court that just last month the u s supreme court analyzed qualified immunity in white versus pauline one thirty seven supreme court five forty eight in that case the court specifically took stated that it was taking the case on appeal to remind the federal courts of the importance of qualified immunity stating the qualified immunity is important to the society as a whole and it an important because it's affectively last of the cases of erroneous lee permitted to go to trial and that's what we have here can counsel help me on something and a more specific concrete level in this case  there were a few things that the agents knew one was that the woman called nasa to assist her and their inferences that can be drawn from that an important inference is that she was not keeping her moon rock that her husband had given her secret from the government so she had vs we did not have a consciousness that she was committing the crime it also was probably evident just from her voice that she was an old lady and you wouldn't know that she was in her seventy's i think it was and five five feet tall but you know she was an old lady why would you need six police of various types and restraint going into a discussion with an old lady like that who was getting communications with a confidential informant who was discussing matters with her she had discussed with the informant that she understood that she may have to sell this on the black market there may be some legality if we have that number heard yes it is in the work market part i i it's marked in our brief i don't have the exact pages in front of me when i come back a rebuttal give you those who could be of interest yes and so the registered informant she also told the informant  declaration was part of the record that he he had spoken with neil armstrong who said that he didn't provide moon rocks to anyone and moon rocks was a lot makes clear our government property i was wondering about that my thought was the agency says that neil armstrong told him this but neil armstrong of course doesn't say it since he was the woman's husband gave it to her was deceased and rule fifty six i think it's seen are used to be f have limitations on what evidence could be considered that's just the plainest hearsay and doesn't seem to fall within any exception away from her what was the legitimate law enforcement role in terms of the way the detention was carried out in the parking lot well i think the issue with the detention is that mr calmly  we pointed out every there's no way i'm sitting down with you she refused to answer many questions answered some others and the legitimate law enforcement purpose with to determine first of all on the legitimacy of her possession right so this is an additional two hour detention and questioning after the search was complete and there was no arrest warrant issued true now but the detention subject of the asking her questions there was at least to  connally's position that she had consented to the search but even if i believe you know what the district court found it didn't didn't rule definitively on any of these matters what it said was there are genuine issues of material fact that preclude s asked and on the issue of qualified immunity and you have given some of the statements that i'm sure the teacher will testify at trial for get that far and but we've got some are judgment stage we have to credit the plaintiff's testimony and allegations  that square with foxworth when fox recess of detention conducted and connection with the search warrant may be unreasonable it's unnecessary certainly painful degrading or prolonged or it involves an undue invasion of privacy detentions particularly lengthy detentions of the elderly or of children or of individual suffering from serious illnesses or disability raise additional cern's why does not indicate there's a genuine issue of fact well first of all that the question is whether it was clearly established law at the sclerosis couldn't walk had bowel issues was wearing a t shirt was left out in nature basically with his genitals explode exposed to twenty three officers for over two hours that's a far cry from a woman wearing happens now i understand it certainly was uncomfortable she never took the testimony is not that it was you know and that and the other cases for example in crosby where a woman w naked in a shower and the police officer pulled her out said stay here didn't allow her to cover self up and had the door open with male officers walking all around the even if you would find that he that connally went too far  the question the court has to ask is was it's law so clear that in this context and i think white makes clear that the court really has to look very carefully at the facts and at the law to determine whether there is a basis for to when she asked to go to the bathroom or whether she wanted to go to the bathroom the her testimony is that she thought she said she wanted to go to the bathroom they wouldn't let her and she needed in her pants and then was displayed up there for all that time that's there's no evidence that she made any of those types of requests there was evidence that she requested she says she was she requested to go to the bathroom that her deposition she said that it was people she asked people other than agent connelly about going to the bathroom and that by the time you know it's night time at a at a denny's in the parking lot it's very much but she says in her declaration i was taken outside into the parking lot i was there for two hours conley and the other officers will not let me go into pattern we're trying myself where i was  went with my own here right so why do you say that she doesn't say anything about intercom well it her deposition which was done after that it was asked did you ask agent calmly and we've decided in our brief the exact page numbers in her deposition where she qualified immunity where in some circumstances you don't even need a case directly and point if any reasonable officer should know better that's right your honor and but and i think white just last month the supreme court made clear me go to the bathroom after a has to go to the bathroom the reasonable inference would be either she asked connally or she asked the other officers within the hearing of calmly and he said no or the other officers heard or ask and ask calmly can she go to the bathroom and he said no that those would be inferences that i would draw from the way she put it and in that testimony that the judge thomas just read right and i believe that even using assuming all of that that the question is whether it was clearly established law dept not allowing her to go to the to the restroom at that point was clearly established not at a level of generality even and i think the restroom what are the other circumstances that are going on could things be changed that that's the problem with this case and then looking at the are you really so are you really saying that during a search where there's no arrest warrant issued that it's that officers wouldn't understand that an elderly person who asked to go to the path room ought to be allowed to go to the bathroom i mean what is the support for the government saying gee i don't know whether or not about the law enforcement purpose because the search for the moon rock was essential over there was some detention beyond that and i think the record supports the fact that the agents wanted  that's why they betaine then held her there so it's what happened during the course of that and whether it's tethered to any legitimate law enforcement purposes under the circumstances of this case you know involving a moon rock but she had initially reached out to the government she had an explanation they set up a sting they took the moon rock she needed to used a restroom and she was denied that right and then after she urinated on herself she asked for an opportunity to change and was denied that right so  you think that the current case law doesn't support a finding that her right not to be subjected to prolonged detention under those degrading circumstances that's not clearly established enough the yes your honor i do think that that's the case the law right now for a long is a vague term it's not clear whether it's prolonged is an hour and a half long but two hours is too long it's two hours not prolong the two and a half hours is ok that's that's the problem that's where that's why the supreme court is looking at these cases and saying to the federal courts generalities aren't good enough general statements of the law even general statements that it can't be prolonged degrading or an unnecessary invasion of privacy or humiliating that again enforcement because of the societal importance of law enforcement and looking into it wasn't just the moon rock that they were looking for she was talking about selling government property they needed you know there was legitimate but the circuit was completed the search was complete ye depositions that they were concerned that she was armed or might be armed not at the time of the detention they were concerned at the time of the initial when the sting when it came out they didn't know whether she had weapons or not it was when the sting when it came out i'm not sure if you're talking about the phone call now or or sitting at the tasting it there it was danny's they did they did testify they didn't know that if they clear they they patted her down they patted  down her husband would be easy enough if if they thought that she your husband might have a gun which i don't think they said that they could have held her purse of the table and held her husband at the table and let her go to the bathroom well it's not clear that she she didn't testify as to when she you're in a jar software that was inside the denny's or whether was out in the parking lot and that they left the denny's i thought taking the evidence most favorably to her here after she said i have to go to the bathroom and as she was going to the parking lot with them yeah i mean but again whether they were already walking at the time it happened and they were on their way out versus whether she was sitting at the table at denny's they did determine that the police officers were concerned she had a weapon she didn't and they they didn't they did determine right away that she didn't add and she and her husband didn't have any weapons and her husband was was very cooperative in and discussed his  collection with with one of the other officers so that that we that the idea that there was further concern about weapons when they're in the parking lot of that was not one of the officers concerns thank you bitter for misstatements i would just make a comment on their talk about arming the police that nasa decided to do this at denny's and it was not at night time it was at noon during the lunch hour had they thought for one second that anyone was going to be armed or there was a danger they would not have chosen a crowded denny's place which is a family friendly restaurant with children so there  the speak about being worried about a weapon or a firearm but and in fact if they had any concern about that they would not have chose adanis for for this seizure we have a case here where as the courts were pointing out a woman went to nasa and asked for their help to sell a moon rock because she had had run into financial problems to the black market clearly that beginning does not suggest that also the record does not open clearly what clearly the record shows that she wanted to do this legitimately she was not going to use the black market didn't tell them she was thinking she might have to sell it on the black market no in fact the quote is i don't have black market contacts and in fact she was worried about the tax consequences and the the quote unquote confidential informant who actually wasn't confidential that he gave his full name talked about a cash payment she didn't want to cash payment because she wanted it in and check and those are in the conversations that are attached to the search warrant that are recorded so this is the elderly woman who who had found that they had this moon rock and for forty years they had this paper weight not knowing its value and in fact arguably when they first got it it obviously was worthless to somebody because somebody put it into a moon rock into a paperweight and as the family lore goes was given to her husband who then promptly put it in with the rest of the wards that he got because he was an engineer with aerospace and she also worked  so in the context of having this woman contact nasa who had led it legally blameless life and they then lowered her to denny's whereupon they basically jumper justification for it is unclear and we in other courts have said watts ok that's not that's not any kind of violation that should be obvious to a reasonable officer what do you do about the cases you need to distinguish you're in be that was a case in which the there was a a drug search warrant a male officer they were clearing the the house a male officer went into the bathroom a female was taken a shower they then substituted immediately he called out a female officer needed and a female officer then was in the doorway of the bathroom and in fact in that case the attention was only fifteen or twenty minutes while the search warrant was being worked on  so if she wanted to cover so she could have and the female deputy stood in the doorway of the bathroom so and most importantly this was inside her own home or the home that she was at now in this case ms davis is in public during the lunch hour and she is exposed to the lunch crowd in urine so clothing for two hours that is she was and she was roughly handled so when they went to grab the they grabbed the movie rock immediately and she's sitting there at a chinese food and upon a signal they descend on her they immediately grab the moon rock and connally grabs her purse and takes it out if conley already had her purse while they're sitting at the table  her purse when they pulled her out of at the purse would have been next to her either to the left or to mushy carrying it or no she was she didn't have anything in her purse with her so what i'm trying to find out is suppose you do fear that a suspect has contraband or weapons in her purse and if she separated from her purse it's no threat if she's not separated from a person might be a threat if she goes into the bathroom she could put the contraband in the toilet tank or something like that and and i'm trying to find out where her purse was it was when he was immediately seized by connally that is they pulled her out and her husband and this is his second calmly and the group went out there were two sheriff's officers on either side she complained about wanting to go to the bathroom he lost bladder control as she was walking to where they finally stood her and where she stood for two the reason she declined it was because connally during this period of time was going back and forth saying my superiors want to take you have you take and then they want to and as and have you arrested give me some more information and the information they were received and so there was this threat involved and she didn't want to go any closer to that threat and get into the car because that be one more step to focus total interrogation and she didn't want to take that step and she's testified to that it is discovery complete discovery is completed ok go ahead with your  she stood there for two hours and it was and as it was in the record is that she was standing there and any time she would move there would be there was an officer to directly behind her who would touch or and basically nonverbally tell her not to move so she was controlled so the issue here is what is the clearly established right that you're relying on can you articulate that for me a qualified immunity and they discussed that based on the cases of meredith can which and franklin the degrading nature of not allowing someone to go to the bathroom is well enough established that the officer would have been put on notice  three nineteen f third one one five and so there are cases out there that said that would say that that's a factor to examine search was still continuing that is detention was only during a search and that we don't have that here we have a search that is being we have attention that is extending beyond when they obtained the object of the search and the object of the search was two things one they wanted to get the moon rock back into the search warrant allow them to search her personal fax for papers with lated to  e related to the moon rock paperweight additionally the conversation that connally had wasn't just confined to that paper weight but it was a discussion of who else might have won so it was a basic generalized not a discussion of whether she had committed a crime but they were trying to find out who else might not and so it was a generalized discussion  there was no independent of one of them and he put it this way once they had seized everything agent calmly did not obtain any independent knowledge  justify further detention or suspicion of any further crime so his was just a fact finding mission for two hours and which is one that in the course of situation with law  was had urinated from the pubic area all the way down into her shoes and the argument that she didn't ask to go to the bathroom or to go it seems to be a wrong argument that the point is she asked to go to the bathroom and the officers took control of her choice and did not allow that she doesn't have to make a query as if she's in court asking for every type of eventuality it was clear that she was detained and was clear that they were controlling only could you quote me on a little technical point here i'm still wondering whether on equality on a qualified immunity decision it's resolved by a summary judgment the court can consider for purposes of the agent's state of mind the agent's hearsay ad proffered that i have a dead man and told him that he never gave a moon rock to anyone and i don't know if that's true he certainly could not save say it at trial and fifty rule fifty six says it can't be considered on summary judgment i wonder if that armstrong had a collection for him self but that's not in the record here i don't know what the answer is to that question i thought it was a minor point it ended up that she did have a moon rock it was clear she had a true lunar sample and it wasn't just a little rock in a paper bag it was a paper weight it was a small grain of lunar sample the size of a rice grain i was stuck inside of a paper weight and because of that that should have told anyone that this was not the spoils of some ill gotten gain that if this is no one steal something to put it into a paper weight and keep it around for forty years that's the search warrant that's the search you can use or say to get a search warrant you can't use hearsay to get a summary judgment that's right and we're not seeing we're not and i don't believe anybody was relying on mr armstrong statements as a basis for the summary judgment i was wondering here it wasn't clear to me that it was illegal for her to have a moon rock i guess it wasn't so clear to the prosecutor either since he didn't prosecute and i looked at the stuff you cited and it looked like it was at the time it doesn't appear to have been illegal in there appears to be a directive to nasa don't give out moon rocks basically but that doesn't mean it's a directive to other people don't possess moon rocks well you know honors i don't recall at the top my what a reasonable officer does or does not do has to be affected by what law it is that he's purporting to be enforcing right but he and he use that law like lucite gavels that sort of thing you infer from the form of it self that it's a legitimate gift the army gives people those little coins if you give a talk for military base and i don't know why association giving someone a gavel that's a different context then if you were to give me the light in front of you that's government property and say you know i appreciate how you did this argument today i have my li you would be giving me government property that you would have otherwise had authority to give me i don't know if it's true but i've heard that one because i never argued before the supreme court but i've heard that when you do you get these two quill pens and i don't think you get a have that moon rock and i think that probably would have been the end well it is the testimony because they didn't know whether it was a true moon rock and it until they actually got it and tested it after the fact it was at that time nobody knew whether it was a real well you know actually i don't believe he knew for sure it was a real nightmare return to one other issue that was raised by judge kleinfeld that's a black market here's what i found and you correct me if i'm wrong on this i haven't heard declaration that she was talking to the confidential informant property i explained how the auction houses were not helping and and told jeff i didn't know why he did not offer an explanation either as we spoke in later conversations i remember he started talking some jumble about selling j two rockets but i didn't know what those were at some point he talked about black markets but as i said i didn't have any such contacts so is that what we're talking about here yet although if you go back and view the actual transcripts that were attached to the search affidavit or her testimony what she says in the declaration is not exactly the same as what the testimony was or what her statements were to the confidential informant in the during the discussion and that's where i referenced ok johnson thank you you're on the cases are going to be submitted for decision thank you both for your arguments this morning