mersed in the factual background of this case and what transpired and the other lawsuits that have been up here before the panels and so on and so forth so bus you can you know cut to the chase and my reading of it is that detective needs an officer scott are taking the position that probable cause existed for an arrest and that would justify the detention versus ranger bonds who's taking the position that it the consent for the interrogation existed so addressing first the issue of probable cause is certainly your belief first of all that the evidence is pretty and so the issue is whether there indeed existed in the mind of probable cause and the cases cited by those apple ease bring up the issue of whether or not detective needs an officer scott could rely upon some sort of nebulous potential probable cause that may have existed before they arrived on the scene or before they took her in this case that there was no question about the shooting itself because there were obviously dozens of police officers that also witnessed the shooting that were in fact and the shooters and that it occurred both him and her father were standing in the doorway of the home and therefore there was really no question that have occurred in there were you know plenty of witnesses that there was also no necessity for any sort of  expedited process since there really wasn't a question about what happened there was no necessity to interrogate her immediately additionally she had the summary judgment shows that she had been in th question so there wasn't anything about the situation that were part of any kind of an emergency so this this court found that under these circumstances justification for that and the issue of whether or not there was a probable cause her any sort of other underlying charge such as i think there is an allegation that there to be a potential charge for interfering with a police officer because she allegedly was kicking and screaming when on the the swat officer was removing her from the scene that the summary judgment evidence establishes through her own testimony  affidavit that she was in fact not that she wasn't fighting resisting kicking or screaming and that she well when she was in the back of the police car she was sobbing and shaking as you can as you can see on the video she wasn't resisting in any way and we're officers believed that she was agreeing to stay in me and the question what about that i don't see how that interestingly enough the recent us supreme court actually i think vice support for the appellant in this case because it says you've got to look at the commonsense factors of the situation you've got a young lady who was obviously distraught sobbing uncontrollably placed in handcuffs in the back of a police she was still in the back of the car with a police officer standing guard immediately standing next to her and standing guard over her it was the middle of the night freezing cold she had no coat and no shoes and was  she was surrounded by police cars and police officers and no reasonable person i can even think of a single reasonable person that would think that they at that moment could voluntarily leave the scene or go in and do whatever they wanted to d and the fact that she didn't resist the officers are saying you know i demand my rights or bring me a lawyer i want to leave or anything like that i don't think that you can you can bootstrap that into sa that it was obvious that she was consenting i think the circumstances made it extremely obvious that she was not consenting and i don't think just using common sense that any reasonable officer would fate the young lady under those circumstances in the middle of the night who just seen her father killed in front of her would think that she was voluntarily cooperating with the police officers and giving a statement so urn there there isn't any evidence that anybody asked her if she wanted to cooperate or she wanted to come to the play station i asked the officers repeatedly in the depositions detective meeks did you ever ask her questions or did you give her orders and he said we gave her orders we told her what she was going to do and what was going to happen to her that patted her down once in the back of the police car they patted her down when she arrived at the police station they would not allow her to see her family and detective meek stated that had she asked he would not have allowed her to see her family the family was asking to see her and they would not allow the family to see her or him in contact with her so there weren't any circumstances in this entire scenario that would have put any reasonable person on notice that they were not in custody with the police or that they had any opportunity to voluntarily leave the scene or not cooperate  with respect to the issue of the case of whether or not other probable cause could be relied upon as in the devon  i wanted to address that just briefly saying that i think that the apple is position that probable cause that the officer was not aware of could provide a legitimate basis to take someone into custody would more for the devon pet case into something that i don't think that the supreme court intended by saying that you know if somehow by some happenstance that nobody's aware of there might be something that you can find out later that would provide public cause that the officer gets a free pass to take anyone into custody for even if you know for good reason bad reason no reason i don't think that that was the intent that case and this is the second part of that is that even if that was there was no underlying probable cause for taking her in into custody for anything the case in the turner case which is a companion case of these where that this court addressed whether this swat officer could have taken her into custody in place or in the back of the car it was not a probable cause issue it was and securing the scene issues that the court said you know is reasonable for that swat officer to secure the scene you can remove her from the scene and place shoes and comfort and whatever and they were not allowed to do that and she was allowed to contact them talk to them or leave the scene in any way except to go to the police station yes and she did they took her in patted her down there was arguments changed a little bit in that and i'm not aware of an argument about sort of a probable cause prior to on some other thing providing public cause for  turned her out officer term position was that while he was carrying her away that she was kicking and screaming she says that she was not good news indeed she was only sobbing  i feel like i've addressed one just to the extent it burn detective i mean random arms his position is that there was consent so his is a little bit different than scott and needs there they're relying upon probable cause my understanding where bond is relying upon consent and that's that's when i believe that you know any kind of commonsense approach would tell you that under these conditions when you're patting people down and having them in handcuffs and guarding them in the back a place car that that is not a condition of consent and you know we don't i don't think we expect people to resist the police to the extent that they're going to not follow orders that i mean i think that any reasonable person if they're being given an order by a police officer is going to follow the order by the police officer i mean and you know yesterday disgrace was someone didn't follow an order of a place officer but they probably ended up getting tasered arrested or you know sorry it was killed or if there are worse and so and i mean that's so you know certainly with with social media and everything else these days people know what happens when you don't follow the order of a police officer and it's not good and you've got a young and you know nineteen year old girl in a horrible situation and she's going to do what she's told to do she's going to follow the orders of a police officer like any reasonable person would basically that the other panel in turner said that there was no clearly established law holding that also turner couldn't detain or if she was detained there was no clearly established law saying that he couldn't detain or as a witness for about two hours the summary judgment record shows that my two clients did not arrive on the scene and deal with this young lady until more or less i took over from turner and let me let me try to clarify are there were there were a lot of officers in my clients it is understated had no dealings with ms levy or roughly two hours after the change here the appeal as opposed to what we're arguing with the lower court i don't think that's entirely that's not correct at all ended in the lower or a motion for summary judgment establish probable thought that they were dealing with a willing and cooperate to have witness and i think what is very important is the plate is put into the summary judgment record a video that's an hour and forty one minutes long unfortunately because of a quick m problems there was no recording audio recording is just backseat recording of aaron in the car and during that time she does start off and she saw the and she's crying as as one would expect at that time the handcuffs come off roughly thirty minutes in and as massages and notes but from that point she's she calms down by the time my officers get to the scene of course they know that she's seen her father shot but she is calm she's polite she's cooperative in every respect we put back into the summary judgment record with the affidavits of the officers of the declarations of the officers that's not new that was part of our motion for summary judgment but on the probable cause issues and this is again going back to the wednesday case of the most recent iteration and it will of course was besides devon it doesn't matter what the intent of the officers was the supreme court has said is linking he did the natural thing when an officer does he's called an off duty why am i here what am i supposed to do they told them collectively officers told him what ms lincoln had done no it doesn't matter it's not material if mrs lincoln states i'm innocent of kicking and screaming and having to make dragged away from the side of my father before the officers could secure his weapon and secure the scene in the get the paramedics to them she denies that but the officers that i've represented are entitled to rely on what other police officers told them and detective needs was told the  her father was shot she ran to the scene she was kicked she had to be picked up and moved because the gun that he was holding the father was holding was right there we have to secure the same so the officer turner picked her up and carried her away and while he carried her away my client was told she was kicking and screaming and flailing and striking the officer as he's got her over the shoulder and that she was then at some point handcuffed and put into the back seat of the car so my also knows that whore has any contact with her he knows that before he gets to her he's been told by other police officers that she had to be removed so that the other officers sitz could secure the scene secure the weapon and let the paramedics come and do their work texas penal code section thirty eight point one five makes it a criminal act to interfere vicious performance of public duties and the types of public duty officials that can be interfered with or police officers and emergency medical personnel or firefighters but that's who we're dealing with firefighter not know of one first arrival but he understood she was in the house and again part of the reason of wanting to question her is to find out what happened and officer me as stated in his declaration you know i am aware of these accusations are these these these facts that she kicked and screamed and was i to put pulled away i was aware of that but he says my focus was not only arresting and so the state of mind under doesn't impact and under most recently whether his state of mind about whether he's going to rest for not doesn't matter what matters is he knew the facts it would be probable cause grounds if he had chosen to arrest her and he later you know i don't mean made up don't get me wrong but it just sort of overlaying all this that it gets a little clumsy in terms of getting to the core there we have to side with a highly qualified immunity and not  based on all the information he was given it was his thought that arguably there was some basis to arrest or was the focus still does you know questioning the absolute focus of his questioning he didn't he didn't had no clearly established right and clearly established law that would that would clarify how this should have been handled i think it may be law in the circuit now i don't quite know how to read the specificity of that opinion that this sort of extended  custodial interrogation could be considered rest you know or even the turn or physical opinion very much here that opinion says up to two hours or whatever long that she was initially detained in the car it's covered by qualified i we're not taking that there's not equally uncertain laws to whether the next segment of time would not also be unclear as to what needed to be done and what law enforcement rights may be what about t well turner helps the defendants here because there's no clearly established law that when officers come to the scene who hours or more after the events started and they take the scene as they get it and in the white the polish supreme court case the supreme court says also is don't have to second guess the conduct of the officers before they arrived so my clients arrive at the scene and they more or less think that they're taking this young lady for questioning of course meeks knows about the cause of the potential grounds for probable cause but there's no clearly established law that says when officers who are both aware of a situation that would support probable cause and think that they're dealing with a willing cooperative witness who was hopefully giving information to help understand what her father was doing when the shooting happened is in violation of clearly established law and under wednesday the supreme court once again says you have to look at the particular facts and they vary in phatic least say it was be clearly in my opinion for the first time that the law has to appro  it what the officers did and so you have turner where the court says and also has qualified immunity for the first roughly two hours of the event and i would contend under the turner not listen as my client should have qualified immunity for the second phase of this alleged custody because they take it as they get it they're aware of facts that would support probable cause but they really think they're dealing with a cooperating witness no relative the grandmother and aunts were both present one of the aunts the op police officer aunt and a grandmother both gave interviews and those are in the recordings of that or in the summary judgment record their cooperative they never say you should let my granddaughter go you should let my granddaughter go and so my clients are basically thinking i've got somebody who is willing witness and there's no clearly  d law that says i can't keep her here long enough to get her statement and so turner is of course very helpful and when you look at the westby case where there has to be a court decision that squarely prohibits the condom and there is non then using the turner in ways of the analysis that's dispositive of the case then in which thank you and i'd probably use all the extra time i was given sorry thank you for it please the court bill davis ford ranger barnes i'd like to focus my time if i could on explaining why the district court correctly granted summary judgment to barnes based on his reasonable view of mrs lincoln the facts as they existed in previous cases of course here were in summary judgment we have a summary judgment record and if i could point just to a few pieces of evidence from that record that i think are most important knowingly violating the law there's no indication from his linking in that video that she doesn't want to be there and she wants to end the interview she's nodding they asked her to do things she's answering their questions l y the other beyond you know of the on the video there's also evidence in the record that goes to consent attached to barnes a motion for summary judgment there was a couple pages for miss lincoln's or barnes that she didn't want to go to the station and she didn't want to be interviewed that she didn't want to read out a statement and at the top of that page she talks about a previous incident two years before in which she had contact with police and she says she knew at that time that she didn't have to talk to the police and she contrast that with this situation in which she did another portion of the summary judgment records from lincoln's exhibit that's an excerpt from the week's deposition in the barnes record this is a page ten eleven ten twelve he's talking about being at the scene of the shooting going up to this lincoln as she's in the troll car and saying we've got another officer coming we're going to go to the police station and ask you some questions and her response is ok on this record a reasonable officer would understand ms lincoln to be a consenting witness but we don't even have to show that only have to show is that this lincoln failed to show that every reasonable officer in th circumstance but understand that you couldn't have a interview with miss lincoln at the station because clearly established law said in this circumstance even when you have a person who looks to be consenting you can't make that there's less law in the consent to interview circumstance but even so the test is a totality of the circumstances test the witness doesn't know doesn't have to know that she has the right to refuse to consen and but here there's evidence that she didn't know that and the officer takes the scene as he finds it as the district court noted that's especially true as mr jeffrey explained under the white vs holy case here it's undisputed that ranger barnes arrived late to the scene two hours or so after the shots were fired at a time in which mrs lincoln was already in the police car had been in contact with several other officers and he could assume if it were reasonable based on the circumstances that this thinking was a cooperate of consenting witness now this much since says well it couldn't be reasonable to anybody under the circumstance that someone would consent but that just doesn't square with the summary judgment evidence and particular the video games and i think in light of that evidence and the supreme court's recent and repeated statements about the type to clarity it's needed from clearly established law this is really an easy case based on consent davison dunaway cases  applying to very different circumstances in the cases that miss lincoln cited in support of clearly established law but there are those dealt with suspects who were brought into the station for multiple days read render rights  and i don't think any reasonable officer or if some officers thought of davison dunaway in the circumstances it can't be said that every reasonable officer would think that those cases have any application here and of course they also recognize that witness detention may be constitutionally predicated on consent counts but what do we know about the decision to take her from the scene sitting in the car all those hours to the station and the evidence of her consent the evidence of how that came about i don't think we have a lot of evidence on that point but i would point the court back to pages or any defendant in this case who would be was possible for that decision for the decision to take her to the station i don't know who gave that order i know that officer scott carried out in that she was told to drive her station i think part of it  station was a way to get her indoors and let her tell her side of the story question because one continuing effect of the barnes decision by another panel of this court in a different legal context is they did hold that police violate the fourth amendment absent probable cause or consent when they transport a person to the police station and subject her to prolong interrogations much that's law that is that was said to  applicable here so i'm just wondering what there is here on consent beyond the consent you talk about for everything else that there is no objection but she seemed willing and there's at least some plausible understanding with all due respect  understand a barge went up on pleadings but i just but it still is a legal statement all right but but on these specific allegation in the complaint that she was unwillingly taken to the police station in question and that's not an education and that's what i'm saying  is there any evidence here about the danger of that decision which she was doing at the time what was said to her and her by talk about it and i take it that that's not really part of what either side is dealing with and is  ms lincoln is that she has the burden on this she has to show that no one could reasonably think she was consenting in this circumstance barnes encountered again he came late he didn't see her in handcuffs he heard from other officers what happened he knew that a police officer officer scott was taking her to the station and that he had been told by another texas ranger to question her there and when he encountered her she appeared to be a consenting witness and so i don't in the record to show him any better about to take her to the station than any of the other activities that she was not consenting to is there any evidence that he was not considering or objecting to being taken to the station well our contention is that all of the evidence points to the family not consenting including the fact that her aunts were literally sitting in officer scott's car saying over and over again you've got to get us you've got to get her issues having problems and that there's no reason to keep us from seeing her we're worried about her she's probably freaking out we need to get her to the hospital she's not a normal kid and that she's got an anxiety which which i don't really understand because that's all recorded on the dash cam that when she transported air in lincoln in her car to the station there's no more dash cam but in any event i did want to point out something else about detective meeks claiming that he had all of this information about ms lincoln when he arrived on the scene that other officers had told her what he did not like the point the court to page nine of our brief referring to the record on appeal pages eight zero seven eight zero eight are where detective meeks testifies that he was told nothing about her conduct when he arrived on the scene but he was never told that she was suspected of any criminal activity that he did not even the inquire as to why she was confined in the back of the police car so he sneaks all those statements of pages eight zero seven date away that he was told nothing about her conduct which i think the lies his claim now that he was told all of this information about what she had done and he could use that for probable cause  there was also a statement that nobody was asked nobody was asking the officer to let her go and i think that is belied by the testimony of the family members all of them including the police officer and say that they did in fact ask to let her get her to at least  take her into their custody the it repeatedly told the officers you don't have the authority to do this you don't have the authority to keep her against her will you've got to let you know let me see her and was told no every single time including by t and i know you don't necessarily look at the you know into the mind of the officers to look at their intent but if you look at the plain circumstances or encountered by these officers there's i can't think of us reasonable officer that would believe that you can give a nineteen year old girl orders not ask her any questions but get we don't ask you do you want to go to the police station will you give us a statement but give her orders get in the car you're going to the police station and not believe that she's going to comply without her and the brother of the father i mean the sister of the father in the car and who is at the scene it was but there were two events one of them was a place officer with the city of keller and one of them was the one that was sitting inside the car who if you're related to the father oh both of them to the father sense well when that negate their request oh well a lot of tiger except for the fact that since she was not suspect of any criminal activity they didn't have that option it wasn't their call they didn't get to choose to release or not release or she was i think it's stipulated that she was free to go the question is whether or not she knew she was freed again and whether or not the officers would have let her go if she did you know whether it was willing or not willing but whether or not they should have released her to the end i think is is not in question because she was a suspect in the crime is that she was allegedly not in custody she was just a witness  and with respect to the difference between turner and barnes we have to opinions out of this court in this case one of them for officers trying to conduct one of them for  sending up at your are just like to say that i think the difference between the turner opinion in the barnes opinion is the point in which the encounter took place that turner was securing a c and then after that