probable cause to be arrested for assault and battery on the child we have very limited and on the facts when well those are i'm suggesting that under those facts the defendant's position is that any simple assault and battery which in the common law was any unwanted touching constitutes the offense of assault and battery now of course we dispute that because at the same time the common law as well as the law in virginia recognized that every parent had a right to engage in moderate corporal punishment of their child so that the common law never recognized a right to arrest the parent for moderate use of force against the child notwithstanding the more general proposition in the common law that any unwanted touching could constitute a simple assault and battery in fact when he was asked that at the deposition is every time that a parent touches a child who does not want to be touched does that form the basis of a criminal offense his response was it is not for me to judge it's for me to go by the statute of assault and apparently to ignore the longstanding as a professor of mine used to say the memory of man runneth not to the contrary right of a parent to use corporal punishment on their child indeed on the defendant's theory any legal privilege or justification for the use of force is not a question for an arresting officer but rather for a trier of fact in a criminal proceeding presumably that the probable cause to charge a parent for kidnapping as well as assault and battery if the parent carried the child against the child's will cause so to get to the question whether or not he is probably go you think you'd be a good idea if you tell to them it is absolutely you do that in this case he did and so the point is you think based on the information correct i mean what we're talking about here is a slap on the head like that and the child we don't know that now that's not in the record it was just what you said from the record is not well the way the record describes it is the parent the vehicle this is before they got to the house went to slap her on the knee the child's hand was on the knee and so she got slapped on the hand and thereafter later on some hour later when the child said she wouldn't go take a shower and she was in a chair the mother grabbed her by the wrist and said you're going to take a shower and then let her go and that was it that's the totality of what occurred and what was told rather to the officer and what he knew before he made and then he immediately made an arrest for assault and battery of the child handcuff the mother right in front of her child and took her away district court judge that the officer would not have known the bottom line because there was a paucity of cases as he described that to find anything on this nature but what one can see just from looking at the cases cited by the district court in terms of what virginia has defined as assault and battery on a child that's got to be some evidence of harm to the child in most every one of the cases that was cited by the district court you saw that there was evidence of there was bleeding there was redness there was bruising in some instances a broken yes well again i would say it may differ if you're talking about shaking a three year old it might be different than slapping an eleven year old as in this case so you would have to take into account the age in relationship to the amount of force b use i don't i don't question that but in this case he actually went according to his testimony and examine the child where she said she had been hit and saw no evidence of anything other then the child so no evidence of bruising no redness no nothing so we have really nothing here other than what i would consider to be the minimum force i mean i i don't want to use my own experiences but i know i and many friends about this were subjected to much more force than this by our parents and probably and probably so in many of those instances that when the defendant takes the position that any justification or privilege that's asserted as as a means to justify the use of force can only be decided by a trier of fact you know the irony here is that officer rigsby himself could have been arrested that day under that theory he certainly used force against the wishes of mrs plesance and then he transported her against her will on the face of it that could be kidnapping but we know that it's justified under the law and we know that an officer may use that for is reasonably necessary to effectuate an arrest but if it's more than necessary we know that that could constitute a crime now to his theory an officer should be arrested in each instance and let a jury decide whether or not the force was excessive and not  the real question we have is was there probable cause in this instance and we assert that the use of force in this instance any person on the street would say any person not just the reasonable officer should know better any person on the street would say well of course that's the misunderstanding but i would also say that that's the position being taken legally by the defense here or the defense of corporal punishment does not negate the probable cause for making an arrest under this statute whether the unwanted touching amounted to reasonable appropriate punishment is a justification that can be by a criminal defendant and an issue that should be decided by a jury in a criminal case and i don't know that's given as an absolute find out that's an absolute no other words there could be no circumstance in which  punishment would lead to you not pressing charges the first will ask what they say i think that's your position but maybe it is because it seems to me i've read the record pretty carefully now pretty closely and this is not a gray area i know i was saying i think this is the end i know you're on the other side of that not even close well i'm saying yes certainly in some circumstances going to be a gray area and i would certainly acknowledge that in a wide variety of cases but not this case we're told as like  make the distinction you think the law requires some kind of physical proof of injury or damage or something to the child to push it a problem well i like to use the word evidence rather than proof but some evidence that all involve much more severe use of force well there are two responses of course one is that nobody would bring a case like this to trial because it was so there you know because what if you had an eye witnesses saw what a slap across the face or something like that and by the time the howard wouldn't require any physical damage would it well up i know up and i when i think that's a close case i think that's a closer case but when you talk about slapping a hand not a face you're talking about an area of the body that's no susceptible to being harmed and something that looks much more like moderation it's the parent who grabs the child from pulling the boxes off of the cereal boxes off the shelf by the wrist and then administers a slap to the box would anybody say that that's probable cause to arrest that parent i mean they'll be a lot of supermarkets with the rest being going on in the only private security guards in order to affect you at those arrest because it's not an uncommon occurrence or a child at eleven years old who was hysterical and create screaming does not prove that they've been hit in any respects their temper tantrums there are all kinds of things that would prompt a child and in this particular case you have a heated custody battle going on that would obviously result in a motional distress not only to the parents but to the child as well as make think it's very important it turns out and we were wrong in our brief and i want to correct that that officer rigsby was never told that this is pleasants was very violent it's true that it's in the dispatch report but when he was asked about it and i refer the court to page one third where it cited on one page one thirty one thirty two to one thirty three where he says i don't recall being told that by the dispatch officer he received a summary over the phone he did when he was told by mr pleasants that she drinks and they possibly be intoxicated well maybe that's a factor when you go there but there was no evidence when he went there on november first that she was intoxicated and there was no evidence prior to making the arrest that she was intoxicated and of course he had to remember this was the a strange husband who was in a custody battle who had an interest in trying to say bad things about his wife who by the way of course we know had custody court ordered custody so we know that the officer had to know that any information in this record that has given incorrect information about the wife along the violent yes there's nothing in the record to say she was and if i tell you it's off the record because there's nothing in the rest of that my point is that it was there anything in the record indicate that was not true another word she had not been violent well except for the fact that when he went there on police have to be leery of that i suspect they are but you certainly have to be because it's not unusual is of a people to say untrue in a custody or divorce situation is no i think i just couldn't find anything in the record in this child and i'll tell you tell you why and you're right because the grab them in a bar case is really the arrest here we do believe the arrest was on law the entry was unlawful and i think we've explained why we believe that there was not sufficient information to draw a reasonable conclusion that that child was in imminent danger of harm but the real harm that occurred to our client was not from that step inside although that is a constitutional harm it was from being arrested and so that's why the thrust of the argument has been around the arrest he didn't really learn anything when he was standing at the door he didn't learn anything till he actually crossed that threshold and started to interrogate the now we do not assert a one sung application in the civil context here that if the entry was unlawful therefore anything that occurred as a result of that should be well again the entry we all know what the lawyers they must be exigent circumstances to enter without a warrant and those exigent circumstances in a context like this have to be a reasonable belief that the person was in in a harness when event as to the arrest well as to the arrest we have probable cause we all know that in order to make an arrest the must be probable cause we need to look then at what constitutes probable cause under the statute now the statute doesn't define itself assault and battery courts have relied on the common law but as i said the common law also gives the parent the right that line is you can never the final bottom line if if the parent had touched the child the child said don't touch me and they touched him like that if we go by the statute you think qualified immunity always applies i have replied no i well i think it applies in those grey areas where reasonable so as far as the facts go concerning what information officer had about probable cause in what led to the arrest we can only go on what the allegations and facts were in the complaint and that's an important point because we're talking about a lot of different things i was slapped on my leg and across my arm and grabbed by my wrists and we can we look at the deposition testimony what happened as far is what happened with the officer questioning the child i don't believe so because the limited discovery was on the entry claim and all the court was considering with respect to the false arrest claim is what was in the complaint because it was so they put information on what happened for the arrest well there is there is record information  there's deposition testimony about what about his conversation with the child that's not part of the record that we can look at with respect to the false arrest game that's what i'd like you say with the false arrest well what else is it other than he goes in and he tells to the girl for the basis to find out whether or not he can arrest the mother well says that the appellant wants to make the argument that it's apparent and clear that the type of touching that was used was corporal punishment are you saying that it was that my position is it doesn't matter one way or the i don't ask you that i said may be used because i mean decide is important you started your argument this way can that information be used or not in making on terminations deposition testimony b officer and the child yes or no with respect to the false arrest now based on the way it was decided and with appeal so in other wars and you might lose because it may not be enough evidence on the record for us to know well your honor the issue is are you what is what argument is there based on the statement from the child that she was slapped on her leg crossed her legs and grabbed by her wrists and that's a statement of what you saw officer you get in that statement because you just said we can't rely on the position that says that in is that what you're taking from the allegation in the complaint yes your honor that's in the complaint so you're just taking the that paragraph from the complaint and saying that that is not sufficient there is sufficient it's not it's not sufficient to state claim not sufficient as they were a false arrest because you have a statement from a victim which this court and the courts of virginia and said there's no better evidence of probable cause and a victim's statement the statement from the child as it is posed in the complaint is i don't want to get an argument with you but it's allegation in a complaint it's not evidence correct and you are arguing that the judge correctly decided it  did not state a claim yes that he was entitled to qualified immunity under the facts as played in the we don't know that though you don't know that if all you have it is then a child was one of the state exactly what you say we have improper you've got to develop the record because when somebody says my momma hit me we don't know anything about that we don't know how hard it was we don't know how easy it was but you will notice to decide this on just that allegation and you say you win as a because could it be could it is say the extent that she was blue marks on her or anything like that in that allegation does it say she hit me but she didn't leave a mark there is a paragraph that says that but as the court picked complaint is the officer hit me if he also hit me just by saying there was a touching that automatically qualifies every touch in automatically qualify as probable ca risk yes or no that somebody hit me and i didn't want to be hit it was an unwanted touching and therefore it was within the definition of an assault and battery you're theory is that if a police officer that if somebody there's probable cause to arrest me for salt on you there's probable cause clearly established gave me unwanted touching grants probable cause that's what this what you just said now legal justification that's correct and what we don't know anything about justification all we know in this case according to you is an allegation of  fact according to you or give you still we have to look at what happened before not under your theory you don't what do you what does anything that mattered before the moment that woman touch that child in an unwanted facial why is any of that necessary to your view whether a reasonable of who would know it all was clearly established correct why would you ever get to that in the your theory maybe i'm missing something maybe i am but you have said that any on warning to unwanted touching is probable cause why would you ever need this is not your theory i'm surprised by it but i think your theory is if you look at what's alleged in the complaint it was a touching correct and you said that's enough for a problem solved the judge didn't need anything more you win i that what you told us well i believe that's one argument i made when you said there's the argument well that's not what i meant to say it is what you are going to make the second prong also did because you said all we want to look at is that allegation that allegation is alone enough a probable cause because a touchy issue probably caused it i missed your you know your honor you did not guess what i was trying to address is the fact that counsel was addressing you know things that miss pleasant may or may not have said and what may have gone into the determination is probable cause but you know the problem you have is oh you got up and said it made that argument because you may be boxed in what do you think we can  decide whether or not there was there was probable cause in this case i thought you told us we could look at nothing in the record other than the allegation in the complaint i think that's what you said and that was the lynchpin for your argument did i misunderstand you well that's the wench been for one of my arguments and the very definition of an assault battery is whether or not there is an unwanted touching no matter how diminished miss it is in so the complaint where you have a victim saying that she was slapped on her leg and or add wins just because it's alleged we have to look at the statute is well the virginia criminal procedure statute section one thousand points only that only that answers take the right to a yes i think this was taken we know the statute we can look at the statute so we know what the law is but the question is probable cause one of the facts of the case and that what problem was based on the facts in the case that's correct and you tell us the only fact we need to know and the only thing we can look at is the allegation of fact that there was a touching and that's enough that's what that's what you are you making us is that there that's one of the organ says making that there's a touching there's no allegation is or inference is that it was it's not one of the arguments you made that is the only argument you've made you haven't said anything from the time used up there other than we are limited on the question of the question of probable cause and false arrest to the allegation in the complaint that's what you said you have varied from that one iota well i'm saying that's that's the first i mean the issue can be decided on that alone because that's the way it was played but also you have the fact that it's played there is a child who says she was slapped and grabbed that's falls within the common law definition of an assault and battery you have a statute one thousand point two dashi one point three that says the officer shall make an arrest and so then you go to the second question under the qualified immunity analysis whether or not the right was clearly established and you consider that you've got a statute saying protocol is shower us but there's also doors you're saying we can't consider and shouldn't consider under your theory of the law the facts that were developed by the positions and the statements we have in the record based on the depositions of what the child said we can't consider that because we're just to consider this on the pleadings we've got it is your view of the record that the court dismissed this on the rule twelve the six motion and not yes but the record is no different than what's in the complaint anyways so all you have is the officer after he enters ask the child what she said or what happened the child says as put in the complaint slapped islet graham iris that there's nothing in the complaint and there's nothing in the record to suggest that the touching was somehow justified there's nothing calling to question the veracity of the statement of the war whether or not it was being done to correct one isn't well that's when you go back in these to the record that was developed with respect to the unlawful entry claim and look at what the officer has in his mind at the time and he's been called to this stop well that's that's what the complaint alleges after the injury the officer questions the child the child says i was grabbed and slapped and that's also what's on the record as far as what happened nobody calls that into question again there's no argument based on what you said and you may be completely right on that but what you're saying is you rolling the dice on this determination made solely on that one whether or not that one might be a two accusations arguments that were made and i'm not abandoning those arguments but can quickly address the interest because we haven't talked about that the supreme court hears the law in have to get to the constitutional question we can find out whether or not it was a clearly established right that he couldn't enter into the circumstances of the case the law is that that question is a highly particular question in this case it's the final particulary the proper question is whether at the time rigsby entered on december thirteenth two thousand and it was clearly established that an officer called to a residence for the second time in six weeks with concerns of domestic strife and issues concerning this eleven year old girl may not enter without a warrant in order to ensure the safety of a steri miner whose mother was potentially intoxicated allegedly violent that's what he was told no he calls it into question is your honor picked up on an argument and simply the supreme court precedent is clear on this in the georgia vs rudolph case which was a disputed consent case but one of the concerns was if you have a co tenet who says he was objecting to the police's entry in another co tenant who wants them to come in when the the concerns the justice roberts had in his defense in his dissent was what happens when you have a domestic violence situation and a wife who wants the officers to check on her and her husband says no so justice souter spends two pages discussing how in a domestic violence situation it would be silly to suggest that the police were committed toward by entering to determine whether violence or threat of violence has just occurred or is about to or soon will occur and that's the situation we have here we can't look at this in a vacuum the supreme court has said that over and over again most recently in the robert vs huff case last year you have to look at what the officer knew at the time he'd been there once before and was told ok but the night of the information that he has is he's got he's been dispatched there he's told by the father that the father missed a phone call from the child she's trying to reach out to the father for some reason father calls back he's not allowed to speak with this child who called him in his heard screaming or crying in the back around the mother hangs up on him then the police are contacted asked to do a welfare check they go to the house officer it goes to the house and is soon as the doors open in the mother sees who's there she says you and you off my property and she goes to close the door without allowing anybody to just check on the island and see whether or not she's ok because there's a concern again from the officer standpoint that you have a possibly intoxicated mother in no way calls that into question that that some that was told him and that the mother has a history of potentially being violent and so his all to me concern is the safety of this child who has become clearly it rope in this tug of war contest over custody in nobody knows why the child was screaming or crying or georgia versus randolph the precedent in the circuit he has the right to enter to try and investigate what violence has occurred expanded about looking at other information never looking back it is an order so in faith it is your or your friends argument that the government all use is always a question of fact it not true they say it's a matter of fact if in a number of ways and this if the question is what kind of a decision should you render to give guidance perhaps to law enforcement and it's just that is that it may be all right well  complaint and that leaves with what for the other side to when we had to decide as a matter of law that that automatically gives problem calls on those facts and would have to when we were well there's that and it's also twelve argument that is their race is let me finish and you can answer as i said but your view is you would have us decide it the same as them and they say they have to win if there's an allegation of a touch a second here we don't think on of the law you don't think under the law looking at looking at the statute everything else the other side said to look at we can't decide just looking at this this as a matter of fact cannot be thank you very much thank you will step down we counsel go directly to the next case