or couch when he entered my client's home and remained there after my client had revoked consent on easter sunday in two thousand and sixteen it's important to have in mind why did your couch go to my client's home that evening he didn't have a search warrant he didn't have an arrest warrant he didn't have any court order which is in the court facts in this case he didn't have any reason to believe that any crime was being committed there he didn't have any reason to believe that anyone in that home was injured or at need of any kind of emergency aid and finally he had no reason to believe that the clemens home or anybody inside of it or causing any kind of public disturbance or nuisance hard to the community at large in the course of performing their duties within a community this is not a hat the cheaper calyx was ever authorized to wear so why did christina want to go to the clements home that night she wanted to go get her clothes and she wanted her backpack  any reasonable officer in cheaper couches position would recognize that that's not the kind of situation that demanded immediate action there was no emergency here and if clemmons refused to g other recourse what could she have done and she could have knocked on the door asked for things back she didn't do that the other importantly the other things she could have done was gone down to the perry county courthouse there was a divorce proceeding pending at this time she could have gotten relief from the judge overseeing that divorce proceeding she could have filed a small claims action it's important to note also that in kentucky there are judges that are out on call in every circuit twenty four hours a day and they're there to deal with domestic violence situations if it gets to that kind of situation trooper couch could have gone to get some sort of domestic violence order and if appropriate that order could have been entered those are all  proper course of things that could appoint what is stop what is the procedure in kentucky i'm a little i'm from kentucky i we should know this but but what should count have done you say you should he should have gone to court to get some sort of an order if he felt like i guess what i'm getting at there is that the community care taking exception is is there to to apply to situations where there's some sort of immediate need for action when he when she came to ask or off it is assistance i think she broke out should have known that this was the kind of situation that that a person in his position shouldn't energex themselves into well she recounts did was he interjected familial matter he took christina's sad and he really allowed christina to circumvent the process that is established to protect not only the safety of someone like christina or someone like th clemens and his family but also to protect law enforcement you know warrants and orders are important because they command the respect of the citizenry that was something that the framers of the th amendment were very concerned about the frame that a search is under reasonable unless a warrant authorizes it barring only exceptions justified by absolutely swelter couch was not going there to search for evidence for a crime trooper count was going there to allow had no have really had no ability to do anything for you i think that your position is and what i'm getting at is that he had no authority to enter my client's home and remain there after my client objected to his presence that there is have accompanied her there and waited outside basically i think that would have been planned if something and if he heard something or whatever he could have run inside i guess under some as or didn't circumstance i  agree with that analysis as nothing but you're saying that he that under the community caretaker exception he was not permitted to go inside correct and that's so that's clearly established in the case law of this jurisdiction there's two kind of avenues for the community care taking exception to apply and one is where there's reason to believe that someone within that home has been injured or there's some threat of imminent injury to a person an occupant of that home or it's a situation where there's some sort of public disturbance knew since parts of the community at large this was not that type of situation this is one individual person's desire to get her stuff weighed against the very important as this court has said sacrosanct interest in the privacy of one's home i wanted to point is that clearly established them i mean we know so there's a circuit ition pending in the supreme court right now on the community caretaker exception in the home from the st circuit and the th circuit i know united states versus york they basically said in this exact situation right that it was ok because to go to watch somebody get their belongings we had zero out roehrig or whatever generally ok fine seems to be an was really not have exited circumstanced i guess in my mind the way i think of an exit in circumstances situation that was a situation where the court said there's this group of pajama clad neighbors irate three in the morning there was if there's a circuit split on this issue why is it by defacto not clearly established or do we only look at you know williams washington rorik whatever and effect be rubber stamping the very kind of unchecked discretion of government officials at the th amendment was designed to protect against what there was no there was no need for immediacy there was no emergency in that situation there was no reason for trooper couch to go into my client's home on the basis of an individual person morning to collect their things i want to talk of also about the issue of consent any consent that your couch has other izing him to enter that home was clearly revoked and it was removed from a client at the earliest opportunity he had to do so one of the issues before the court is this question of authority i do not concede that it was reasonably object it was objective a reasonable for cheaper couch to believe that christina had any kind of apparent authority but i'm just going to leave that issue to the briefs and the court's been at it for a while terminate instantly and officer should probably to part of the premises now to the question then becomes after my client revoke that consent was there any other basis that she for couch had for remaining in that home the answer is no that information that he had before he walked through that door and the information he had available to him the nd after that consent was revoked was the same there was a desire of an individual person to reclaim her clothes and it was the irony of this case or the danger of this case is that it was cheaper kept his own refusal to follow that clearly established law his refusal to leave my client's home after my client objected to his presence that's what caused this whole situation to ask where was trooper couch when your client client revoked the conse where was he in the home he was sitting where he was when they knocked on the door which was in his recliner flipping through channels on television nowhere was tripper couch oh she was so there's sort of a little foyer but you knocked on the door walked through the door and then about ten seconds later my client server and sees trooper couch with christina and her mother in law standing in and his living room so that's where i saw he was the little he was in the living room when the when  the consent was revoked by your client and at that point is that when your client then called him a name or said something that that led to the altercation yeah that's a very important reason my client was irritated is because he was telling she broke out i don't want these women in my house i don't want you in my house i don't think you have a right to be here can you just barge in my house like this you do you have any sort of authority to be here so it was it was cheaper couching south that caused this entire situation to escalate i want to make one more point credited to the trial court like and as far as call a fight immunity goes i submit that the law is clear on both the community caretaking exception and the question of consent the trial court in that in applying they decided that qualified immunity applied cited the this case this court's case of to thomas versus cohen that was a civil standby situation and in that case i anything supports my contention which is what is that what should have happened here is she should have got to get some sort of order or authority authorizing her it to get her stuff if the clintons were going to get it back to work that case talks about a lawful statutory repossession and it talks about officers acting in a civil standby capacity pursuant to a judicial order that was not this case there was no judicial order to submit if there had  been this situation would not have escalated and would not have been taken to turn in that it so couch without the benefit of a court order sided with christina interjected himself into the situation and caused the situation to escalate ok thank you miss baxter mr com pleas the court and his best baxter the appellant's brief seven arguments have concentrated primarily on the substance of this th amendment search issue and i don't think either of us have really said anything about the issue that the district court has uncovered and the memorandum opinion said our record interests sixty one dollars eighty cents so i want to begin by talking about the qualified immunity issue because qualified immunity is a mopping in dispositive of the appeal regardless of which direction d the court goes on the community our position is that it doesn't matter whether we now concluded hindsight the trooper caught entering or remaining in the clements house did or did not violate the th amendment because trooper couches untile the qualified immunity either way so the district court said that even if the community care taking exception did not apply the law was not sufficiently clear that it would not apply which means the trooper couch would still be entitled to qualified immunity the appellant's quoted anderson versus creighton and they said that for a right to be clearly established the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right which is to say that in  i don't i don't know what he would have thought would justify staying in light of the homeowner saying you get out of my house so he's right then he seems to i mean in keeping with the argument of your learned colleague right then he knows well i guess i mean whatever's permission i get from her has now been overcome what w to the th amendment issue of course the district court did say that if you know the i'm talking about qualified immunity that's what you're addressing right yes your honor i may have misunderstood the question i thought you were asking what legal authority would allow him to stay after mr clements told him to leave you said it would be st would have been he would not understand that the i guess the community care taking exception would or would not apply he would be debating that in his mind and that's why it's ok to stay in the house set your argument i believe yes your honor we have a situation where this is two days after cristina clinton's has been in a fight with her mother in is there in the house the mother in law father in law both irritated of course there you know there are differences in the various witnesses stories about what he was saying but he's at least irritated and she's in the next room gathering up his clothes her clothes so at that point i don't believe that any police officer walked out of the house without her and that's what we heard the trooper coach told mr clemens that will leave as soon as she gets back i don't wish to i guess i'm struggling with the clearly established question i don't understand i mean that the case is in our you know our circuit that had recognized arguably recognized th community caretaker exception for the home to enter a home all of them have been involved or at least characterized the exception as basically a sub part of the circumstances in my mind and none of that was true here so how would he have not known that you need a warrant to go in this house well i guess what i was saying was that at that exigent circumstances would apply but as far as what this court has said about community care taken before and my opinion was that the th circuit has leaned toward making community care taking a subset of exigent circumstances other circuits that have have gone more along the lines of well the police aren't in force in the law here but even in this circuit we look at united states versus ro property but because he wanted a witness to go into the apartment with him to show that he wasn't there for an improper purpose so if the six circuit deciding cases where it's ok for the police to go in just to be a witness for this landlord or trust odeon then that certainly implies that where this woman has been thrown out of the house with nothing but the clothes on her back the police could go in with her to get her clothes you know but didn't we reject that suspected there were some something going on and when that we didn't allow the q b take the exception there did we i think maybe that was washington your honor and your make him up point on qualified immunity that he even here we're citing enough it is a very confusing issue and the point is you know we're trying to determine whether the law was so clearly established that trooper couch in the middle of a tense situation and has a kentucky march th two thousand and sixteen should have understood that entering our remaining in this house violent mr clements for the member riots yet here we are arguing about it because the appellant claims that a magistrate judge been fully briefed both sides with time to do legal research and actually after two written opinions on the subject said the trooper council was right so we're saying that the law was not so clearly established that the district court could figure it out but a state trooper standing in the middle mr conscious living room was supposed to be able to pull that out of thin air i don't think that's realistic when we're talking about whether the right was clearly established whether the so i really think that's that's addressed what i had to say that's our major point on qualified immunity if the magistrate judge with all of this legal  briefing the written summary judgment motion response reply that time that was spent to research it into legal opinions ducked this issue wrong how was trooper john count supposed to understand that the law in the th circuit required him to do something different than what the magistrate judge said he should do on the th the millet issue i think we really addressed what i wanted to address on that i think there were two factual parts of the entry into the home and remaining in the home and we kind of jumped ahead there and said all i wanted to say about that  i think that it was reasonable for trooper cops to believe d that christina clements had a parent authority a theory here and spend that she somehow lost the right to go back into this house and pick up her clothes even though this was her own residence this is where she had been living with her husband and son for months i don't remember exactly how many but this is this was her home friday night she's thrown out and of course the exact amount of probably doesn't really matter it doesn't really matter whether she has a parent of three or not because aren't you i mean are you are you disputing that that richard clemens r d and then like i said when mr clemens revoked his consent which we don't dispute that he said that when he revoked his consent she's then in the other room gathering up her clo officer is going to walk out of that house and leave her there with two angry people that two days before she's in a fight with i'm not sure if it was in the record at this point that it was an actual circumstances at that point where she's actually on or in the house and tensions are hot is is that would that be your that is that is correct that's what i'm saying your honor that at that point once he's in the house the tensions are high and she's not right there in the same room with him where he can grab or and you know they can leave so he tells mr clements as soon as she gets her stuff or leaving this point there already been some dispute between mr clemens and her mother i think she had already been sent back to her car but i believe that that point exigent circumstances does come into play because a police officer is not going to leave when there's clearly a danger to a person in the residence so i think community caretaking probably relates more to the initial injury and up to that point but at some point here across is over into the classic exigent circumstances and the risk of harm to a person in the residence did you argue that the district court  from stances are rising at that point when mr clinton's rich or clinton's revoked consent i'm not sure that that argument was was clearly made at that point i believe there was some citation about that not having been involved in it at the time some i'm not not perfect good clear on that your honor thank you and i have a couple of minutes left but i think that really concludes what i had to say about the case unless court has more questions i don't think so thank you mr combs miss baxter very and yet returning to this is really important and i want to make sure that's clear for the court my client for go consent at the earliest opportunity he had to do so these guys didn't knock on the door and wait for my client to come to the door and figure out who they were and what they were there to do they knocked on the door and then they just let themselves right into the house and after my client asked them what they were there to do and trooper couch told him christine is here to get her stuff my client said wait a minute i don't want these women in my house i don't want you in my house i don't think you have a right to be here at that point my client was irritated easier to tape it because he had asked law enforcement to leave and they refused to respect or to do what the law clearly requires him to do which is to leave the house at that point and that's crystal clear in the law ever since georgia versus randolph was decided in this court has upheld you know ruled consistent with that case time and again an important case that was not in the briefs that i've come across of preparing for this was us versus tappan that case i believe is helpful and inconsistent with my argument so this idea that that there was some sort of existent circumstance or emergency create created  search or seizure if the emergency is created by the government official and that's what happened here it's clear from the record my client was irritated because this trigger was in his house not necessarily because christina wanted to get her stuff  again this is the kind it's you with this is not a swimsuit issue situation that has the immediacy and the need for immediate action that the community here taking exception excuses or justifies there was no need for media that needed action her