judgment of the district court dismissing under civil rule twelve b six there bivins claims against two u s marshals the claims involve violations of the fourth amendment inside the break home while the marshals seized property pursu frame the issue as whether law enforcement officials are entitled to quasi judicial immunity for discretionary acts taken while complying or attempting to comply with a judicial order and we really seem to have a collision here between the doctrines of quasi judicial immunity and the doctrine of qualified immunity which by its very definition in heart of versus fitzgerald gives qualified immunity for discretionary acts of public officials that are objective lee reasonable it seems to me what happened in this case with the with the writ of execution and with how these the issuing judge interpreted after this  lawsuit was filed is that the rid of execution has kind of been construed as a document that is giving absolute immunity to the discretionary acts of the u s marshals so much we have to look at the reasonableness of the actions in support of execution of the writ well again reasonable miss of actions is a qualified immunity principle not an absolute immunity principle the point of absolute immunity is that we don't even want the executing officers to have to prove they're reasonable in this if they're if they're following what they're compelled to do then they're going to be i'm in even if and no we are certain that the officers got immunity for placing mr bray under arrest in his own home for four hours and i don't think there's as i said in the brief there's no doubt it was a rast i mean he was he not allowed to leave his sofa he was not allowed to use his phone to call his attorney and he was locked down in his own house so no doubt that was an arrest but it's not otherwise the obsolete immunity issue was not otherwise about the seizure of property i think the way we framed it up in the brief it's the fact that they did a warrant list search of the entire house now that was their discretionary call and if there was some ambiguity in that order about what should be seized or even where they should look forward you know the  the second order not the original writ but the order that kind of reactivated document forty four it says the marshal is not required to levy upon all the property at the same time and may make successive levies on the same wri so really if there is one stay decided and quite frankly i think that i think they were following what planned parenthood's attorneys wanted more than they were following what was ordered if there started to be questions about what should be  where are we authorized to start looking for work they could have gone back got clarification from the court and gone back another day i mean it's right there in the order that they could they could do successive executions so that is our position that it suddenly  moved from following in order to using their discretion about what they were going to do on site we except your argument in that regard don't we then have to go to whether there was qualified immunity you know we do well although the guards other qualified well let me ask first what you don't challenge the writ right you know challenge the content of the writ why not i mean it looks kind of challengeable it sure does now you know i mean just on its face it looks like we want your we want stuff that you used to read and write with well are you please questionable i mean it seems to me the logical place to challenge this is to say look at this writ i mean i wonder if a reasonable policeman or officer looks at this writ might need to do the kinds of things the officer needs to do and the real problem is the nature of the writ published and unpublished what do you mean by well i think the ribs stated that you could see any unpublished writings  of affix the argument you are making that you have this really broad remarkable that you're not challenging then you turn around and say well the officers were not reasonable in carrying out this really broad remarkable writ i'm asking about that you said that was the next step we assume that you were right on the first one so well i'm going to look out concede certainly in retrospect that that there are things in the rift that or leave some open questions about what should be seized i submit to you though but if you i guess my question is if you're an officer you get this thing and you assume it's correct it's not something you're supposed to second guess which normally that's what a reasonable officer would write and you look at some of this  you know if you're going to do all that you can't have the person who doesn't want you to do it going around with you you've got to make them sit down somewhere while you do it and say i disagree with that well i disagree with that agree with it and it's very thoughtful to disagree with it and based on clearly established law and and i would submit to you know thinking about a lot of the fourth amendment cases that have been percolating and even decided by the supreme court in the last five to ten years they're really driven by modern technology and new things that are happening with privacy in the fourth amendment i submit to you that the fourth amendment violations in this case are these are the concerns that the authors of the constitution had two hundred fifty years ago this is clearly established law you do not arrest someone without a warrant or without probable cause and you do not do a war that's to say that when you when you serve a writ of execution that you can have you can keep the person from going around the place with you that's that's different from saying you can't move from that sofa ok but in this case they're going to have to take into consideration the the history of dangerousness that mr bray had exhibited i mean there the and this was known aptly to the officers that there had been instances where he had engaged in you know violent conduct against establishment in that factor that you have to consider see that first of all that's not in the complaint this  twelve b six issue and that will be a very fact driven and very disputed point if we ever get to discovery that's why i wrote the complaint with the kind of detail i did mr bray did prison time in the one nine hundred eighty s he has been an absolute model citizen since then and we saw it and for reasons that would have to be developed beyond this there is no reason to believe he would commit violence against u s marshals in his own home that's the problem i think there's been a in serving a writ why is it unreasonable for an officer to take precautions to control an environment wow they  make an effort to service or to serve rather this war it in a manner that provides the least disruption and risk to all concerned it's not unreasonable based on the facts of the case which we've not gotten to yet this complaint is written and the way even the reason i put in the complaint i reached out to the marshals and said let us help you do this so there's you know that there's a lot of kids at home what i see are times almost opposite u nder the scheme under the execution scheme to get people's property when they owe money that's applicable here and they take the person's home only after under ohio law only after the personal property is sold and of that doesn't satisfy the judgment only then can they execute on the real estate then you just out on the street well presumably and that's the law in ohio yeah they can foreclose you owe a million dollars you just out on the street every time you find a place to live they can take it well anything  can take any asset from you i think you become a renter but you can't rent without money i mean well it's a problem well there must be that's really what the ohio law says yes it's says that you can execute on the real estate only after the personal property has been sold and if that doesn't is that's not enough to pay the judgment you can foreclose on the real estate and i did reserve times on losing a little bit here but let me sit down say i think the ultimate position we have with respect to either immunity is that the marshals lost their independence they chose sides they forfeited the neutrality of the court they were no longer an arm of the court they were serving the will of planned parenthood's attorneys not the order of the court i think will live and die on that principle thank you thank you i have reserved a little time mourning your honour's may please the court if there was a problem with the writ that's not something that should be visited on the marshal service or the deputies who executed the written certainly not in the form of personal liability and  as this one that is the purpose of absolute immunity to ensure that lawyer with a challenge of let's say the writ said oh you're diaries and love letters on appeal in the judgment enforcement case not by bringing a new lawsuit against the marshal service indeed one of the purposes of absolute immunity for officers who execute court orders is to ensure that parties who are aggrieved by by an order of a judge take an appeal from that order in the proceeding in which the order is know anything that all books exception of children's books including materials written by the defendant published an unpublished that's just that's just like us mack on the side of first amendment liberties see you in the home he can't he can't have his own books is just standing to me but you know i agree with you they don't challenges or maybe they didn't challenge it in the context of this this honor the federal government was not a party to the underlying lawsuit this it was this case arises from a lawsuit between private parties the federal government was not a party to the judgment in force mint case it was not a party to the original civil suit against mr bray if they're not a federal district court did issue this order after ruffle adversarial proceedings and then it say that in the order but it is clear from the complaint that there were proceedings in the judgment in force make case in of course that's under rule sixty nine procedures work in any event though i think it's what i'm asking is they say i don't know is just complaining me maybe it's maybe won't be shown to be true when the facts come out as i understand the complaint is that is that they sit there they can't move the guy can't move off of his couch and doesn't know who's going through all of his papers clearly they've got to go through the papers it says go through his papers he doesn't know who the you don't even know who they are i mean does he have a right to know this person is performing this kind of search for the clearly established that if you've got people running rummaging through your house in a case that at least appears to involve somebodies private intellectual activity materials that they should at least know who who those people are and what they're doing well that's not settled law now if this court were doing now it's that it would be under saucier we don't have we have two steps right we can say this is unconstitutional but there's qualified immunity right  you may yes you may if we want to why would that be unconstitutional because it's not per se and nothing in the fourth amendment necessarily requires that every person at the time of the of the execution of a warrant or a writ or something like that requires that every person who is present be identified the ultimate test is reasonable in this anonymous people go and well they weren't known to the braes at the time however they were there under the authority of the marshal service and  the ultimate test is reasonable missing here in this case on this complaint there is no allegation that any of the unknown persons did anything that they should not have done the complaints and i really supposed to know if there's a stuck on the on the on the sofa they don't know well mr bray was was on the sofa but there's no allegation that what he's supposed to have agents going around with them and well it's the respond it's a little bit strange to say well we don't have any allegations of what they did when they were going through his library when he's not allowed to go into the library with them well there's the only allegation is to persons were present that that's it and that's all there is in the complaint and it is established apply just as well in another kind of suit like let's say somebody tripped on your front lawn and suffered ten millions of dollars worth of damage and sued you then then this could happen to you then right then the and lawyer for the other side could come and make you sit on the couch and go through all your papers and everything if a judgment sure of judgment was really sort of anything to do with the underlying the nature of what they're authorizing here doesn't have anything to do with the underlying basis for the money they are that's absolutely correct that's that it looks like it's a new lawsuit and the other is the question i asked them is there no limit under ohio law or whatever the relevant law here as to what ultimately is taken away from you so you lose your home and your money i mean some people could conceivably have a judgment against them for let's say negligence that is multiple times their net worth right that's easily conceivable are they just then out on the street i mean they don't get they don't get they don't get to sleep because they're property they must be some limit in there that depends on the scope of the i  asking yes and it depends on the scope of the homestead exemption under ohio law it's what i'm asking you know what the scope of the homestead exception my understanding is that the property real property can be sold after or after th exemption you just lose your home it's a partial homestead exemption it doesn't i don't believe it exempts the home well entire goes a little bit to one of the issues which is this videotaping i mean the videotaping is so that they can sell their own i just find it amazing under ohio law that you just lose your home so you and you don't get any money to rent a home so you're you're homeless because you have a judgment against you for negligence if the i know yes from what i understand i understand your honour's troubled by that but that is an issue  that is that really the reason the sole reason for the videotape to me that the videotaping has a dual purpose one is it is a type of inventory correct is just as much for the protection of the homeowner prevails and there is something that he says was there and they say wasn't i mean isn't isn't there isn't there do protection yes that's correct your honor it's documentary evidence and in it in that respect it protects everyone a pretty not in your case where the marshals the one limits of their authority things that are fairly implied from the terms of the court order are protected by absolute immunity in our speaking of absolute immunity as it's also reasonable under complaint yes it charges the marshal service with responsibility for the videotaping happening but even cooper versus parish this court recognized that the order in that case was broad enough to authorize the officers there to do things that were not explicitly spelled out in the orders that they were enforcing including the the seizure of a management company so this court has recognized that implied authority can be found in court orders and that can be the basis for absolute immunity and that makes sense because an absolute or a court order in a sense is like any other legal authority or document absolute immunity or qualified immunity i'm speaking absolute immunity right now and cooper disposed of the case on absolute immunity grounds wouldn't be extraordinary for a court to dictate every step how a writ would be executed i mean in order to do that the court would have to have incredible knowledge about contents location they can't do that so they would do the broad i mean not maybe not as broad as this bridge but but certainly implicit issues that in that wouldn't they have to certainly always protects discretionary action but so does absolute immunity because again some things will be fairly implicit in a court order for example here the the district court in the judgment for smith case authorized explicitly entry on the premises and also authorized explicitly the seizure of identified items of property throughout the house i think it used that phrase three times in the residence necessarily implicit and clearly implicit is upon  entry to seize property located throughout the residence is that the all officers could conduct a search so let me stop you there so let's say since they authorized him to see the personal papers in the in the property if you know that you see on t v oh yes yes i'm familiar with that that might be a closer call your honor because it authorized entry you know on the premises and i think you know if the premises are the real property writ large perhaps then yes maybe maybe entry into the pod and certainly i think into those circumstances it's unclear if absolute immunity didn't cover that that hypothetical then qualified immunity would because  entry on the premises that it's authorised an officer could could conclude that that includes you know storage areas on the on the proper on the premises so yes council of things to me that there's a strong argument to be made that the record used to be developed in this case in order for this court might the proper decision we we may arrive the same outcome that we currently have but do you disagree with that that there were there is not any  delap the record to answer these questions that are being asked the very strongly disagree without you you have the first you have the the written front of you which can be considered of course at the twelve b six stage and  you know as i say cooper extended absolute immunity for analogous seizures including restraint of persons on the premises during the execution of of the orders in that case so cooper as precedent disposes of disposes of the seizure of mr bray but qualified immunity would also give you a basis to affirm that because in light of michigan versus summers that was a limited  restraint and really this seizure of mr bray and what i call the organisational approach of not including the brazen what property they were going to take out of the house that is the basis for the claim that's all that's argued here and there's ample basis in the record on which you can affirm is the limit on whether the marshals can ever second guess a writ or no matter what the ritz is then they're protected so the writ says you can only sees catholic literature you can't seize protestant literature or the ritz says you can stun pump a stomach to get property or some other thing that's exceeds his authority then the law recognizes that the officer would not have the derivative immuno and it's just a would not have it would would not have if the judge has clearly exceeded his authority such this thing clearly  marshals would not have absolute immunity authority in absolute immunity terms absolute immunity of the judge and all the cases say this you could this court's cases if the judge acted in the clear x her clear absence of  scope of his authority he said you can stop this you can dystonic and you can you can search for materials based on which party they support which religion they support that would you still get the judge would still get absolute immunity you'd say in those situations  the marshal would get absolute immunity yes in those situations the marshal would absolute immunity sometimes does does protect things that we would just assume not protect but it's important to society to and to protect and cover and immunize some appalling conduct and i've seen it and it's it can be a part and it's immune but it's got to be ordered it's soon this is as soon as it converges to discretionary me in the in the context of that colloquy that was my question it was or yeah that's what he was ok right so that now the other i cited in my reply brief malley versus briggs which is a qualified immunity case but as i indicated talks about absolute immunity and it talks about how when officers are exercising discraft it's desirable that they reflect on what they're going to do when they're exercising their discretion so it's very consistent with malley and the immunity doctrines as soon as the marshals move into things that aren't ordered and start making their own call on what they're going to do and how they're going to do it it's perfectly consistent with mally versus briggs to move it to qualified immunity the other thing cooper versus paris is not binding here i addressed this in the brief  that order it explicitly authorized detaining people and it explicitly authorized seizing at everything and that was a very broad order there were things implicit there they were in the order and you know i hypothetical i don't want to get away from here without i mean without you know part of this thing and part of keeping mr bray on the couch was supposedly a safety concern i mean i'm sure if we get discovery we'll hear about that i mean you know could they have strip searched the braes daughters when they came home from school out of a safety concern i mean at some point you have to recognize the marshals took this over on their own let me ask you this then you say at some point if if we treat this as a qualified immunity and go to the first step before going to the second step which is within our discretion under under the supreme court's recent decisions right then we can look and see whether where the line is drawn as to what's constitutionally permissible and what's not even if the officers had no way of knowing ahead of time that that was the rule where should the line be drawn that clearly you can't strip search the daughters but presumably you can have the person stay in one location in the house while the people go through the rest of the house you would like something that would say if somebody is going through the house the person has the right to know who it is and what their what reason there for is for going around the house a case like it where you assume that the writ that this that are written like this is ok what should the constitution tell police people not to do when they're executing some one is at least inform the person of who's doing what inside his house what else the other thing is detaining someone is one thing locking them down on a sofa under armed guard for four hours in his own house is honor for twenty four years i've been representing pro life people and other christian activists and i said i've said many times you see things in abortion cases you will never see anywhere else and therefore i can't comment a case like this and start giving you factual cases i mean the novelties that come up when i represent pro lifers is astounding and this is this is a beautiful example of if i may say one more thing just to help your honor ask questions which i appreciate about homestead exemption losing the home under ohio law an affidavit in the underlying case i think is document number nineteen i would just encourage you to read that that really gives facts about the underlying case the judgment out in oregon how little m had to do with anything that went on i mean the judgment against him just standing there not challenging the judge no i mean that's like saying he got sued into a word and he didn't really he wasn't really beyond it it is but you are tempted to go in and decide what the ninth circuit all i want to reference as far as the underlying facts a lot of what was happening organise punitive damages not dischargeable in bankruptcy so he's left with a homestead exemption which just got raised in ohio and there's a pending case right now a pending issue before the trial judge about which ones that exemption applies but almost for certain unless the new homestead exemption applies they're going to lose the house ok thank thank you very much jas