examiner's office the medical examiner at the time who was the appellee doctor fluoro perform an autopsy on the remains and after that miss lovett her mother signed a release to have the remains sent to a funeral home  i know i'm aware of the facts so you don't need to repeat them and they are horrific as alleged my confusion is is is about the intersection between florida common law and the statutory scheme so i want to ask you a few questions about that ok ok so in general i'm asking in general not specific to this case if there is a statute that is in contravention of a common law right or duty and then subsection to reiterate that the medical examiner has the authority in any of the cases above including the ones that we're talking about there to perform or to have perform whatever laboratory examination he or she that statute would take precedence over the common law right correct yes that's correct ok so if it is alleged or can be read from the plausible allegations in the complaint that man or a cause of  not yet been determined and that the body was kept as necessary by the medical examiners and that at least through two thousand or at least when it was transferred to the university of florida common law it only authorized the medical examiners act in accordance with what the statute says and what the statute allows them to do is perform tests and further rense of identifying the remains or in determining the cause of death as you said i understand it when the body is transferred to the university of florida more examinations are still done the examination the only examination that the university of florida performed was an examination to identify whose remains they belong  to there was no examination to determine a cause of death in the austin logical report what the complaint actually alleges and that is that examination was completely unnecessary because dr for at least of the time that he received the remains knew who the remains belong to and had already necessary meaning in the subject opinion of the medical examiner right and from the complaint even if that's the case we don't have on the face of the complaint what dr flora subjective intentions were  play specifically alleges if you look at paragraph thirty and in each of the paragraphs dealing with that are alleging that the elements of the cause of action gets each medical examiner is that doing all their actions serve no lawful purpose so if we were to speculate that dr flora was actually engaged in a ten year process of identifying the cause of death then that actually goes directly in contradiction it's an infrared problem but the problem is under recall you can't just say it's not lawful and then take that is true i that other things that need to be required for the subsection one hundred and thirty two to authorize the medical examiner's actions st they have to be in possession of the remains during an investigation or autopsy as i discussed before the complaint alleges that an to either retain the remains by the medical examiner or have been delivered to one of the law enforcement officers and the investigation doctor florida neither of those things he gave it to the us health laboratory and they stored it for an additional lengthy period of time where it was out of the medical remain at the university of florida for eight years until two thousand so this was not a situation where he just sent it in for a test that needed to be done in accordance with the autopsy that had already been long completed this was a situation where he sent them to the common law controls to the extent only to the extent that it's not modified by statute dr fluoro did not comply with the letter of the statute he furnished it to a party that he wasn't supposed to under subsection thirteen and under subsection eleven he kept the body and furnish it long after the investigation into the cause of death and the homicide was concluded meaning there was no lawful purpose for him to be taking out these activities at this at all occurred in a very short period of time after the death where action was taken that would be one i understand it was a legit someone was arrested and the speedy and that person was found no probable cause and speedy trial expired but where does it say that the investigation concluded what it what it alleges is a providing the remains the university well that's that's correct that there was no but what the complaint alleges that there was no legitimate law enforcement purposes for them to hold on to the rema individual medical examiners are entitled to qualified immunity on the four corners of the complaint they were acting within their discretionary authority and reseating in keeping part of the slot a tremendous nd appellant cannot elect the remains came back into the medical examiner's office it was a new retention why is that not a fair assumption when under subsection thirteen again you this is the pre amendment subsection thirteen the authorization to retain it by the medical examiner or law enforcement by the way but at the complaint stage all we know at least with after one thousand nine hundred and two is that no investigation was done and especially when i was transferred to the florida gulf coast there's no allegation that i read in the complaint that anything was done more than one retention and it is our position that there was only one retention but how can the how what authorizes a lot of what was ours medical examiner to release the body to another to a university in any coast transfer where it's there's no allegation that anyone that anything any about the game should have been performed and where it's alleged that the investigation was concluded and there was nothing else to do at that point how was that transfer and then i don't think that they that they did allege that the investigation was concluded i just i asked the last question i asked your your opposing counsel and he specifically appointed should be two questions thirty paragraph thirty where he said or other purposes the enemy is still allowed to keep a body part for purposes of identification or extermination of cause and manner of that i understand that but where the investigation is over where the body has been identified it clearly has and where where again there's it's alleged there's no lawful purpose and there's no open investigation by anybody at that time how was their allowed to be retention and i'm not even a summit under the force and how are you allowed to give it to another another person other think there's a difference between between the statutory requirement of notice and whether or not there is a constitutionally protected property right i'm not i have to say i think that's a tough sell under florida law as i read the case law about what the duty is now where i where i would agree with you if that duty is contravened by the medical examiner act then the medical examiner act clearly controls but but absent a forty under the medical examiner act i don't see how it's not clearly established in florida that there's a constitutionally protected interest of loved ones in the in the remains of the decease regarding a right to bury your next of ten to you know to take possession of the remains and bury your next of kin that's not the same as a constitutionally protected property right i'm looking at page ninety seven a proper quote florida case law has long recognized the protected property right and you know and that's actually been recognized by by other circuits including the th circuit where they're talking about the fact that yes there may be this long but not but not until a case comes out saying that it's actually a constitutionally protected right under federal law does it confer to a property right heather chaney i'd like to use my time this morning to focus on the district court's decision and as it relates to dr walsh cheney's rights a qualified immunity as your honor and members of the court know the sum receive the remains back from the medical examiner's office and finally she transfer of the remains back to the medical examiner's office now there's no dispute that dr walsh cheney was a state actor during each of these events she was a grad student in a lab manager at u f c in two thousand and five she later obtained employment with florida gulf coast university as a professor and there's no dispute that dr mulvaney was acting under color of law at all times during her involvement in this matter district court was correct in its determination that based on the allegations set forth in the complaint dr cheney is entitled to qualified immunity two essential elements to obtain qualified immunity number one was dr walsh any performing a discretionary function when she transferred and received the remains  differently was dr walsh chaney performing acts that furthered an official obligation and did these acts fall within the scope of her therapy if the answer to that question is yes then the  nd question is the doctor while cheney violated clearly established law when she transferred and received the remains as the question number one the discretionary function as stated earlier dr acting as a repository on behalf of the medical examiner's office of these remains she's charged with the responsibility for safekeeping these remains now while performing this function cheney didn't violate any clearly established law there's no law that that there was extent at the time of the transfer the receipt or the re transfer of the the remains to establish that look if you're acting as a repository of human remains you are legally obligated to obtain permission from the next of kin to store and to keep the remain safe i don't find any case law for us the key question is at least in two thousand and i think of two thousand and five when dr haney gets the remains back at florida gulf coast when she's an assistant professor there whether it is then clearly established that agent of the medical examiner's office and i know you make that argument then her her rights are in doubt only of those authorized by the medical examiner act what authorizes the medical examiner to transfer remains to her in a case where there is examiner has certain rights and obligations under the statute it's been medical examiners call but the medical examiner can keep remains forever is only can act as authorized by the statute and i ask you to show me where in the statute an authorized the medical examiner after an arrest has been made after the person has been relieved after the remains have sat for over twenty years and where no active that geisha is being done because no nothing was done with the remains where that authorizes doctor had an obligation to communicate with the next of can to obtain permission from the next of kin to retain these remains on behalf of the medical examiner the medical examiner may have had that obligation under the the latest revision of the statute but dr haney wasn't a medical examiner so i think that's the biggest problem is you seem to be wanting to have it both ways you want her to be an agent of the state through the medical examiner office and acting as on their behalf but then not be subject to any of their obligation but that seems anomalous to me well it's not being subject to any of the obligations of a medical examiner but certainly as to the obligation notify the next of kin and to get permission from the next the next of kin to continue to possess these remains the statute doesn't say the medical examiner or any university official with whom the medical apex officials for a county office the existence of an adequate state remedy should not have any bearing on a due process claim the supreme court and the zimmerman case that we cited laid that out that the doctrine and focusing on adequate state remedies is a extension of the parent hudson doctrine which is arises out of an authorized or random deprivations of property and the paradigm for that is an example where a corrections officer  destroys it and makes mail or stamps and the state has no way to anticipate that or provide pre operation process here the medical examiners were the ones who acted and were authorized action and they had fish the question seems to be whether it's feasible or implausible to have the pre depravation remedy not the nature of your question right and that's true and in this case the medical examiner is the only one who is charged as the one who is charged with performing these duties under florida law they're the only official that is at issue here and so we have to look at it from the official from the perspective of the entity that's being sued and this case the medical examiners and their office and  some way they can have their medical examiners duty under the statute taken from them or work or change but in this case the medical examiner's station wasn't reviewed and there was no one within that within the county or the city that was able to review her decisions or their decisions the nd reason why the adequate state remedy is not a part of our claim is that there is no adequate state remedy law the impact will prevents a planet from recovering damages for emotional distress the only damages here and that has been modified slightly for dead bodies but what it essentially requires and this was outlined in the courtesy case is that the standard of apparent some remedy right so that's well that's correct but this but this is not dealing with government immunity this is dealing with adding an extra element that is not necessary to prove a deprivation of a constitutional right the element of allowance of deprivation of the constitutional examiner office itself it's not available to the sovereign immunity statute but and the case of the individuals there's a distinction and structure already there is a very heightened legal standard it's essentially a standard of proof in order to obtain relief this is a this is a high in factual standard where basically you have to have conduct that is considered outrageous and so you have this very wide range of cases because the tort of outrageous infliction of emotional distress is very difficult to prove factually where you do in fact have a constitutional difficult standard but a factual one at the must be present that is not necessary to show constitutional