court my name is ray coons i represent alex nixon my co counsel mr jack west represents sheriff tom rieger a present argument to the court this morning on behalf of both nixon and rea i'd like to reserve three minutes for any but i'd like to do this morning is address the questions that this court has asked in its instructions on supplemental briefing i first like to address question to the issue of whether mr perkins rights were clearly established as a matter of law at the time he was charged with trespassing and then turn to question one whether in fact any constitutional right was violated here and then  dress the court's questions about where these issues are raised below or previously a brief question of whether mr bergen's rights were clearly established  s a question of law for this court to decide and the mr bergen in his supplemental brief cites the case of the u s and the miller particularly illustrative of an analogous situation where the tenth circuit says a criminal trespassing charge should not be used to resolve an underlying easement dispute between adjoining property owners there are two things that distinguish miller from the facts of this case the first are the statements and threats made by mr bergen in the course dispute and the second is the united states position as an interested party in miller now what mr bergen says  that he is tired of this ball where is it going to end when someone gets hurt or killed this is an s are we to live in fear that this  escalating situation will become more serious and he says because it will nixon in readers primary interest in this case is in fact keeping the peace it's making sure that this easement dispute does not into something where someone does at some point get hurt and killed if you look at the pattern of both statements and  it can be tough to keep track of your honor and what happens is it's not a rapidly escalating situation but it is nonetheless one where the confrontations continue and appear to be likely to continue at that point the sheriff and the county attorney have to take some kind of action you don't want law enforcement officials to react to a situation like this but you do want them to take some sort of appropriate action here this mr nixon  deputy out to mr bergen who gives him a ticket take him out of his house he doesn't arrest him he's not taken to jail he's given a ticket a citation in the us to appear on a misdemeanor criminal trespassing char and the deputy tells him stop going on the property if you keep going on there you're going to be arrested that calms the situation down in august  subsequent to that the criminal trespass charge is dismissed and mr bergen brings up the quote or a judgment damages action against mr bryant now back at the very beginning of this your property here is the statute that lays out how these easements work if you keep interfering with that right we're going to go to district court we're going to file a temporary restraining order an injunction against you we're going to seek a damage exactly what happens in judge moses's decision in this case he finds that the secondary easement is valid he awards costs and attorney fees he doesn't award all of them due to some balancing that isn't really relevant here but from the beginning of this case in mr bachmann's letter at eighty four it's clear how the thing should be resolved and that's with a civil action between bergen and priam now what this court should look to to determine whether in fact the law is clearly established at the time that mr bergen is cited for trespassing is montana law under montana law clearly precluded by montana law the officers are entitled to qualified immunity now spread berry like many of the existing cases has to do with trespassing at a public place rather than across a private easement that's a big distinguishing feature of most of the a plausible cases and in spread berry mr bradbury was upset with the better republican ibrary because they wouldn't include in their collection some of his letters to president obama in chastising the library board with further letters mr spread barry referred to the unabomber and he's banned from the library precluded by montana law and given the fact that the reference to the unabomber could be considered threatening the officers are entitled to qualified immunity here in this case there is precedent in a case to historical usage your honor with respect to the existence of an easement there's an issue as to run its existence and to it's the time place and the manner of the easements use so that the question of the easements existence may in fact be relatively uncontroversial and assume for purposes of argument here that that is meant it's it's plain existence is established there are still questions about what montana calls it scope that is what is sometimes referred to in the decisions as  and what mr bryan is complaining about to the sheriff and to the county attorney is that in effect mr bergen is abusing the easement by driving in an irresponsible manner that he's picking a route that's atkinson where while the right to get to the water is not particularly in dispute the manner in which it's exercised is and that would be the key issue under  laden would be is that right of access being exercised in a reasonable manner and that's a balancing test for the court to decide that's why judge moses in issuing his decision refers extensively to the cells muscle shell case and in fact judge moses is decision does a very cogent job of laying out a balancing test required by panel law and the real point here is that it's the court rather than any other agency not the county attorney not the shallop who should weigh the competing claims between bird again and cry and determine write a reasonable scope of the use of that and make a ruling that is then a stamp list as a record from that point off your and your time to this one of the point i'd like you to speak to which is that how do we have jurisdiction to consider issues other than qualified immunity your brief present state law challenges and so forth limited to issues pertaining to qualified immunity and things that are inextricably connected to that telling me about state law issues and malicious prosecution i'm not sure how any of that's before us now your hon believe that it would be before the court on the issue of whether or not nixon and rekers actions in charging trespass which is a state law charge all reasonable under is that a lot of your issues asked about absolute immunity to the qualified or to the malicious prosecution claim i strictly a state law claim that your honor let me turn quickly to ben to qualified immunity on the state law claims absolute immunity seems a lot stop there good morning your honor that may please the court about the amount fourteen appearing on behalf of bill and when it bergen in august of two thousand and thirteen the defendants charged my client bill bergen with trespassing upon easement running across his neighbor's ranch and threatened him with the rest if he did it any further they did this knowing that the bergen's and the prior owners of the bergen had been using an they've been using that easement for over a century and needed to use that easement to be able to get to their gate how do they have personal knowledge of that or that's simply what they've been told that was what they were told by so they didn't have personal knowledge of that but they they knew that from the affidavit that they knew that's what your client told them but they didn't adjudicate that claim they didn't go seek to investigate independently they didn't try to find out what other people had to say about that did they and they were no judge well what happened was my client mr bergen had brought affidavits to the sheriff's department affidavits from the prior owners of both the dominant tenement in the servian tenement saying this easement has been here for a century so they knew what they had been told correct that's not necessarily the same thing that they knew but it but it is something that a reasonable officer would take into account before simply arresting  citation in this case could possibly violate someone's fifth amendment fourth rights was the case that says that with regard to fifth the fifth amendment takings issue and the fourth amendment seizure issue  private owner to another a citation didn't do that is correct but it's a criminal citation so it's even more egregious letter than again what's the case that says a citation which is like a ticket or any authority that says that by doing that would could lead to taking us in a fourth nemeses or no your honor there's no other other than the other than the isn't that a problem then for you i mean that under the qualified immunity the supreme court in our court and many other courts have been hit on the head with that hammer by the supreme court saying you've got to have a specific thing that puts the officers on notice a lot decision of some court it's a problem with regard to our fourth amendment seizure claim and perhaps a problem with regard to our fifth amendment taking claim there's plenty of case law that we've cited in or in our supplemental brief with regard to the due process violation that occurred there's plenty of case law saying that police intimidation be it threats of arrest or citations interferes with the with the use of property and by doing so without notice and without a hearing leads to due process violation starting with the fuentes case the supreme court where the supreme court held that any significant property interest is protected by due process we then go to the james would they are i mean what what your client was told was go to court you weren't denied access to the court and indeed your client did go to court and ultimately adjudicated the dispute i'm not sure what tells the sheriff that he's supposed to act as the judge and resolving a dispute between two parties on the spot in a circumstance which your colleagues argued that there was tension and threats that the tension would mount so why isn't that the sheriff's principle job to keep the peace and let the parties go to court and determine legally who had what kind of rights because the sheriff took sides by excluding my client from an easement that he had used in his presence or that used for a so you want to stay sheriff to become a judge on the spot no i we only the op because we don't want him to get it  you're telling me he must get involved because he refuses to recognize what your client tells him with regard to his legal access we want him to get involved by looking at the evidence that was presented to him weeks old and then not to look said who looks at evidence is that the sheriff or is not a judge this job is that will when they're when there's a reasonable claim of right that's that's the sheriff's job the sheriff is it's the sheriff's job to look at these documents and say i don't know i don't know if brian is now right when he changes a rule that's been in place for one hundred years i'm not going to take action to help mr bryant eject mr bergen from an easement that he's used for decades i'm going to stay out of this unless unless indicate the things were going to get worse what what he was saying was he was afraid that brian was going to attack him there was absolutely no violence on behalf of the that my client engaged in he was worried that violence was going to be coming in from the other side that's not a justification for the sheriff to say ok i'm going to solve this problem by ejecting you mr bergen from the easement that you've been using by cutting off your water supply for eighteen months to have a fight over where an easement is or who can go through a gate why is it in this case a neighbor suing neighbor as opposed to neighbor suing sheriff in federal court what my my missing what happened was there was the civil action against bryan that that resulted in in that the easement being formally affirmed but there were no damages awarded in that case and there were clearly damages in this case and there is clearly responsibility on behalf of the sheriff and the county attorney for those damages because burke mr bergen would have been able to continue using his easement and using it peacefully as he's done for decades but for the fact access and mr burnham can be succeeded in doing so because if he had said no you got access they would we wouldn't be here today bret so why isn't this claim i mean the question raised by judge jones i think is a good one why isn't this claim against mr bryan there was a claim brought against mr bryant for declare ten relief but that doesn't preclude mr bergen from bringing a claim of damages they want so i wasn't the claim of damages brought against mr bryant he's the person that took the action but he's not the only person that took the action because mr bryant's x standing alone did not keep mr bergen from using his easement she only really what if he builds a great big fence and locks it and keeps putting new locks on that's the source of the problem initial toward fees or he's not the only toward freezer in this matter the sheriff and the county attorney are the ones that tipped the balance they're the ones that upset the status quo stand back yes and the cases you have to offer are the ones you've cited so far i've got to tell you if i were the sheriff i think i would have done the same thing that they did the problem with that your honor is that the the danger in the risk was coming f you've ever heard the maximum possession is nine tenths of the law ok well so you know the sheriff in the situation you know one guy has the land and the other guy claims he has rights to access and he seems to have some kind of right of access but there's a dispute over way or the right should run and it's gone to the county attorney in the county attorney's not get involved it's gone to the attorney general attorney general says we're not getting involved in this you need to go to court but you don't want to wait to go to court so you're demanded and you're required to take action now when you're hearing threats from one party in the other what do you do do you stand back and let the parties bash each other upside the head or do you take action and say you guys go settle this in the meantime we're keeping the if action needs to be taken then the correct criminal charge would be something like criminal intimidation so something based on threats and disorderly conduct none of that happened you can't charge mr bergen with trespassing when he's when he has all of this evidence that he's presented weeks ahead of him showing that he had that easement showing that he's been using that easement for decades even to the prior owners have been using it for decades before that this case changed because state actors got involved in a dispute that they had no business getting involved in that's what changed this case that's what created the liability they had no business getting involved in why did your client tell them there's tell  because he's he's worried that mr bryan is going to do something that best i guess is about back to judge clifton's point i mean the police should stay out of the sheriff's the state out of this your client the one who came up to him and said there could be problems whatever he said right what  client did was simply present documents weeks ahead of time saying here is my right also leads please stay out of that so you work your client approaches the sheriff gets the sheriff involved and then you're saying the sheriff should have done nothing well no the sheriff was was involved well before my client approached him with the documents my client approached him with those with those property documents and affidavits to say look mr bryan's complaints are faults here's my easement i've been using it for he had done nothing and no cowboy just as happens out there when one of the officers was the officer shouldn't have done anything until until you had probable cause that there was some kind of imminent we should on ignored what your client told him he should have been ignored with regard to my client was going to do because my client wasn't saying i'm about to do something violent if things don't work out the way i want he was warning the sheriff that missed that mr brian was going to be engaged in some kind of altercation and he actually said he said mr brian would come over here and do me harm he didn't he didn't use the mr bryan's name specifically but that was that was the intent of that letter he was they were worried that some kind of violent altercation was going to take place and that's that's what the concern of that letter was that letter wasn't hey if things don't get fixed soon we're going to take action it was exactly the opposite of that this thing this case changed the minute that state actors got involved took sides and they decided to eject my client from his easement that's what happened here this wasn't the sheriff's department keeping the peace this was the sheriff's department saying mr bergen you're off this land that you've been using for decades and if you use it again we're going to arrest you and the clear authority saying that is what the clear i'm sorry the  case that we've that an officer would put the officer on notice as of august of two thousand and thirteen that by issuing a citation he would be violating the constitutional rights of your client starting with united states versus miller the tenth circuit case that we cited miller's not hundred eighty three case miller's or the dismissal of a criminal prosecution so how does the sheriff know he doesn't act if he doesn't act as a judge and make a decision he's going to be personally liable because miller makes clear that doing even though it's a criminal case miller makes clear that using a criminal forum to decide these kind of property issues rather than the civil form is and i think your procedure is it's a procedural due process violation those are the exact words that the tenth sheriff thought he was deciding that or is weren't they saying as the county attorney an attorney general has said you don't fortner work that out i'm just trying to make sure there's not violence between these two contesting parties they decided it when they told didn't say all this so what did well there's other cases for instance the schmidt case that came out of the eastern district of pennsylvania involving virtually the same situation where easement holders were cited  by police officers who knew that they had a claim of you knew that they had an easement claim now schmid is a two thousand and fourteen case so that doesn't count but it does involve actions that took place in two thousand and eleven past to be added to the case has to be abbott versus latch on third circuit case the says threats of arrest can lead to deprivation of property interest under due process there's a tenth circuit case the mcallen case which follows the reasoning of abbott versus these are not ninth circuit cases but obviously this court can look to cases outside of the circuit to determine what what laws clearly established there's this case is this court's statement in harris versus city of a grossberg saying deprivations can arise from police intimidation there's another statement from this court more recently in the paying case cited our bruce where it says the court has been very suspicious of efforts to involve the police in enforcing civil obligations that's exactly this case that's exactly what happened here or thank you very much for any of the questions i thank you very much counsel thank you for the rebuttal given to me your honor closing i would just like to address one point that i see the panel had some concern about with respect to the civil damage remedy that was pursued by mr bergen at e r one thirty three we have  judgment which recognised their secondary treatment and right to use the roadway on the n h s property that's brian b n h the parties came to an agreement on all issues but attorney fees that means they settled all resolved and we would ask that the court find that nixon and reagan are acted in a reasonable way and should be entitled to the defense of qualified immunity in this case thank you thank you very much thank you both counsel for your argument