the application of de qualified immunity doctrine in the context of a substantial of jew process claim where in d n disputed facts at least from our perspective show that the law was not clearly set at the time of this incident that a reasonable officer such as officer howard would have known know that his that mr fernandes obviously weis intoxicated i mean he was driving like a bat out of hell one hundred twenty miles an hour and ever he was in several situation we have to give him all inferences and the officer testified that he  trained in these the officer was clearly wrong the man was was intoxicated but that being sad what's the c h p policy in these kinds of situations we know that officer howard was trained in detecting intoxication people but with he trained in handling these situations yes your honor he was trained to handle decision to ation by decision to asian what i mean is we have a motorist a motorcyclist who is going in excess of a hundred miles an hour on the freeway splitting lanes sorry  in his training that is something that motorcyclists do all the time especially those motorcyclist who are riding superbikes which is the type of motorcycle that the plaintiff was writing here i think we've all had experience with putting lanes yes your honor with motorcyclists splitting lanes and against the law yet not yet well it's not against that it's not forth but it's neat neither here nor there but the point is all of these motorcyclists to split lanes does not equate to them being drunk or having imbibed alcohols before doing so some of them it's just a matter of the beauty of writing a motorcycle so this is what happened to officer howard he seized a motorcyclist on highway five on the five freeway he turns on his overhead don't motorcyclist responds to that to those warnings and he asks the motorcyclist to get off the freeway after the twenty two interchange again nothing unusual happens the motorcyclist followed the directions of the officer off of the freeway get some town and country road quiet neighborhood again nothing unusual the officer walks toward the motorcyclists and asks him driver's license paperwork those are giving off a circle again no problem the officer asks him can you please remove your helmet that's done no problem i desperately want there is no indication that the motorcyclist is drunk or under the influence of alcohol however based on his training officer asks him have you had any alcohol tonight andy answer categorically no officer i didn't me provide me a ride i would have taken it that is all he says about this and said that he doesn't say that he was drunk he doesn't say that he was acting impaired at the scene at this stop his car show his home there is no such duty in law is your duty that he should have arrested him and put him in jail no there is no such duty either because then we are putting the onus on the officer omnipresent all knowing that in fact this does individual is is is under the influence of alcohol remember the facts from the officers perspective are just what i stated he asked this individual to get off the freeway he did there was no issue yesin first paperwork no issue he asked him to take office helmet no issue ok let's talk about i think there was some discussion about obviously if you increase the danger of success tech the bike because that guy was he with unlicensed or whatever he didn't have the right class or something correct he wasn't supposed to drive a motorcycle well i mean i mean i think it's i think probably you know i mean there are an inference from this if the officer had thought he was drunk he probably would have been happy to arrest him with that driving conduct but absolutely but that being sad there there is a case out there were a woman was laughed and was raped it was quite late at night and it was in a bad area of town and so it was the author was and i qualified immunity i think because he increased the risk to the individuals so what do you how do you have that fit into th this case are even worse than what you've just stated in woods vs ostrander the motorists were stopped in an area of town outside of tacoma washington that had o'clock in the morning and this deserted area the lady was a passenger she didn't do anything wrong she was just a passenger in a car being driven by someone who was inebriated she asked the officer i'm five five miles away from my home how do you expect me to go home while the officer basically said sorry there's nothing i can do for you and so the poor lady then walks towards the home within a quarter of a mile because it's freezing two o'clock in the morning she's only wearing a blouse and jeans she gets right from you know as a hitchhiker unfortunately she she's raped and she sues the officer obvious obvious application of  doctrine which is not the case in our scenario we have an officer who is being duped by just suspect into believing that he's not drunk and that's easier is because you know the officer needs to do his job and during the short conversation you know the officer looks at the suspect and said ok well you know he seems fine and on top of everything else he told me that he didn't drink case for some reason for some reason unknown completely unforeseeable instead of taking surface street the suspect decided hey you know what i'm just going to get back on the freeway and runs on the on ramp and starts running on the freeway completely unexpected and an unforeseeable and the district court remarked that it is for the jury to decide whether or not the officer put him in a in a worse shape well it would would mr fernandez have a better case if he said to the officer i'm drunk and i can't walk home absolutely your honor because then the officer would have done the tests the dui test if in fact he was drunk he would have arrested him and then would have taken him to d i r see the jail in order to to to sauber up but unfortunately that's not the case duty officer and then in any other context this would be called double dipping i'd like to reserve a minute and then having escaped pelly is saying well wait a second can you imagine how done to se so was for falling for my stratagem i mean this guy must have been completely incompetent well you can't have it both ways you know if you're going to actively lie to a police officer and as a result escape arrest you can dent on the other hand say well you know what fine i evaded arrest but i got in trouble and it's because as a result of the officer that that is just not what justice is all about thank you punished i mean he had your client had been and two locations where people had taken his keys earlier and he got belligerent with them he somehow got him back he obviously penny was a two zero zero zero some time later so he probably was if weather was on the up or the down i don't have all that information but he had plenty of em so he knows he's been drinkin and that undisputed that he told the officer he hadn't had anything to drink so you know as an officer supposed to arrest someone if they don't have probable cause your client job at one hundred twenty miles an hour lane splitting didn't hit anyone didn't hit anyone smear or whatever he did to the office r did all of that thompson was wrong he was strong no two ways about it but some people are pretty good can do pretty well under the influence of alcohol your honor i believe that the evidence in the record shows that my client was more drunk than a person could be and still be able to actually do the officer might depend on the individual i mean if a guy drinks a lot he can kick a lot more certainly  certainly that would be the case and that'll be the subject of expert opinion as to what degrees but is it your position that he should have been arrested that would be one option available to officer however true fulfill his obligation to lackland an officer arrest someone if he doesn't believe he has probable cause what would be a violation it you know an officer can be wrong but if he believes he did not have probable cause and he arrested someone and he came in and testified in a motion to suppress that no a judgment say well you can't arrest someone if you don't think you have probable cause you're the law says i believe that the record provides adequate information have i am required by law office policy to give them a field sobriety test i don't know that i would go as far as saying a field sobriety test but it's a cue should put the officer on notice that maybe i need to do a but race car drivers drive really fast and they're not under the influence i mean it's hard to drive really fast and not have an accident the guy couldn't drive a motorcycle one hundred twenty miles an hour but your owners one thing i think is very clear here is that this is a question of facts and not law as to whether my client duped the officer howard and to that point if my client there's nothing in the record that directly  s that officer howard asked if he had been drinking but on the equitable a stop will issue case law requires that the officer actually believe the person's statement and i believe police officer i don't i find it hard to believe that any officer if they believe that he was to go and he was driving like a maniac like this would put him back on the road and he didn't put them back or they would do that because that then he would be sued for anyone that he hurt including himself so i think there's a pretty strong inference here it's the officers testimony which is basically he didn't think he was under the influence but he's wrong he's wrong so what would be so is is there a case out there is that when an officer is wrong as to their conclusion and doesn't arrest someone that that's a constitutional violation if they don't believe you know they don't believe they have probable cause well i think the closest case would be the malley the brig's case and there's a statement in there at the qualified immunity standard protects all but the plainly and competent or those who knowingly violate the law are claimed  and offered him a ride home he said i don't want the law or the right in this case is the liberty interest and bodily integrity to due process claim well he had bodily integrity usually go well under the danger creation  was there was a short walks right there there was another store it was not in a high crime neighborhood well this court's ruling and would address some of those issues and it would for a auster case there was a twenty four hour shell station and a twenty four hour seven eleven within two blocks and this court stated that it's not the province of the court essentially to entertain those assumptions that would be necessary to state that  that lessened the danger that high crime area in that case and they said it in the opinion they said it was a high crime area but this injury was not a high crime area it wasn't late at night either it was approximately ten pm and there's no evidence in the record as to the degree or level of crime in that area there are certainly nice areas in orange and not nice areas in orange but there's nothing in the record that indicates one way or the other in this case but the court and wood and discussing the twenty four hour facilities that were nearby set on motion for summary judgment it's inappropriate to assume the facts you'd have to assume that the facilities would allow the leave it into the facilities that they would allow them to use any telephone or stay there until a sober up or until morning comes it would require so many assumptions that the court said we're not going to entertain that kind of extraneous evidence so a key difference is that the person in that case was  woman late at night not the driver but as far as the not the driver issue i don't believe so in both cases there was a drunk driver so the woman and would she was endanger as a passenger of a drunk driver just like my client was in danger as a passenger or as a driver who is intoxicated but the triggering event is once you would the danger was of an increased crime neighborhood there was no increased crime neighborhood here he was hit on  freeway so in this case the increase in danger issue i think really comes down to facts he had been very accurately navigating his way home on his motorcycle he was merely i  was just under five miles away from home that's a few minutes on a motorcycle i'm sure the foresee that these instead of using the surface streets he was going to get back on a freeway where there are all signs of say no pedestrians but i think the evidence shows that my client could not take care of himself he had impaired judgment he ran a mile before he had his problem correct more than here it's pretty good for a drunk if you could stagger along if you go a mile in a short period of time there's not an indication that he actually brain that amount of time well he went among i only did it in a very short period of time from the time the ticket was written i believe he waited for the tow truck and then he left the scene i believe it was about point seven miles and proximately fifteen minutes that's a pretty good trip so it's a very distance i would agree but the position my client was in after receiving the ticket and having his motorcycle impounded was he was more than an hour and a half away from home by foot he's a pedestrian at night extremely intoxicated as everybody acknowledges in this case other than officer howard and unable to take care of themselves on my client who there's nothing in the record that's directly disputes that he was asked that question and he answered no i have not been drinking there's nothing in the record that disputes that that's right  that just goes back though to the equable stoffel issue i don't think that it would be reasonable for an officer an officer whose position to take mr fernandez at his word considering the obvious signs noted by the witnesses who saw mr fernandez  minutes immediately preceding the traffic stop and they point to blood alcohol immediately after the accident so another issue i want to address is the qualified immunity on the no clear law defense has argued officer howard's has argued that plaintiffs didn't provide any clear law saying that this conduct would be illegal this case is very similar to would and if there is a tribal issue of fact which the district court found as to whether it was reasonable for officer howard to believe that my client was intoxicated then it creates a tribal issue a fact as to whether law is clearly established because that creates a situation where my client is clearly in danger as a pedestrian extremely intoxicated and that is a situation that was created by officer howard once you took him off of the freeway impound his motorcycle and created a pedestrian so would your position be different if the officer had said ok i'm going to give you a ticket be careful and good luck the guy jump backwards marshall likely to go off and smashed into a car a quarter of a mile down the room i think it would depend on the facts of what transpired during that stop absolutely if my client exhibited signs of intoxication and the officer put him back on his motorcycle then absolutely i think that would be a violation if he subsequently got in an accident and injured himself or somebody else  your client wouldn't have any responsibility if he knew or intoxicated not to get back on i don't think michael it would be that so the officers the obvious or three sponsible here either way he's responsible because he didn't arrest your client didn't recognize that but if he had let him go then he would be responsible for anything they did to anyone else what the even though it's a voluntary act to get back in a vehicle and drive further the affirmative conduct line of cases addresses when an officer changes the circumstances that the plaintiffs for the individual finds themselves in when i tell me just to find a clearly defined the constitutional right that the officer violated it's the right to be free from well it's the right to bodily integrity and any infringement on that right would require due process of law it's not there the right to be safe is that what you're saying now well officers have no affirmative duty to protect individuals from violence by third parties however if the officer duty to protect people  themselves is that when it's a right you know so what is the right because the supreme court tells us we have to very carefully not broadly define right so the dude i can't be you have a right to be safe from any ever officers have to keep you safe right so the exception comes in when the officer creates the danger absent the danger there are certain cases that say it has to be a more dangerous situation than the one in which the officer found the individual and then knew that implicates the constitution and that's a question of fact the district court in a ten page decision went over all of the issues the case law and accurately determine that those questions are questions of fact was he more dangerous on his motorcycle seven minutes away from home or an hour and a half away from home on foot when he's the struck that's a question for the jury and i would submit on that it's a question of fact that a question of law that's a question of fact and it was george mitchell you know he would have been better off if they had left him on his motorcycle even though we might smash into somebody right down the room i think that is a question of fact for the jury to decide and would essentially allow the plaintiffs claim to move forward recognizing that under the facts presented by the playing to a jury could a rational jury could determine that the officer and would left the plaintiff in a position more dangerous than the one in which he was found it doesn't matter that it's undisputed that your client was drunk riding a motorcycle at high speeds and that he was already but no officer doesn't know what happened before thoughtless or doesn't all the officer knows is he said he didn't have meaning to drink someone he knows two people who tried to take his keys he knows he kept getting on his bike he knows what he's had to drink stopped him at danger he was in danger and other people out there by his driving conduct by all of those things the officer took the bike away so he wasn't he can't continue to drive but you're saying that by leaving him there he's more dangerous in more danger than he was previously i'm saying that's a question of fact for the jury ok all right thank you thank you  right now that you're back we don't have a lot of time but can you tell me what the right is how how do we define the right what's the are you saying there's no constitutional violation but even if there were it wasn't clearly established are you saying there was a constitutional it appears that there is a constitutional right i plea here and right is not to place the claimant in a worse position than he was before the state action was in the question of act ok your honor no it's not a question of fact it's it it's too putting him on a side street he lives in the same city orange he's about four point seven miles away from his house i i would say you honor that it's not a question of fact it's a question of law because it is so obvious that no rational trier of fact would have said hey you know what it would have he would have been fine on top of his motorcycle going one hundred twenty miles an hour and officer did not that i understand your position because you knew when you came to the podium and efficiently you just said it's not clearly established but yes then it has two prongs so the first prong are you saying you went in the first prong but if you don't want on the first problem you went on the second prong or are you are you saying you don't want on the first prong but you went in the second prong i'm just trying to what your argument here i went on we went on both prongs you  that is that is more clear in terms of not have been been established by idea and it is burden to establish it is that law was clearly established that by what he was doing that night he being the officer he clearly violated the right of the motorcyclist to say he did no your honor he did it and there are no cases at that time  the time of the stop that would have alerted a reasonable officer that what he was doing getting him off of his bike where he was going one hundred twenty miles an hour lane splitting was putting him in a more dangerous