five now although i would admit that the complaint as it was originally filed did have a era and said ninety five by the plaintiff has no evidence whatsoever that any of the instances involving this case  as involving law enforcement was there ready all it was a formal law enforcement officer and he knew both myers and and leave my side without having taken myers deposition the extent of any involvement he had with the election it's not in the record it's not in the record because it was not available to us and we in the civil case are only we don't have that information right the the facts i completely laid out and of helen's great there's one issue that i'll think that i addressed properly in the brief and that is with respect to the officers claim that they have qualified immunity that i want to make here is that the case of the united states which is griffith which counsel appears rely on there was a specific request by the officers to enter the premises and so in response to the request information including the name address and telephone number of witnesses should be disclosed to all the parties and according to the saying free from the order that we were asking to be modified by december thirty first we should have been provided with the name they responded by objective thing about the training work product the objective continued until we did a letter read asking the court to compel the response even after the court even after we did that it was a certain particular case is not really accurate description of what the claim is the claim is more malicious prosecution until close to three o'clock maybe even after three o'clock mr bailey claim that the the individual employees very few and radioed in just happened to be at the hotel that day on their day off happen the way he says it happened and he goes ahead and he asked the court to prosecute anyway that would be malicious prosecution whether or not he's telling the truth or whether or not mr druce is coming up with is not something that can be decided on united states versus griffith and you mash face again there was a specific request by the officers to answer the premises and then asked could cause perhaps officers to believe that by stepping back and opening the door that was i here there's no implied consent because there was no request and they pushed the door open it's not a situation where he opened the door did something indicating acquiescence to them entering the premises in addition and gave a contrary answer in his declaration then i would say no he cannot create an issue of fact by contradicting his deposition testimony with no questions were asked pacifically in that area and in addition if if the trial court is just the court itself it taken place simple take the remains of seven so i'll try to be mindful of that the issues that relate to officer lead the only individual defendant officer that's part of this appeal because ops or the other officer w never served he's still under the protection of the state from his bankruptcy proceeding are whether or not there's qualified immunity that should be the basis for dismissing the claims against him under the federal civil rights act coun correctly pointed out judge progress and that there are no state law claims that have been asserted against officer lee the issue for purposes of qualified immunity is very clearly by the two part test that set or not there was a constitutional violation really does pull in this object of test as to whether or not there was consent to enter the room and or whether or not there were exigent circumstances and the test for both of those  is an objective test it does not look at the state of mind of the officers at the time and i think there were two significant ninth circuit decisions both of which were cited in our materials and i think one very significant d an adjacent room occupied having called nine one one hearing a scuffle and thinking that that might be a domestic disturbance and that case did focus on this issue of whether or not there were exigent circumstances that just exigency right then and there when they first showed up there was no extras so your honor when they spoke with mr doocy confirmed that he was in his hotel room allowed him to go back into his room and complete a shower come back and open the door they there i think that's correct your honor if he had just stood there was the act of stepping away into a room with a suspect who was believed to possess a loaded firearm that had displayed that firearm and according to the witnesses have pointed that loaded handgun in the face of one of the witnesses the other component and again we're under the test of whether or not an officer on the scene evaluating this information could reasonably believe that there was record you did not they didn't go there thinking that they had a situation that would require any sort of a swat team or any of that this was again an unfolding circumstance requiring them to make split second decisions and is the very kind of case that i think call for this courts to look at qualified immunity recognizing that the officer doesn't always have to be right at the end of the day but i want to speak briefly to the issue of implied consent because if you look at the who the third nine fifteen which was a decision by judge tolman in the circuit that involved a case where the court recognized the implied consent having been given to the officer under facts that are somewhat analogous to this and frankly somewhat analogous to the seventh circuit case in griffith where someone had opened the door shut the door and there's a recognition in the case law that someone who opens the door initially to the officers and then shuts the door recognizes that there is a way to keep the officers from coming in and then opens the door a second time step away from the door and say nothing to the officers either that they should not come in that's a i would say that i'm not saying that that's a rule ultimately for the issue of whether or not the implied consent was granted i'm looking at it through the window of qualified immunity what i mean if you win everything exactly what happens in mining for her then i would be shocked a self closing door where the officers seeing the door closing stepped in through the door and this was after the door had been opened shut and then reopened and the person stepped away from the door saying nothing to the officers about not coming in not making sure the door had closed behind them and then saying nothing after the officers entered the door that they should not be in the rule none of those events occurred in this case it sounds like you are misreading the presumption must you tell people to stay in our and then  not that was indeed implied consent for purposes of perhaps the suppression hearing and whether or not that was an objective lee reasonable set of facts that would allow the officers even if later gene to have been running as to be entitled to decision three thirty nine s third eight twenty eight that that recognizes the clear distinction between the criminal law test in that face a finding that there was no probable i actually had the honor of appearing before you want to back to back cases involving qualified immunity last fall i actually did read a lot of your cases including the two that you decided then i'm sorry i don't mean to ignore you everybody favorable on the issue acknowledged that the civil rights claim of conspiracy is not well put forth against any of the city defendants the last issue i was just raised in it's a procedural issue the court i think very clearly did not abuse his discretion and the court judge progress and you are absolutely right on the time frame of this in terms of the timing for when the motion to amend the complaint was finally filed it was filed on the date for filing dispositive motions no evidence in the record of any attempt to serve him any time before the service was affected in july council was immediately advised that he had filed bankruptcy proceeding and there's never been an effort to my knowledge even as of today to obtain a listing of the state that would permit him to go forward with that case and it wasn't until september literally on the day they were filing dispositive motions that the motion comes forward seeking to amend the complaint i also raised this issue of the court l the hotel manager mr bailey or kevin say myra martin or based on race and fact the only racially charged language that was exchanged between the two african americans out in the parking lot and so necessarily  specifically facts to show that there was a meeting of the minds between the hotel employees and or the officers mr bailey who was the hotel manager at that evening i'm sorry that morning i was fearful because you knew a person in his hotel had a gun he had several other people who were staying at the hotel his only role in this was to contact the police and ask them to investigate this matter as indicated  there's a big difference between opening the door so you can get a better view of what someone's doing and actually arrest entering the premises and sitting down on someone's bed having a conversation and going through their their lives that's a completely just situation employees had a conversation had a discussion they don't call the police until almost three o'clock in the afternoon the police on arrival almost four o'clock in the afternoon that is completely inconsistent in that range of issues of material fact with respect to what their true motive