morning your honor sir marcel on behalf of appellants i would like to reserve five minutes for a bottle please this is a case that this is an interlocutory appeal from a denial of qualified immunity the appeal is based soley on the nd prong of qualified immunity whether the law was clearly established at the time of the incident deputy block who shot mr kendrick and according to the district court the district court faced its denial qualify the munity on the statement that shooting an individual with his arms generality it's like saying that excessive force lightly it's the th amendment the fact that somebody is standing with his arms outstretched this not tell you enough about what that person was doing to put a reasonable person this obviously if all the person was doing is holding his arms outstretched that would be a th amendment violation to shoot them but you have to consider the totality of circumstances in this case what were the undisputed facts think that by the version of facts accepted by the court in george was a had an elderly man and one hand on his walker and the other hand he held the pistol which was pointed straight down those are not the fact this case the facts of this case that they're not that far from the facts of this case they're pretty far a pistol is a is a gun that's not capable of doing that that much damage and we have a guy who's elderly and holding a walker in this case we have a robust younger man who's holding a shotgun and it's already threatened to shoot someone at least with what the deputy has been told that's a difference of the facts well i'm with you the supreme court's been pretty clear in the sense the supreme court has been clear that we need to find cases that are on point however it does take me as a person you know pretty carefully to say it has to be the exact same weapon and the same  so i mean even for someone who agrees that qualified immunity has been overextended i think or has is not being granted liberal enough i think your argument is is is is pretty tough  on on that claim i mean i there was no there was i don't even see any evidence even disputed evidence that he was threatening you know threaten the deputy he had not put down the of undisputed facts is the deputy miller that this man just threatened to shoot someone that this man had a shotgun in this hand and that this man ignored commands to put the gun down t circumstances in this case and you won't find george you know george you won't find a case that has that level of humor you really want to and immunize officers who shoot when there's been no threat there's just a holding of the gun and if we fuse all to you in the circumstances you do you don't have to all you have to do is find that there's no clearly established persuasive consensus of authority that says under these circumstances that it's a constitutional violation because remember this has to do with know this whether a reasonable person is all notice that this conduct my lates the constitution if you're a deputy who's looking at the guy with a shotgun and you know have to make a ruling that this is constitutional conduct all he would have to do is make a ruling that there's no clearly established law that put people on motive then the next case is going to say he wasn't in the same position so therefore well may be  just you know it doesn't have to be public you didn't really have that here either well super one of the you know you want to reserve five minutes but one of the questions i do have here the detention does seem particularly problematic and  i guess on the other hand well it's problematic i think it's also each of the seven defendants should be treated differently and i don't feel like we should all you know be in there necessarily and i don't know how much you can address that in the next minute well it's not that hard to do because the we know with each of them then you know here's a here's a woman who's sitting out on the grass on a just watch her husband being later in the in the cruiser well and then and then take her down to the police station no evidence of well an interrogator for hours interrogate listen to the tape listen to the audi the interview in freetown half hours you know it's not a it's not this is not anything it's as is adversary as even a deposition but what was the basis for them to hold or for over seven hours i mean i can't you find a case remotely close t hat would permit such conduct which you won't find is a case that says that officers can be liable where the subject where the person being interviewed hasn't expressed some desire not to be interviewed or to be somewhere else now in this case the only evidence you have that mrs kendrick didn't want to be interviewed or wanted to be somewhere else is she has at several points i'd like to go back home now she couldn't go back home because a search warrant was being executed at home so she couldn't go back into the house she could have men released certainly and if she had asked to be released she would have been released and there's been testimony to that effect in the record and i mean this is behavior  officers it's quite an aberration on that may be one reason why you don't have to have cases that you know i don't see anything operational about wanting to interview a witness to a fresh home aside  i think you're right they could interview her they put her in a room for four hours before she was interviewed then officer then the detectives barnes and helen came in after she'd already been detained for four hours and interviewed her for two and that's my analysis of the facts here am i way off base the question is not whether she was detained or even whether she was seized the question is whether she was unreadable the seas unreasonably seized and you don't have any but you know what i think it was unreasonable to keep her for seven hours look at the lincoln case from the th circuit that was a case where the witness was actually initially put in handcuffs and that's the case from just last year where the court of appeal how long was she detained i didn't see you know this isn't the supreme court has never said how long you can keep somebody under those circumstances all we know in this case are reasonable we have to we have to agree from this case that as soon as she asked the  barnes you know you know how long do i have to stay there explain that we're not keeping you here you can leave any time you want and her daughter came and picked her up ok you asked for five minutes should you want to reserve the remainder o ahead before about separating these different officers and your only argument in the district court for qualified immunity for the officers who sees cynthia was that none of them told her she was not free to leave now you make specific arguments for each officer so why haven't you forfeited that his arguments by not letting the district court sort it out well this court certainly you know we always want the district court to look at each individual individual you know i'm somewhat you know it gets frustrating for me because a full disclosure i was a trial attorney in maxwell which was the case that the this is all based on and i know  each in if you look at my if you look at the point of origin is in support of summary judgment you see where it didn't go for each individual it specifically said with each individual did in that specifically said what reasons we believe the court does not have jurisdiction st is as opposing counsel mentioned this is an interlocutory appeal subject to the collateral order doctrine a very narrow exception to the final judgment rule which only gives rise to a very narrow jurisdiction for appellate review it does not extend to two determinations of whether or not there are disputed issues disputed  material fact as a precondition of bringing an appeal like this the appellant have to assume the facts in the light most favorable to plaintiffs and have to draw all reasonable inferences in the plaintiff favor this court applied that principle in a recent case magics where they said an appellant had failed to present the facts in a light most favorable to plaintiff and they said that they had forfeited the right to make a legal argument based on those facts and therefore they did not have jurisdiction to hear the appeal this case is repeated replete with the defense counsel arguing their version of facts cherry picking facts and lapsing into disputing sufficiency of the evidence arguing why plaintiff stacks and you're saying magic's precludes us from going in and just applying the facts in the light most favorable to the plaintiff here and determining the legal questions yes that was the exact issue in magic's and the court said this court said we're not going to comb the record for appellant and make their manufacture their arguments for them they didn't make their argument based on the facts in the light most favorable to plaintiffs as to why they're entitled qualified immunity therefore they forfeited the right to make that legal argument there is no jurisdiction secondly at least in so far as the excessive force claim is concerned the district court found this portion of the appeal to be frivolous and under this court's holdings defines a frivolous appeal as baseless or so unfounded as to not even invoke appellate jurisdiction so for those two reasons we don't it hasn't been properly preserved as to the individual defendants but that would be our st argument your honor defense as is the court correctly noted in their m s j briefing lumped the defendants together and that's how the district court addressed that in order but secondly we believe that you know the district court for purposes of this court president did give individual eyes attention to each of these defendants it's just this is a case where the facts aren't really that complicated we you know well if that's the case then why can't we parse through the record because that i think some of these defense as i look at it some of these defendants probably should be kept in the case and some should and i mean deputy nori for example he drove her to the police station i'm not entirely sure that that makes him liable for the seven hour detention which seems to be the largest basis so could you address that is why why he should be kept in the case as responsible for the full seven hour detention show your honor and i think i just need to to reef reframe the issue before i answer the court's question if that's all right what's at issue here is whether or not these officers were on notice by a body of relevant case law particularly as from the facts of this case that their conduct with regard to mr kendrick violated the th amendment i understood but that's that's sort of my question is what is their conduct as opposed to other officers conduct well at the time of this incident all of these deputies were on notice of the maxwell case this court's ruling in maxwell which found five hour investigatory witness detention where they detained the family members at their house and one of the individuals was allowed to freely walk around the driveway that was unreasonable unconstitutional i'm i think i'm agreeing with you so i'm sort of asking why tell me why deputy nori should be bound by that he wasn't involved in any kind of a detention that was five hours long at all at least as far as i can tell he drove her to the police station well no the deputy nor he was he was there for the shooting so he knew that the only basis for detaining was because she was a witness because she was a witness and he was  on notice of maxwell saying that you know investigatory witness attentions may be permissible so you need to be minimally intrusive he then took her at that point and he's the one that placed her in the s u v with the doors locked and the windows up for twenty minutes yes and then he also accompanied deputy call as to the station so he knew at the time they were driving into the station he was in the car with them that they were going to the station she's very foot the only basis was that she had witnessed the shooting so each of these officers were on notice i mean you know this is this is a small substation they were all listening to the radio this incident was on both channels their radio they all know knew what had happened they all knew that the only reason she was being detained is because she was a witness so based on maxwell they had notice taking her even locking her in the police vehicle solely on the basis that she's a witness goes beyond the minimally intrusive notice that they would have gotten from you not that i mean is that clearly established on her back so  i think that's an open question to be honest with you i thought what where i'm hung up is on the detention and i just like to see what who is connected to the i just like a straight answer for who is connected to the detention and who's not because i mean yes maybe we accept your argument that put her in the police vehicle is enough if we do it seems like almost all these officers come in but let's say that we find it's the extended nature of the detention who falls within that action and who doesn't i mean for example detectives are barnes and helen it seems to me do because they came in after the she'd been detained for four hours and then took two and a half hours to to to to interview her i don't know why that couldn't have been done you know at the beginning so on the other on the on the other end of the spectrum we have deputy mayor nor who just put her in the vehicle for twenty minutes and drove her to the station where do these others break out on you know some deputy worthington said guarded her for hours is that correct he guarded or i mean what was his involvement  yes your honor and i think what i'll what i can do is i can i can rank these deputies i think that would be helpful level of involvement but i think you have to recognize that if we take the court's concern to its logical conclusion if you have an incident which is typical in modern law enforcement you've got a number of individuals that are involved at various points so well and naturally those who come in at the latter part of it are going to have more culpability i mean i think that the detectives barnes and helen particularly should have been a little more responsive given that they knew that they were stepping in four hours into the situation sure so  i would start with with that the tech does barnes and you know and they they knew at that point they had interviewed everybody else they'd already interviewed nori and block and everybody else so they knew exactly what was going on they knew that she had been detained solely because she was a witness deputy worthington was the one that was guarding this kendrick just prior to them coming and he had his deposition testified that deputy hill and barnes then took custody of her and he believed she was in custody at that point they then went on to question her at length not even about the shooting but about you know matters such as you know mr and mrs kendrick sex life and stuff like that so i think that they would be the most culpable under maxwell secondly i do think deputy nori initially putting her in that locked vehicle walking away and leaving her and then accompanying them to the station he knew as he was going to the station the only reach the only reason she's coming is because she was a witness that well she wasn't just a witness she was the sole with this and that does not change the analysis somewhat that i mean look i don't it is hard clearly here's somebody who's just seen their husband at the there is a need to maintain the only witness to the incident well and i think this was addressed in davis v mississippi the supreme court case that i believe the maxwell court cites as well that says you know officers are free to ask witnesses to an open crime for information but they certainly aren't allowed to compel them to answer so you know they certainly could have asked her and if she had consented that would have been fine but the problem is she didn't she it was obvious that she didn't consent and she said as much i want to be we're taking her to the station to be questioned to interrogate they all knew that so this was clearly an investigative witness detention and this goes far beyond minimally intrusive what was allowed in maxwell and even the case that maxwell cites the illinois supreme court case involving the roadblock so to continue with with the deputy that you will let me ask lieutenant brown lisc she instructed the you know the guard at the room was she also responsible for her being detained would would lieutenant brown liz could had the authority to say we're going to let her go right now yes she was the patrol lieutenant she responded with an eye shortly after the shooting with you know ten to twenty minutes at the time she made that call she was the ranking law enforcement officer on scene she's the one that called and said deputy worthington i want you to go and relieve colace keep her in the interrogation room until barnes and helen can get there to interview involved at all after that that's his only involvement in the detention as far as we're aware but he at the time he made that statement he was the ranking officer on scene where he was he didn't he tell them to take her there for questioning yes so so we i guess that's my point is i just want to be clear about what we're being asked to decide the we've got the seven hour detention and i think those involved in the detention fall into that there's a separate question as to whether just detaining her at all and asking her any questions  would be enough to keep them in the case and i mean sergeant lopez didn't say taker and you know keeper of the way for several hours or some like that you know so it's just a i'm just trying to get a flavor for that and then call us how long did he actually guard her in detention so call us was responsible for her off the top of my head between a half an hour an hour but deputy worthington i think is particularly culpable with regard to her u ask questions sure and with regard to the individual lies analysis of qualified immunity we believe that the district court had done that it's essentially the same analysis as to each so on that respect i do think that the court has everything in front of it it his actions violated mr kendricks th amendment right to be free from excessive force and whether or not these other deputies were on notice that their actions with regard to miss kindred violated her th amendment right against unreasonable seizures  the clearly established law in our in our answering brief i think establishes as the district court found in this case the answer is yes we would ask that the court deny these officers qualified immunity and affirmed the district court's ruling or order in that respect and unless the court doesn't have any other questions or only chris the main or my time i think you document seventy dash one at pages nine of thirty one in ten of thirty one you'll finally got the individuals in the in our motion for summary judgment the individuals were separately described as far as a separate conduct disconcer it seems to me that once that the court the district court made the determination that there are sufficient this buttes of material facts here that i'm i'm not going to grant qualified immunity then why why not just let this case go to trial and let the jury sort out who was involved then and who is intitled to be exonerate is we have an open legal question here the legal question is can there be liability or is there clearly established authority where the person being questioned this is not object to being questioned your honor judge schroeder shaking your head but remember that in the maxwell case the facts of that case where that the maxwells asked to go to the hospital to be with their daughter who had just been shot they all she wanted to do she wanted to go back into the house to take care of her dogs ok that's if i urge you very strongly to read the record read all of the testimony in the record and you'll see this if you want to go back in the house and  take care of dogs i told her we're going to take care of your dogs for you but you can't go back into the house they're doing a search warrant which as we all know you'll be nina you could actually handcuff somebody at the if you're searching their house they certainly didn't do anything like that so the the kendrick versus county of san diego case is submitted and we will next hear argument and actually lauren watts versus christine maroney case number eighteen dash fifty five