case differs in a good way from a typical separation action and the common scenario in a separation action is you see a warrantless removal of a child from the home here we have a judicially authorized warrant for the arrest of the parents with the separation being incidental to the parent's arrest we also have the of the officers maintaining the family unit by keeping the the son and the mother together in order for the mother to communicate her choice of a temporary guardian for the one day that she was in jail rd we have the placement of the child with the guardian that the mother had authorized plaintiff's challenge neither the separation itself nor the ultimate placement of j b instead there are theory is more of an inverse separation theory that the officers should have allowed the the mother to call a relative from the scene of the arrest in order so that the mother so that the child testified that she knew that she'd be separated from her child as a result of the arrests also at answering brief page twenty four dollars claim of state if defendants had granted hernandez the opportunity to call from the scene of the arrest there would not have been a familial association violation here or there would have been no violation of the right to care custody and control so that assumes that there would have been separation regard alleged constitutional deprivation is the alleged deprivation of a phone call at the home exactly i would have thought here that whether there or from the circuit that deals with the situation but the district court did you know the words not think that the right to make a phone call at the point of arrest is quote clearly established unquote but those two words mean something exactly there is no clearly establish law because there is no case on point requiring a call from the scene of the arrest to make custody arrangements or otherwise i think as i understand th e the parents acknowledge that once they've been arrested and putting the child in protective custody is legitimate right yes so we're looking at this narrow window of time  between putting the child in protective custody and when they got taken with the job and how long is that period so the arrest happened at eight o'clock in the morning  and by eleven the mother and son were brought to the county social worker to actuate the call the mother was then taken from the police station to booking at one o'clock and while still in booking she learned that the social worker had contacted the relative she had recommended and arranged for the care so within although we don't know precisely at what point she was still in the booking process and booking is actually a key because the district court immediate right to call one with regard to your federal constitution with regard to the federal constitutional claim does it matter to your qualified immunity defense whether the court got the california statute right or wrong well if it is relevant to the recognized that creates a property right but for the purposes of this situation of when when that would be because the there is no there's no case but it's seems going back to japan it's a question that under the supreme court precedent that we don't hang the constitutional violation on either a state or local regulation so i'm not sure it would matter at all what are generally that strew and and but because this court has recognized this right property right to the phone calls based on the state statu immediate right of phone you are allowed a phone call immediately after booking right and that is that creates the timing that we're looking at but we're not talking about a phone call or we are only talking about a phone call to place the child or of the right to a phone call with visibly the child gas and is that something different it is it is because we're talking about a familial association claim here and so that the right that we're looking at is the the right to control who the child goes to and that was effectuated here albeit not immediately for very practical safety reasons but within a short timeframe by bringing the child to the police department and and a social worker worker to conduct that offers ation and really a social worker is the proper person to do that because the officers on the scene have a lot of other things that are going on and the social workers in the best position to determine where whether the home is suitable  background checks and create the documentation required to keep track of where the child was transported why it's not you know we don't see even if there is a technical violation of  statute here we don't see deliberate indifference because in part because of the reasons the rationale of why you wouldn't allow a phone call to be made at the scene  a custodial parent who is arrested may be calling someone to come in take take their child to care for them but also maybe calling someone to come to the scene to ambush the police or destroy evidence or create or even if it's not nefarious just create more chaos than is needed at an arrest scene and beyond what's already there so there's practical reasons and then the situation particularly here the officers did not with deliberate indifference to the rights of the to the familial association right first marciano there there is very limited evidence at all in the record about marciano's conduct all that is alleged is that  he denied the request for a call as for officer tate she actually acted infirmity of late to maintain that family unit she kept the the mother and son together she went with them to the police department she stayed with them while the social worker was conducting the inquiry they were kept together in a room with snacks and television you know to that she maintain that that from the family unit after being without into  deliberate indifference for that right and even if there was a even if there was a violation it would be a de minimus harm because both the son and the mother were kept together and there's no harm claimed other than that the son witnessed the arrest the delay really wouldn't have changed anything from that point  the right was made there was sorry the unity of the unit was maintained the there was nothing that was claimed that happened at the police department and ultimately the j b went to the family member of choice no going back to the reason why the plaintiffs claim that they were entitled to a call at their arrest scene they have they have claimed that the harm is what having j b witnessed them being arrested now that's something that the district court rejected in the summary judgment stage and is not before the court at this point so that rationale which is repeated in the answering bre of has already been denied and that's not up on a so the district court in denying qualified immunity really looked to a very general definition of the familial associate beijing right it's true that a child cannot be separated from his parents about due process or exigent circumstances but issue of whether that requires the immediate phone call at the scene of the arrest instead of late shortly thereafter at a police station with a social worker is not clearly established plane of sight no precedent saying that it has the penal code itself because the language is focused on timing after booking it's not clear that there there would be such a right and in the absence of in the absence of any clearly established pressed it a reasonable officer could have believed that under the circumstances maintaining the mother and son nutshell the claim the plaintiffs have of associational interference with their family association rights the separation occurred at the residence the moment the police officers who are the appellant the night mr hernandez's request a call for a relative or friend to come to the residence to take care of the minor child the separation occurred right there and continued throughout the time they were at the residence and when the mother and the child were transported to the police station we're talking a maximum of five hours or four or three and a half how  many hours i would say it occurred until that night when they got the trial that because they lost control care and custody of their child when they were arrested and they were refused phone calls so that was eight in the morning when they were arrested they got the child back near midnight i think that's not the issue the issue is has to do with whether there is a constitutional right to make a phone call at the time of arrest and so i'm asking you how long did it take from the time the child was taken by the police until the child was placed with the specific people that the the defendant asked them to be placed with i would say  about six hours your honor from from the from the moment they were arrested at the home until someone came to the police station so counsel for qualified immunity purposes what case a stablish has that your client's not at a high level of generality as the supreme court has talked about but what case establishes that your clients at the time of their arrest had the right to make a phone call to a relative to care for their child well no sir not that that so well so what k so why does that case establish that there's a constitutional right to make a phone call when you're arrested because the refusal to make the phone call was the direct proximate cause of the separation and the in affairs with the familial association is there's many ways that that can be interfered with but i don't know of any case that specifically says the re or denial of a phone call at the at the residence results in a hasn't the supreme court specifically told lower courts including our court that we have to grant qualified immunity unless there is a case not in a high level of generality that establishes the specific right that you're asserting was violated here well i wouldn't put it exactly that way your honor i would put it that if it can be shown however it happened that there is an interference there's interference with the association and in fact it happens that there is interference with that then there's various ways to do it i mean there are so many situations that can occur and you know do we need to then i love phone call for one case of denial of a text for another i'm just saying you have to have the supreme court  agree with you that the supreme court might look at a phone call in a text as the same thing but there i think the supreme court has told us there has to be something very similar to that before we can allow a case to proceed in the face of a qualified immunity clime well in our case in this case there is the state statute that says as soon as practical after the arrest the parents must be given a an opportunity to make a subsection that talks about booking but subsection c of kind of california penal code section eight hundred and fifty one point five says as soon as practicable upon being arrested the phone call must be provided so that's pretty clear and there was more than indifference deliberate indifference by the officers here they threatened the mother with calling c p s there was outright hostility there wasn't just  deliberate indifference they threatened the mother that they would call c p s and have the child taken away from them this is why the mother is in handcuffs and arrested and to me that's more than just a deliberate indef endeavor your claim is based at this point entirely on the lack of a phone call that is correct the lack of the phone call and that's what the district court ruled they should have allowed the phone call all of this could have been avoided if they just allowed a phone call for a relative to come to the home and take care of the child but the i agree and you know it looks like they acted pretty boring actually if we take the facts as presented but that doesn't necessarily mean there was a constitutional violation and that's what we're trying to figure out is what case puts us closest to the constitutional violation i would say it was it be city i mean whatever says the city of sacramento then i'm published made my case ok i argued that case with the for which were is your citation to time of his being converted from a memorandum disposition to an opinion i don't see at all i see is the that have federal appendix citation is really a tip off that it is not a presidential case and i thought this as a federal appendix citation in two thousand and eight one of the problems with them or at dispositions of the extent that someone wants to cite them to us is that to pick lee they have no detail statement of fact so we can pick compare facts against facts and that's one of the problems here are we talking about diversity of sacramento the facts of that case were that they have to be set for the where they said forth and the position is set forth the district court we cited those facts i believe in the decision they made it cited a quotation so so counsel moving to another  question that i have is is this right in your view your clients had the right to make this phone call at their home yes yes and it is the right depend on what they're being arrested for is that no matter what they're arrested for well every situation is different but i don't think it matters what they're being arrested if they were being arrested for murder for example or serial murder they'd still have the right at their home before they were taken to the police station and booked to make a call to care for their child well this is in the best interest of the child your honor yes i would say yes even in that case i would say that so that police officers would have to keep them at their home while they made one or more phone calls or is it by the way would it would they have the right to make one or would they have the right to make a number of calls until they actually got somebody on the phone well the statute says up to three calls three additional clear their constitutional right would be at their home regardless of what they're arrested for to make up to three calls well that's a hypothetical your honor that's not what we have here but i would say yes the statute says up to three calls i mean the whole  statute just for the interest of the child to make sure the child is taken care of and the interest of the parents are also involved because the care custody and control of their children is a constitutional right and to maintain that they make the phone call so they have control and care and custody of the child by having a relative or friend come i don't think the child should be punished for what the parents crime or alleged crimes are these are alleged crimes at the point of arrest and the parents or whoever's arrested is assumed innocent until proven guilty was the placement with the relatives that  sandra had asked for was the same b s eventually i believe just social worker make two calls initially in couldn't reach anybody but the rd call was to an uncle and  gave the name of the uncle and the phone number and so yes i'm sure that you'll replaced with the relative which he specifically mentioned yes he was the rd on the list that she gave to the social worker you know on so it all comes down to a question of timing here correct yes you're ok and i think it's clear that the if the separation occurred at that point they lost control custody and care of their child it was when they were denied to make the phone call at the home and that's that's a constitutional violation i mean you can have and exact decision on every fact situation because not every party appeals even though they had a valid case so  have we do have to separate for protective custody in light of the arrest would that have been ok well your honor i didn't exactly understand the question so if an officer stayed after with the trial trial right there separated i mean you know that's a answer they had done that would that have been ok i know would wouldn't because unless the mother said yes i want the officers ok just the whole point is who has care control and custody decisions regarding those matters with the child if the mother sa yes officer please stay with my child when i'm taken away then that's ok if the mother says no i don't want my child to stay with you then i would say that's a violation of my understanding that is your view isn't the  child can't be put into protective custody and separated from the mother or father because the familiar right is correct you know and i'm not saying that i'm saying that the parent should be given an opportunity to make that decision of who should come and take care of the child and the point here is they were at the home for a significantly long time there was plenty of time to allow a call by the parent to come to the home it wasn't like i mean they searched the whole home they searched all the rooms and three adults were arrested so i believe this is a clear case of violation of constitutional rights and i'll reserve   the point that the separation occurred as soon as the phone calls were denied at the residence and that's a constitutional violation because at that point the parents lost care control and custody the right to due care control custody of j v the minor thank you very much than is just admitted that there is no case that specific lee states that there is a right to an immediate the only case that was cited as similar was the body case which is an unpublished case which we cite in our separation type case where it was a real warrantless removal of a child from the home from the father even though the child got to maintain stay with the mother so it was the father's claim for familial association in that case the time of or as being related to the time of the phone call the soon as practicable language deals with the time of the inquiry to the arrestee and whether there are a custodial parent so it doesn't it doesn't actually say that there has to be a phone call as soon as practicable after the arrest he does not say that it instead the timing of the phone call is in subsection a which says immediately upon booking or within three hours of the arrest and here the facts show that within three hours of eight o'clock the mother and the son were with him and we're with the social worker to make those calls lastly going to judge brennan's question about whether this would apply to all arrests if this right was created that there was a right to an immediate phone call at the scene of the rest for any crime regardless of circumstances it would have very serious security impacts and it could it would threaten the security and safety of officers and other people at the scene for example a gang related crime where there this is where there coconspirators you know how if there was an opportunity to call from the arrest site to someone and the police officers don't know who this is under the guise that it's for arranging a carer it could create a whole host of problems so it is a dangerous precedent to make that that would be the standard unless there are any further questions i request that the court reverses thank you thank you very much