edge wintered are you did you want to say something just to make sure we're able to hear you at the start of this argument if can you hear me yes yes we're set to go good to go thank you judge livingston my name is peter come octavo ole on behalf of the appellant's that any invasion of the home by even a fraction of an inch is per se unreasonable unless officers have probable cause and either obtain a warrant or confront existence either it consists of more than the mere possibility of danger yet on page thirty eight of the special appendix the district court awarded lieutenant which only qualified immunity for his warrantless forcible entry into the batf home because it could not find a case that identified that addressed the constitutionality of a welfare check conducted in a location at the request of adult protective services that decision should be reversed for two reasons first officers cannot sidestep clearly established law by giving novel names to constitutional violations of the fourth amendment and second lieutenant but shelley lacked the probable cause in extant circumstances necessary to enter a home in the absence of a first point officers cannot sidestep clearly established law by giving novel names in this case a welfare check to what is otherwise a clear constitutional violation i why wasn't this an objective why wasn't there and objectively reasonable basis here to believe that it dealt inside inside the home might need help objective reasonable basis is language straight from brigham city that's correct your honor and bring him city the court made it very clear as it has in multiple cases before and since that the object of reasonableness turns on what the officer knew at the time and the circumstances that he confronted at the home if one takes a look at the search and what the officer knew for example the first thing that needs to be said is that there's a very clear factual dispute about what lieutenant shelley knew he claims repeatedly in his brief that he knew that there was a possibility that fred punch hero was in danger he references dehydration and lethargy and failure to thrive in his brief and yet at the evidence most favorable to the baths which is the controlling evidence at this procedural posture is that when lieutenant bitterly entered the home he told joseph about i know only that adult protective services asked me to make a welfare check he stated specifically he did not know the allegations he couldn't share them with the bats because he didn't know them at the very least this produces a material question of fact and preclude summary judgment on that basis moreover if one takes a look at even if one were to consider the facts most favorable arguably exigent circumstances thought there might be someone who was distress judge chin they are not the reason is because this court has held repeatedly in tyranny versus davidson and in kerman vs city of new york that the mere possibility of danger is not enough to enter a home the test is whether there is a probability of danger and if one takes a look at the allegations to what he had heard there was also some concern because the grandson would let him in which seemed to raise questions in his mind as to whether they're they might be hiding something and he wanted to check it's not that unreasonable your honor this court has what i would say to that is that if one takes a look at the emergency aid cases that this court and the supreme court have looked at in no case is the mere with a crawl into a home without something else constitute an existent circumstance to close this case in the record that deals with that deano where the suspect was there was a police officer at the door the suspect opened the door the officer said we have a report that there is cocaine and without another word the the suspect immediately re enters back into the home and this court held in that case that that action that's different i mean i get evidence but here the officer an objective officer has to report that there is an elderly gentleman and sign at risk and the grandson doesn't want to let a man so he wants to check is that someone reasonable again judge chin that question first of all assumes that lieutenant cheli knew anything about the allegations about the individual being in the house and then again there's a material dispute a fact but even if he did even undisputed that he knew that a p s had received a call from an individual who said i have concerns about this an elderly family member and we've been unable to be in contact or see him for some period of time your honor what's undisputed is that lieutenant shelley knew that a p s had asked him to obtain a welfare check everything else is in  dispute specifically says he doesn't know anything else about any of the allegations he doesn't know that a family member called he doesn't know that there are reports that the individual had not been seen but again even if one assumes that lieutenant shelley knew those things as he's undoubtedly going to argue when  when his counsel comes up here even if he knew everything a p s knew there's not more than a mere possibility of danger the allegations themselves come in three forms first and that arrow stated that two weeks prior her husband had thought that her that his father might have been the hydrated again tierney makes it very clear the mere possibility of danger is not as sufficient eggs and see to enter a home and again we're talking about a home we're not talking about a public place or a vehicle or a hospital we're talking about a home that the probable cause requirement is necessarily higher the other important thing is that what we discovered in discovery and what lieutenant shelley discovered in discovery is that in addition to the allegations about the welfare of mr punch hero annette also disclosed that she had not been in the bat's home could not know what was going on in the bat's home and in fact had animosity towards lou and back in the social worker when we deposed her stated very clearly that that's a trigger sign for a p s that allegations that come up in a situation of animosity are more likely to be false again going to the probability which is the which is the necessary standard even if lieutenant but shelley knew everything that a p s knew the still only a mere possibility of danger i think it's telling that lieutenant the brief repeatedly refers to it as only a mere possibility of danger or a possible existence see again and again and again the test is whether there probable cause of an actual emergency and i guess i don't read brigham city to talk about probable cause and i think probably causes even mention in brigham city and it could be said to be the most recent supreme court authority on the on the subject of these types of intrusions and they talk about the objectively reasonable basis for believing that medical assistance is needed and in terms of with that articulation it seems like there was some basis and it may not be objective we reasonable given that they didn't know very much but i don't think it's probable cause my runabout that your honor i don't recall off the top of my head at brigham city addresses probable cause what i do know is that four years prior in kirk versus louisiana the supreme court held specifically that  forcible entry into a home does require the existence of both probable cause and in existence and in the absence of a warrant additionally i think it's very clear that had the court in brigham city actually addressed the probable cause issue there clearly would have been the police observed an alt from the outside in the home that was sufficient to draw blood the situation in this case is nowhere near that nowhere near anything in brigham city for that reason we durst the court to reverse thank you may have put their finger on one of the essential issues here this was not something that officer bacilli sought out the adult protective senior caseworker diane was cicero call the orchard park police department dispatcher and related a lot of information that information is recited in the record and that information is relevant to what the police department in orchard park knew maybe it was the dispatcher but the dispatcher then related to officers katie and the defendant here who sued in his individual capacity under a one thousand nine hundred three claim is is essentially told the following two weeks ago october excuse me april twelfth two thousand and twelve  the sun goes out there and notices that his father is is dehydrated why is that important because he had previously been hospitalized for dehydration and failure to thrive argument is that there's a factual question as to whether the officer knew those things and if you look at what he actually sent when he walked into the house and accept what he says that he then we can assume that he had that knowledge to respond to that argument well there are there are certain there are certain uncontroverted facts which are referenced in the record my point is this that there was a considerable found of information relative to this man's in extremis potentially condition and i don't think that's a question of fact in other words of the very day before the son went out there he was refused permission to see his dad that's on april sixteenth that's when his wife then call the senior caseworker and says i think we've got a problem and instead because they're overwhelmed and overburdened they ask the police to do it now this isn't really a law enforcement function you know we have a tendency to  fluff over other responsibilities of police officers this this city in the last twenty years to serve and to protect means a lot it's not a law enforcement function this was not a criminal thing nothing was seized nothing was searched that's not to say that the fourth amendment is not sacrosanct it is but when you go out there and you're told you the police department are told we've got a problem out there and a twenty three year old kid is then requested well we're here to do a welfare check we're not out we're not investigating criminality we're not here to search a thing we just want to see how your eighty two year old grandfather's doing and the youngster then says now already there's a heightened suspicion because officer katie who's with the silly is aware because he talked to the dispatcher and learned everything that diana cicero head advised relative to the concerns about a very serious physical and mental condition because he was suffering  as well this guy is eighty two now that situation then becomes this there in the driveway is this reasonable would you have your grampa come to the door no would you have your grampa come to the window no we just want to see how we is that's all we want to do we're not here in any law enforcement function we're here to serve and to protect that's what our responsibility is as though we were an a p s worker if they weren't but do they need a warrant you're not arguing that the entry into the home is reasonable simply because it there was no law enforcement purpose i mean that is specifically rejected by the supreme court i understand that but i'm worried i am relying on brigham city and i am relying on the other cases that i set forth and i'm also not just with respect to reasonable ness  but that was the basis for judge magistrate justice fi shows determination but the district court judge determined qualified immunity and under the litany of cases that i've does but i've cited in that point point two of the brief he certainly should be officer bacilli accorded qualified immunity under this court's decisions in a number of cases that are absolutely directly in point and i noticed that issue was not discussed so i think what district court judge duration he said was i'm not going to discuss what f did in his report and decision but i'm going to say in any event there certainly is a qualified immunity because you can't there is no proof that there was any generation of hostility by officer bacilli he was i would suggest a paragon of reason up until the point where it was necessary for him to enter the home now let's let's do the opposite he says ok we're going to walk away this guy gets sick he's hospitalized he dies don't you think some artful plaintiff's lawyer is going to someday cross examine him from a standpoint of eat your department knew that he failed to thrive they knew two weeks before that he was dehydrated the father the  failed to be admitted to see his dad the day before and are you telling me you just walked away and let this guy die you've got yourself a nine hundred eighty three case in a far different context because of the failure of the police officers to act so in a sense what you've got is a situation where qualified immunity fits the bill you don't want him to be damned if he does and damned if he doesn't but that's the quandary that presented itself for this officer when he was standin in the driveway mr and mrs bat are home they're plaintiffs in this case but they weren't even home and what you have is you have a case worker come out later nancy sullivan and she's readily admitted when the officer doesn't enter the home he does what do you spose to do he doesn't search he doesn't see these and i think this is a factor but what he does is he sees that this guy not in real good shape but he's not in need of an ambulance so to speak and that being the case under those circumstances when you look at the volume of cases that deal with the issue of qualified immunity all of which i cited and because the language of this court is far superior to mine i set forth at considerable length on pages forty and forty one the very language of this court which fits this didn't touch a thing now some people might say that looking at it from the officers point of view this kid presented a problem and that's not to say because i would never say that the fourth amendment is less than sacrosanct it absolutely is and the and i don't think officer but chile felt any different but he felt himself betwixt and between and by that i mean that he was absolutely in a situation where he couldn't come out on top now what we've got here and i dealt with it in the brief is nobody in the orchard park police department knew that the batch homeschooled their kids they didn't care that had nothing to do with this now the attorneys that got involved were those who represent the interests of those in the united states who are homeschool we have no problem with that that's not an issue in this case and it shouldn't be an issue in this case but it's one of those things where where you say to yourself you know there's a predicate here that's below the surface this guy gets sued in his own capacity he's left to stand on his own merit before this court and stand he does  please the court opposing counsel just referenced his major argument throughout the briefs which is that lieutenant chile didn't commit a search didn't season the thing and what this argument fails to grasp is that in united states versus jones decided four months warrantless entry the supreme court held that any time government officials enter a constitutionally protected area to collect information it is a search there's no doubt that lieutenant cheli entered a home a private home which is clearly constitutionally protected and is opposing counsel as argued numerous times that the sole purpose of that entry was to collect information on the health of well being of lieutenant the celli this is clearly a search regardless of lieutenant but shelley's subjective intentions are purposes in entering the bat's home opposing counsel is tried to make something of the fact that the senate is sued on his own the reason that he sued on his own and that officer katie is not sued is because when officer katie was asked to leave he did so he respected the constitutional rights of the bats lieutenant persisted even though in his own terms all he knew was that adult protective services had asked him to conduct a search reposing counsels also tried to direct this court's attention to the danger that joseph bad apparently proposed but according to lieutenant with his own deposition testimony he did not feel threatened by joseph about joe's about did not use threatening words did not place any hands on him and an opposing counsel is also referenced the fact that joseph abboud apparently erred in failing to bring his grandfather to the window and what needs to be said about that is that the reason joseph bet never brought his grandfather to the window it was because he was never given a chance lieutenant charlie asked him to bring him to the window joseph betts said please wait outside i'm going inside to make a phone call you do not have my permission to enter and rather than waiting outside lieutenant the celli follows joseph back into the home so closely that he is in the doorway i understand the record your client did not say that i i want to go inside and bring him to the window he didn't testify in discovery at all about that exchange that is correct your honor he did not but that doesn't change the fact that he was not given an opportunity