nothing thank you for the opportunity to speak with you today to me this is a fairly simple case i don't know how it got off the track so badly the magistrate judge reviewed the facts very carefully and did a long written report which was adopted as far as all the facts by the district court so there's really no dispute about what had happened a gentleman his wife son and daughter decided to come over from sonora to go up to chandler to do some shopping yet about three thousand united states dollars with him he had done this before they were not trying to sneak into the country or do anything wrong it was a very prosperous farmer he raises rates  trades in the grapes that he replaces and another and then another raises he sells raisins in his very prosperous make several one million dollars a year he was coming the united states for our benefit it was going to be bogost right i do not believe i do not believe he did your honor but that does that i submit to the court that doesn't in the psychological torment and i will call it psychological torture if you go to that extreme and threatening his wife and his son and then they threaten the daughter chill they threaten the well your daughter is going to be taken away from you and placed in foster care in the united states these are citizens of sonora citizens of our or sister nation of mexico and here he is being told over and over th exception i do not believe that you have discretion to do a canine search but you have to do it in accordance with proper policies and procedures you have discretion do a field test but you have to do that in accordance with proper policies and procedures in th the other if i was if i understand the question the procedures were not followed properly for the field test and for the canine search right now i know you much more specifically the evidence you have i understand you have an as far as the proper procedures used for the canine testing in the field testing yes your honor you're not just allowed to go out there and take a dog or a vehicle and let it go there's certain there's definite policies and procedures to follow and then with a feel as there's definite things you have to do as i said in this case it's really follow with all the instructions on the box and you're home free and i i'm i appreciate judge fletcher your concern about the testing that the canine search and the drug test the field test what has bothered me most about this case and maybe i'm off beam but it's what i refer to judge it today as as torture sure i can't imagine putting a parent in a worse situation and then then what this man was put into and he believed they made you believe they they yelled at him screamed at him isolated him brought as members of his family and separately and and and made sure that he felt the maximum amount of pressure i can't imagine what would be worse  parent than to think that that your spouse that your son your daughter is going to be rich the way from you for fifteen to thirty years i mean what else would you do but confess falsely and how anybody could look treatment by the district just only want only one that she was concerned with and was the intentional selection the other ones she wiped out said the will discretionary function gets rid of all of those common law causes of action except for intentional infliction of emotional distress  stress they did what they wanted to do and they did it brilliantly i mean that you can take an interrogator from any area and history in any country you want to choose these people did a great job all with psychological torment or psychological torture if i may custody and we're here to defend the rule of law and you know to see her officers do this sort of thing it just breaks me is not the way we're supposed to act in this country they didn't physically brutalized drugs i couldn't you're absolutely right there was not the physical kind of abuse although isolation can be very wearing of itself but the threat of somebody with this kind of saying is it's beyond any border we might have any grey area it's so far into the extreme that it's something that it should be considered on the merits and decided as to whether this sort of saying is wrong and it is wrong this is a violation of the rule of law i mean we've all had a very bad year but the one thing that has given me some some joy and hope is with all these election contest in court after court after court judges of every political persuasion have thrown them out based on the rule of law and that's what we've got here the rule of law that says that's what i'm if thank you your honors need please the court i'm dennis basher and for the united states i'd like to start by addressing judge from fletcher's question about whether allegedly negligence during the k nine alert and alleged negligence during the fiel cognisable under the discretionary function exception and it is not cognisable under the discretionary function exception the discretionary function exception applies broadly and f t c a cases arising out of law enforcement investigations and so of all point us can offer our claims of negligence or that officers were incompetent or abusive or that they just did bad police work those cases are going to be barred by the two part t in the discretionary function exception i remember that happening mr abney said that that things that weren't followed were mandatory that they were mandatory policies or procedures and if they are mandatory then it wouldn't fall under th claim against the canine handler was brought by the other's families canine expert now this is an issue in summary judgment that was resolved at summary judgment that was not raised in the opening brief but the canine expert opinion was rejected by the district court because the district judge concluded that the canine expert's opinion was speculated and lacked foundation there was no argument in the opening brief that the district judge erred when she declined to consider that you have his family canine experts opinion on that but at no direct are there are no mandatory statutes regulations or policies that specifically prescribe the course of action that had to be followed that were that clear that the instructions on the test clip on that test kit were not followed but that would be a negligence type theory when you get to the nd part of the discretionary function exception test the policy judgment problem that it plays differently in law enforcement investigations than a dozen other cases there are cases like promises liability cases or professional malpractise cases where the united states can be sued for ordinary negligence but those cases the court will apply what's called the design implementation distinction and the design implementation distinction originates from one thousand nine hundred and fifty five supreme court case called indian telling and this was the main disagreement between the magistrate judge and the district court judge when the district court judge rejected the magistrate's report recommendation she identified two cases where this court the th circuit has rejected the design of the base patient distinction or any in telling in these cases involving law enforcement and those are the gonzales case and that alfre case and gonzales this court referred to the design implementation distinction by name and expressly rejected that it applies in cases  arising out of criminal or cause a criminal investigations same thing at alfre and alfre the plaintiffs tried to rely on indian telling the night this court in in alfre expressly rejected indian toing and held that  indian telling in the design implementation distinction don't apply in cases arising out of law enforcement investigations of those cases i'd like to try as question but in a slightly different form in order to detain the alerting of the dogs and the testing of the fluid so they had to do something with and they were acquired and what they did was they had the dog alert and they tested the fluid if they did that in pro that strikes me is that he's not going to do that within the discretion from conception well i'd like to make two points about that st when we evaluate police work we don't use hindsight we do it from the perspective of reasonable offer in the same or similar gentlemen in it accurate and according to the point is evidence in probably before but there's an important point to make there and this was not raised in their opening brief but the district court judge central to her order granting summary judgment on the false imprisonment claims relied on that the probable cause finding in the criminal case in general when there is a probable cause finding in the criminal case and probable cause is an element in a subsequent civil case there judgment the district court looked at the affidavit of probable cause that was in front of the magistrate in the criminal case and concluded that there was no evidence of judicial deception and so that was another basis for dismissing the false imprisonment claim and that so so the there was there are a lot of issues result summary judgment that were not raised and then you have a stanley's opening brief and that was one of them one of the reasons the false imprisonment claim failed was because of this presumption of the period before that it was before the met the judge oh in order to get to the merits of the claim you still have to get past discretionary function exception and you still have to to show evidence that the probable cause was obtained through judicial deception will not not not there's there's not there's judiciary is not involved at the time i'm not talking about i'm going about the dog alerts they perform the test both of them impartially perform according to pla canine makes an alert there is probable cause at that point to search and to continue the investigation including the arrest of the canine expert and yes families canine expert his opinion was rejected by the district court the district court did not consider it so there was no evidence that the canine didn't alert you had if you had a trained canine officer with his canine they had just been certified the canine alerted twice to the vehicle that gives probable cause for what happened next that the rule from this court and the supreme court is that if a train canine team has an alert then that gives probable cause and that's what happened in this case and there's really no there was no admissible evidence in the contrary because the only evidence that they that they used to attack the canine alert was their own expert and the district court declined to consider his opinion that particular part of the desert sort order was not it was not appeal alfre and then saddle every decision made in furtherance of the investigation was protected by the discretionary function exception the question in this case was really what is the limiting principle in this policy judgment wrong because there was no evidence of a constitutional violation there was no mandatory legal provision that was allegedly violated and so when you get to this this part of the analysis the policy judgment wrong where is the limiting principle and the limiting  when general adams locked a doctor said bo into the meeting room had been rated him that had nothing to do with the investigation and when general adams threatened to go after dr sables medical license that had nothing to do with the investigation and it was solely for an improper purpose and i think that's the line when it when it officers suddenly there they're doing something solely for an improper purpose unrelated to the investigation that's when you lose the discretionary function exceptions protection when you're on this policy judgment problem so but but broadly speaking and officers purpose should be to enforce criminal laws and to bring offenders to justice and that was the purpose that agent to see is hat i mean this this case was tried or this claim was tried so the district judge made factual findings and the district judge found that there were no derogatory remarks about mexicans that did not happen the district court found that casea says only motivation was to elicit a confession which is related to stopping it is related to enforcing come the laws of bringing offenders to justice the district court found that  he had no malice and there was no improper purpose those are all factual findings from the claim that was tried so this court can only set those aside for a clear air it has to view the view the evidence in the light most favorable to the prevailing party on that part of it and it has to affirm if there's any basis in that area or if the judge's findings are possible and why of the record as a whole so broadly speaking the purpose was to enforce criminal walls and to bring offenders to justice and that is the proper purpose for four officers on this court the court in this legal analysis identified savile was drawing the line and of course in savage general adams did some things totally unrelated to the investigation solely for an improper purpose the other case from this court that's relevant is gastro and in jasher this court used the word malice it may not be clear whether when the court used the word malice they were doing their discretionary function exception analysis or whether it was a different question is one possible standard or one when you're in this policy judgment problem agents cross the line however this court or the district court said even whether the standard is malice or whether it has to be conduct even worse that like savile there was no conduct like that in this case and that's why the discretionary function exception applied i want to make one point about the assault claims it was not our argument below and it's not our argument here that the assault claims are barred by the discretionary function exception our argument summary judgment was that there just was no assault in arizona to have an assault you have to have something much much closer to a completed battery if someone takes a swing at you and miss is that's an assault if someone draws a weapon that's an assault it's got to be something much closer to a completed battery and there was no evidence of anything like that in this case the other family members claimed vaguely that they felt threatened but just making some big claim that you feel threatened is not enough there has to be something much closer to a completed battery and at their depositions and this is part of the record so the deposition testimony is the record the as family members ross questions like did any agent ever make a move to strike you that any agent threaten you with a fist or a weapon do you ever feel that nature was about to hit or strike you every time and you have a family member got that question they answered no and that's why and your honor both the father and the son testified that they felt that they were in fear of being hit and that in arizona is an assault all you have to do is imminent fear and consent is offensive touching and you've been illegally or unlawfully detained without their consent there's enough here that reasonable jurors could say that they didn't have any basis for i don't think we should ever lose sight of the fact that there were no drugs in the washer fluid none at all and it took the government a long time to do a real test on it at a real lab and even when they did that they went back to the vehicle and basically took it apart x rayed and examined it minute late there was no hint anywhere  any kind of illegal importation of drugs or any effort to do anything illegal in our country just a family coming to shop in arizona that was all that was and yet he was in prison for forty days because of this and not no apology just released and have a nice day that's not how things are supposed to pray for as something unrelated to the investigation or interrogation is related to the investigation but when you step over the line and engage in this kind of extreme question it's not just being aggressive not just being inventive and tricky those things are allowed this is so far beyond when you're when you're we have this man is in tears because he thinks decided that he would take the blame and he would take the blame for this even though they didn't do anything wrong there's no hint he did anything wrong and confess you know that's something that's not really related to an investigation that's related to a desire to nail somebody for anything this and even worse and probably every member of the panel has seen instances like this and worse but sometimes and some point we have to say all the fancy language about discretionary function really boils down to you can't do be very fine distinctions here your honor and i understand that but sometimes you know the light goes on this is not the border line this is not twilight or dawn where you're wondering you know is something black or white and you just can't hello this is so clear that anybody anybody you tell that story to would say that's outrageous that's not how i want my border patrol agents to conduct conduct themselves they're violating the constitution to a trial or a fact and that's what should have happened here and then when the intentional infliction i submit to the court that that was error of great magnitude that these facts of were part of the notion that these agents intentionally want to inflict as much emotional stress on that man as i possibly could and all the other members of his family they wanted them stressed oh i know i think i'm here intentional infliction of emotional distress claim  a i mean the trial testimony ye i don't think so when something like this where it is evident i believe as a matter of fact based on the undisputed facts that this was intentional function emotional stress me what's really going on is a characterization of what happened that the federal agents characterized it as well mere aggressive testimony and we characterize it as more of what it was they intended to inflict emotional distress and they