cabin for help family services civically the c p s child protective services and i'd like to argue for issues obviously there's more in the brief this morning but but the th amendment searches of the home in this case the retaliation  recording the hostility to religion and then generally the procedural errors in the handling of this case and the motions blow by the district court that sort of intertwined in those issues you never want to give the th amendment search issue and i  want to start with the district court orders that were entered in this case that led to those home searches that the quote parents must cooperate with c h s comma they must what c h f asked in their home and on january district court held that there was not clearly established case all that prevented that and the problem in the analysis that the district court engaged in in part and they relied on a tennessee district court case the barnett case that made the same error was was the district court failed to fail to recognize that in truth versus hickman county in combat versus coyote county department of children and family services did two things it is true that both of those cases held that there was no clearly established right you not say you make them ok all right and i think you do have consent i guess you're arguing that the consent was by duress i you know i think i need to accurately state the facts to that's a paragraph sixty three of a complaint he says ok then they say something like we have a court order here's a court order if you don't like it we'll we'll go back to the judge and didn't he say a response something to me to tell me what you know the facts better than i did tell to tell me the whole scenario here your honor they they did say they had a convert he said that's not a valid point back to them he said you don't have my permission to come in and if you come in you're doing to two hundred  and then he opens the door and they follow a minute no point does he say you can come in more than welcome to come in or if they say will go back and go back to the judge if you don't think it's sufficient to great britain to take the kids away they never said that they were going to go back and get a warrant  of the of the os actions was not a search and a drug search something it wasn't more of an interview and an inspection and and in that case why why do you say that  which is the height of th amendment protection we have you know nothing describing the scope of what happened what actually happened once they were in as they did go there you go they did go and inspect the home it went through so so let me let me ask just let's assume that  that we agree with you and that a warrant is required and that and that the warrant has to describe with specificity the thing to be searched and or seized how would that  scope would have defined the property address and would have defined that they could have interviewed the children that would have been perhaps valid and that would have to find the government actors in their execution of those workers in terms of what they were allowed to do what they don't even limit the number of times they can go in to limit the scope of what they can search for you know this is the sort of general warrants that the th amendment was designed to protect against at its heart when it was put into the bill of rights by the founders was government agency entering the room with  is it your contention that the ability to inflict corporal punishment on children is fundamental tenet of the christian faith it is your honor spare the rod spoil the child that is part of my clients but we still hold religious beliefs and that's a paragraph nineteen gatekeeper regulation the regulation challenge is only a regulation that would have screamed out this complaint from the get go without any investigation by the social workers and that when ample cause in this case to investigate has never held that having a physical religious belief allows you to engage in criminal behavior and this not while the statute isn't generally applicable statute the substantive due process calling the court has never held that the right of the parent to abuse children outweighs state's interest in investigating claims of child abuse and so the substance of due process court hearing court did it to respond to this court judicial notice that it was just the no physical discipline and this court has held many times that you cannot make those workers vicariously liable for whatever the judge has imposed so here we have the judge at the very st hearing ordering d no discipline which stayed in effect in time tire time there was a the juvenile was proceeding and that's what the plaintiffs complaining violated their substance and process rights the judge issuing a no discipline and i would just add that it was a very appropriate thing for the judge to do that in light of the serious allegations that the child not the social workers cannot be vicariously liable for that judge entering that very appropriate order so d the claim that mr waste has focused on this morning is the th amendment klein and i'll talk about that mr reese has had the benefit that his client videotaped this encounter at the door and there has he has not shared that with defense counsel so i'm only going by what i know of happened from what the social worker said we already know the court can take judicial notice that when this was an district court judge instructed mr clark in no uncertain terms that he was the left the social workers into the home and they were going to look around the same the house would be claim which it was and they would be allowed to interview the children and mr clark reluctantly agreed to that and promised that he would let the social workers come into the home so we had a verbal order from the dance which was crystal clear mr clark was in the courtroom he understood the order yet when the social workers showed up at the door d he take the th amendment to the door and basically dared them to come into the home and contrary to what mr reese has said the social workers did not threaten to take the children the social workers told him pint will talk to the county attorney that's the same assistant county attorney that was in court when the case  k they told me and i you know i'm taking their work or all right ok now underqualified qualified immunity protects all but the the lately incompetent that  unless a government official just lightly violates the constitution and he should know that it's a violation of the constitution that all reasonable officials would know under these circumstances unless that kurds the official is entitle to qualified immunity and that's that's the standard is it not yes sir that's so your position is they have a court order they've got the opinion by the judge that they have a right to go in there  in addition there appears to be some consent here as well and that under qualified immunity out an analysis they really can't be sued for this that's exactly your it's this and there are actual arguments want to get qualified immunity just as you with a reasonably competent social worker they believe that district court order was valid after all this is not a criminal case it's just donald mentioned this is that they don't have to go against the judge they don't have to nd guess the judge do they are why this family court judge order was insufficient anyway because everybody knew who the children were everyone knew where the clarks lived they weren't being searched for contraband all the social workers did was walk through the house to make sure it was playing and interviewed the members of the family so i'm not sure it really would put form over substance to say that guys who have as they described a child identified the home with greater specificity there is no doubt that when mr clarke came to the door they were at correct place i question whether those th amendment criminal cases even apply but if they get apply a reasonably competent social worker would have not known that and therefore they would be entitled to qualified immunity even the different court later found that the family court order efficient in some manner but we think both absolute inanity following the court order and qualified immunity because they reasonably relied on the order of the th and then applying all right there you know the best again should here lead to the charges being dismissed so i mean there there a speculative theory that but the clarks have raised actually they say they rarely spank their children or discipline them physically and only as a last resort and so it's very unlikely that they would strike the children in the same way in the future in such a manner that would lead to a nd child abuse investigation if it was if one was reported and investigated the county attorney would spring it to term and there was probable cause and then it would have to go through a court that would have to determine if you wanted to impose another no discipline order so the fact that they claim that they were killed is really the children either way because the criminal statute still exist it makes child abuse a crime and if they think they run across the line into child abuse then that's that's their what the complaining about not this gatekeeper regulation the cabin abuse or neglect that comes in and it's bring it before they can go to court they have to get the county attorney to agree that there is sufficient cause to file a tendency to neglect or abuse case it's quite an unreasonable fear and i'm not sure why the clark s have this fear because if you look at the entire history of the things that have happened in the park family in the past they've never been criminally prosecuted for child abuse arguably maybe they should have been looked into the past  mr barr made allegations against mrs clarke using her d drug use and harming the children but for some reason the clarks have gotten by without really anything ever happen to them well m s spare the rod spoil the child but don't break the law just me i want you to respond to it i think reasonable parents and reasonable christians can disagree or agree about corporal punishment the kentucky legislature parents have a right to use reasonable discipline on their children which seems to be consistent with what the plaintiffs are saying whether or not it's a constitutional right or not i don't think the sport needs to decide because at the lower court determined certainly that right doesn't go so far as to allow you to abuse children if you have to if the religion allows parents to do anything they wanted in the name of religion the chief justice scalia's opinion points out the parade of horribles could happen you constitution these children have a right to be protected from their abusive parents and sometimes that right prevails over a parent's religious belief that they want to hurt the child or i don't think  state actors the law enforcement matter or a social worker so i want to begin with that concept and just refute it and now and i want to go to next turn your honor to just notion that somehow this court order is carte blanche for the for the social workers to  does that make a difference if we do not believe it doesn't matter under the reason again i'm right back to the us supreme court and it is never held that being present at the issuance of a court order somehow makes it ok the question is what is a  court case law has put them on notice that the th amendment spinners are the same for law enforcement social workers that was andrew bassett versus cuyahoga county department of children family services but them on notice that it's ending or was not sufficient in terms of what was going to be searched so you know there again we had a court order that the that the search stores were ordinary ally on that was not sufficient for this court of assoc to grow versus ramirez which puts them on notice that if you're going into somebody's house over there objection which was the case here you have to have a warrant that honor i do you know we do believe that the case law put these dependance on notice that what they were doing was plainly unconstitutional your honour's for those reasons and those supporting our break we would ask this court reversed the district court and in terms of the actual  had an obligation to put that necessarily in the record given once isn't the law once qualified immunity is raised by a defendant the plaintiff as the burden to rebut qualified immunity isn't that the law it is your honor and he you did not rebut it introducing the video you had your honor we believe that the allegations which which again were taken right from the day of the allegations in the complaint were sufficient to do that and we did that the declarations from my client that that dedicated so you keep also referring to a search i thought they were going to interview the kids were they searching something too they were also searching the home here aren't going to know they were in the back and very good are any further questions judge her heinrich