that was his argument and mr dunlap did not have any weapons on his person the standard should that the officer arrested him under specific they said that it was illegal to not notify a police officer code it said that it was required for the person who had a concealed weapon on or about them to notify the police officer officer henry the arrest never had it he didn't plead anything about this minuscule code it was an innocent charging documents the minutes polity when they originally argued this case didn't mention the minister of code at all it was only the district court book has three parts first when said to have to identify to a police officer if you have weapons on or about the person in the third part said if it's in a vehicle then the standard is whether the weapon is on the person concealed on the person so this court has asked the parties to apply heenan versus north carolina that deals with a reasonable mistake of long before we get there the ninth circuit also said even if there is no hayne defense for the opposite here there's qualified immunity there's a potentially qualified yes if unless some other panel disagrees i'd like you actually start with qualified immunity ok so what is the clear authority that would have told the officer in this circumstance that what he did would violate the fourth amendment ok so way we look at it this issue has to be based on the statu here rested mr dunlap under alaska statue eleven sixty one two twenty and it stated that a person has who has a concealed weapon on their person has to notify a police officer when has as would occur with battery and therefore that's a concealed weapon on the person but it went at length denard oh didn't they point out that that case drew a a specific requirement that the has to be personal contact with the with the concealed weapon and it's been clear established that mr donato had no case no weapons on his body and the irony is that mr dunlap sided denard o two officer henry he said listen i am allowed but mr dunlap was a twenty year old a twenty year correctional officer he had a copy of eleven sixty one to ten a two twenty under his visor and when he was questioned who said i have no weapons on my person and as such you should not be arresting me and  extent that it suggests an expansive reading while i wouldn't support the judgment of the officer here because there was no weapon on the person or connected to the person and denard of specifically said the way this statute looked at the legislative intent and said that even the legislature had the choice the originally the statute said prohibited having a weapon in the glove box but donato specifically said that is not what we want we want it only if the weapon is on physically connected to the person in the purse on the person are connected in some way to the person's physical body so if it's sitting next to the person then it's not a concealed weapon and so in this case the only concealed weapon that that where the police didn't see a concealed weapon saw a rifle next to dunlap and based on that search the vehicle found other weapons in the back but there wasn't it's very very clear that donato and another went over this whole issue of that the weapon has to be in contact with the person it can't just be sitting in the seat next to them and they omit that the reason why this went to the night good last time was because the minuscule code is a little less clear the miniscule code starts using the word on or about but then when it does when it talks about in the vehicle it also says it has to be on the person so under he levon six to one to twenty eight minutes after he knew it was clearly put on notice in this case was me ask you this let's say we were to disagree with you on that and let's say we did find qualified immunity here is this case over if you found qualified immunity well if you found that the question is is that is this case over and notice you are in your client's the anchorage police department a qualified immunity usually applies in my understanding to individuals not police departments so if we were to find qualified immunity in favor of the officer is this case over i think it depends on whether there was a false arrest or not under under he and because if there was a false arrest and the officer was the vehicle is part of the person so if there's a concealed weapon in the vehicle it's also concealed on the person if we determine that there was a false arrest because there was no concealed weapon on the person maybe because on the per we ask for supplemental briefing on this point and so i want to be clear if we find qualified immunity for the officer your view is that the case still goes on against the department if it's determined that the arrest was false yes if it was if they arrest was without probable cause ok but no again if we find that from the officers perspective the arrest was ok in terms of qualified immunity that's what with that's what this court holds and is this case over as of as to the police department i wouldn't i wouldn't think so i would think we would still be able to although the in the supplemental briefing on dream and the district court without offering us to do any briefing on on anything related to the minutes power district court already ruled that if there is a false arrest here or if their arrest is valid then the rest of the case is over so so it you know i don't healing that decision as well what we will do when when you when the ninth circuit send us back and that circuit sent us back we were not given the opportunity to brief on whether this applied to the anchorage police department or whether  were specifically asked to determine whether as goes to the officer whether the you know whether he was a career status that there was a mistake of law and that as a result there was qualified immunity so we didn't brief that that the minutes probably didn't brief it either but the judge just made it issued a decision so if we can i mean you know we said in our you know i don't know if it's not a it's not certain we think that the arrest was not far was was not proper and i think if if on that's the point the arrest is determined to be improper then the rest of the case continues ok well we when we stop there we'll give you some time or a bottle ok thank you please quote my name is pamela weiss i'm in the system municipal attorney from the municipality of anchorage and i'm glad to be able to clarify here to clarify and answer any questions that you have and i think i will just go straight to the first the last point that you were discussing with mr soraya and i think it's eminently clear both from the district court's order from our supplemental briefing and the record that the only issues on appeal are this question about the application of  and then the qualified immunity question the district court following the municipality's motion for summary judgment on the entirety of plaintiff plaintiff mr dunlap's complaint granted summary judgment it was then appealed to the ninth circuit the ninth qualified immunity the court then the district court in its decision when addressed those but also addressed some of the alternative things that have been raised in the motion for summary judgment primarily independent basis for liability against court found that there was no there was nothing pointed to in any of the responsive briefs so there was an opportunity for briefing even at the first level about this issue of independent liability of the municipality when mr dunlap filed his appeal he did not challenge the court's explicit ruling that there was no independent liability against the municipality for a failure to train claim as well as independent bases under state law false  arrest some other state law claims that were asserted as well so those issues have not been briefed they were clearly decided they were briefed at the earlier stages of the briefing to the district court so if you find either that heine applies and there was a mistake of law or that there is qualified immunity this case is done and that's the position mr polity and so i would i had prepared to focus on hein but i will first focus on the qualified immunity question and i think because ultimately that hit that point will be dispositive because qualified immunity is more forgiving even than the mistake of law analysis under high and i think this case is a prime example of a case where heine would  apply even though it's not the law that the municipality or the officer had relied upon it i don't think you're going to find many other cases where the law is ambiguous in the same sort of ways as you would find in hind but the qualified immunity analysis is even more forgiving and it requires the plaintiffs or the appellant in this case to show that the law was clearly established and gave the officer notice that arresting mr dunlap in this situation would have violated his constitutional rights the only case that appellant has pointed to is this to nardo case that case is different that case concerned only the question of the state law at a time where this municipal code provision did not even exist it dealt with a different set of facts and i think to some degree that appellant has mischaracterized what that holding was the holding was not that it has to be in touch with the person in fact the holding was that on the person is broad enough to encompass a container a hand carry bring to bear a briefcase in this case there were weapons in a fanny pack on the seat next to him i think he's also misstated a little bit the case there was not a surprise want to make sure it's clear that there was not a search what happened was the officer saw what appeared to be a rifle stock sticking out of the seat between the door and the passenger seat and i asked mr  dunlap to exit the car the district court and the ninth circuit panel in two thousand and twelve appeal all agree that this was proper it was when the door was opened in plain view their ways a knife in the doorway a machete under the seat and it turned out that when later that there was a gun stashed within about one few inches of mr dunlap between himself between his seat and the consul as well as in the family council can you can you respond to a point that opposing counsel made and that is that it seems that the third to respect the the anchorage wardens does seem to me to be a bit of a model that it's really hard to figure out how that gets applied and i can certainly understand why an officer acting pursuant to that ordinance would have some trouble understanding what that officer can or cannot do in a situation like this but it does seem clear that the officer never relied on that ordinance he cited the the alaska state law which arguably sort of is more difficult for him to justify because it by its terms doesn't even speak about a vehicle situation it does use the language on his person suggesting that in this vehicle situation where none of these items are on his person that that law would not apply and yet same reason that it applies if you were to apply hine the question about probable cause is an objective analysis we know that from the case law supreme court decisions and the circuit as well as every other circuit it's an objective analysis and i think that what you run the risk of doing is ending up with inconsistent results either in the case of hire or in a qualified immunity if you're going to risk structure analysis solely to whether or not the officer relied upon it you may end up with different results where concealed weapons yeah your argument is that all of these things were in plain view when the officer opened the door so how could he possibly think it was reasonable to rifle they were concealed from the officer at the time that the vehicle was closed so once the door opened some of some of these items were seen in plain view some of them were not the gun that was between the seat and the console was not found and til later and neither was the item in the fanny pack on the seat on the seat that we can feel that was inside the fanny pack though if that addresses that question about that they were visible once you had him open or remove immunity for that when that thing was concealed the person well i think that the issue is that we need to go back to this issue of the probable cause analysis here the probable cause analysis is objective we do not worry about the subject i right betty he objected fully arrested him under the statute documented under the statute but there's no question that probable cause can be can exist even if the problem was exist for a crime that the officer did not arre individual for so that that's well established law that has not been refuted here that hasn't even been argued about the only argument that the appellant has made is that well that wasn't what he cited but the case law is clear that probable cause can exist even if that is not the crime that was cited by the officer because they have to make these decisions in very quick amount of time without the benefit of being able to peruse every legal book so the court's been very clear that it can be based on a law even if they didn't cite it but as to the reasonable mistake of law issue that's not yet clear whether a law that was not actually under consideration by an mean in a situation where the law that is invoked in support of the reasonable mistake of law issue is not actually the law that an officer relied upon it's not at all clear yet whether th appropriate is that true i will agree with you there have been different courts that have done different things i think that it makes the most sense to apply it given the objective standard under the mistake of law because what may happen and i was beginning t a little bit about this that you may have identical facts with the same wasn't place but if you do not consider whether or not there was a mistake of law because the officer didn't rely upon it you may find that there's a fourth amendment violation but if the officer happened to cite that law you may conclude that there a mistake of law i guess or because qualified immunity is more forgiving as the supreme court made clear there for purposes of the qualified immunity analysis it does not matter whether the law involved was actually relied upon by the officers is that your position well the standard is that the officer would know that the constitutional rights would be violated and i think that it too is a reasonable officer so it too is an objective standard and in this particular case that objective that it an officer would not reasonably know that it would violate the constitutional rights and i don't think that the court should begin injecting a level of subjectivity into this analysis at that stage which is to be more forgiving but also because it too should be objective i think the issue that was addressed as to whether or not the reasonable mistake of law issue should be based on what the office or not or what a court decided i think it's very clear that when you're dealing has in this situation the courts determination that this statute applied was over rule so so we have to mistaken interpretations of law we have the courts and we have the officers and i think we have to in this situation look at what the officer was thinking what object of indications the officer had to think that there was a concealed weapon and that goes also to qualified immunity if you're looking in you're saying that qualified immunity immunity immunize is wrongful conduct unless the officer had an eye opportunity a reasonable officer had a reasonable opportunity to understand that what he was doing was illegal well you can't you have to look at dinard and you can't say well there was some confusion regarding the m vs state it very clearly points out that in that case the briefcase was in the person's hand physically connected just like battery battery occurs if you're holding a tray and they smack it out of your hand but if you put that tree down and someone nardo talks about about a briefcase but what's the case that says denard zero does not apply to something right next to you like a fanny pack your briefcase in hand right next to you what's the case that makes that distinction think i think in are those the case you would cite the nordo very specifically went over the legit legislative intent that they were making sure that at fanny pack a vehicle i mean if a weapon in a fanny pack was not going to be concealed on the person a weapon in the glove compartment was not going to be concealed on the person and went over the legislative intent of that statute and they had originally it did say about the person and they said we are eliminating that confusion and we're saying it in a vehicle would be technically carried even if it's in the very back seat and so they said it has to be connected to the person on the and that's why they use the word on the person rather than about the person so under  this matter is submitted