good morning morning may it please the court i'm brad anderson and i represent the appellant and the plaintiff june grainger i hope to reserve about two minutes if i can and i'll be watching the sho ticks down the labeling her as an octogenarian who must have been in shock or confuse by the nine i r s agents in swat gear who broke down her front door or the judge believing based soley on written declarations that she otherwise lack the mental state to properly perceive that the men at her front door were actually officers instead of burglars the district court disregarded mrs grinders version of events violating most of the well established principles of the rules of summary judgment the trial court chose to drop every inference against miss crying or and determine that her version of events was not believable or that she was incapable because of her age or because of the shock of the moment of have a nine i agents break through her door that she could not perceive what was occurring right before her even though she was present and could witness or at least provided version of what occurred  if i read what she said it seems to me she says she was working in front of a computer right yes she had the television and it was on in the family room yes and then she says i can normally hear but i didn't hear this what she said your daughter was the only thing she heard door so then she didn't say it didn't happen she just said i didn't hear anything more than a bang a big bang that she thought was a rock hitting her front door so if she doesn't say it didn't happen then how is it that the judge shouldn't take the facts as alleged by your opposition as true every witness is presumed to tell the truth i understand that but i'm saying and why i ask you the questions i did it seems to me i'm trying to look at her affidavits look as best i can it says she was i working at her laptop she was in a breakfast area the television was on normal volume she heard a loud bang she didn't say there wasn't they didn't do what they say they said she just she doesn't know she didn't hear it your honor we agree that there was something the officers did at the front door that caused her to believe that there was something happening at her front door although you agree that there was a loud bang that's best you can because that's the best she heard right yes and then she says she didn't hear anyone knock before or after the loud bang here no one say they had a warrant or that they had wanted me to answer the door correct but she does agree did she not that she went to the door and looked out the window but there the side window yes right and then she went back to her kitchen yes so when she looked out the window she saw all these people out there and because she had been out a boy and knocked on her house before and told her a sprinkler wasn't working and thought that was a burglar she thought this was a burglar and she was going to call somebody she had a she had a perception that what was happening to her was different than what actually was happening well i guess again i then say give her all in ten minutes the fact the best i can tell is what she did here was a loud bang but i cannot say that this other stuff did not happen all i can say is she didn't hear it she says she would have been able to hear it's her house howling that she lived in the house over twenty years that they built the house what did her expert say about if there had been a knock and announce she should have been  say we did all these even videotaped and he said we did from her dining room table which is just around the corner from the front door with the t v play in the volume she said it was she could clearly hear it she could also clearly he voices at the front door so from her position sitting and then we also reenact it when she got close to the door you can hear voices coming through the door without even shouting so it seems to me the problem because i share decision pivots on the conclusion that no reasonable juror could decide that there was a knock and announce but why couldn't a reason i ask you both i'm not clear on why a reasonable juror couldn't present right i'm present i'm just as present as you are is that a yes yes yes the answer is you because you didn't perceive it with your ears that's your position it's not it's not a matter of site it's a matter of you didn't perceive it yes and to squarely answer your question is if it's your obligation to make sure before you have a dynamic entry into my house that a reasonable person on the inside of that house can hear you then my testimony about what i heard is relevant and every inference when i say look at revenue it's relevant it to seem to forgive me for interrupting but that there's also i think nine declarations from officers saying that they knocked on outside the jurors might decide that they believe the officers as honestly you know i mean i could lose the case but it's up to it's up to me to prove my case and it's up to the jury to decide which version you don't just can't get your time is taking let's see if they have as the other questions i guess go ahead did you have  quote if the record is that she's sitting in there and she heard something at the front door yes then she went to the door yes she saw talking she tries to sign an affidavit that changes her definition that it was that is in the agent's affidavit and that no reasonable juror could conclude on the basis of her testimony or long expert or excluding the expert including the experts that the knock and announce  didn't happen and that's the issues where that happened so can you address that problem for me you know and i'm going to try to do it in got forty seconds but i can understand this is very important to you so the testimony of the nine officers in june grider are are different in this regard again we don't dispute there was something that happened at the front door that drew her there the question is whether the officers reasonably announced their presence that is who they were who they were and why they were there and what they were demanding  first thing she heard was the battering ram right i don't i don't know what heavy lift she's amidst that's the battering ram occurred after she came back into the kitchen right no no we can't say what happened on that side what what the end of the war broke down after was on the stand the record the door was broken down after she turned and returned to the kitchen to make the telephone call him am i wrong about that  daniel's version is i knocked and announced one time she heard and then then he says i waited forty seconds the other officer said it happened right away daniel says i waited forty seconds because i knew as an elderly woman and i  know it's not a question i'm asked a question i'm asking you this and i think i understand i know understand the record to be this and if i'm wrong i'd like to know what that the battering ram a plaid came to through the door after she had to the door heard the money came back around and went to the telephone went to the kitchen for the telephone right yes yes or no yes ok so then that's consistent with the officer in no because like i said the officer said she came to the front door i have i got a contact with her she says i came to the front door did not have any idea i contact she said as moment i saw that these were burglars i turned and started to run away and the moment i started to turn away my door came crashing in she got to the door in seven seconds i believe it's just as reasonable i'm entitled to the inference in my favor it's just as reasonable that the officers rammed it the first time that's that that's the slam she heard she gets to the door  because it took them seven seconds just to get the back officer to the front she gets to the front door and then she immediately she thinks that's a home invasion runs and then goes and calls the police never hears of it clear voice which she should have because she was in a position and you've got this officer daniels who say and i had i don't i contact or i talked to or in a normal voice she said nobody talked to me and as soon as i got the front door i turned and ran in the moment but just a minute really you're making your great jury argument but you're really not answering his question which is where i was going it seems to me that i'm trying to put the facts which are in the affidavit to determine whether they're conflicting or they aren't and his question was pretty simple she heard a bang she went to the door to the window whether she had a conversation or not that might be disputed but the fact that she went and they had already bang down the door and she went back to her kitchen there after says that there was something before the loud bang that was the breakdown of the door based on her testimony i trying to say you're you've only you can argue what you want but you've only got what your client has said and your client says there was something buying that did this and your your honor with all due respect you're making a conclusion you're making an inference that the officers were able to ram the door and they said it took multiple times to hit it but somehow they were able to do that during the time before she could get to the door in terms and that was our inferences that need to be drawn in my client's favor not the officers fear if we draw the inference in your client and your over times that he by the inference is in your client because that we're all struggling with the same thing if we draw them in print is in your client's favor is the first thing she heard the battering ram and the second thing the battering ram i believe so but it doesn't matter because either scenario works because the officers have the burden of proving that they properly announced not knocked they did that they got to the door but did they ever clearly articulate to a person you know something obviously went wrong and the person it should have been if they did it right she was a person that should have heard it and she didn't hear it and she's reasonable thank you your overtime thank you for your argument good morning your honour's and may it please the court i'm till miller on behalf of the nine agents who consumed in their individual capacity in this case the key question here is whether given that the officers have come forward with direct evidence that would meet their burden that trial whether what plaintiff has come forward with in opposition to summary judgment is sufficient to create a disputed fact and it's not and judge payne york your question about whether the noise she heard the first noise she heard could have been a knock or could have been a battering ram whether there's a dispute a fact about that the answer the question is clearly no based on her own testimony why is that that's what we're struggling with ok so she says just first of all she  acknowledges that all she has as evidence that the first thing she heard was the first hit on the door was an assumption she says i assume that when they come up they threw the instrument at my front door and that's what brought me running that's page three twenty three of the record  it's an assumption she can just testify about her own perception so she heard something please go to the question that we've all asked yes so the read the un contradicted evidence shows that no more than seven seconds passed between the first hit to the door and the second hit to the door that there were only two hits to the door miss greiner herself a page three thirty six of the supplemental actions of record says she has the door and there were two marks on it right and so that's that's exactly the point that we're grappling with there were two hits to the door we know the second one bashed the door and right or do i have that wrong ok no that's correct ok so why isn't it possible and i'm just i'm just really keying in on this why is it possible that no reasonable jury could could find in her favor if they believe that the first thing she heard the first hit know the battering ram i don't know if it's called a battering ram but the first attempt to bash in the door why is that not possible it is not possible because based on her own testimony there simply wasn't time i want to i want to go the citation to the record about the sort of maximum amount of time could have passed between the two hits this is at pages of the supplemental exercise record officer gleason said he immediately broke down the door at pages t seventy seven one ninety eight and one eighteen one thousand is the e r and the other two citations are the supplemental excerpts is the only testimony about how long it took one one to one officer said there was about a second passed between the two hit that time she became she her attention was drawn to her door she got up she ran down her hallway which is thirty five feet long she got to within five feet of her door she saw what she called a riot a mass of men a ruckus she you said because it wasn't still on time and so you're getting that from where if not from her testimony well i just asked you that and you said she didn't give an amount of time but she told us what she did between the two noises she said she heard a minute ago you said seven seconds is the most and where do you get that from the officers testimony there are four officers who give an estimate between one and seven seconds so is that your argument forgive me for interrupting but i'm really trying to focus this is your argument that given what she says she did she couldn't have done those things within seven seconds yes all right yes that's exactly right your honor ok and that's why i was going over what she did between the two noises that i heard it i understand i guess the problem comes i'm trying to be careful here to scott be here s which is the united states supreme court case when opposing parties tell two different stories one of which is blatantly contradicted by the record so that no reasonable videotape i understand i understand what that was i might have been looking at the enactment i'm looking at the affidavit because i'm not sure the enact one helps at all but i'm looking at the affidavit so i'm trying to say to myself is her version there blatantly contradictory well i think i have knowledge we don't have a videotape but i think we've gotten as close as we possibly could given that we have the before action report which says there will be a mo looking at this on summary judgment you can have all the witness in the world all of the evidence in the world on your side if there's any evidence on the other side i have to give credit to the other side well even if you don't think that we're in  harris because we don't have a videotape it is still the case based on liberty lobby and based on this court decisions concerning the sense that when you have direct evidence i'm sorry your honor i interrupted you forgive me go ahead when you have direct evidence for one side and all you have on the other side is an assumption which is what we have here or in front erect evidence on their side in fact i read it very carefully to your opposition we have the fact that she was in the breakfast area working on her laptop the television was on normal volume she heard a loud bang she did not hear anything else in even before or after the loud bang and she heard nobody say they had a war she had nobody say they wanted her to come the door she went to the door she would have heard it if it would have happened well your honor see that's you if that's the question and  would have happened the critical fact here is that she did hear something and she says i assume it was the first hit of the rail what's wrong with that what i think about think about this in these far our own case law in the mena case you haven't announce and critically in mena that the court said there's an issue of fact about whether there was an awkward announcer or whether there was a sufficient knocking it out and so the court was taking account of the fact that there was a material dispute about even if you think that there's some evidence that the officers announced whether it's reasonable at seven am to announce in such a way that you actually can be in someone's bedroom before they wake up when their room is right by the front of the door this is a different situation this is a plaintiff here and it was the law in that wasn't in the meaning case i don't think i am  honor it specifically says the mena case but any way you think it's not a problem for you in your time's ticking so i want to get out of your way but i want to give you notice that i'm concerned about the mena case well i think i think martin against city of oceanside is actually closer on point because that's a case where there's no dispute that the officers did something that was adequate to call the plaintiff's attention to their presence at the door and then the question to his or her as judge smith indicated we're trying to be really conscientious about these burdens and if we if we view the evidence in the fact most favorable to her the first thing they may have done is try to bash the door in not not going in now and again it's our position as the officers position that that she doesn't have evidence of a sufficient caliber and quantity that it was the first hit on the door with a battering ram as opposed to her knock because the rest of the record contradicts the possibility i appreciate argument i  appreciate the clarification is very helpful to me that you have one question was concerned about me no two that seems to me to be your biggest stumbling block is the meaning of decision and you say that the difference is that in maine the question was really was it loud enough not whether was there was a knock is that right the court said both things that said there is a material this is stupid fact as to whether there was not going to announce or whether it was adequate and what i'm saying is in those circumstances that got them past summ judgment here we have more evidence and were much closer to martin's versus city voters oceanside or the seventh circuit decision in molina where we have a distracted plaintiff who nevertheless heard something and is speculating that what she heard wasn't a knock even argument we're going to put one minute on the clock for you counsel because we took up so much of your time thank you your honor i appreciate that you one quick question yes you are is it correct that the only thing on appeal is your first cause of action which is what you seem to say at page one of your be brief i believe so you are you think of this article you are i will fill my client if i don't convince you of something in my in my forty five seconds i have we keep focusing on the knock the statute in the fourth amendment requires knock and announce the one thing i agree with counsel she said the issue is was there a sufficient knock announce bam bam bam police war opened the door you have to have both the law requires both somebodies at my front door and the officers duty is to clearly announce who it is enough i don't convince you i did not was there she was somehow got to the door it's like that other case keen that we cite to they heard something hit their deck they go down then they see a guy with a rifle they didn't doubt that the officers were at the front door and they were drawn there the question was what a reasonable person have heard what the officer said and you know that's a question and that there was a knock now you're saying they're want should they've met that bur the issue is the it was the announce well is was there an announce a have to do both i know you just said they've they've met the knock and i'm trying to see if you agree that there that what occurred here was the not i don't think they properly not but that's an inference i think they did something to cause her to go to the front door that satisfied that you can wring the stink and doorbell to get them there what they did though was they never clearly announced that's she was present just like the lady sleeping next door if they had done it she would have heard it and i'm entitled to the inference because she was just like the lady sleeping behind the closed door next to and i know i got to go that she would have heard it she did not hear it she was in the best position to know whether the officers