case number one seven dash five to two one william chris v it ronald allen at all or arguments not to exceed fifteen minutes per side mr kant masterson brown for that   mary l grace we're here after the him united states district court in the eastern district of kentucky dismissed their complaint and dismissed the hundred eighty three claims and some others on account of dr grice allegedly entering into a stipulation mr probable cause and they further dismissed the unlawful search clo in this case one because dr gray's allegedly entered into a stipulation for probable cause and also because the court believed that the unlawful search that was conducted was in fact a protective sweep and we feel on all those counts that court should be reversed and let me begin by going into just some background facts of this case this case arose and an incident that occurred on january second two thousand and eleven when  and mrs grice were quietly enjoying their home in rural madison county however a dog had been barking literally all day long and i'm sure you can have been in the situation before where nothing can be more annoying and dr gray's they live in a rural environment and he owns property large amounts of property in front of his house and in the rear and his neighbors are far apart  dr grice took a shotgun went out into on his own property and fired two rounds into the ground and the dog quieted down and dr rice went back to his home and was taking his gun down when he saw out his picture window and his picture window looks straight down parkwood drive a road that comes into his area where he lives and looking down that road he saw a car coming at a very high rate of speed with its bright lights on and dr grice became concerned dr bryce eighty two years old it police at the time this occurred his wife is seventy nine she's had a stroke and is somewhat of an invalid and he saw this car coming out he could not tell anything about the car because it was dark and the bright lights kept him from seeing anything else and he became scared and he turned to his wife and he says i think this is trouble you know there's been trouble out there before he's testified and he he recently has a drawer pulled out a pistol put it in his pocket walked out on the front steps to see who this person was turns out the car stopped and dr grice was standing in his front lawn and a deputy sheriff got out of his car and his name was ronald allen and he'd went over to darker grace and asked him in kind of a confrontational tone did you fire two shots into the ground with a shotgun to  we understand what the facts are and there's some there's at least one interesting legal argument attendant to all of this and it starts with some apparent confusion because you claim that this is an issue about collateral estoppel but it's pretty clear from the opinion that the district court was looking at judicial stuff i don't think that i think the court absolutely misconstrued the stumble the court was applying the court's cites yeomen against the commonwealth i think you're missing the import of my point whether the court is right or wrong is a question that we'll have to get to you say that he relied upon collateral estoppel yes on the face of the opinion he's using judicial astop he or she she might might be incorrect might be incorrect but you seem to be attributing  different doctor and to judge caldwell than the one that she actually used i don't think so judge and let me let me explain why the door to you're not moving off of that what are you know i'm not the judge the judge in the opinion what section twenty seven of the restatement of judgment said is but what she does is say that somehow because dr grice litigated the issue of whether he entered into a stipulation that that works you can be your precluded when she should have said that the issue is whether or not he stipulated to the actions brought the charges brought against him in the madison district court and the question here is he if he made that  something else is simply wrong there are two questions here at the least it seems to me one is did he actually stipulate and that's already been litigated up through the state court system and they found that he did stipulate so unless you get some sort of theory and i don't see where we revisit that no so what what is the basis upon which well i guess the way to phrase this is is there an element of your of any of your section one thousand nine hundred three claims that require you to establish probable cause certainly he's already said he's already stipulated to probable cause so just tell us a simply what's that what's the theory then that you can still litigate something that requires probable cause in federal court when you've already litigated it in state court and you lost you haven't litigated you haven't litigated whether or not the issues raised in the madison dis  court were he was guilty of any of that has not been litigated the questions to which he may have stipulated to probable cause were the issues th the there isn't i mean she never uses that term she never uses that term now the counsel for the for the apple lees have and they've raised it however and they raise it in this idea that in this case changed his mind with respect to that stipulation as to probable cause however he has systematically constantly always maintained he never entered into it and for purposes of argument here we're saying he did but what it means here after your money against the commonwealth if you cannot use it to preclude these cases these are these issues because nothing was actually litigated and nothing was actually decided  this goes to with respect to the fourth amendment claims of dr grice just caldwell dismissed his fourth amendment claims based upon the fact that he somehow entered into a stipulation this or probable cause and as i said in my in the brief is that there is one case you can cite to resolve that whole issue and that's herring against proces which should justice thurgood marshall decided where are the proces was pled guilty to possession of drug paraphernalia mr brown let me interrupt you yes as i think we're getting a little far afield over judicial stop when i did remember rain and then it goes on to discuss judicial stop collateral estoppel is the issue of whether he can relate a gate the question of whether he stipulated as to probable cause he did  any and he's lost on that in state court so then you go on to figure out what's the effect of that you switched then from collateral stoppel to the question of whether the effect of that means you then lose on judicial stuff would be the they have different elements so i'm trying to ask you about judicial stoppel you do you indicate well that it was that was not even it issue here which it clearly was and then you launch off into collateral stop to pull it up faster than i i was and am but i took it to mean that when you in one form again some benefit by saying one thing you can't in another you're now stuck with the idea because of collateral estoppel you're stuck with the with having with a determination that you indeed agreed that there was probable and you gain something from that presumably and now over here you in order to succeed you have to say there is no probable cause you can't do that because of judicial stoppel that's the thrust of her opinion my first question extensive discussion about whether or not he has changed his position and he has never changed his position in fact his position was on march fourteenth two thousand twelve when he reappeared before the madison district court and they asked him have you complied with everything he says no i did not stipulate to probable cause and i will not that's in the madison district court but you lost that in state court the question of whether he stipulated or probable cause has been determined the question of of what the impact or effect of that is what we have to sort out here but we have to figure out what doctrine it's under first and so just please go back and look at the order and i think you'll see on page nine it's judicial stoppel so if you have some say about judicial astop all it would be very useful here is whether or not the district court used the right standard of collateral estoppel or judicial stoppable she used both she used her at different stages different stages yes she's collateral and she highlighted it in her opinion of whether or not dr grice stipulated a problem caused in the madison circuit district court i think what a colleague does in his documents collateral stoppel issue put preclusion he said he is a stopped from saying that he didn't and that that wasn't probable cause in this case what flows from that is where she goes with the judicial sto assume that you're aware of the debate in the law enforcement legal community about whether somebody is stipulation or probable cause in a state criminal case to get to dispose of that should or shouldn't then preclude you from being able to protect your constitution or federal constitutional rights you know one thousand nine hundred three claim so there are cases the deal with the question of whether that's really what was intended wasn't really voluntary their whole set of factors that look at neither of you really addressed that do you have any do you have any any guidance for us on that is true but i think if you look at the decision appearing to vs dollar tree stores their county lays out the dish will stop on how it how it plays into collateral s language in your stipulation well the reason that i'm asking the question was is this was just sort of a throw away at the state court proceeding about oh and by the way i forgot something yes to stipulate to probable cause not even really clear that he that he said yes to that but assuming that he did then the question is what is the factor the import of that nobody has analyzed the district judge didn't land lies because nobody raised this question and you guys have been briefed it because i think frankly didn't occur to mr brock so should we be looking at the cases that talk about when a stipulation is to probable cause and doesn't preclude filing a section one thousand nine hundred three claim should we even go down on that path or should we just say because that's not a that's an argument that hasn't been raised we should ignore well it's it was not an argument raised by mr brown it is brief and clearly but your honor i would respectfully disagree that the district mass and district court didn't analyze this they conducted a hearing mr dr gross was the only one who testified as to whether or not he stipulated so i would disagree with historic way argue county court didn't didn't address the question do or not do but the medicine serves the district court certainly found that he made a voluntary stipulation that he appealed to the manison circuit court they agreed we get that there's no question about whether he did it's already been you know the concept of a court can can this court can look at certain different legal theories but i believe if you look at it both opinions by judge caldwell she analyze this properly she analyzed it under a collateral estoppel theory of whether or not dr grice with regard to his claims stipulated probable cause and what that causes is a snowball effect of losing certain rights to later contest abuse of process false arrest malicious prosecution illegal search those those things do fall by the wayside because if you don't if you do have probable cause that it's an  down or she fell however it was you had a frail and admittedly a frail seventy nine year old woman laying on the floor paramedics were called by deputy allen to tend to her that's an objective fact and he went into this residence with those paramedics that's what this crisis or said in her deposition and he did a limited a very limited limited protective sweep of this this house his house is a small house the door opens up into the living room there is a cased opening that goes into the news a video all this that in the record you can see how small and what if what a confined area we're talking about that he looked into and i will say this in our brief in response to mr mr brown's brief this time  other drawers and all and all that that that there's no record citation or any proof that would support that count as of a search was done what he did was he looked he walked into a cased opening looked  or he claims he didn't do a search but if you if you look at it from that from the light most favorable to the plaintiff what he did was a very limited search just to make sure that he was protected paramedics protected ms rice was protected he didn't know he was he was called out the shots fired situation in the middle of the night he didn't know if there's other people in this house which is they don't even make that allegation that they told him there was nobody else in the house they don't make that there's nothing in the record to support that he did a very limited search and consequently all the other aspects like negligent hiring and training supervision the other claims have six more minutes i don't mean to be live flippin or in any manner at all or nothing to take this seriously but back time i think that i think that  collateral estoppel as to whether or not he whether or not only he stipulated probably cause and what happens to his the fact that what happens if if you do that if you do stipulate to that and in trying to decide in trying to argue in a malpractise going that they had something else you're bound to determine to use your six minutes only oh no sir i'll process are using your six minutes by and by talking to us about the case we just heard your honors are in my in my reply beginning at page three through i think it's five or six  reference the situation with respect to the legibly making different statements but i want to i want to emphasize in this that dr gripes never stipulated to probable cause work no matter what this the courts may have found  the full faith and credit clause that oh no no no i'm not saying that what i'm saying is that in this case in this case we've got to look a little deeper in terms of what we do to protect a man's rights like this mr brown limit let me see if i can help you out  e truly trying to help collateral estoppel which you are focused on deals with the question of did he enter into a stipulation and whether you like it or not he did now you then want to go on to say that the claim isn't barred by collateral estoppel because under that doctrine there wasn't a determination about these other issues you're right nobody's arguing that the effect of that stipulation mean you you you you can't you can't stipulate to probable cause and lose your constitutional rights and under nine hundred eighty three action i'm like you explicitly agree to it while you absolutely  in this case because it was all done orally the court could have had him enter into a diversion agreement where it would have waived his rights he did not it was all done orally and it was confusing where do we find a case that addresses whether something has to be orally or in writing or whether the state court could have done something differently within its sovereign powers to is or a case that deals with that i don't know of a case that deals with that judge but i do know that in a circumstance like this dr grice became a victim