in this matter the court granted summary judgment based upon the doctrine of qualified immunity and specifically with respect to the participation of civilians in this law enforcement effort by in the execution of a search warrant the court relied almost exclusively on braver says planned parenthood opinion from this court in two thousand and fourteen i believe that the court reliance on braye was was was erroneous for a couple of reasons first of all one of the primary reasons that the court felt the break was applicable was that it couched the issue at all times in the form of law enforcement requesting the assistance of these private citizens who are all blue cross blue shield investigators it is do it disputed fact and we had no discovery in the course of this action to develop the issue the only discovery that was available to my clients came in the context of the criminal proceedings in the jackson county circuit court but it is our position that it was not so much the law enforcement requested the assistance of the blue cross blue shield investigators but rather that it was the blue cross blue shield investigators who approached long foresman with an expectation that they would in fact participate the testimony that they approached them that they would print the plate they approached them first with in effect a complaint of a crime writer a possible crime well i believe it all occur simultaneously with him of course of one meeting that the approach was we have this audit and the artic suggest to us that there has been improper billing and  routinely participate in and search warrant executions i think that if you looked at the testimony of mr castle line contrary to the testimony of lisa g cram who indicated that she requested blue cross blue shield assistance mr cassatt line indicated that it was quote a mutual decision and that he indicated in fact that he had in fact approached and suggested that they had participated blue cross blue shield that is in other search warrant executions and so be issue i believe it was very disputed as to whether or not law enforcement was seeking the assistance of blue cross blue shield or if blue cross blue shield was usually using law enforcement as their private collections agents of the again as with any citizen complaint the product the prosecution the police had to decide that it was worth investigat were and that there was in fact probable cause just as for instance an example of a case i heard of somebody comes and says so and so has stolen certain high tech tools that i  and he tells them where he thinks they are the police could decide you know to put him away off to decide he isn't credible the police have to decide to go to the trouble of getting the warrant because they believe that there is probable cause and they have to go to a magistrate they don't just sit down with blue cross and go off and search somebody right well that's true your honor but that the issue here is not so much whether there should have been a request for the warrant arguably there may have been sufficient evidence to produce probable cause for the warrant the issue here is whether or not the participation of the sunni civilian  cross blue shoe investigators did or did not violate my client's constitutional rights and the question there is as a legal matter does it have to be completely divorced from blue cross that is if it helps blue cross to one percent does that make it illegal august or if it's clear that it it would be somewhat helpful to the police even though it might also be helpful to blue cross what's the standard there i think standard in this circuit was set forth in bills versus as a time which is at nine fifty eight facts second six ninety seven and it specifically page seventy six this court held that civilian assistance may not be for any purpose other than law enforcement purposes and that opinion is very consistent with the supreme court's holding  partly in aid of the execution but partly also for the benefit of the private party in general isn't that really the issue we have here that is it seems at least to this judge pretty clear that having the blue cross people there was useful to the police it was also useful to blue cross well i think that's what we have to look at in my view but i'm asking you to use me i'm sorry no government i think again we have to go back to the testimony here and that is that the blue cross blue shield investigators literally ran the entire show and at the law enforcement officers were merely spectators to blue cross blue shield doing what they want to do  it was blue cross blue shield the conduct of all of the interviews of the patients and the employees that were present at the scene it was blue cross blue shield that went through the entire premises at the office it was mr cassatt line himself who went and and found and seized items that were not particularize him a search warrant such as my client's passport his his records of property ownership in jamaica bank records from a blank and pentagram it was not law enforcement being aided by blue cross blue shield it was long for some or offering their badges to allow access by blue cross blue shield to do all these things that they would not not carry more force if in fact there were no indictment that took place that your client argyll did not plead guilty to another town so i mean the fact there was an indictment and there was a guilty plea so how does that can square with well this was all just blue cross pursuing this was there was no ownership interest she was a criminal defendant as well but again the issue here i don't think is the ultimate disposition of the case it is the participation of the blue cross blue shield people who came into the  indications of is this a fictional language to those items and was that found by a court to be beyond the scope of the warrant it was a challenge to the participation of the blue cross blue shield investigators and part of that challenge was that the investigators did conduct of the interviews and that they did see settings outside and the things that the things that were seized were outside the scope but there was there was that challenges well with within the context of that leverages then resolved in what direction well the resolution for the purposes of the evidence rehearing was that the blue cross blue shield participation was not in cross to tional per se excuse me where i had personally i'm quoting the circuit court judge but as i indicated in my reply brief that was an issue that could not have been appealed by my clients because i'm sorry but that's not that's not an answer to the question i'm sorry to the question worthy items that you adverted to the passport and so on found by the court to be beyond the scope of the warrant you asserted they were and you might or might not be right that was that litigated in did the court ruling your favor on that or did not specifically address what items were not properly seized the court merely found that the participation of the blue cross blue shield investigators was they the court you mean this whole court or that criminal court the criminal court from that the participation was not unconstitutional per se with respect to the civil court  presumably did not find that the objects whoever sees them were beyond the scope of the warrant there was no specific finding in either court with respect to that with respect to the civil court the the court relied almost exclusively on the brake case however in bray unlike here the court had been requested to permit civil civilians to participate in that particular  execution and the court did allow warm to participate now the fact that they exceeded the number that the court allowed and that those participants did things such as video tape inside those are separate issues which have no in here in this particular case what we are contending is that the blue cross blue shield participation was limited excuse me was really just a private access through be law speak five minutes or less mr garrett didn't get to the bank warrants i may or may not talk about that but regarding the civilian participation in the search that was litigated up and down in state court  and no material facts are in dispute regarding any of that and i would direct the court's attention to that today evidentiary hearing that occurred in the state court where testimony was given on rebutted  that the detective was in charge of everything she decided what to seize it went through her she determine what to seize and then it went to trooper gina get all we didn't hear a breath of a word about troopergate at all in this argument nor if you  caribbean records what then that was approved or was was authorized for seizure by cram that's correct your honor and the passports and i will say that there was no ruling on exceeding the scope of the warrant at the residence or any of the offices because that specific challenge was never made in state court or here in federal court the challenge was about participation of civilians with respect to the passport and actually fell within the four corners of the warrant because the language in the warrant said this includes review and seizure of any personal documents and mail that are located at the residence that's page i d number fourteen fifty and the passport and the holdings elsewhere are relevant from a reasonable law enforcement officers perspective in terms of what was done with the fruits of this crime they didn't challenge that that's correct and as far as a lot better case of the civilian was the one who grabs something and then it turned out it was too broad sure and i think they'd like sure and i think they'd have a better case of blue cross in fact ran the show but i would dispute what was argued before this court blue cross did not run the show at all detective  charge of trooper get it was there simply as a uniform presence and to log the evidence and in fact it's a case of no good deed going on punished because the whole point of having to cross present was to serve the law enforcement objective and to minimize disruption to this business they didn't come after hours because they didn't want to do a forced entry they wanted to come during business hours when employees would be present and when dr sampson might be present to submit to voluntary interview he denied the request to be interviewed but with blue cross present they know the code stay know the billing practices they know the specific kinds of documents that would support the criminal investigation intend to prove or disprove the allegations your argument would be you would have just grabbed everything in the building that's correct without them instead of taking one hundred nine patient files they may have taken a thousand patient files and instead of disrupting the business for two hours it would have been eight hours and you we should also recall this happened right around the holiday weekend then when there were three different locations the detective with her limited resources and limited state police county and local police resources had to conduct three searches in one day by having these blue cross individuals present who by the way were mostly former law enforcement themselves who are aware of the fourth amendment who are aware of constitutional rights they were all responding to her directives that the tech that was in charge of this investigation so in terms of civilian participation qualified immunity should attach let me just briefly address the bank warrants the court noted that your made the decision as to how many blue cross blue shield people should come for the execution of the warrant and who those people should be  her we have eight people available and that's the eight but they got and i believe there were five six perhaps even seven law enforcement so it wasn't that bad a ratio in terms of civilians and law enforcement at those locations this selection of people was based partly on availability rather than strictly on expertise and for me air they with billing codes and that kind of thing well no the whole point was their expertise but they didn't need thirty people from blue cross they only needed a limited number and in most cases it was it appeared to be one law enforcement person and one blue cross person paired up at this present a raid meeting or in some cases one and then two and then let me just briefly say regarding t warrant on the bank my client personally didn't go there to executed those who did go to execute it relied on the bank's expertise in terms of which of these accounts fall within the terms of the warrant and dr sampson wasn't authorized signer for the yellow sea that they're now challenging at the citizens bank and so for all those reasons they could pick up an immunity on the financial warrants to thank you  good afternoon your honor gus morris is my name i represent in this case the detective from blackman township police department robert schrock in the township itself detective schrock i think is once removed from the qualified immunity argument with respect to the execution the war he was not involved in any of the decision making process with respect to the involvement of blue cross blue shield he was part of the task force and through his department was assigned to the t assist the state police as the state police saw fit so it's my argument that judge cox got it right with respect to the qualified and argument as to schrock the plaintiff i think concedes in his brief that when you conduct a qualified immunity analysis it must be spent fact specific as to each officer involved however then he proceeds in his argument to lump all of them together and not really address officer schrock specifically i think my recollection is his name is only mentioned one time in the argument portion of the brief and again it's lumped together if the argument is blue cross blue shield that in the execution of the war violates the fourth amendment then for a qualified immunity analysis what was the involvement of the officer in that decision making process with respect to the involvement and interestingly the  of second a minute complaint does not even allege that truck was involved in that process and of course there's no evidence of that either but the complaint specifically says that it was crim that quote invited blue cross blue shield people to participate in allow them to take water from your point of view what exactly did schrock do what he was told which was to execute the warrant at at the business in the home with the assistance of a blue cross blue shield investigator who could help direct him as to what documents to take that had the billing information and so forth and it which was all then cleared through the detective that was running the operation he also was present when patients as well as employees of the doctor were interviewed the the investigator for blue cross blue shield sometimes conducted the interview in the presence of officer schrock who took notes and then incorporated documents or objects that had been pointed out to or already grabbed by the blue cross people you know i think the testimony was that what he took was the stuff that he grabbed or that was pointed to him i don't think there was anything and the testimony that the blue cross blue shield investigator took something handed to him and then he forwarded i think he was there when the documents that he were was involved in the investigation taking were taken and confirmed with the presence of the blue cross blue shield investigator aiding his law enforcement tasks in determining whether or not this was something that was relevant to the billing issue and the building codes and so forth with respect to the patient and again judge cox gets it right when you look at the case law brae was mentioned bills and in the wilson case but the u s versus close to a case which is also cited does say that outside involvement in the execution of the warrant is sometimes permissible and from the perspective of a objective lee reasonable law enforcement officer certainly from detective shrops perspective because there were outside investigators there and since the case law said outside involvement is sometimes permissible and objectively reasonable police officer in shock's position could have believed that the presence of the blue cross blue shield investigators was not in violation of the fourth amendment and therefore i think that's the test in terms of whether or not he is entitled qualified immunity and i have about a minute left i did want to raise the issue of concession this case procedurally had an early motion for qualified immunity with respect to the state police defendants and then our motion came later but in response to the initial motion the plaintiff conceded in his brief that break quote appears to present an insurmountable hurdle and then moves on with respect to but we're only seeking injunctive relief so it doesn't matter qualified immunity doesn't apply so i think there's a concession here in the briefs by the plaintiff and through his attorney that in fact bray does control on the qualified of the issue in the last thing i want to say in my few seconds remaining is that  against the township cannot survive because first of all there's no underlying constitutional violation and i think if you read the the record in a couple of areas the counter statement facts in response to our summary judgment motion in place of concedes quote that truck had extensive experience and training in handling fraud cases thank you  pants cam behalf of the jackson county defendants apple lease i would just simply echo the sentiments in the comments made by brother counsel with respect to the civilian participation in the search and i would like to focus my attention  accounts detective rose from the jackson county sheriff's department did go to the citizens bank to serve the warrant and did receive assistance from the bank personnel and seizing the accounts that were listed in the search suspect there was anything deficient in it and there given the technology and the bank's records and their access to it he was within the constitutional primers to allow the bank personnel together the records and sees the regular order all the mummy returns are the state court dead but with respect to qualified immunity we look at whether a reasonable officer and detective rose this position would have known that there was something and it has a very high standard as judge  details in this opinion would ever have to be obvious that there was something deficient about the warrant given the fact that it was judicially authorized and in this case there simply wasn't you would have to look not only at the four corners of the warrant but also go back and look at order the money returned i'm sorry your honor i did the state court order the money order there was a problem with the statute and that's what judge cox focused on is that the accounts that were seized were not specifically listed in the statute as being the type of thing that would be authorized to be seasonable and judge i'm sorry the obviously the state court that authorized the weren't disagreed with that and and the point is to talk to rose would have no idea that patently obvious that something was wrong with it he can rely on it and then the other issue with respect to the bank accounts has to do with monies that were seized from the four street properties l l c and the plaintiff argues that those were improperly sees because they were not in dr sampson's name however dr sampson was the signer and they had a count and that was part of what the bank personnel dead when they applied the warrant to link the the accounts and the to just go on the fact that it was clearly established i think he did both he said that detective rose would not have known that because he wasn't one who preach who personally sees the monies so he he said i find it difficult to see how he could have violated some its constitutional rights when it wasn't his actual you know doing his actual seizing of the monies and and in addition to that there would snow clearly established law in january two thousand and ten that would have suggested to him that it was improper to rely on the bay personnel to sift through their own records make the determination between what accounts belong to those listed on the more it so unless or any questions for number and the individual participants arm that was and that was exclusively with cross blue shield with respect to judge tillman's question about why the court ordered the money returned this was a complaint based upon an audit which covered the years two thousand and five to two thousand and eight and yet the complaint occurs in january of two thousand and ten there was no reason to believe that that money was evidence of anything the money in my client's accounts in two thousand and ten was evidence of potential crimes that occurred five years earlier and there was no there had been no no cases against my client criminal or civil initiated much less was in your judgment in order for which are or any other order of the court which would allow for the seizure of money this amounted to nothing more than prejudgment garnishment which the supreme court held unconstitutional back in the one nine hundred sixty s so it was clearly a well established right to be free from there was no basis to seize this money and yet gee cram a system blue cross blue shield in resisting the return of the money after that the is that the basis on which the state court ruled your adversary seemed to say it was having to do with the exact language of the state statute not it is incorrect and if you would look at the judge's opinion he very clearly says that the evidence because money was not evidence of a crime that money in the route the are breeze and it is part of the record and so she is incorrect the money was ordered returned because there was no basis to take it in the first place and even after it had been seized and ordered return she crime assisted blue cross blue shield in resisting that and blue cross blue shield relied upon things that they seized at the at the sight of a search warrant to formulate an affidavit in filing their own civil case to try to hold on to not fall within any description arguable and she merely acquiesced in that seizure which he later used to attempt to hold on to the money which was his stated purpose under his testimony in the first place his purpose was to try to recoup question is the officer where they plainly incompetent and what they did they were plainly lending their badges to blue cross blue shield to assist them in their private and in and a penny their private interests or their private rights without the benefit of a suit having been filed without any criminal charges being pending at the time with a any kind of order from the court which allowed for the seizure of money or the participation of these of these individual have a search warrant didn't authorize the civilian participation but when you say no criminal charges were pending you very frequently have search warrants served when no criminal charges are pending there's nothing wrong with that right you seek evidence and this money was not governance of something which may or may not have occurred five years earlier because you know the money by counsel thank you case will be submitted thank you very hard to make all the next case