the morning and may please the court qualified immunity piece of judges could disagree and we do not expect we do not require officers to guess at the correct result leaving them to hope to pick the winning side to liable for the alleged misconduct of other on appeal have you separated out that liability by individual officer we addressed you know each officer and the fact they could have supported for instance there's only one allegation against detective gray the allegation was that she participated in a drive by how other than that she is simply a detective the investigated  fabulous twenty two times he was strangled there was evidence that she was sexually of the three homicide officers or homicide detectives he gives me here were assigned to investigate a murder and what they learned was that the victims cellphone was missing down to the popeye stricken the face of this area they called the phone and it was really they had somebody answered it sounded to them like it was in a commercial chicken or a commercial kitchen all of this they used to determine because we officers responded to that area when they initially tracked and they all that and they believe they heard a phone ringing and one of two apart told is that what triggered that tracing that they had traced it to that area that's how they ended up in that area searching for the phone as they use the s of the phone to to get to that area and when they respond in that area they try calling so based on all of this they concluded that it was reasonably likely that we charles was in possession of this all so they applied for a search warrant a big zero and then mentally they didn't include and the search warrant application that they had also connecting the phone will be charged at that point they may be you know a search warrant for the place that we charles is most likely to have that ever was resident the residence of the budget but the phone call was to bristol not from bristol and the other place where you actually had where the officers knew or believed there was a phone was located was not bristol but winchester right places so you know if you had added that information in a  location where a phone is ringing and no one answers presumably and it's one o'clock in the morning that's sort of would give the magistrate information that that may be where it's located it was calling out to it today you actually find in my office i didn't bring with me but cell phones are inherently mobile but the fact that it was him we want to talk the morning doesn't necessarily rule out probable cause for another the gauge now what it may do is provide probable cause the no there was no evidence one way or the other and that's because this search occurred on november third two thousand and ten like i said the murder occurred october twenty ninth of june this was very early on in the investigation and they didn't really have  essentially what they had was the cell phone and that the cell phone obviously they had tracked only charles but they had not they didn't know whether there were other other accomplices or not they had a particularly circumstances or is it that in fact the policy to use these teams under most circumstances it's a policy to use it's a policy for casey p t use either uniformed personnel or a tactical response now the homicide detectives because of the type of crimes that they are dealing with generally use tactical response i suspect that if you ask the property crimes detectives who are dealing with burglaries and other things they probably use uniformed personnel more than they but the homicide detectives the based on the crimes that they're dealing with they typically would use attack or respon and that's that's what they did here they what policy they got a tactical response team and they executed the search warrant that even the tactical response team approached the house they knocked in and out their presen and after a lengthy delay they start to breach the door now when they start to grease the outer door the inner door opens and the individuals that steps back and at that point they believe that they're compromise detectives to do their search counsel if they were worried about being compromised why did they knock and announce because that's what the law by this because they know now it doesn't mean that they're not going to do that they want individuals to see them and have a chance after they've been seen and the individuals know i have been and then here though there was there were there was evidence that said that someone came to the door had keys in  hand even one of the officers heard her say i'm getting the door something i've got keys so why it will you presented a set of facts but maybe not the ones in the light most favorable to the plaintiff here w few steps back and at that point the officers both have concern for their safety and they also have this additional concern about destruction of evidence they don't know what's going on inside but they know if they've been outside the door  whether that approach was right you said it's a homicide investigation which i think is undisputed but you've got mr charles in custody for three hours and then there's understands undisputed he was not interviewed cracked before the attack tactical team went to the house i thought on the record whether he was interviewed or not he is interviewed at some point but i'm not sure that it's in the record but what you know and so i guess i'm not what i'm asking is is how do we factor in then the lack of some of the investigation so if there's nothing in the record about and interviewing someone who's in custody there's nothing i think on the record that they did any kind of additional investigation as to who lived at the house with the layout of the home was isn't that aren't those facts that have to be viewed as well sure and what they do is they do a drive by of residence to ensure they have a cracked want to see to see what it looks like now they did they don't they've done they've they've picked up somebody on this warrant so really for them times of the essence when they are looking to recover evidence so that you can't those three hours it was three hours right before they're right and i mean i think what the suggestion is they should have waited even longer wilder may please the court my name is michael waldeck and i'm the attorney representing g j who is a minor two and a half years old at the time that this event occurred steps to go up to the to try level house to go to the point where the bomb landed and that's where she was exposed to it i'd like to start by just saying this and i won't dwell on it but this about change that girl's life she lifetimes that we're talking about are so powerful that they can melt steel bolt the scale they are so powerful that they can destroy hearing sight or the ability to reason as a result of this and they also can cause best those are all facts in this case that we know those are all the facts about the impact of this flash bang grenade in the record and undisputed but yes it is in the record and it about the effect of one of these grenades in various sizes locations in other words a smaller living room would have more impact than a larger warehouse was there any connection between i guess what i'm trying to say is the nature of this particular house and the damage that something like this could do well we know there was a fire inside the house we know that she was in the middle of the house but dimensionally no your honor there an excuse me this morning there wasn't anything specifically about that and are not all these are these grenades and forgive my ignorance on this did they come in in different power levels are drank stories there  power the ones that they can any swat team uses and further to that but i understand there's two levels of it but basically the ones that were used in our house are the bigger of two all right now just quickly to make sure that we don't know the moment because this the phone was never at the bristol isle well while we was never closed because yes i'm sorry while we're talking about the flash bang since we brought that up right away yes what makes it clearly is not ok yes but what is established that if it's used under certain circumstances without knowing what the situation is then that's with that that's where the harm comes and that's what we're claiming in other words if the home is sacred and we know we protect people who are in a home if they're going to be exposed to these under what circumstances is it and how do we use it what are the facts in this case and we was touched on earlier in the argument they had arrested lee charles he was in capacity in custody for three and a half hours before this raid ever took place no interrogation was ever made of him about what the situation was or what any of the seine in fact were they went ahead and a cover of darkness at seven o'clock after a briefing meeting and went ahead with the invasion of the home when they knew that the phone they were concerned about was not in that home least charles was not in that home and that phone was never anywhere near bristol and we'll get into the warrant later but that's that's the fact with regard to the situation so when let's just put ourselves in the situation you're the swat team when you're on the stoop in front of his house when you're trying to decide whether she should go further we know from the cases that one of the criteria that we're talking about here is to say ok under the circumstances is this necessary because there's somebody that's dangerous in there that may harm people a criminal or whatever it is is this a situation where if they go in they're likely to incur resistance by them or that people will feel like be involved in flight and if i have a risk of these people these men that are heavily armed well in this case if we fate with this very dangerous bomb that they're going to throw in there they didn't there's no doubt about that there's no dispute about that fact and then in addition to that what do we know about the actual situation and what we know about the actual situation is there on the front stoop and when they come up there to with the lead man there of the seven men they're going to go in there and they look and see at that time carla brown a diminutive long young young lady who was the babysitter chics hears a noise and comes towards the front door there's two doors if i can describe them for the two doors are this if i'm standing inside like carla was ok i've got one solid wooden door she got that door open they didn't even have to go in because carla was going to let them in but they and you don't have to rely on me on this or any of my clients mr george and one of the policeman who was on the swat team said i saw her  know further about what the situation was well that's the great frustration that we have as plaintiffs counsel in the plaintiffs because there was no surveillance there was no investigation to determine whether anybody was in that house whether they were going to get hurt what was going to happen or whether there were criminals and they should march on and we have in this situation we have the officers dop dodging the issue by saying well we really weren't sure what they were not ok if you would just think for a second about that the neighbors next door are fifty feet away an officer could have walked there octon speakers and asked them and they would have found out who did live in that and who did live in that around who is a babysitter and my client c j ok that's who was in the house so if they had done some work in advance they would have known that those of the people there and they wouldn't have under any circumstances thrown that bomb in that room and they would not have taken any action to do anything but ask them what's going on the parents arrive another thing is this troubling about this just coming home the joneses from work less than an hour after they had raided this place as they ordinarily did this jones got out and she talked to the officers and in they said well what about lee charles she said well he has lived here for the last year they're relying on two updated directories of where he lives to establish that he was in the house the fact is he hadn't been in the house in the year but i thought an employer also told him that he lived at that a partner i didn't hear that i thought one of his employers also told the police that he lived at that address it what the employer said at the dollar general i believe it was your the time that he applied that's what he gave her and they had an address which would have been somewhat remote from the time that we're talking about ok so that's where they are before they haven't thrown the barn yet but they know  in custody they got the phone it's nowhere near bristol where they are bristol is a block and a half from winchester and they go ahead and they say well they're going to force their way and they see the jingling keys like that at that point they don't have somebody who strutting in fact of the situation it's the opposite of that they have somebody who's trying to cooperate with them to let them in so that they don't tear down the door ok they didn't hesitate they took ahead with the only good blow through there and in the officers went through the house saw there was anything of interest they left out when the officers came through how quickly did the grenade get tossed was there media it's pretty i don't know exactly but let me describe like we have might be reasonable that and during that time why that's when the concussion occurred the damage to j c and cost of her problems that she's going to have to provide now what you want to say i would hope is why in the world did you proceed with this when you had no threat of anybody in there was going to cause any problems in the proof of the putting was that in fact they tried to cooperate with them and try to get them out the in there without tearing up is there any evidence on the record why the officers didn't interview mr charles before the tactical team when the only thing i can figure is i it's one of the great hidden secrets because i think that would be one of the first people you want to talk to nothing there he's a suspect and they've got him right there what's the story what did you do so forth and so on nobody interviewed him they had a briefing before they went in there so everybody knew who was in custody what the situation was with regard to the phone and the rest of it they'd had the phone location for four days before that so that's all the information they had and when we look at these cases that i've seen what garth let us what exactly is the evidence about when he was arrested because it would be  it's three thirty seven in the afternoon it would be typical to mirandize him immediately and then and normally to try and measure any evidence that he refused to talk to him or that they even tried to here's what we know is that he was popular with them and that that's in one of the testimony but i don't know all i know is that sergeant eckert who was in charge of the case for the police department that she had signed the application to arrest him and i know that was done and he was taken to custody not in the central city but at another location of the incident police department but what happened after that there's nothing in the record so none of the arresting officers were deposed on that question no you know what we well know we have information that nobody had to had interrogated him and i'm sorry i wasn't i guess nobody even attempted to interrogate there wasn't it you know yes i mean again i would be sort of standard practice to get take down some pedigree information you know was is there any evidence about that one way or the other as to that part there was ok i know i'm short of my time so let me get quickly just to the points that i just think are important to make that that bomb  terribly dangerous it's thrown in a situation where we have the right to believe that somebody in their home has a protection and the reason that this happened was because nobody went to the trouble to do some surveillance or hear this basic stuff like i did to do that what the case is saying is and the two problem the argument is talked a lot about one problem is is or excessive force in the case that's from this court in which you decided in record sectors is jensen that a big officer throwing down a little prisoner and knocking out two of his teeth was excessive force how does that stack up with a little girl that's got the problems that she has and she's going to have him for the rest of  a smoke bomb or a bomb that never should have been thrown and we're talking about excessive force and then you get to the second problem which is whether or not under the circumstances what a reasonable officer would have done a reasonable officer would have had some surveillance first and that information before they went further they would have taken the trouble to follow through with the jungle key before they did that and they would have obviously realized there was no threat at all were those three ladies going to attack them in some ways those big guys with i mean it's not it's not crystal clear that intent number one they would have discovered exactly who was in the house there could have been other people in the house and in addition to the three people that were affiliated with the murder right there there's no way they could possibly know that even if they did canvass it in that's that's exactly what we're saying you don't go forward with something this dangerous but having some idea what it is and there's no problem to find out they could have found it out from the joneses if they'd waited fifty five minutes or they could have walked next door to the neighbor instead who lives in judge wonders how ok well this is this and this and they would have known that then they could have gone from there and that's the trouble with using these and in a case in the future a situation in the future when they go up and they're confronted with these things we hope that you're finding in this case would say to him be careful do your work out like good policemen do and you'll save a lot of people a lot of problems thank you gentlemen i appreciate it  claim and at least the eastern district of mark it's all one judge and there's two thousand well but he has brought in excessive force clymer based on an unreasonable search he's brought a violation the fourth amendment based on reasonable i would i would suggest but i mean they're generally has to be case at least pretty close on point that's what the supreme court keeps saying is that in these fourth i'm going to cases they're reasonable this is fact specific and there has to be a pretty close to the facts of this case to let the officers know that what they're doing is violating a constitutional right thank you michael thank you counsel has been well argued and is now submitted will issue an opinion in due course that being our final case for argument chordal stand