mr murphy's sister's house about an amnesty program that was being offered to straighten we've read the freedom of the person to walk away he has seized preppers and within the meaning of the fourth amendment the children it is under skewed were taken into a cell with her mother the mother was hand that at the time of the seizure the being placed in the slot told him so the children were not the subject of any criminal process were not committing a crime did not pose a threat to the safety of the officers or to the public in general that's the relevant under the fourth amendment seizure is whether or not the officers actions are measured by a standard of objective the objective reasonable assessment let me ask you a question this is not an uncommon situation where a person taken into custody and there are young children let's take a hypothetical where a police officer stops a car first some traffic violation runs a warrant check on the driver finds out there's a felony warrant places the driver in cu y would it be improper under your view of the civil rights laws to place the children in the back seat of the police car while the officer conducts what the supreme court now says has the right to search the entire vehicle after probable c partition with their mother in the back seat of a police car for up to thirty minutes while they officer made arrangements to turn the children over to a family friend or c p s person it would have to turn up on a  that's going through the factors in your hypothetical if i'm understanding it correctly you have someone who has been stopped for a traffic violation out in the middle of the public someplace and i'm assuming also for purposes of your hypothetical that there's no other which would probably be impractical under your scenario more likely a c p s worker could come and transport the child to a safer area or maybe the police officer could transfer or transport the family your argument correctly i'm not trying to put words around me just we characterize it see if you agree with that the civil rights violation has to be something more than the mere seizure of the children the temporary detention and the taking them and if we want to use that term absolutely because there are so we can all coarsely as you correctly did in your hypothetical instances where it's appropriate that a state may have to take custody for grief time but that's not the key for the fourth amendment as to my argument under the seizure what it always was there always be a constitutional violation no but there should always be an inquiry as to whether or not looking at a under most circumstances perhaps but not always because i think it's a question for the district court you're purportedly did that did it well the quick the district court here actually found quite surprisingly to me that there was absolutely no constitutional violation and didn't really go separation that there was an emotional separation and there was a psychological separation as i understood the record one of the young children basically clung to her you know screaming and crying and so the officers decided not to physically separate them because the child didn't want to leave the mother which is certainly understandable that is understandable but unfortunately that's not objective with reasonable like i can't imagine so you think a more reasonable thing to have done would have been to rip the three year old child from hanging on to the leg of the mother and put the child out of the reception area absolutely and that was the new policy that was promulgated if you will by north las vegas two months after th in the situation you're sort of damned if you do and damned if you don't you open the door and then the one year old is going to wander off you know god knows where but then you've got to keep an eye on the other two children one of them may want to stay clinging to the mother and who knows what the third one is going to do i'm just i'm having a hard time seeing a constitutional violation well i understand when you say it opens the door you're right it opens the door based upon a complete lack of deliberate indifference and lack of training by north las vegas to its officers you think of the the officers were negligent i don't i don't here i'm an intentional violation of a known constitutional right which is what i fuck section one hundred eighty three was an act of to address determine what to do with the children when parents are placed in the custody therefore not at the district court then invoke the nevada immunity statute because it found that this was a discretionary decision on the part of the bailiff is not right that's correct i'm not at the portion i'll be happy to discuss if you want to discuss and i'm still under more now municipality liability and as to this policy in other words what north las vegas have was a policy of no policy complete question from with a policy that gives discretion to the officer in this situation where you can have discretion within certain parameters certainly no official policy i would i would hate to think but a governmental entity would grant  discretion to the level where an officer believes it's ok to violate constitutional rights i mean the framers had circular reasoning we got it we got to get to the violation first and  you're arguing that because of the fact that they that they gave too much discretion i guess to the bailiff that therefore it shows the liberty and difference and i'm having a hard time making that logical leap that you're asking us to me but the logical le l it's not quite that open ended though is that it doesn't the policy contemplate that if a person is taken into custody and there are young children that the children will be turned over to some responsible person whether it's a moving force behind the constitutional violation this policy of complete discretion was the moving force a rare case that may be but words this was the rare case where the policy was a moving force behind the constitutional her deposition which is a part of the record read this out in the lobby until someone can come when to which she is now under arrest for a felony so you know she doesn't get to pick and choose where she gets to sit now alternative number two take custody put me alone in the jail cell have an officer which is now the current policy with the children until either a friend or family member can come and assist the children or beat down we have at least one hysterical child who has been physically separated from the mother that the child was clinging to and i'm not sure how that's a better choice under your answer to my question well i guess we would have to go back to what i perceive to be one of the greatest constitutional rights of the framers of our constitution wrote and i do not say that with some kind of rhetoric which is the right to be free from the seizure without probable cause without due process these children were guilty by association and yes it would have been better to have a screaming child outside of the jail cell then inside the jail cell watching their mother shackled and having individual say this is something you're going to go to prison for poor a long time but it is a task that you claimed earlier of pensiveness must we find that this conduct shocks the conscience of the court in order to declare i believe the correct standard would be deliberate indifference although i do believe it shocks the conscience briefly of the governmental how do you get away from the negligence problem when you put it in terms of and difference that's failure to plan properly its failure in front of the children and second the statement made by roberts to miller stating this is something that you can go away to prison for for a long time four days before christmas regarding the ministry or occurred in this case is there liability and the fourth is to address if we get that fourth of the state law question with respect to the first issue in the record i want to clarify one point that i believe is not accurate that was presented in the opening argument and that is the notion that the felony warrant had been dealt with that morning i believe the record actually showed that the felony warrant was a valid warrant and was outstanding what had transpired was that  notion that the children or the question whether when did the children become hysterical i think it is crystal clear from the record that the children became hysterical the minute that the mother was confronted in the lobby and the mother was placed in handcuffs that fact i think that you're probably right i think there are a lot of different ways this could have been addressed in twenty twenty hindsight and that was a background that was probably not a good one i agree with you on that but nevertheless whether we think it's a good policy or not the policy traditionally i'm i can't represent what other jurisdictions do but the simple fact of the matter is when someone is arrested on an outstanding felony warrants are going to be handcuffed and in this particular case even when they're in the police station even when they're in the police station that's true i mean that that is that is going to happen in this particular case i cannot stand here in front of you and tell you that there's any evidence in the record that she was a physical threat anyone because i don't believe that there is anything in the record again with twenty twenty hindsight that she was a physical threat i do believe though that the record does indicate that she probably could be characterized as a as a flight risk because one of the reasons that the warrant was outstanding cannot leave someone who has an outstanding felony warrant in the lobby which is i guess one of the arguments that's being made is that we should have just told her well you've got an outstanding felony you just sit there till til someone comes in and retrieve your children with all due respect that's just not going to happen and it can't happen the police have got to take those people into custody and they have to do it then and  but i agree have to take that and i agree with you that in hindsight i would certainly be my preference that she had not been hand cost especially once she had been placed on the scene that the handcuffs at least at that point in time should have probably been removed i don't believe that it creates a constitutional claim that they were removed but i can sit here and say yes if i had been there i'd like to think i would have removed them don't normally handcuff somebody  cell actually i believe i can't answer that question for you and i don't know the record doesn't speak to it but actually i think that they do in this particular because the cells a little unique the cell is in really an office building this isn't a jail you go through the door there's just secretarial stations all around but i don't deny that it's a cell either because once you go through the door it's a white room concrete painted completely white that i believe is what happened in this case but that does bring us back to the question of so this was the classic holding cell she would be held there and tell such time as she was transferred to the clark county detention center in the north to the north las vegas the tension center or to court correct this is this is the holding cell when someone is something happens in court and then taken to rest so and they're placed in there until i police officer can come and deal with them the ones who place them in there and that and the defendant in this case roberts is a bailiff the unfortunate set of circumstances that was presented were obvious you had three small very upset and distraught children who as miss miller herself testified in her own deposition had the children been forcibly removed from her pride away from her they probably or may very well have become wor in terms of being upset and the hysteria the officer in this particular case under these unfortunate circumstances made had to make a judgment call and a judgment call that the officer made was she had three small children one of could make arrangements for either child custody services to come and get the children which is basically in that is known as child haven or the mother can release the children into the custody of someone else and that's what the mother wanted to do the mother wanted she asked if the right was could be made for someone who could come and pick up the children and take them and that was done promptly i was in a lot of the lay in that process when she was into the holding cell it took a few minutes to go get the form to get the form filled out the mother has to sign the form give the name of the contact person in one hand because she got there and had got to the bar you're right about that you know i just you know i don't know about a constitutional  make a lot of sense to put the mother in their hand count her to the to this bar on the wall with her three children there for fear that she'd bring some way to break out of that room and a here the police have to deal with children under these sorts of circumstances it's an unfortunate set of circumstances but respectfully it was out of the parents making for not having dealt with these warrants in a timely inappropriate manner or maybe coming in for the amnesty program well you know you can't fault people for coming in for the amnesty program but you can't come into the amnesty program if you have an outstanding you know they tell the media listen if you want to come in and deal with your outstanding warrants and pay up your fines we'll let you do what you won't risk jail time it's the holiday season we're that's how we're going to handle it because with the lump of coal instead of the  sugarcane that that that is correction that is what happened because she did have this outstanding felony warrant from another jurisdiction at the end of a obvious officer had to make a judgement call she made the call that she thought was best to deal with these hysterical children under some tough circumstances that doesn't rise respectfully to a constitutional violation as as you said yes strawman you know when the police stop a car they have to put the child somewhere and they will typically put them in the back of the cruiser by the way the doors lock on the inside of the cruiser you can't get out of here basically in a change in the back of the cruiser and you will sit there and you may sit there for an extended period of time it's not it is i guess technically a in the place that they would keep them with the mother was in the cell could if they forcibly remove them and place the children in an office and had another guard to guard the children i suppose in hindsight they could have done that i'm not sure that it would have been any less traumatic even i think the her deposition that it could have been more for manic for them if you're going to have armed officers come in and forcibly you know pride a child away from a mother that could be very traumatic and this particular case they decided well we'll get the friend here and the friend got there pretty quickly it was about a half an hour got there so all the children the children recognized the friend in flint were therefore able to leave without the police having to use force to remove them from the mother it's an unfortunate set of circumstances but not a constitutional violation let me just address also briefly the claim by the parents about loss of basically i guess a family relationship in this particular case well let me back up obviously the law can in some circumstances recognize that if the government does something to someone's child to such a magnitude to cause the loss of that child whether it's a permanent loss and yeah which is what the typical typically the cases are aggressing or i suppose you could have an injury to such an extent that you have basically lost a child because it's a physical injury which is a permanent l you know you could cause brain damage to a child or something like that and that the government ought to be accountable for that i don't really dispute that fact but in this particular case if you were to recognize the loss of familiar relationship in a case like this then the police will always be subject to such a suit because it's going to be traumatic any time the parent is sees in the presence of a child which is what happened here that's really the only claim a parent will see used in the presence of a child in the child has an adverse reaction to that seizure and that's going to happen only it's going to happen in the hypothetical that you gave about the parent who was arrested in the automobile the child is going to see the seizure the child is going to see the parent coffin placed into the squad car by sume it happens frequently in domestic violence cases absolutely the officers sort of go into the house and remove the parent and are going to probably unfortunately in a lot of those cases a fair amount of force is ends up being used to get the parent removed from the house it's going to be ugly and the child may very well be traumatized but that does not result in a tort claim or it's a constitutional type court claim that you have now started the parental child relationship by the psychological level that we're there's just there is no basis that i am aware of in the law for finding the government liable or telling the government you can now can be sued in court basically for interfering with the family relationship think when the government arrest someone convicts them of a crime and puts a parent in prison that actually separated the child from the parent for a long period of time that doesn't give rise to any to a constitutional claim either by the child or the parent interfering with their familiar relationship obviously the district judge did not reach the question of qualified immunity i don't want to spend really a lot of time on it i don't think that it can be said seriously that the law  clearly established that what the officer did here was inappropriate it's one thing to blog least use the word seizure or broadly use the word the chain and say well the right to be free from detainment is well established the right to be free from an improper seizure is well established that isn't the standard the standard is was the law dealing with the factual situation of this magnitude so clearly established that the officer a reasonable officer would know you cannot do th i don't think that can be seriously argued that it was clearly established and under those circumstances the district court didn't feel the need to reach it because of the district court i think rightly was of the view that there was no constitutional violation but even if you were to decide  there was one i believe that the officer would receive qualified immunity and would therefore the suit would not proceed against the officer individually and with respect to the customer policy issue so again it seems to me that the argument being advanced  well the policy was so inadequate that it rises to the level of a policy well of a policy that was either shocks the conscious or amounts to deliberate indifference and respectfully telling you officers that they have to exercise their discretion in deciding how to best deal with the children i think is and isn't actually an appropriate policy you don't want to have a policy where the child automatically has to be sent to child custody to child haven is what we would call it in nevada because or in las vegas because you will have circumstances and this was one of them by the way where it was better that allow a family friend to come and get the children it was half an hour was actually i would suspect less fond of time spent getting that friend over there than it would have been getting someone to come on from child having to take the children into custody and then have to deal with them under those circumstances the friend here was able to come half an hour  violation or that any violation stems from a customer policy and with that i believe that the other issues including the state law question that are covered by the briefs if you have any questions for me i'd be happy to answer them thank you