court i'd like to reserve two minutes of my time for a bottle if i may my name is levi robinson i'm a deputy yellowstone county attorney i represent pedro hernandez and their skinner pedro hernandez is a farmer in yellowstone county justice of the peace derek skinner is a former yellowstone county deputy sheriff they've appealed from the district court order denying them qualified immunity and there are two main issues before the court keeping did you keep your voice up please i apologize they are peeling from the district court order denying them qualified immunity there are two main issues before the court this morning the denial of qualified immunity as to pedro hernandez and the denial of qualified immunity as to derek skinner the district court erred when it tonight pedro hernandez qualified immunity he did not violate miguel hernandez's right against unreasonable searches and seizures with his request for an investigation he did not he was not an interval participant in the via in and the alleged violation of the gang hernandez's right  still requires a wrong calling the sheriff's office and requesting investigation is not i wrong it doesn't make him liable for violation of the constitution because providing information to law enforcement  is not a constitutional violation now why did he do this why did he do this because he heard testimony that during a court order during a court proceeding that some of the witnesses were illegally in the united states which is indicative of a potential crime what's the crime the crime would be a lawful entry there anything there that he heard from the witnesses that suggested that they unlawfully entered the country potentially the fact that they came into texas is where they were illegally present st originally however we agree that it's truly just knowledgeable legal presence standing alone that that's all it is but again  mean our case law is pretty clear that presence alone and that isn't sufficient for criminality purposes and that would go to more toward stare that we request that the court would request and on why wouldn't that also apply to the judge because he didn't conduct a detention or arrest he didn't participate in the detention or arrest he didn't supervise the detention or arrest all he did was request an investigation and provide information to long to control criminal activity of potential criminal activity and that can't he's not in trouble participant either because he didn't conduct the detention or arrest and supervise and didn't participate his involvement ended after he spoke to derek skinner in the courtroom he provided the information i went out and conducted the detention what did he say to derek skinner in the court when skinner the officer arrived in the courtroom so when the officer arrived in the courtroom he came in he said i've got testimony from these two the two women in the courtroom but the two gentlemen there was originally two gentlemen one had left the courthouse prior to dex going to rival that they are illegally in the country and you may want to do something you might want to call because zie violet's of act in this case is alleged to be the detention and arrest requesting an investigation a justice of the peace is not the supervisor he cannot control the actions of derek skin he's just he can't do it so therefore he is not an interval participant and if he's not initial participant and he did not commit an unconstitutional act of self he must be granted qualified there is suspicion there is reasonable suspicion that stain someone to conduct an investigation when they have knowledge of illegal presence previous cases have shown abstain did that a legal presence is that a crime may have been committed the crime of illegal entry that's enough to be reasonable suspicion reasonable suspicion is more than instinct it's more than a hunch it's when an officer can articulate facts that is what were the what are the facts that the officer articulated for reasonable suspicion that a crime either had occurred or was in progress there is sworn testimony during a court proceeding but a particular individual is in the united states illegally that a formal andrus was reasonable suspicion he can articulate i have knowledge that this individual's illegally in the united states that could be a crime that could just be a civil violation which he could not enforce but it could be a crime that the arrest occurred when dark skin overstrained like al hernandez i'm sorry the district court erred when it determined the arrest occurred when he restrained miguel hernandez outside the courtroom the arrest occurred after the request from ice to arrest him with the free to prior to the questioning being done it he was only talking to him for about two minutes so in your estimation when was he placed under arrest he was placed at the detention sort of evolve into an arrest but detention became an arrest after ice request it and he began driving him down to the detention facility but only when ice showed up and took him into custody no no when after ice return the phone call saying yes we do want him picked up because during that to took him down in front of the courthouse yes he placed in the back of the patrol vehicle but he left the door open he allowed him to speak with his wife really loud him to give his wife his coat here so they were allowed to communicate that doesn't happen when a person is back of the police vehicle with the handcuffs yes he was that is a department policy any person in the back of the patrol vehicle will be restrained so from the viewpoint of a reasonable innocent person if they were believed they were under arrest they would play oh i'm going off to jail and he wasn't understood that a reasonable innocent person understood all the kate running a warrants jack they're asking if ice wants me picked up if not i'm going to be free to go time ok let's hear from the other side then you can use your time for morning may please the court i met adams with northwest immigrant rights project on behalf of mr a knock at the plaintiff appellee now dependents have repeatedly asked this court to reject its controlling precedent in doing so they effectively concede that the district upon precedent and while we disagree with this argument it ignores the more fundamental an obvious point and that is that no lenders itself establish clear precedent placed any reasonable state official  notice that as judge wallace explained in melendez because unauthorized presence is not a criminal matter suspicion of unauthorized presence alone does not give rise to an inference  criminal activity is afoot and that of course was five years before mystery novel was arrested and in fact that same year the supreme court reaffirmed that principle asserting that as a general rule an immigration violation is not a crime and accordingly it doesn't provide the normal predicate porn arrest so the district court did not err in finding that there was no reasonable swiss suspicion because there was no particular an objective basis upon which to suspect criminal activity and i'd like to emphasize the objective component of that defendants repeatedly assert their ignorance of immigration law is though that were shield but of course the qualified immunity analysis is an objective inquiry and this court looks to whether a reasonable officer should have known the law and as the supreme court is explaining cases like oprah says pelter that analysis is performed by looking to see whether the law was clearly established at the time the officer acted and of course the law was clearly established defendant's decision to detain mr a naga based upon an area law that they're ignorant and also an area of law which they're not authorized to enforce only underscores that the district court correctly denied them qualified immunity and of course the decision about whether ice subsequently asked them to bring him to the jail is irrelevant to the district court's order because the district court focused on the acts that occurred prior to the communication with ice and the district and in undisputed facts acknowledge that mystery nagano was detained from the moment the deputy skinner left the courtroom and confronted him and then interrogated him in the hallway the district court relying on these undisputed facts found it became a full blown arrest when after that interrogation defendant skinner then placed mr in argan handcuffs took him down from the sixty four dollars out of the court out to the parking lot and placed him in his vehicle and then proceeded to do more checks for warrants and go through databases and then had finally had dispatch call up ice and after a nd call from ice and it up transporting him to the jail but ultimately whether that was a full blown arrest or prolonged continued detention does not matter because again defendants did not have suspicion of criminal activity and so they had no base he even for a temporary immigration that the sheriff's office come to investigate his detention or his immigration status but of course it wasn't just to investigate he called up the sheriff's office and the district court cited to the transcript and there was undisputed that he called up asking that they come pick up a mystery naga and it wasn't and i want to cite to his words that the district court also used in making your fact finding he says that i call me a deputy i have two legal sitting outside i want them picked up and defendants in undisputed facts acknowledge that when someone when they share when the judge asked the sheriff to pick someone up that normally is understood to be but whether it was asking them to be picked up to be arrested or simply to be detained while they investigated either way there was no space suspicion of criminal activity so defendant hernandez is had specifically requested the sheriff's office to initiate this detention in order to investigate what he mistakenly understood to be a crime unlawful presence and in fact in his deposition in his affidavit he always referred to it as the crime of a lawful prizes there is never any assertion by either defendant of suspicion of a crime of entry that's just a red herring thrown up after the fact to try to justify if he's an integral participant in that operation then he is liable and in boyd the court looked at whether the other defendants were aware of the decision to all lawfully act whether they have jacked it to that decision and whether they participated in that operation here defendant hernandez is even more culpable he was not just aware of the decision he had initiated it instructed the sheriff's office to pick up mr a naga in order to investigate his immigration status more than that he had ordered mr hernandez to wait out in the hall i'm sorry mr a naga to wait out in the hall while b proceedings continued in fact after that protect ended mr reinado was still waiting out in the hall because justice hernandez is had then ordered mr in august wipe to remain in the courtyard and the court room and threatened her with contempt an arrest if she were to who attempt to leave the court room to warn her husband that the justice had called up the sheriff's office in order to have him picked up so he not only had initiated the detention keep facilitated it and certainly as case law from this court makes clear has played a meaningful part in its operation and the district court accordingly did not err in determining that he was an integral participant in this constitutional violation i would note that again defendant asked this court to overturn its prior case law regarding integral participation as illogical and violating the concept the princip of vicarious liability but mr hernandez was not being found liable based upon some theory kinda vicarious liability to the contrary he was being found liable for his own culpable conduct culminated in the unconstitutional seizure a mystery naga and old tim lee the district court had ample undisputed facts to rely on to find that in fact defendants had naga based solely on suspicion of off on authorized presence and that the case law had already clearly established that that was a violation so there was no room for qualified immunity if anything defendant's continued insistent throughout the course of this litigation both in the court below and before this court that the controlling case caution not be applied to them because it's illogical answer is is this is a common occurrence in the i mean that who goes on every day in counties and cities across the west but i'm sort of on the job training on the part of these off according to the legal rules that were clearly established at the time they acted and so yes there is a responsibility upon the police and sheriff's department upon the justices to be abreast of major developments in the law and they can't use  eleven you had this court again find that while it did not create an egregious violation of the constitution because it had not been clearly established that the law diggle back over twenty years back to  pedro hernandez for the issue of that quote from boyd about the official's conduct not rising to the level of an unconstitutional violation that was contradicted a couple of years later in ashcroft it ball by the supreme court because  constitution so to the extent that boyd says you can hold some of sponsible for nonviolent of conduct that would be overruled by the supreme court and as to pedro hernandez is languages in i agree that's poor language pick them up when skinner was in the courtroom speaking to him as cited by the district court's order see what happens if you guys take them let me know please you may have to call immigration so even pedro hernandez is acknowledging he is not an expert on immigration law derek skinner's going to have to find out more information and derek skinner may take him he may not take him he may call immigration he may not call immigration it was not an order by virtue of his very position he's not signing a warrant he's merely a person providing information to law enforcement regardless of the language of pick them up it's still just a request for an investigation he's not into participant he did not violate the constitution and he did not violate miguel hernandez's rights against unreasonable searches and seizures with that request now we agree  and for derrick skinner unless melendez has narrowed or overturned his detention in arrest of the get of miguel hernandez violated miguel hernandez has rights against on reasonable searches and seizures that's why we request the court to request and on incurred reasonable suspicion is not probable cause it's a lighter it's a lower standard just one an officer can articulate facts that a crime may have occurred if someone is illegally present it's one of two things it's either illegal entry or they have changed their limit gratian status a civil violation it's one of two things an officer should be allowed to detain someone briefly to conduct an investigation on whether probable cause exists to derek skinner in reality is not an expert on immigration law he was unsure so he had the office call the experts immigration and custom enforcement and he only kept mckellar lack hernandez long enough for ice to get back and say what their determination  thank you ok thank you for the matter submitted at this time