case number seventeen this one zero zero nine denis byrne a senior at all versus michael sharpe at all oral argument not to exceed fifteen minutes per side thomas love for the  officers can reach over the threshold of a home when they conduct a walk and talk to pluck someone out and arrest him without a warrant that's what happened in this case i will refer to my client is sr and his son is jr because the police were there to see jr on a personal protection order violation this was presented to officers she here is from bay city earlier that saturday morning your question in your in your brief you referenced officer start in the heading but you only refer with regards to this claim i'm not talking  malicious prosecution to officer seeress are you pursuing this against ops or seeress alone because i didn't see maybe you can point me to argument regarding officer character in terms of the entry it  my understanding that officer chart always claiming that he answered to deal with whatever officers here is was dealing with and he would not have entered in my experience handling cases like this and having even represented police officers what appears to have happened here is the added way and sr was allowed i understand what happened i'm sorry my question and i'm sorry for not being might give him a fight immunity and they have because he entered to assist another op yes and it's i think beyond dispute that if an officer struggling with someone another officer may come to his aid no matter where it is cracked they don't have to stop and watch an officer get shot and i agree with that ok so as to your other claim it seems to me that it comes down to one question and let me is so as to sierra stoneburner that six circuit case seems to make clear that the it has to be pursued correct for the officer to get qualified immunity he have to be in purs but this is not a hot pursuit case well so are you familiar with the supreme court case of santana yes or ok so what's different about santana there are several things different about santana first of all in the santana case of it that's number one it number two in c and t and mama c and t and i was standing in the threshold the court makes that crucial clear in footnote one when the when they reference how one officer testified  senior summons her husband senior comes to the door and then junior is summoned to the front door and he talks with the officers at various times it's described as perhaps two feet behind the threshold and that one point within inches of the threshold there is absolutely no question however that the officer reached in to grab him and this happened after senior turned a junior in said ok then to call your lawyer and i give you my understanding of a version of the facts and except my version is true for the minute and tell me if there's a problem officer comes to the door for an eighteen year comes to the door right we we outside or in the threshold or standing within the standing within the vestibule in oh he would not be allowed in that was referenced in united states versus morgan nine hundred eighty four case that this circuit ruled  where it specifically adapted a mag circuit holding stating at page eleven sixty six we agree with the ninth circuit that the important consideration in this type of case is the location of the arrested in and that the arresting agent that determines whether an arrest occurs within a halt right but take my version he's in the vestibule i say is under arrest and he turns to go away you're saying the officer can't reach in and grab a minister i'm saying that i'm also saying that the united states supreme court has so well in one case in kentucky versus king  not inherently incapable of giving fair in clear warning and in some instances a general constitutional rule already identified in the decision will was may apply with obvious clarity at the time they had cummings versus city of akron i mean let me ask you do you need a general principle to the way to get this case or verse or can you get it reversed on this principle because if you need a general principle in my mind you lose if you have the specific under stone burner and it progeny or it the cases before it then you have a legitimate shot then we start quibbling on how general is general and how specific  reaching in this case to come up with this stink sions on how this case is more like c in t n and then like peyton vs new york referencing to the fact that in peyton vs new york they used crowbars i will tell you that that's the first time i've seen any reported case citing to peyton versus new york pointing that fact out as some  distinguishing factor in the peyton case and in this case while i do believe that smith reverses stoneburner is very helpful to my client and might be the case that this panel turns on and i do want to point out that even though these events occurred in two thousand thirteen that smith versus stoneburner was decided on a ten th more than six months before the november thirtieth incident in my case so this was clearly established law as far as i'm concerned and there are other cases i mean we we  of the reasons i cited to the judge to his own opinion in the bias case is because he had all these marvelous quotes about how the for the the protection of the home on the fourth amendment is the first among equals even intrusion of inches into the home can violate the fourth amendment in silberman the government agent put a listening device in within just inside one of the vents for either air conditioning or for heating and they held that they have that was a violation out so before you run out of time can you talk about the malicious prosecution claim yes the malicious don't i don't understand i don't quite see how you got a claim here based upon your client's own admission yes i mean your client admitted that he allowed the screen door to shut whether it was intentionally done or whether he just let his hands go he admits that he shut the front door and then he also admits that he grabbed someone during the during the the incident and it may have been the officer so shutting the door on the officers as they're attempting to arrest the son and grabbing the officers as they're trying to arrest him why isn't that at least probable cause for resisting and obstructing several reasons shut the door which obstructed the arrest whether the arrest was legal or not he's obstructing the arrest he's he's he's hindering the arrest and then i think him he also may be doing it officer testified that he got knocked around and watched this b l it's what was implicit the everybody in this case why is let me ask you this if it's a he said she said case in every case where the officer says person x did x and current and the defendant says i did and in this case it's not the defendant but the claimant says i didn't do x when you have a malicious prosecution case officer says one version plaintiff says another version takes the light the facts in the light most favorable to the plaintiff officer secures an arrest warrant based upon the officers you with the facts would you in every single case like that have a malicious prosecution case that had to go to the jury i think i'd have to prove more than that but that's not what happened here number one now the way it was made may i grab some water can you answer my question is first and then you can do whatever you i don't i don't have any disregard we remove it if something was omitted we put it back in and then we determine whether there was probable cause under michigan law and accidental touching is not a resisting an opposing i don't in any heated in a heated event which it often these encounters are why can't an officer reasonably percy that what happened was obstruction and my question is if we have a he said she said case between an officer and an individual where there's nothing else is that always subject when you take the officer's version out of the affidavit you're always going to have the basis for a malicious prosecution case to go to if you're correct am i right or wrong well think kentucky court doesn't take much what does it take i mean you admit there's a threshold that you don't get to a jury just because you make an allegation that there was a deliberate false and do you mean it or do you do  and these facts in this case the statement that was argued and made in both of the police reports is that mr brown they and another officer said and his wife also was pushing the officer a way from the sun at one point they described it as sort of like a tug of war mr britney has health issues that anybody seeing him would be recognized in a nanosecond i mean i say take take that out of the police report i  think there's still enough for probable cause of resisting obstruction by closing the door and grabbing the officer when he's trying to effectuate the rest i know and there i don't see how you have any evidence that the police deliberately injected false hoods into the room the report all you have is it is a blanket allegation unsupported by any evidence and i think your argument is i have a blanket allegation i can go to the jury well that's not the way or is that what i'm saying sir what i'm saying what evidence do you have to support that it's it's it's it's a deliberate falsity i'm sorry deliberate a deliberate falsehood deliberate falsehood is they had missed that senior and his wife were talking as if you and your and trying to prevent the officers from coming in and it's not reasonable their interpretation of the of the event no sir it's not the totally unreasonable that it's him but he had a right to close the door in the first place he could have been rude and crude and you can ask a separate question which is just take the grabbing of the arm everyone agrees that occur if you're trying to effectuate arrest and someone grabs your arm is that s for an officer to seek an obstruction charge that if i'm standing in my house that inside my house and you're reaching in without a warrant not any more than pointing a gun at me and ordering me to  derogated the holding him payton there i believe there was no accident circumstance whatsoever officer sierra's made it very clear in his testimony both the trial and in his deposition that he intended to go to the house to make this this this was a ruse to get him to the front door and he was originally invited to come outside and senior in junior both declined because they were in their stocking feet his senior have standing to claim that the arrest of junior was arrest if he doesn't have standing to challenge the illegal arrest that's all i'm saying a different way of asking it if i may imagine there is if they come in improperly does that give the occupants of the house their right to interfere in police business in other words can they do anything they want once those officers come into their house and it's a it's a question there's a reasonable question let's say to go to the jury about whether they came in properly does that give license to do whatever you want i don't believe it gives license to do whatever you want i don't think i'm arguing for whatever you want what i'm arguing for here is they had to charge miss to charge senior with resisting in opposing the facts in this case the appellate he's have mentioned well he asked questions well that violates houston versus hill the first amendment  other cases that this court has referenced then the door closing or touching somebody a reasonable officer would have recognized that maybe because of seniors disabilit he was knocked over and instead what these officers did in their joint police reports is conjure up a story of actively getting involved in preventing the officers from grabbing mr clay now under michigan law people versus marino was in play and that would have given the senior the right to slam the door shut kentucky king as well and if the officers came in they grabbed him he would have had a right to resist and while marino on its face when you read the opinion talks about common law and michigan law it's pretty clear from one of the  that the fourth amendment was in play in the merino case as well so this is a supreme court case that allows civilians in their own home to stop the conversation and in this case mr br senior's explanation was they had he turned told his son call your lawyer at one point he describes how you let go of the door in the door closes i think the storm door closes pretty quickly while the officers may have felt insulted kentucky versus king and other cases including i don't think they had you understand your and i don't want to ask too many but you understand you're mixing apples and oranges with those cases i don't know i don't i don't ok well in all those cases relate to the entry in what you're trying to say is as soon as the officers illegally enter that the civilian gets to determine whether that entry was it legal and i'm struck and they live with the peril of that decision you know so i'm not arguing that you understand where it goes right because if what you're saying is if an officer in hindsight the court determines which i think you've got a good argument that they illegally entered the home that you can always bring you can never bring obstruction charge in other words then it's free game and so civilians in the heat of the moment are making a determination whether the officer legally or illegally entered the home and if they illegally entered they can obstruct and see that for a court to say that puts  makes it very perilous we can handle the officer's mistakes on the back end but what you're asking us to do is use those cases to countenance civilians obstructing with the law enforcement respectfully what i'm asking is that the trial court should he have taken the facts in the light most favorable to plaintiffs and if the facts showed that he inadvertently came into contact with someone and senior makes it clear he's not even sure whether it was an officer or someone else that they had goes into the equation of whether there was probable cause to believe there was obstruction this circuit has decided similar cases i think two different times and i cite them in my in my briefs on exactly the situ so that's where i think the mistake was made i believe that judge ludington was good morning the panel douglas curler appearing on behalf of troy c r s coppola and i have agreed to split the fifteen minutes evenly seven minutes thirty seconds each although we both hope to avoid going that far i just want to highlight that what this case is really about and i think the apples and oranges thing is right because we jumping between senior and junior and senior in junior the real issue here is the question of retreat and what does a retreat from unknown arrest allow an officer third dispute of fact as to when the officer announced he was under arrest and if there is because stoneburner is pretty clear you can't go in absent exit in circumstances and there's two in circumstances that have been identified hot pursuit or destruction of evidence there's no allegation about structure and so we narrowed down the hot pursuit and your best argument is he has to announce then bring a junior retreat then he has to end and there's a dispute as to that because burn a senior's wife says i didn't say anything the own officer the officer in self in his testimony is unclear what did bring a junior no and brady jr is testimony and i have the specific pages or in the brief i think it's forty nine sixty six sixty seven something like that specifically said i understood i was under arrest so he knows  went to arrest junior sirus report after the fact only identifies junior as a suspect sierra's focus was on junior he was talking to junior he junior wonder stood from sierra's that he was being arrested and then at least to the objective perceptions of the officers it looked like junior was either retreating or being pulled in but somehow he was trying to get away after junior concedes he understood that he was being asked to go with the officers under arrest for people who want to get away from what he's in the house already right right but so all these do and he's turning around are you saying he has an obligation to exit his own house so he can be arrested once is that is that what you're saying i think so i think what authority what if what authority do you have that someone who is in the in the the safety of his own house has an obligation to go outside the house so he may be arrested what authority does he have to go outside the us to be arrest in the question there was no admission by the plaintiff that they had understood they were under arrest number there actually two entrances the one first i've been told wait on the porch but he stroll in after him anyway then they're talking to the plaintiff outside and then the plaintiff goes back inside and that's when they en second time which was a problem in the case but there was no indication that there was any testimony from the plaintiff or any other evidence that there had been an acceptance by the plaintiff that i've been told and who i was under arrest i think that's the critical distinction in the stoneburner case and why we have to look back at the santana if you're told you're under arrest then the officer can come in there and grab you and polio because the question set out by santana is is there a known arrest and then there's the retreat from the arrest but let me give you the officers version he said before you announced that he was coming with you the officer said he started to turn to leave mr byrne a senior said that's enough were done mr byrne a junior started to turn to leave to retreat back in the house told bring a senior he's coming with me so he's already gone back which he's totally entitled to do you're come in the officers come into someone's house talking to them through the vestibule he's apparently a few feet back if not in the doorway like santana he says look i'm done with you i'm turning to leave and then the officer says you're under arrest a reasonable jury could use those facts and say whoa whoa up he never there's no pursuit here or he had already turned to leave before the officer said anything and that's the officer's own testimony but we're not relying on the office testimony i'm relying on the brim a junior testimony but i get that sobered a junior is not the plaintiff here so it's not like an admission there's a dispute a senior his wife and the officer say he retreated before i told and only bring a junior says now you might have told me why should the jury decide that why isn't that a disputed issue a fact because the issues we have to focus on bringing he was retreating from what he recognized to be an arrest in the makes it proper for the officer to grab him but no it's not in his perception it's an objective standard it's not subjective otherwise officers could never go in someone's house because everyone say subjectively id it's an objective standard objectively can an officer go in an objective lead is he in hot pursuit we can't i mean there's no way this is a subjective standard no it's certainly not a subjective standard in michigan the federal level you don't want to be subject go ahead that's under your theory i mean you're saying it's ok to grab them and bring them out what if he was beyond grabbing distance under your theory the officer would be entitled to enter the house find him and then drag him out and arrest him he made doesn't even arrest warrant doesn't need a search warrant it i mean well are you are you are you limit your thing to just grabbing distance are you saying that once somebody retreats into their own home after they've been told they're under arrest the police therefore have a license to enter the home and arrest without award well it's not quite clear to me how far the well i'm asking you the santana case allow them to go by was so you can certainly reach in and grab because they did at least as much if not more in the santana case now you don't want to get to the point where we've got the peyton case where they stroll into the house and only then do they spot their suspect and go across the room again and that's i mean i'm asking you where to draw the line because i'm saying we adopted your theory we'll have the next case i'm saying that under santana you can do at least as much as reach in to the vestibule of the entrance way which is what at least happened in the sand into the house is what you want to do in this case reaching yes i were in the santana case you can reach in there which is what antenna she was in the vestibule she had drugs she retreated into the house after they got out of the car and said police stopped and then she went into the house that was undisputed and she had drugs so they had pursuit and destruction of evidence and it seems pretty clear to me that supreme court is made clear in santana that when you retreat into a house to hide evidence in ass and or destroy evidence the police surely if they announced it before can do it here he's not on the threshold he's back from the threshold he's not destroying evidence and there's a dispute whether he turned to leave before the officer ever said anything i just can't see the difference when the six inches inside the threshold of the ajar door that the woman in the threshold could have been he could have been in the standing right outside and he turns to leave before the officer says anything and walks into his house  officer can say you're under arrest and reach in grab you correct i would agree with that ok but i don't think that's the situation here and i don't think i was the i think the santana case makes it clear that you can do what the officer did in this case and i would point out that in the other eastern district judge duggan mus door if i guess is how you would pronounce it versus crop clearly seems in line with this case and allows the judge relating to this case now judge dugan the judge ludington both interpreted santana this way how can you hold an officer to think you should interpret it differently that gets into the clearly established situation of this court may say that you know we're going to draw the line at that threshold the six inches was too much we're going to draw the line and this court can do that in this case but that doesn't make it clearly established for the unless it was really it as dallas didn't stone burger burger i mean if it was there that was six months before this arrest permissible under the michigan statute for a p p o violation warrantless arrest and the plaintiff's explain in their own own complaint all the investigation he went through leading up to that he didn't just arrive ignorantly he knew what was going on and it was admitted and there was a conviction but he only identifies jr as a suspect he talks about in his report that his perception was in the judge that this was reasonable his perception was that junior was being trying to escape or being pulled in by senior or perhaps the mom but he didn't make him a suspect on his report and there's no evidence that his report was the one that was relied on by the affidavit of the prosecutor the other day the prosecutor says flat out i am looking at the e prosecution he's just dragging as a witness after the fact will tell us what you saw that's not part of malicious prosecution willis's prosecution is that you work on toward the decision to prosecute and that's what's missing in this case is evidence that sierra's had any role or was used by the prosecutor in any measure to make the decision to prosecute and i see my time is up i don't want to cramp my colleague all right thank you thank you very much circumstances well there was a struggle going on in front of him and so you know there were three people there four people in a crammed area there was a struggle i don't think you should have had to wait on the front porch to you know before someone had got bashed in or someone reach ahead well i guess maybe but from his perspective as from his perspective on this is perspective from officer sarto on the scene he's the second he's standing on the porch he's watching what's going on in front of him he's seeing a struggle i think it was best for everyone that he went in and helped affect the arrest so that it would be over soon as possible and no one would be injured you can proceed with nothing you will with respect to malicious prosecution obviously our observing what's going on so take the plaintiff's facts the plaintiff testifies i shut the door before anything happened then when he came in he rammed into me i slipped in fell and as i was falling i grabbed his arm now it's one thing for sierra's in the heat of the interaction not to appreciate and understand what's going on that seems perfectly reasonable to me in a malicious prosecution type case if shar outside observing this and you take the plainest version of facts is true why isn't this police report completely false and thus why doesn't it support a malicious prosecution clik well i think that what he said  between them i mean that could just be because everyone was jostling around so i don't think it's so far off the mark there were the actual police report was somewhat different again it mentioned trying to get in between the son and the officer and push the son back in the house but i even from standing outside of everything everyone is jostling around me that's not so again what did the police report though say i thought the police report was significantly different than that than a senior was trying to get in between his son and the officers trying to push his son back into the house at one point and then trying to push officer sierra's away from him some moments later that was in the six go report so if that's contrary to and i know you say he just signed it he didn't prepare but he signed an approved it if  that's contrary to his own preliminary examination testimony so he uses that to get the arrest warrant and it's contrary or at least the preliminary examination seems more accurate can we use his own words to say at least this should go to the jury as to him  i don't believe so because the judge was making the determination at the preliminary exam and he relied that testimony there doesn't seem to be any evidence at least the pages of the transcript that were in the record if the if the prosecutor maybe used some of those other other statements that were in the police report there is and i know there's been a lot of malicious prosecution cases lately but there's a case pete vs city of can clear it up so what you're saying is i get it if the officer testifies consistently and by all accounts honestly at the preliminary exam and the judge makes a probable cause determination he's immune from prosecution on that but what about on the arrest because we've said so what i understand was used in tell me if i'm wrong in support of the arrest warrant was his police report correct and so we've arrested bernay sr and i understand that if you use false information to get arrest that can support a malicious prosecution claim am i wrong that's correct but i don't see that this was entirely false to the level it needs to be to support a malicious prosecution claim it is entirely false to below what does that mean i'm sorry what is it what is what you just said mean in legal terms in other words how do we have factual that as a rule of law to give officers clear guidance well i guess i guess you're that case that was the plaintiffs have been accused of false report of a felony because it was a robbery was an armed robbery but they thought it was inside job so this court went through and pointed out in the police report all the discrepancies and they were wildly inaccurate that was i think the biggest thing this court focused on was well there was an armed robbery in the police report neglected to mention the actual presence of the armed robbers and then i think it was a case that kind of faded in decided in their brief king versus harwood that had all sorts of egregious robert misrepresentations on ballistics evidence in a murder trial so you know this who is pushing whom when there's all these people in the melee i don't think it rises to that level but i the evidence presented to the trial judge showed that this was a very narrow hallway in photographs were submitted and there referenced in the record entry thirty two page i d four ninety three that's important when you look at that picture you can see that this hallway is very narrow you'll see mr bring a senior standing like that from your perspective standing like this but you'll be able to tell that there's a wall that's essentially not much wider than the front door because you'll see a mirror in there so that's very important number to see here is police report references senior all over the place it's found at among other places record entry thirty three page judge ludington that was absolutely a hot pursuit case this was a guy that failed to stop his car drives into his driveway runs into the house and comes out a few times so that that is a hot pursuit case and that's not what it looked like just before he moved in my he answer before you move on what wise's why is it significant that it's a narrow area because the claim is that he physically pull this junior away from the officers and in my initial presentation you asked me questions about malicious prosecution and couldn't one of the officers have thought that because there was contact that that would be malicious it isn't the fact that it's a narrow space there's a lot of people there and there's all this confusion that it's more that it's reasonable for the office just to think that it's intentional or i don't i don't because and there is a six because the evidence could show that the woman may have accidentally touched the arm rather than intentional i mean we're not adjudicate in the facts we're determining whether the officers deliberately made fal hoods in their police reports not that they were wrong about the facts i mean if they're wrong about the facts that's not a that's not a cause of action for malicious prosecution if you've got a stablish intent disregard or intentional misstatement by claiming but if their pursuit if their perceptions are reasonable for the officers then i don't know how you go to the jury and to say well ladies and gentlemen the jury i want you to find that they they deliberately falsified the reports when you don't have any evidence that well probable cause as you know is a jury question unless there is only one version that could be accepted in view of  know not everything not everything's a jury question you've got to have a threshold you've got to get a threshold of evidence to get to the jury and i think i had another judge will not allow something to go the jury if no reasonable juror could so rule if the jurors are only allowed to speculate guess that's not a jury question i think a reasonable jury could believe that this prosecution and the warrant for seniors arrest was issue on the statements of both officers that senior interfered by pulling back or getting in between junior and the officers and that was such an unreasonable perception that it could not have been true  think a reasonable officer would know reasonable officer could have so perceived what they put in the report and these facts it did not happen well whether it happened or not sent the issue but here your argument is no reasonable officer could possibly have such a war is ridiculous i would like to also respond to another question that was asked there is a case that was cited in my answer to the motion for summary judgment goodwin vs city of painesville seventy one said third three fourteen zero six circuit two thousand and fifteen case although the case came down in two thousand and fifteen the incident occurred in two thousand and ten and in that case the officers tried to charge someone with obstruction for failing to exit the home when ordered to do so and the court this circuit rejected that based upon the fourth amendment right to remain in the home and i want to wrap up your real life went on for i thank you for my opportunity for rebuttal i mean happy to answer whatever other questions you have otherwise thank you very