fact that mr mr clinton ours thank our with the police officers ended tragically doesn't mean that the police officers did anything wrong and it doesn't mean that they should be held civilly liable there are really two different distinct timeframes in the legal standards that apply are different for the two time friends one is a fairly classic pedestrian check and the other is a terry stop the lasted about a minute when officer gleason arrived on the scene there were three individuals behind the seven eleven and he engaged in conversation with the three of them he asked them questions such as who are you what are you doing here what's your relationship and he asked mr clinton are do you have anything illegal in your possession mr clinton are cooperated with officer gleason any answered the questions and he indicated that he had  an illegal substance in his possession turned out to be marijuana that was a pedestrian check once mr mr clinton are admitted to having medical marijuana it converted to a terry stop in the standards are very different sort of like to discuss the two timeframes differently in the application of qualified immunity for the police officers is different depending on the two different time frames let me ask you a question ma'am with the facts that you've generally thrown in to this point on the desk tree and stop is the fact that the plaintiffs suggest that they were blocked from leaving is that a fact we add into the pedestrian stop it is a factor in whether a pedestrian stop rises to the level of a seizure but in this case there's no evidence that they were blocked at the time that the pedestrian stop occurred well no evidence would suggest none whatsoever and the plane of suggests that he stopped his car with bright light shining on the plane of and his girlfriend and then you blocked their way to leave that's his testimony there is that's the allegation in the complaint but the allegheny it's an unverified complaint and while that might be an allegation sufficient to survive a rule twelve b six motion to dismiss it's not sufficient evidence to defeat a summary judgment motion in order to defeat summary judgment the plaintiff has to submit admissible evidence and there was no admissible evidence to support the conclusion in the complaint that the access was blocked there's a photograph at well ok but not the conclusion but the that that the car was parked in a certain way and that the lights were on that that's evidence that's right it was nighttime in the headlights ron he did there's no evidence that he came in with lights and siren so he had his headlights on because cars are supposed to drive with their headlights on at night there were other there were also you can see in the video that there were also other lights in the back of the seven eleven so the the area was not alumina aided solely by the headlights of the officers car in fact but their intended to all inferences in their favor and set summary judgment correct so that's evidence would be where the car was that the lights were on you know all of that would be the evidence that the headlights were on and that the car was parked in the that officer gleason drove up in the back of the seven eleven and you can see that from the video because you can see where the headlights are coming from there's a there's a photograph that i think shows the area pretty well and that page one twenty three of volume one of i'm sorry one twenty nine volume one of the administrative record i apologize appellants record on appeal so there was that shows sorry i interrupted go ahead that photograph shows an aerial view of the location of the seven eleven and it shows that there is behind it behind it behind between the seven eleven and whatever i think it's an apartment complex behind it there is a row of what appear to be carport and there isn't you can you can move from that apartment complex into the rear of the seven eleven unimpeded you just have to go around the carports then there's a drive aisle from the street down the right side of the seven eleven that also goes back into that area and then between the seven eleven and  station there's a shower and your something wrong with a police officer parking a car in a way that it would make it a little harder for someone to move if you want to talk to him right right that there were three distinct avenues of exit one one person one of the three people that was initially there when officer gleason arrived actually left after he was asked a question or two by office he was free to leave right he i don't know his subjective state of mind but he left he was asked one or two questions and then he left the scene of the important park and i guess i got it was there was no verified complaint that's correct there was no affidavit filed of being wrong that's correct  gleason exceeded the scope of mr king ten hours consent to be searched while waiting until backup arrived to serve him what is your response to that is there any evidence in the record that  the consent was qualified in any way or that he sought to revoke his consent there was there is no evidence in the record that the consent was limited anyway officer gleason asked if he could search once once mr clinton are acknowledged me admitted that he had something illegal in his possession and told officer gleason that he had marijuana i think at that point the stop could convert into a terry stop because at that point officer gleason had objective lee reasonable and objective a reasonable belief that there could be criminal activity what are the facts that supported officers gleason's what you're saying his reasonable suspicion that mr kington are was contributing to the delinquen he all he had to do was make sure that that his encounter at that for that limited period of time was not so coercive that mr clinton i would not feel free to leave if his tone his demeanor if he had blocked officer should check things out if they i mean that the girl was thirteen and he was nineteen right the officer said that he noticed an age discrepancy appeared to be under age minor it was night that's what piqued his interest in the first place and that's what caused him to go over and say what do you guys doing here who are you how old are you what's your relationship do you have anything illegal on you as soon as mr clinton are said i have something illegal on me i have marijuana on me that gave off that converted a pedestrian stop that didn't require any suspicion of criminal activity at all under a stablished legal precedent from the supreme court down you do not need any suspicion that that there's something wrong going on a police officer can approach anybody in any public place and ask them questions the person can turn around and leave they don't have to answer but they don't have a lot of time i'm sorry get into the mr clinton are produced a card yes and  government issued is that we now have a color photograph of the of the card that was provided by mr clinton or to officer gleason on the night of the encounter that was provided to me today i'm assuming that you have one if you don't know we do we have it thank you under california law a qualified patient who has a valid california state issued medical marijuana identification card is exempt from arrest if they have it in their possession and show it to the police if they don't have that card in their possession they're not exempt from arrest and they can be arrested but if they commend produce it for the prosecutor the exempt from prosecution mr clinton i wasn't i wasn't immune from arrest because he did not have a valid medical a state license state issued medical marijuana card this card that was a cop that we have a copy of it was issued by a bi o c medical group i don't know whether that's a cooperative or a or a you know a consortium of doctors but it's not state issued in order to be state issued it has to have the name of the either the state or the county department of health that has issued the card this doesn't say orange county department of health or los angeles county if you're mad issued a government issued card which you c that there was not probable cause to arrest if he had it in his possession if he had it in his if it had it in his possession california law is very clear that if you have it in your possession the and that's i can give you the  eleven three sixty two point seven one yes if you had it in his possession and showed it to the officer then he would not have been subject to arrest but he didn't have a card a legally issued card in his possession look these two teenagers or are behind the seven eleven in a parking lot as soon as the bright lights hit them which of course is not in the video there are there deer in the  headlights there's they have no illusion that they can believe they have no illusion that this is a concert consensual encounter and if they wanted to they could walk away the policeman would do anything about effect there is a declaration in the urbs of mr quentin or his brother who was at another seven eleven in tustin and the police stopped him and he walked away and they tackled him then they told him that they could arrest him for one forty told bronnie that the police were doing these things in the area and that he should be careful and take care of self i've must say that and i apologize to all of the everything sort of came out of bed leigh i think but i think you're allowed to do another aerial this is a more recent one and there are three cars in the parking lot back there and i stop on my way this morning it was about five thirty so i made it and and and because i always thought that behind this row of of sort of half the rides is that this was sunken here but it's actually not but there's a gate and this is the only place you can walk and there's a fence here that you can jump and in fact paul clinton i jumped over that fence but the police car and you can see from the video that the police car is here blocking there anything that prevents an officer going up and finding out you know is it a runaway as that you know something's going on is that person held against their will or any you know i mean because we see cases otherwise where say you know if the thirteen year old had turned up in a ditch dead and the officers hadn't ascertained you know what are these two people doing together is this is this minor ok in that situation is there anything wrong with just going up and y you know it and saying are you ok yes we're ok do you need any help no we don't need any help thank you officer we're going to go about our business of talking we're friends we're that he confrontation where there were questions asked what is your best case that the police officer violated clearly known supreme court officer if i don't have to get to the first prong i just look at the second prong and i'm looking as they're clearly stablished law the officer would have had to know about what case would have been on the books the police officer should have known about not to go up and contact these kids and ask them questions that is what we're case what was cited well i looked at what's in your brief and i don't think they get you there so i'm trying to get you give year every benefit i think of the one that is on like what judge corns and frankly and judge carter didn't really give me a case i mean to be fair i can't distinguish what happened here from so if i look at what judge carney said i'll have the case i don't want to take all your time because if the next thing i do is consent seems like your argument is he couldn't have waited for backup and once he consented to search she shouldn't have been waiting for backup seems to be your argument what's your best case for that if you look at the video he see two very slight teenagers then i see a large policeman confronting them and saying you know do this do that he's consenting he's saying look here's my medical marijuana and here's my marijuana and it's and some of the some alloted they'd take as i didn't know about that until we got the consent now i think he says i mean there was another problem did say that he was on medical marijuana right any consented to the search and then we come out with the cards and stuff but but i'm just trying to figure out if i'm going to look at the second prong what is the case which is going to say that the consent was wrong the search was wrong or let's say even the search search was wrong but he had no reason to say i thought i briefed at all but i go i know but i read your brief and i can't find anything to suggest in the supreme court precedent that the consent was somehow and we're talking about qualified immunity that's also talking about qualified immunity doesn't mean that something it doesn't mean something tragic didn't have i mean this is clearly a tragedy and i think everyone acknowledges that but that being said that if you look at the second prong it has there has to be a supreme court case that clearly establishes that what the officer did that he was young notice so that's what that's what that's what should smith is asking and that's relevant to because even if you find the first problem you still have to go to the second function cough and immunity or if a court chooses it can leap over the first problem and analyze it under the second prom and one of my favorite case on the issue is of a case where a judge posner the seventh circuit we've squeezed this too far we're looking for cases which are exactly on point or so similar that we've narrowed exceptions to qualified immunity too much and he's talking about issues of foster care case basis but wait a second if the foster care system was selling these children into slavery there's no precedent but there's clearly a violation ok let's go to the next one after that can stand in the search what is the case i look at when they found what they did marijuana and concentrated cannabis and no good card and is an automatic get out of jail free suggest he should not be arrested oh there really four lines of how that works there's a just give me a good case give me a good case because the occupier the officer has the right to do whatever the law allows him to do now i'm at the point where the officer knows there's marijuana the officer knows there's concentrated cannabis the officer know there is no card to get him a get out of jail free and the officer decides to arrest so those are the cases i really ought to look at the see if the officer was on notice to do what he did yes  as i said there are four different ways to go there is there's there's a compassionate use act which says you can have it if you have a doctor's recommendation and you know you have to have it on you don't have to have anything but then you have the official card that you get from the county of orange which almost nobody does as a practical matter why do that because you are ordinarily cept for i think it's in here once it unless you're a minority and trust and you're not going to get hassled over it and already these guys are minorities both of them right this is a card which is signed by the doctor signed in print by a doctor but but this is it's it's a little better to read now in these copies this is signed by judith boston and we have the examination that precedent that puts the officer on notice he can't do that if eleven three sixty two point seven one requires a different type of card and that card with and say hey you can't arrest someone that has that type of card what is the what is out there that says the mahi mahi says if you know that it's a legitimate medical marijuana it does not give you probable cause to make that officer aren't but that the facts are also that it's it's concentrated and i believe that also the officer was told by by mr canton are that he had another pending charge for drugs most people aren't arrested for it's a new world possession of heroin although it's a misdemeanor put in people just don't bother what people are arrested for is possession of heroin for sales because you can arrest somebody for that and then you go through the procedure i've run out of iraq iran far right out of words on one of these courts are not whether they can arrest someone or not it's how they're treated when they go to court as a practical matter three case the first promise or has to be a constitutional violation right and then the second prong is on the qualified immunity is there must be a supreme court case the puts the officer clearly on notice that the contact is for h this about medical marijuana and it's it's not necessarily surprising i don't agree that it has to be a supreme court case it can be a ninth circuit case well clearly established let's just go with clearly established law if you've got the card in the way if you haven't got the card and it's all about probable cause and it's all about whether you have probable cause  nonetheless and you can plead affirmative defense thereafter but without the card that's all you've got is an affirmative defense it's that's what people be kelly says that's correct and so therefore i'm saying you've got the officer on the scene you've got the officer searching finding what they have knows there's two marijuana one marijuana might even fit could do no work your honor there is an opinion of the attorney general's code for the state attorney general goes back bar before this it says concentrated kind of this is marijuana subject to the compassionate use act so at and in the in the very truncated stuff in my letter very were some cases which said recent cases would say no it's not what the officer thinks it's what the law is if you violate so we're talking about commodity that's a not published case right yes and it was with good one pious and carney right ok so he knew that case so that officers then have now after read all the non published cases on the ninth circuit that are not presidential there if i were a district another district judge a district judge another district judge wouldn't have to follow a commodity right would likely follow commodity judge well they would have to with a it's not presidential for anything it decides that particular case then another district court would have to follow it right that's that correct i mean that's that's how judge carney came to this decision and that's how the ninth circuit came to the the commodity that wasn't were taken were like three and a half minutes over if you want to just summarize or if either of my colleagues have additional questions i want them to be able to direct those thank you aaron or the question ask him straight  the issue of well two things but certainly qualified me what hard to me the issue is whether they were free to leave and there's no question at all that at least the one witness who was there and was at was detained  deposition says that her declaration says at every point that she was not free to leave ever and the fact that they were detained not on the street hi how are you do you need my it's interesting in her deposition missa sido connex the bright lights with he told us to sit down and not talk although they were they were time wise slightly different but that's the connect i mean that's her perception and that's that's an issue of fact that's for the jury the jury has to decide whether her perception of those events happened and remember that the fence in this case says wait a second everything's on the video and i tried to get the sound up on the video actually sent it out nobody could help with that but the you have a little sound you have so you know so you don't know what's on the video you don't know what the facts are just from the video and the bright lights are before the video so yeah let's there any questions i'd like to address judge nelson's last question first and that is what is the evidence that the that the trial court was looking at in determining that there was a question of fact as to whether or not these individuals were free to leave i would submit your honor said if you look at the record there isn't any such evidence judge judge the trial court didn't cite any evidence just said that there were tribal issues and listed a couple of areas where there were tribal issues but didn't refer to any evidence the testimony that missile c e o gave i brought it up with me with regard to whether she felt free to leave made the clear distinction in time between before mr clinton  admitted that he had drugs and after when she was asked when she said testified that she was told to sit down and not talk that's that is that's in the record and that was her testimony but the next question police counsel doesn't doesn't reference very next question is was that after mr clinton are admitted that he had drugs and the answer to that question was yes so her testimony was i was told to sit down and that i couldn't leave after mr clinton are admitted that he had drugs at that point there was a there was an objective lee reasonable basis for detaining mr clinton are to do an investigation to determine whether or not he was legally in possession of medical marijuana that's a classic terry stop he can't he can't be detained at that point he can be told just hang on wait you can't leave i need to determine whether or not you've broken the law and if i understand you correctly here you're not saying there's a tribal issue because you agree at that point he wasn't free to leave exactly with regard to he admitted that he had drugs he was no longer free to leave officer gleason admitted as much he wasn't free to leave at that point because officer gleason was doing an investigation to determine whether or not he was legally in possession of drugs officers aren't required to believe what they're told by suspects if that were the case nobody would ever get arrested because very few people would get arrested because very few people admitted to breaking the law the officers have the right to detain somebody and ask them questions do the search determine whether it's legal if he had been given a the evidence that you have before you now in front of the in front of the court when when the court ruled on the motion for summary judgment the fact that the court didn't do a detailed order like frankly like most district court to do often there six seven t pages long we got a very brief order there was no oral argument but that doesn't mean that we can't you can't make a determination as a matter of law that the undisputed facts that officer gleason was aware of at the time would lead a reasonable police officer under the same circumstances to determine that the initial it was about a minute long questioning before mr clinton air admitted that he had drugs that that