may please the court the fourth and fourteenth amendment of the constitution guarantee the freedom to each citizen to be free from unreasonable searches and seizures and from deprivations of property without due process of law  reversed the district court's grant of summary judgment and allow this case to proceed to trial critically important for this case is that this case was not decided at a trial it was not decided by a jury of mr reggie's peers rather it was disposed of that summary judgment the critical analysis under the fourth and fourteenth amendment is one of reasonableness and the prior case law is quote crystal clear that reason when this is an issue for the jury and it is because of the jury's unique competence in applying the reasonable man standard that summary judgment on issues of reasonableness is generally inappropriate it is particularly inappropriate here where not only are there genuine issues in dispute as to material fact but even on the undisputed facts a reasonable jury could find that mr rush's fourth and fourteenth amendment rights were violated the court should not allow the district court to substitute its own notions and conceptions of reasonable ss for that of the jury further i think it's important to note the potentially far reaching implications this case may have not just on the homeless community but on any pet owner who walks their cat on a city street if the defense's position is adopted by the court it would allow animal control officers and city that marion's nearly unfettered discretion to not only seize but to destroy a pet based solely on what they believe may or may not be true but the constitution demands more than that because tuition demands exigency which cannot be satisfied by speculation as to what may or may not be the case but rather must be satisfied by  he didn't know how the process worked with any animal services department that's correct your honor did he have any discovery before in summary judgment he didn't produce any discovery no the city producer several declarations both from mr feldman dr feldman as well as the animal control officer getting with the fourteenth amendment the benchmark of the fourteenth amendment is the opportunity to be heard at a reasonable in meaningful time and in a meaningful manner mr rich in this case received neither the post seizure post destruction hearing that mr ritchie did receive  days after the destruction of the birds could certainly not have been could not be considered a meaningful time because the full penalty the destruction of his birds had already occurred and further it could not have occurred in a meaningful manner because there are certain there is no remedy under which mr russia could receive the the most that the administrative hearing can provide him is the lack of having to pay administrative fees for caring for  destroying his birds and when a person receives neither a pretty deprivation nor a post deprivation hearing which we argue is the case here there is no reading of matthew's v eldridge under which such a taking to be constitutional  within a specified number of days he applied for the hearing i believe on november seventh the birds were seized and a member third year and they were euthanized two days afterwards the day after your honor on november fourth the next day the very next day and i think the timeline here is important and as you just alluded to judge a warlock november third the season on november fourth they're destroyed i mean there's almost no chance whatsoever for any person of that city scenario  a pre destruction hearing which is required in the case law is numerous that before a property interest is finally deprived the person has to have an opportunity to be heard an opportunity that is nearly impossible with such a short window of opportunity and you could certainly imagine a situation where if something he sees in the morning they can be euthanized that very same day and this was  severino out of the seventh circuit they noted that the risk of iranians deprivation was extremely high when there was a five day holding period where the owner could come and contest the validity of the seizure before he lost his property rights here we don't have a five day old and period we have a twenty four hour essentially holding period and the statute provides virtually no limit at all to what the veterinarian or how quickly the veterinarian can really destroy the birds and just a note about the veteran's expertise and ability to unilaterally make a decision in this case the birds the defendants in this case of cited the case of parham the they are to support their contention that the trained analysis of one veterinarian can suffice to satisfy the process of this case are hambre jr actually hurts their cause instead of helping it and part him in the court made a big note about how the medical procedures in that case which involves multiple trained physicians giving multiple examinations of the patient satisfied the process it compared that with a situation what it called arbitrary which is when a single visit position has unbridled discretion to determine whether or not a property interest will be deprived that is this case the city but an area as unbridled discretion based only on what he believes may or may not be the case to destroy the birds and i see that i actually have one minute forty seconds left i'd like to reserve the rest of my time for rebuttal all right that's fine thank you good morning to peta city attorney matthew sure about behalf of the city of los angeles that you animal control officers may it please the court i'd like to just start where opposing counsel left off which is with the par hand case i just want to highlight that that case in the cascine case and several of the others that we cited do in fact involve you know of one medical examiner making an initial decision and having that be deficient process that is due but i want to back up now and just reiterate this is not a case about the city of los angeles's animal control officers going out and seeking opportunities to to seize and then evaluate and euthanize animals this is a case where as the pictures initially demonstrate there are some patients in really diseased suffering conditions  animals are diseased he can't leave them on the streets he can't leave them to infect other birds in public to possibly affect other humans of why can you tell you that warrant before he sees him i don't know what it would take for him to acquire  that situation but the situation that was there was one that required his immediate action and certainly he could at have at least it was at least debatable for him to have seized these animals which is why qualified immunity i think so clearly applies here handled reasonably and i think that there's at the very least qualified immunity here but i think moreover there is not a violation of the fourth amendment rights or the violation of a of a due process right because the parties agreed that he had a property interest in the birds right the city has not did not move below for summary judgment on the issue of whether there was a property interest in the pigeon i these are in fact wild birds california does have a policy that that gives wildlife unquestionably california wildlife i don't think there's been any dispute that they are by the fish and game code illegal to possess essentially their contraband and so there's never been a contention by either side that there's a property right in those in those birds and i don't think there's any contention that that they were that what the city with the city did with their animals was was unconstitutional so i think the focus is on the pigeons clear based on what we have that there is at least a restricted right in patient possession that certainly the city of los angeles regulates to some degree but we did not brief the issue of whether under california law for fish or game code these are in fact wild birds and they have no property right at all and whether there might be a diminished property right in the fact that these are patients as opposed to some other type of animal elsewhere prove that he they had time to get a warrant i don't think so your honor there's two things i want to emphasize there one is that the standard for reasonable in this under the fourth and then it is subjective so we really shouldn't be looking was looking for ways of handling the situation short of total seizure and was inquiring and it was mr weekley's idea so mr weekley says to mr appiah you know is there something we can do here and you have some other plan and already concealed these pigeons from these officers and they were in a fluid situation and they made the callous that they there wasn't a viable option here and that because there was no place off the street out of public for these pigeons to go that was it heightened the health risk if we look at mr weekley's declaration or one zero seven two one zero nine that that's he's talking about those things there and those are the factors that contribute to this isn't well i try to try to find some other way out of this but it wasn't possible here for me to do that in the situation because there is just nowhere for these birds to go and there's a risk and he wasn't a veterinarian he thought he could only see what he saw he was a trained animal control officer but he was worried for the health of the seizure hearing that when he arrived to evaluate that the birds had been destroyed the day after why wasn't he entitled to a hearing before the birds were destroyed he was not entitled so he was he was given notice of the post seizure hearing which would have which did in fact take place and the hearing determined that the seizure by the two animal control officers was was reasonable he was not entitled to a pre destruction hearing because of the analysis that the veterinarian did the veterinarian wrote a lengthy report which was produced and as a part of the discovery in this case is also mentioned during the hearing i think it was our forty two although it off my binder with me right here where  this this this report of the veterinarian was produced to mr record during the hearing process and there is no contrary medical evidence this is the only accident we have the veterinarian looks at all of these birds the eight that are manifesting severe severe symptoms of disease tumors lesions the whole human you've seen the pictures and then he reaches his expert conclusion that because of the feces and the bodily fluids that are spreading amongst these birds it is very likely in his words that all of these birds are infected and need to be destroyed and there is nothing there is no other humane option and the veterinarian concluded with this thirty five years of experience that this is what had to be done in this case it's unfortunate that we couldn't provide a hearing in this op in the perspective first of all i want let me step back really quickly and just say if and i will answer your question but i want to say with respect to this due process claim we're talking about actions of the municipality because the veterinarian hasn't been sued so the veterinarian here needed to be able to evaluate the situation under par hand under kassim these cases that deal with a situation where error is not high highly likely because we're involving a veterinarian or medical professional this was the process that was do either that evaluation was the hearing or hearing was excused because of the great public need is under united pet supply for protecting animal health or because this is  situation where we can rely on a trained professional who has in this case thirty five  experience counsel i've got one short question for you yes judge will tool in that if i may other supreme court cases or ninth circuit cases the deal with the fourth amendment standards when health care workers encounter animals they think are diseased as to whether a warrant is required or not or you know i  don't know what our current law says yes your honor i'm aware of some court and ninth circuit precedent that deal with the situation of public health exigencies we have the united supply case out of the sixth circuit that deals with the very specific situation we have here there's the siebert case which my opposing counsel talked about out of the seventh circuit but that case did not deal with public health exigencies and in fact out with a lying volunteer animal control officer who fabricated false conditions and so it doesn't provide the basis for a clearly established law for qualified immunity or inform the analysis here but i'm not aware of a ninth circuit case that specifically deals with animal disease and the need for for  angeles one of them for millions who are out there as we speak further mr sir noted that the confirmation both of the hearing officer of the district court as well as the veterinarian  justifies the actions of officer weekly and rodriguez and seizing the birds but the analysis under the fourth and fourteenth amendment of what the officers knew is only that it's that what they knew at the time you cannot use post fact reason this assessments by a magistrate judge or by a veterinarian to supplant their own judgment at the time of the se and finally it does call as you noted that this is not a battle of the experts here there are no other vets that can come in and testify as to what the birds have did not have because the birds were destroyed the day after they were seized and the veterinarians report