issues the seizure of the dogs in this case a due process claim and a false arrest claim all of the issues that are involved in this case are legal issues and are amenable to jurisdiction appeal as of right now with respect to the  of the dogs in this case the warrant authorized the seizure of all the animals in this case and what's interesting is although the plaintiff argues that the the seizure of the dogs was improper and there was sufficient probable cause to issue the warrant with respect to the the the just a court also held that even ignoring the challenge statements that the plaintiff had raised there was sufficient probable cause regardless given them a stated condition of the horses in this case now plaintiff argues that this court said there was a genuine issue as to whether mcdowell's affidavit was misleading i believe that page nine of the opinion the court held that misleading but i think the court held that they that it wasn't i think that what the court also said the district in this case also said that even if you ignore the challenge statements the there was sufficient probable cause to seize i most based upon the initiator condition the roses now with respect to the dogs the plaintiff argues that there was food on the property there were several buildings on the property and there was no food readily available or noticeable that's demonstrated by the photographs that are part of the record showing that the dogs were in small cages there were empty bowls on top of the cage not accessible to the dogs and the water that was on the property was frozen and i think what is really important here too is that if there's food on the property it doesn't do the animals any good if the caretaker feeding it to and there was hand the property get the horses were still in macy ated they were so thin that their hips and ribs were protruding and they were losing hair one had a noticeably open wound and they were so starved they were  g bark off the trees so when you have a situation like this qualified immunity is subjectively reasonable under these circumstances to seize all of the animals yeah but i mean we have to view all these facts and inference is in the light most favorable to your opponent and i mean i think these officers had been to the property before and there was this one big bin and the dog food in it right and couldn't one infer that the officers knew that there was dog food in in the one bin well i think that would be speculative and you know that that's kind of what we do when viewed the facts in this manner we do but we also  from the perspective of the officer on the scene and it's sort of a can to a child neglect case you would not go in a c p a worker would not go into a home and see one neglected child that was obviously neglected and three others that seemed ok and only take the one child you would take all of the chill i don't know i mean that sounds like a different and probably a difficult case and sometimes you know but i mean the point is it is at the moment doesn't mean that the dogs weren't ever getting fed you know i mean we don't feed animals twenty all the time necessarily that's true but but just the so that there was food for the horses they were still component if if we put aside the issue of whether a constitutional violation occurred the other component is whether the law was clearly established with respect to the pick particularize facts in this case now plaintiff has not produced any case law suggesting that the officers were precluded as a matter of law based upon authority that was out there that they could not seize the dogs under these such the under these circumstances and in fact we submitted case law and our brief as well i think there's mclendon and a few other of the cases and they say that even if the other animal seemed fine given the fact that there were some animal animals who were obviously neglected it's proper to seize all of them so given that type of authority that's out there and you have an animal control officer on the scene what is he to do to the objectively reasonable thing especially with no clearly established law saying anything to the contrary is to take all the animals so we also have here a state law claim for conversion process we're talking about the animals having been seized yes shouldn't we remain in the claim for further fact finding in terms of whether the statute was followed terms of the way in which the animals were sold or a place where doctrine adopted out yes i respected that process claim the plaintiff hassett through that she had a property right in the animals in this case and at the time the animals were adopted out she was under an order of probation forbidding her to control reside with any animals and in fact she testified at a probation violation hearing under oath and under the penalty of perjury that at the time these animals were adopted out she had not owned controlled or resided with any and they hadn't even had contact with any animals so as our position that she should be judicially a staffer now claiming when she testified in one proceedings to avoid criminal sanctions and jail time to turn around in this proceeding and say i had an interest in the dogs i have i have a due process property right so there is no constitutional violation premised upon that and that's also our position  that there is no clearly established law that was presented by the plaintiff in this case that director john he could not rely on that order of probation to adopt out the dogs but it's not really clear whether irrespective of the the record clear in terms of well the record is clear that she was forbidden to own that and then but there's an argument between her and her whether she had the dogs whether they were his dogs he had testified at one point that they were his dogs that he backtrack that said that they weren't so there would you know the judge found that if you if you delve into that quagmire that there might be a question of fact but our position as that's not part of the calculus with respect to the qualified immunity appeal  and then with respect to the conversion claim that your honor mentioned if the court declines jurisdiction over that state law claim we would be comfortable having the every man dead and perhaps dealt with in state court because it would then be our position that the analysis with respect to due process would likely collateral stop an argument over such a conversion in the same arguments i make into the court would apply to that claim on and state court lastly i want to quickly address the false arrest claim planed admittedly told director john jessica that plaintiff had given him a poppy while she was under an order of the probation forbidding her to have any contact with animals plaintiff tries to get around that by saying that director to make that statement first of all there's no constitutional violation in this case with respect to that claim because the evidence that they prospered and that claim does not rise to the level of conversion is that on as an understood in terms of a constitutional violation and facts plaintiff on appeal barely argues that issue but going beyond that there's the plan to present a no clearly established law that the acts attributed to that that loud sure was lying to him coercion is really just a false trail here i mean it boils down did he did he know that he was being lied to i mean he was inviting and in their fury i guess in the district court said a jury could so far but there is no evidence to support that your honor you know there's not much we can do for you in in this interlocutory appeal with respect to the district court judgment about whether a genuine issue exists as to a certain fact i understand where you're coming from your honor i would i would suggest that with respect to state again sidestepping the  violation of the a moment clearly stab going with a clearly established component of qualified immunity that they have presented no case law whatsoever to suggest that if a witness tells someone that this person did that and there's evidence in front of the officers and the poppy there and that officer knows that the plaintiff had given other animals this person before that he's required to know why not do anything about it ok applies to the seizure of the dogs the district court made that finding about officer mcdowell's statement and she simply did not feel that it rose to the level of a false would it really doesn't appear to me that she went any further in addressing it or giving any guidance as to how that impacted the horses i'm sorry the dogs because she wasn't asked to that was the problem in the in the district court they argued the statute has the authority so the district judge wasn't really asked to make a definitive finding for us on whether the warrant as to the horses i'm sorry i keep mixing them up as to the dogs was falls that was in relationship to the horses so there's a there's a problem there with created by the point of a by the defendants the appellant's in arguing one theory throughout discovery and at the district court level and now coming here and arguing that the warrant justified cesar so we really don't have a definitive issue ruling from the district judge as to that fall so even though she made that finding it's our position that that really applied to the analysis of the horses and obviously i need to address jurisdiction are the position of the appellee is that especially as to the seizure of the dogs because they keep arguing standing and they keep arguing it from their point of view on the facts or the disputed facts and the false arrest that we and the disposition of the dogs the district judge made adequate examples and her decision as to where she felt that these factual disputes need to be resolved first obviously the review is do novo and if you disagree you disagree but it seemed to me that her decisions were rational it seems to me that she is focusing not on extraneous facts but on the core facts to the to the claims as to whether a constitutional violation occurred another interesting wasn't it wasn't it to make dale and not gretzky that submitted the war you did yes but is there a case out there is there something that you can point to that would where you would have a warrant where you have a warrant submitted by or undertaken by dale i don't understand or i have not seen cases that would support using that against red ski or warrant in which he did not do anything improper in the creation and i asked him at his deposition whether he reviewed that affidavit in his capacity as the boss of the supervisor of mr mcdowell and his answer was i don't recall but my point would be he made and this is something that i think judge cole brought up he made several trips out there he knew more about this relationship and he had that history with scholtz for a long time and then he goes back and he helps with the the gathering of the dogs the gathering of the horses and loading them up and so he participates in the execution of the war i understand your point and we have it's very fan but my point is and again i understand under ninety three just because he is a supervisor does not give him liability i fully appreciate that but his participation in going out there with mr mcdowell making the initial observations going back to execute the search warrant plus his long history with michelle's i think is enough to get us to the jury now again whether that carries the day or not i think that that participation is enough of his self involvement even if someone else submitted the affidavit in the war with a sheet yes on someone else's affidavit yes and  who executes an appropriately obtained warrant who has prior history with know and just the execution he has to participate more somewhere in the development of it and i can't give you the  cite i think it's actually in my it's and that's not in this brief but it was a case that i had in this area in this court i don't none of you were on the panel but it's wheeler versus the city of lansing and i think that decision came out in two thousand and eleven in that case we had two officers from two different jurisdictions the junior officer and the ex in the dish jurisdiction where the search occurred was the affiant but the officer in the other jurisdiction was more experienced and he brought most of the information to the affiant and the two of them went together and sat down with the prosecutor when the warrant was issued and he had a lot of information about the specificity that should have been in the warrant for the particular as ation requirement that he didn't disclose so my question mr bostic is to overcome qualified immunity as a defen deliberate false hood or showed reckless disregard for the truth in terms of providing information and support of the search warrant and that any omitted or false information with material to the determination of probable cause and i don't know if that is a requirement is there anything in the record that would show that sort of deliberate indifference and intent to to commit fr reckless disregard for the as to going to gretzky nothing other than what i've already said there's an estimate now as to mcdowell we have some huge and very material omissions and mr lobster's deposition he specified all of the things that he told him while he was there before he went and got him warm he told him about the bands of dog food he told him about the other things that were in the barn there were some sort of hard to shed i mean there was some sort of i forget what the column some sort of treats for the horses there were was hay there was a delivery of hay on the way and he specifically told them i've already gone in and taken care of the dogs and i'm coming out now to take care of the horses and they were there in the morning that and i can appeal judge roberts is a decision for her finding obviously under the circumstances but when you think about all of those huge omissions and again your honor we weren't arguing the warrant as a justification for caesar the dogs in front of judge roberts we were arguing the statute so but i think those material omissions create  necessary to get me to that finding that you're you're asking about did did i mean did ginger risky did he not make a call to report a problem with the horses is that you know i know the record goes back and forth there was an anonymous call there was someone who clearly called but i thought the testimony in the record was that he actually  you that he actually made a call right is that not in the record he said and mind correct now it's in mr loudspeakers deposition and i believe gander gretzky eventually admitted it during his deposition that allowed her was the caller so that's true you know i mean i'm just struggling with you saying that laughter is saying there's all this food here i'm doing all this i'm taking care of them then why not two days earlier or one day earlier if you make a call and say that they were abused animals at this location and if you and i believe our side of this and my brief but mr loud sure denied that during that alleged anonymous call he mentioned the condition of the animals what he was referring to was the pens for the horses and the fact that they didn't have a cover a shelter for them to stand under in the wintertime mr the animals mr labs or deny that that topic was part of a call but he doesn't deny calling and entering a complaint he admitted calling and he only admitted that a portion of his complaint addressed the lack of a of a cover of a shelter for saddam to stand on there's no doubt they get aggressive in that del they go out of the property did have first hand observations of the horses  that morning that morning and i believe mr going to gretzky said that the his last previous visit was about two months earlier and then there were some in the fall of the previous year two thousand and eight and i must disagree with my council opponent here about they had been out there multiple times for problems those other trips were because my client had asked them to come out and work with her and getting a kennel license established so those visits against an officer who didn't arrest the planning to and didn't make the sworn statement to obtain the affidavit how can gender risky be guilty of false arrest if he didn't like the he knew that there was no poppy there in the summer of two thousand and nine and he essentially threatened barry to say that and then he also pressured  sr ms crane and threatened her but i would ask you to bear in mind the relationship that mr going to gretzky had fostered and cultivated over those three months would restore law but i'm i'm asking about the actual calls of action but for false arrest don't if you're going to accuse someone of false arrest don't they have to have participated in don't they have to have sworn at the affidavit or actually made the arrest in order to be guilty of false arrest i don't want to say the case name off the top of my head am i get it wrong but i believe it's a case out of the circuit if you cause the arrest it doesn't have to be causing it by sworn affidavit or under oath case law is if you cause the arrest he admitted during his deposition that he sent the report that she had been in contact with an animal to her probation officer and the other county knowing that that would cause i warrant to be issued for her arrest because she had only served to the jail time in april and was done and he now had to do something to take care of you know the essential to cover himself for getting rid of her animals the probation officer testified at the probation hearing that the only information she had that caused her to generate the pick up order was the report from mr going to gretzky so it's our position that you there's multiple ways to cause an arrest and that's one of them and he knew it was false when he made it and he existentially created it and a long with that same thought that i don't really know how to plug it in here but can do or gretzky as you may recall and mr lobster actually testified to this he befriended mr lobster and then about the same time he sent that report in he took mr lobster to his probation officer to be arrested on the warrant begin to grasp he had cause to happen in clara county so the timing was such that he ended up having them both in jail at almost the same time one on a probation violation and the other on the warrant that he generated one last comment and that is this is stop all issue the timing doesn't fit she was out of jail she was at the probation violation and she had said there's no issue with my animals because they've all been given away so her statement was false the defendants in this case actually said that the criminal proceedings they were her animals so they are stopped from now saying they're not  arguments that plaintiff made with respect to the affidavit no food or water available for any of the animals on the property whether mcdowell had extensive training and all aspects of animal control and one horse was in the worst condition disposition was raised in the section preceeding the argument as to the dogs i think trial counsel just didn't think he had to repeat it what he did was he argued additional arguments with respect to the dog and i want to address a red herring with the statute the statute requires seizure of all animals when under arrest is made however it does not preclude seizure of all animals in our effort to arrest us now me it's mandatory to seize all but it doesn't forbid the officers from that seizing animals just because an arrest is not made at that moment so that does nothing to preclude the seizure of the dogs in this case again there's no clearly established law precluding the seizure of all of the animals in this case given the  emaciated condition of the horses and in fact we presented case law suggested that that's the reasonable and proper thing to do so it's our position that qualified immunity show apply to the defendants in this case with respect to the seizure of the dogs the horses were not starved and one day there can't be an argument that i just hadn't gotten to him today this was a long pattern of abuse neglect with respect to the false arrest claim there was a puppy i don't think there's any dispute that there was a puppy that a puppy the what lobster says when he's questioned about this coercion or how his it is the accusation that john just knew he was lying as well i told him what i thought he wanted to hear there's no evidence that he told him to lie there is no evidence that josephine knew he was lying that's just a suggestion the other things that loves her plaintiff relies on with respect to lope sure was that the judge told luxury he could be responsible to and that's true under the statute it's not just an owner who can be responsible caretaker who neglects animals can be criminally responsible as well there's nothing wrong intimidation could have caused the us this is something that occurred after so that just doesn't make sense in terms of the timing lastly with respect to judicial stoppel the timing and the order is important because i knew that plaintiff was under an order of probation forbidding her from having any contact with animals that's why at that point he felt it was proper to adopt out the animals there should be qualified immunity for that there's no clearly established just in the contrary plaintiff in their brief relied on this minch case and the difference in mention is that the defendant there had owned or possess the firearms lawfully and in this case playin testified at her probation violation hearing that back at the time of the adoption she had no interest in these animals and why it a stops the plaintiff and not the defendants in this case is when you look at the elements of judicial st briefed in our brief you'll see that the person that's being a stop has had to have convinced the court in the prior case of their position and she did the probation violation charge and she didn't go to jail those elements are mad and she should be just really stopped from doing a one hundred now and claiming an interest and the animals to have a financial windfall when she testified under oath before that she had no interest to avoid