our next case for today is two thousand and seventeen five zero zero two two glorious dia vs el paso county hospital at  anyway as i was telling you it's significant that the cases from el paso texas because of the border and i came into this case halfway through or later on and they told me it was a water search gone awry and my usual response for a border case in el paso since we have such a large large population going back and forth daily was that it was probably some something where they were a little rough on somebody coming over the bridge very common complaint well that's not what happened here and this case is rather extraordinary especially in the pattern of what we then found out now i have looked over the years and i generally agree with your of united states versus offender door which is the greater the intrusion on the person the greater the reason for conducting the search so if you're going to intrude on somebody in a large way you need to you need to be very careful well then we've started picking up some of the facts and i keep in mind blackburn versus know which is also from this court which is a body cavity search a body cavity search not supported by probable cause is demeaning in human eyes and undignified humiliating terrifying unpleasant embarrassing repulsive degrading in a great personal indignity and that's from this court in handcuffs transported to the hospital x rayed and then had a no probable cause no warrant and they find nothing takes twelve hours and they had no permission to do this no consent and while she was in the hospital she was chained to a chair we find out from the court that we don't even know the names of these people the did this so happened the united states cells where are they there it's a very good question which is exactly what i told judge martinez at the time we couldn't get any information from these people so what basically occurred was i came into the the first thing i did was bring texas tech the doctor's employer into the case that case then gets removed from the state court most of the eleventh are men so then i told judge martinez we need help on finding who these people all are who did this and we had a little bit of help because this is the second case this is the first case with jane doe versus all the same people and jane do was a grandmother that they did this to and they even went one step further and observed are making a bowel movement that's how the intrusions get here how bad they can get so what i did at that point to judge martinez when he said that to me i said to him i said if i can't get any help from this court i have filed a claim against the united states and a judge is unusual because i actually am a lawyer who has done a bit of indicate for any of us around anymore so that's what i did i filed a claim against the united states in a did it with wound up in a different court where where we got some cooperation and got some discovery found out the names of all of the people and were able to do discovery in the other case unfortunately too late to fight the immunity defense that was going on in this case ok i don't want and want to get you off track but i am you know it's ok judge because the united states is  ask them i mean they're a major player here so but that's ok yes ma'am and the argument wasn't lost on me that's the first thing i thought was we need to bring in the united we need to bring in texas tech women today and we need to bring in the united states a second into the and we had a little bit of help from the jane doe case because that they had done some discovery as well so the complaint here does not indicate whether the position is that the law enforcement officers asked and said whether or not that they were saying that there was probable cause or or some level of or they said that they had a and we know they don't apparently but or whether this was an interviewer complaining that the hospital personnel made an independent determination about whether or not there was a good cause to do this and or whatever criminal standard for that would be for the search and it's vague on that so are you complaining that the hospital made a determination that was not supported by probable cause or even reasonable  ble suspicion or are you saying that they were wrong to listen to the law enforcement personnel and should have done their back question the law enforcement personnel there's you know in texas a doctor's have you had that in this particular case i don't think the medical people can abdicate their job in their responsibility which under texas law they can't it it they have to make their own independent are finding they didn't make an independent determination probable cause the medical personnel yes mack and wrecked and they don't even have to rise to the level of probable cause because the whether you get an x ray or vegetal examination is a medical decision we filed an expert report in the case showing some from of surgeons where you do it you must do your job as a doctor which in this particular case we found out dr parsa for example said that his deposition in the jane doe case and again in the other case against the united states that they told him to do it the border patrol people now the border patrol people interesting were observing  vital examination they were in the room which was bizarre to me but that's what they did so the doctors in addition to abdicating their job as to the medical decision how would a border patrol agent make the decision of i need an x ray and the x ray is negative all of the examination is negative and now i need to put her up and starts and do a rectal and a virgin examination when i've already got an x ray tell me there's nothing there well then the question then becomes if the medical personnel you believe they have an independent duty to to question the propriety and that's different than malpractise or some ethical medical duty where does it say in the law that it's clearly established that the medical person personnel would know that they had to had to do their own probable cause determination before performing this procedure it has to be clearly established and most likely clearly established in supreme court person the case law if there's a question the supreme court is le open whether a circuit court's case could be enough but and so so maybe does it in our case law or is in the supreme court that a medical personnel knows that it violates the the fourth amendment to do search without probable cause which judges a couple of ways around the number one you could have a consent form and as you know in texas law if you're required to do or get a consent form they did not have a consent form and additionally what occurred here the policy of the hospital which we were not able to find out in this case because there was no discovery we found out in the other case the policy of the hospital is going to ha necessarily mean you violated a constitutional duty i'm asking you to tell me what the case says the law is clearly established mr we have a very serious body of law about qualified immunity yes ma'am and as you know it's in the brief there's there's a number of cases where the the medical professional people cannot abdicate their job and c as you know you because as i'm sure you remember under texas law under the texas tort claims act you have to have misuse of personal property and that there are certain things that are required under of the consent form under under schedule and a of up to seventy four which need a full written consent so in this particular case they had neither one we weren't able to find out where what misuse of personal property probable cause is there a case law in support of the proposition that the medical personnel could rely on the probable cause articulated to them or relate to them by the officers of you u s supreme court in hernandez versus mesa which is the shooting case in el paso same same thing is there an allegation in the complaint is there any immunity for violation of constitutional rights then you're analysis of limited to the facts easy enough to do if hold on let me see if i can i can find the one i'm looking for some that get into probable cause for things let me get to where we're headed question was not necessarily an unfriendly question so i'm asking you whether or not what i said is within that this poor for the proposition that a medical personnel could could rely on or could proceed to do examinations based on a probable cause articulated to them by the officers that was my question if we assume that there is case law which says something along those lines isn't part of the problem what we have here is a situation where we don't know yet because there's not been discovery so we don't know yet whether or not the officers relayed anything about probable cause to these medical personnel now i understand that if we go behind that your position is there was no probable cause for the search because that every state from the very first search to the dogs sniffed everything every search they did revealed no evidence that there were drugs present and  kept escalating the invasive searches and they understand there was no probable cause but that doesn't necessarily mean that they didn't relate that there was some probable cause to the medical personnel but at this stage where  as you know this was not a criminal case so so there's a there's certain cases on the criminal side which indicate if you've got probable cause as i'm sure you know they could open you up if they got probable cause they could even go to the next level here so i'm i'm admitting that that there's no there's no question that you can do certain things if you've got consent or probable cause or war for example when you wouldn't get a warrant without probable cause so it's it's a real vicious circle and it's as he said you're escalating each time and each time the finding nothing each time they're violating another policy their own power seek but once again as you have how do we find this out  no no idea except we were very fortunate in setting up two different other cases and then the jane doe case you got so you got three different tracks going here which was very helpful in finding out what we knew now what i thought and then to help you will he answer for me or for the panel even assuming that there was absolutely no probable cause and anybody would have known there was no probable cause what case law is clearly established that that's a violation of constitutional rights for a doctor to do that i am not saying that it shouldn't be a violation of constitutional rights i'm not implying anything what case law says it is that was clearly established at that explained state law tort claims and claims concerning the discovery issues in the district court given the limited amount of time here i want to focus my argument for the court this morning on whether there is clearly established law that requires physicians to have independent probable cause when the act is an excellent long forced me ask you how first time this is just a yes or no maybe or maybe i don't know if your answer is this the first time this is happened in el paso or is this a routine issue where somebody gets arrested on the bridge get stopped on the bridge and it was an arrest i guess and taken i mean technically and taken to the hospital and doctors then i request from the government do this kind of a search and i doubt is this not the first time this is happened is what makes that case different from the case that we have at hand is we're not dealing with state law enforcement we're dealing with federal law enforcement and part of the briefing in the district court below concerned the implications of the border search exception to the fourth amendment which as this court is aware is not really an exception so much as the border excludes fourth amendment protections at the border and its functional equivalent whether there's been another case involving border patrol and the border search exception i'm not aware of another case of the jane doe case doesn't solve that i'm not a i'm not intimately aware of the aware of the facts that case i will be able to answer this court's question i'm not aware of any other circumstance aside from this this particular case and the jane doe case that has occurred at this bridge involving texas tech mr hudson is there case law that says that line horsemen can i mean good medical asking for asking physicians to actually conduct a search now that was a criminal case and that involved a motion to suppress and the issue in that case was whether the physicians were allowed to conduct the search or whether they need reasonable suspicion just like border patrol and the ninth circuit explicitly stated that case there's no reason why a physician who is acting as an auxiliary to law enforcement should have to go to collate their own independent problem or reasonable suspicion before assisting law enforcement in evaluating whether a person's body packing is specifically that the ninth circuit noted that not only did they not have to have that suspicion but the ninth circuit also found that there were sufficient facts that had the physician wanted to establish a reasonable suspicion they could have yet the ninth circuit did not take the extra step and require that physicians on a going forward basis have their own reasonable suspicion before they assist law enforcement and so based on that case obviously that's extra circuit that's to my mind the key case as it relates to the facts here i'm not aware of any fist circuit case or any united states supreme court case that requires a physician to develop their cause or some other standard well i believe because we're dealing with the border patrol here i believe we're dealing with a border certain research exception which deals with reasonable suspicion so this case would be something separate apart are the if the facts changed and we were dealing with for instance of d p s that brought this person this would be a different case altogether but because we're dealing with border patrol we're dealing with border patrols standards and border patrols reasonable suspicion requirements is that you know that that's that i'm referring to the same case just clarify for the for the panel there helps me because part of my problem is counsel opposite said extraordinary in the pattern of what we found out and i guess i should ask him what the heck that myth because if it's extraordinary but then it's a pattern then i guess it's not that extraordinary if there's a pattern so i'm not sure what he meant but so now i'm getting really interested in how many cases there are like this the qualified immunity issue in this case is in it's dispositive because there are no cases that would otherwise guide or provide the fair notice to dr solomon and dr parsa there's no reason why they would have thought to ask border patrol for warrants or reasonable suspicion for all of the things that they had done at the border to determine whether the doctors could assist them  based on the reason the suspicion that the border patrol agents had developed why would they be better getting back for some sort of factual development on whether the border patrol told them told the doctors today that they had  result on qualified immunity regardless i think it would probably be a closer question but i don't think it changes the qualified immunity analysis because there's no case that deals with any kind of spectrum of issues while that would probably be a more egregi to develop sacks on that point won't change the law that's at issue and for purposes of the qualified immunity analysis the question is whether the law's clearly established not whether there is a factual pattern that would be you say whether the law is clearly established and i'm trying to free up what law would you be talking bout what allowed school is that well it's our it's our position that the doctors were not required to develop any kind of independent reasonable suspicion before they acted as are similar to those not your position that there doesn't need to be from reasonable suspicion well what i would say about that your honor is that so if there if that if i understand your question to my mind there's a difference between whether there the question of whether there is a constitutional violation because the law is not clearly established in this area that resolves the case without having to breach the constitutional issue so it could be unconstitutional to do it starts without reasonable suspicion but even if it was there is not case law on the second prong that's correct your honor and we believe that even if this court found a constitutional violation we still win in this case because the law is not clearly established on what the doctors were supposed to do as it relates to any kind of constitutional violation that this panel could find but we know we're talking about a certain well we don't disagree that there was no i think the fourth amendment might come i think i think that's correct your honor we don't disagree that the fourth amendment applies here but again because that because there is a clearly established law on how to apply the fourth amendment in this area we don't believe that any circuit that's mansouri i guess that that's the only case that i found that was as clearly on point as alaska's i'm not aware of any other case that that addresses it if i if i found it for hudson already touched not the specific language invesco which i think is directly on point here says we see no purpose in requiring customs agents to recite to examining physicians any of the facts  have which they have concerning the defendant's possession of narcotics such a physician sends a physician is required to have no knowledge of the law of search and seizure to practice his profession any such numeration of the facts by the agents to the doctor would be a meaningless ritual comparable to requiring the police to or cite to a locksmith the basis of their probable cause before he could legally open a lock for them and that is the league cal for purposes of this motion  being close to was seen vet the agents just instructed the doctors to conduct the search use a we do assume those facts should be some discovery to develop those facts are that immaterial what the agents may have said to the and ninety percent of the argument heard from opposing counsel is argument outside the scope of the pleadings relating to facts outside the scope of the pleadings the question here is whether or not the district court properly dismissed this case under rule twelve that's the only issue in the scope and the standard to review for that that so that review was well established as a as the court knows with that i'd like to turn separately to the district court's dismissal of the claims against the nurses versus those against the hospital and with regard to that i think it's also really important for the court to appreciate what exactly what was alleged against the nurses and the hospital and the district court and what's been raised in the briefing before this court because many of the arguments have been way because they weren't addressed in the breeze with regard to the nurses the district court report dismiss state court texas tort claims act claims against them but if you read the complaint there were no such claims even alleged against the nurses they were only again alleged against texas tech in the hospital against the nurses to the extent they were sued in their official capacity because under this court's precedent sanders versus city of plan no those claims were redundant with the meanest book claims against the hospital so that was proper  with regard to that the plaintiff sued the nurses individually with regard to the fourth amendment climb again we largely concur with mr hu argument that the plan of did not sufficiently plead with regard to the nurses at least that they violated any clearly established constitutional right in fact if you read the court's decision graham versus conner which says that before you look to whether or not there's a due process violation you look first to see whether or not there are some more specific constitutional right that protects the claim that's being made in this case it's clear with the fourth amendment so you don't even need to address the fifth amendment due process clause i'm that ground along the district court was correct and again that issue is going away because it hasn't been  allege conscious shocking behavior as a violation of that due process clause and if you look at the amount of complying there's not a thing alleged in there that the nurses did at all and certainly motion and well and i ask you the earlier whether or not there was immaterial and you just told me with you and it will be six and so i guess that translated into it that's immaterial but i thought the district court found no constitutional violation b a dish you could say that the doctors and nurses reasonably relied on this suspicion articulated to them by the by the agency that's not what the district court found what did but it just is just immaterial the district court found that the plane was pleading after me see if i can answer for you there is a case cited in the brief good versus phillips as well as the texas jury charge that doctor is required to meet to have a consent form and if he does not have a consent form he commits a a medical battery on the person and it's cited in the cases and is has been around a very long time and it's basically what judge graves is talking about that you cannot fourth amendment violation and maybe a tort but is it up fourth amendment violation ma'am it says only that's a medical malpractise case yeah so so you would have to then take the next level and to the question of probable cause and they keep signing velazquez alaska's is a is a bad case for them to cite if you read the case you can see mr the laskas is want a criminal case too he had dilated pupils needle marks on him he had grease in on his rectum all of these are raise the suspicion that he had some drug involvement and this is the studios i'm sure the court recognized was not exactly a girl scout leader however it is also important to know when they did all this to her they did not know who she was they did this to her without knowing that she had a prior criminal history now it had nothing to do with the case eventually but that's one of the reasons they used later on so back to judge iraq's question there's a case and not another criminal case call saddler which says you need more than reasonable suspicion to do a search of a body body cavity so what you have here is a nine hundred eighty three classic constitutional right back to exactly your determinations in blackburn was interesting that you know we would we were trying to get something going here as far as discovery and they filed the twelve big sticks and mr ross is wrong judge martinez sa that the this was reasonable but mistake in judgment that's what he has in one of his dismissals reasonable but the state and as you all have in your precedents  reasonable that's the question the difficulty we had here was we couldn't find out what was reasonable we couldn't find out what they did we found out these other things for example they violated their own policy we found that out in the other in the other cases we found that out in jane doe case we because we were absolutely precluded and to give you an example we were trying to find out the names of the agents who were the border patrol agents the judge would not help under the new rules under the new modified rule twenty six the judge is supposed to get in there and try and help us mr ross replied to the judge when the judge said did you file a freedom of information act request for the names mr mean it was denied so at that point that's when i told the judge we had filed the federal tort claims act and that's that judge gave us the names of the people and that's how we were able to proceed and go against the united states on that side of the case but we got no help whatsoever from judge martinez in the district court everything we tried to do we need to discovery tonight we need this tonight and we need a continuance denying everything was denied and then they said and hold up the twelve b and say you need to respond to this immunity claim and how are we going to do that when we can't find out any facts no facts did we know what the policy was do we know for example  you as a doctor tell the border patrol person go away i'm not doing this i have absolute evidence that there's nothing in this woman's bodily cavities i'm not doing this can he do that yes he can and he and that's what's required under texas law you've got no consent you've got no problem because you've got no suspicion and you've got no warrant and just so so you all know when we finished the case against the united states one of the things we did was  twelve part repair of their policy that this doesn't happen again they didn't even have the permission of the port but the guy who is in charge of the corporate captain of the port they breath ok well judge the only thing i was going to tell you was we we that was part of the job that i thought we had was to prevent this from happening again and we have now in place but we didn't have it in place before and lastly so i don't know everybody here i asked the supervisor at the time when i was able to do his deposition later on i said did this offend you in any way and he said no and i said