quite a bit of property that he knew to exist and knew where it was in the house was missing he immediately drove to a place where he got cell phone reception and called the sheriff's department and and reported it the sheriff's department then directed him to mr glover and said that they thought mr glover had been in the house mr mathis then went to  mr glover's facility and was told here's all of your father's things it was frankly a mess and there were a bunch of guns in one place there were a lot of the late mr mathis's personal papers kind of scattered all over the place trust documents all that kind of is there at that point in time was mr matthews given the ability to take those things know your honor what so what tell me what happened with respect mr glover told him no you can't take this property i don't know if you have authority to take this property i don't know who belongs to i believe at that point anthony mathis telephoned his brother james who's here in court today and will speak  shortly and mr james mathis then got on the phone with richard glover who told him that pardon my cursing but i'm the public administrator i'll do whatever i god damn well please he also offered to sell the pla property for them and you know anthony mathis realized right away that there were several guns missing and mr glover told him this is everything and only later after he was confronted by law enforcement did he sort of fess up and admit that their worst was other property at his facility namely the archery bow that belong to and of richard mathis and then obviously later down the road my clients were made aware of a public option that public administrator glover was conducting where learned of the auction they showed up at the auction with a video camera and a stick and and a camera to take still photos when they pointed out that this property belong to their father and in fact it was in boxes with joe mathis is name on it it was that egregious richard glover told them that if they wanted to get it back they could bid on it at that point they contacted law enforcement lion county sheriff's refused to take it into custody but the nevada department of public safety their investigatory branch of actually showed up and took custody of that property was so it was the end of the end of the chain of stuff it wasn't sold they got it back beef they had it they had to resort to other people to get it back after many months yes your honor and i know that i'm reserving time for mr mathis i just wanted to touch very briefly on our cross appeals before i sat down we believe the district court erred for two reasons number one we think the district court erred in granting richard glover qualified immunity on the fourth amendment  circumstances you know not really your honor i mean i think the difference between the cases that do find the exigency and this one is that this was not an emergency in any way richard glover had a full day to to think about this he had a full day to reach out to anthony mathis or james mathis and try to talk to them about this before he entered the home he simply didn't do that there was no emergency here whatsoever based on the record and certainly nothing at the pleading stage that sounds well let me ask  practical question if your fourth amendment judgment against the county stands does it matter that mr glover had qualified immunity no it really doesn't your honor and certainly if this court were to affirm everything else then affirming that decision would it would not be i suppose if we find that your clients would have an expectation of privacy then you qualify to be to question goes away i would concede that ok i think you want to save time for your for your coll i did your honor thank you very much and please the court and james matheson appellee and proper obviously i don't have any training in law but i can probably assist in answering some of these questions as i'm probably the only one in the courtroom was actually there with regards to the lock on the house there is i testified that the coroner told me on ten pm on may twenty ninth when he called me with my when he told me my father he's told me to lock the door he pushed a button on the push button door knobs and locked it and i said you can't get in that way the doors are locked with padlocks he said well that's what i did on both doors the twenty or twenty three twenty nine then when tony masses arrived on their own june first not may thirtieth he had to jimmy the along the way he had our phone numbers he had a cell phone he testified he had a cell phone and he was driving back and forth a property which was an hour and a half it would have taken it hour and a half because there was no reason he didn't call us in fact he never called us once there was no threats made we wanted our property back and certainly would be upset but there was no threats against mr glover he just said he wouldn't give the property back in regards to the due process violation it is you many little difficult when you come in your family's home you find everything in that place it's been absolutely stripped by a cockroach who has told you two days before that i don't give a damn what that what you think i'll do whatever i damn well please  one point i was six point zero three for elia tally officer failing to perform his duties he was originally prosecuted as embezzlement for the second case if that is the case how can he not be one a line county officer and two how can you not be a policymaker because he was being prosecuted for a policy that he had not followed now much of the record  i have a right to privacy as you somewhat alluded to earlier i was down there for i've been there from two i lived there in from two thousand and four and two thousand and six i was down there a lot i fix tractors i set up an entire  system i was down there in april of two thousand and six planted trees for a whole week i was there with my father we went out and did all sorts of things my property there i had firearms there i had my tools cover went in and stuck them all out along with everything else that i remembered from the house i had keys to the house keys that i could use to the padlocks right there there is nothing in the record although they say there are no keys to the house i have them i was there i could come and go and i please if i would have been there other glover i do have a right to that privacy under every citation that they listed in their br you view the flashing red light tells you i'm done i'm so if you could if you could sober up i'd appreciate i just like this court the firm what was with the district court decided it was a matter of law and the i