and then if i had to separate and distinct reasons why qualified immunity should be denied us to read davis we think both of those reasons are air for very different and distinct reasons there was one of those issues that was briefed at length and was the issue that was mutually understood to be the dispute in that case going forward and then there was the other one that was manufactured at the time of that opinion being issued by the district court having never been raised or briefed on any level up to that point where can i try to unpack this case it seems to me there are three constitutional claims being made one is that your client violated the th amendment by entering the residence without a warrant and probable cause nd that he violated the th amendment  by effective victim from the apartment with no court order process and rd that he somehow and i don't know whether this is a th or th amendment claim violated the constitution by allowing the landlord or under that general very high level of generality umbrella sure i would concede that however there is one distinct point that would probably and again we this was never brief because this part wasn't ever really there and i'm not sure what the damages are from that but i'm just and that may be why it was never part of the case up to that point but there would still be the very distinct issue of the dilapidated nature of the structure but he didn't enter the structure because he was driving by and thought it was dilapidated sure but he entered the structure because the landlord called him up and told him to throw the people out sure but if you if you have a th amendment violation there you still have to have the objectively reasonable expectation of the other ject of lee reasonable expectation i agree that he has the a subjective portion of that th amendment alice's but the dilapidated nature of the structure whether you could ever so if you're living in a dilapidated structure you have no th amendment expectation of privacy no and i and to be clear on i might go wrong that's correct our no you don't have to clarify your answer was that was do you agree i'm sorry i'm what you said you said yeah entering somebody's house violates the th amendment but this was a dilapidated structure sure the clarification need it would be that this structure and the record before the district court was that there could never be whether it was dilapidated or not there could never be lawful residence of a structure of any kind in that place in that city lawfully you could never lawfully occupy that structure was before the district court to move on to the nd but it was a it was and it was given an address that structure was was it not it was a something and a half address at one time it did it did it was somebody that occupied it or years prior and then zoning ordinances changed the owner had it removed signed an affidavit with the city that said this is no longer a residence we've having the meters removed there's no electricity there is no water there there's no and she gave us new all that you're saying that she davis knew no i'm not  davis continued to threaten clark when arrest with the rest over the following two months and then she davis was informed that the house was being torn down and refused to help it seems like these facts are somewhat analogous to harris and howard ten obviously would disagree both with the facts and tell me how much and the on the factual side of it and unfollowed through threat is not a seizure and the timing is important to may not be a seizure but if he did it affect a victim he said leave or all arrest you but he didn't because i well think because they  disorder i mean to have to get arrested for there to be an illegal eviction of well i came and said you gotta leave they say they tried to show me a lease he said i don't want to see it and then they said if you don't leave all arrest you and it and be relatively shortly clark leaves so if we're talking about the th amendment deprivation of property the deprivation of the right to stay in your home why is not sufficient to out a constitutional violation in this case with civically factually because that threat to trespass is that initial contact at the door that happens immediately after that plaintiff and  because it's still a private eviction chief davis isn't his landlord the people a victim are his landlord and nothing from the threat of trespass in july when he says he leaves in september is presence that the way i interpret then it's sufficient to constitute state action in these situations or i guess you know what's your best case to say otherwise mean my best case because we're here on qualified immunity is that there is no case but there are cases that say that one may not be affected by this by the state from a home without process  sure and if you again if you're still at the high level of generality and you don't go down to the specific facts and circumstances of those cases you could end up in a place where ok if there's any any involvement by the police at all then there's a fact question about whether or not they were but for proximate cause here but where where both plaintiff says i didn't listen to his order i wasn't going to listen this is the but for approximate cost stuff the stuff of qualified immunity or is that an separate factual issue for a trial the words the the question is i suppose for their qualified immunity whether your client objectively should have known that what he did violated the constitution whether or not it actually caused the injury i'm not sure is in front of us on qualified immunity i would argue it is your i don't have what it what case do you cite under prong one of all of the has to be constitutional process claim on the actual lack of process i know that the dead he went there with with no legal authority and threw them out of the house you would still have a causation piece there because you would have to have for a violation of occur even under that that procedural due process portion you would have to have chief davis intervening so that he had no access to the state's procedures on eviction whatever rights and remedies he may have under that and that that too is absent let me just take one more run at this and see if you can respond for me because if we have to credit and i think it's just a belongings and leave and threatened to arrest him if he did not do so despite not having any court order or warrant and despite knowing that clark had a lease to rent the house whether it was  dilapidated or not he had a lease to rent the house that seems undisputed in it seems to me that any reasonable officer would have known that these actions violated the constitution  and we do not have to even reach the september th so i just want to know what's your response to that it really comes back to that causation piece make if you lock it in time at the time that there is if you credit is testimony with all of that and then you stop the clock and you stop all the circumstances immediately after he says got two hours to be gone get out of here and and you say that he knew everything about this lease up front and all of those things then i would have i would agree with what you're saying but if you then have to have it have to have an impact that you don't have this free standing constitutional injury carry haifa's you have to have an injury and hear the testimony of his continuing testimony about what goes on from that point is i don't care what he said i wasn't leaving i didn't leave the unequivocal testimony from the the landlord is i never relied on chief davis i knew he wouldn't help me anymore from that point forward so my eviction notice my at writing a letter to the guy that was buying it and told him he could tear the whole thing down was completely disconnected from chief davis completely so but clark was afraid to go back into the house because of what that chief had told him and had to move his belongings out why isn't that enough of an action response is the injury being assertive here is you just possessed me of my right to the structure and he didn't they didn't just possess him of anything there was never any enforcement action taken by chief davis and the cases that i do your reading of this if mr clark had left immediately when the chief came they said get your belongings and go we're all rushed you there would be a constitutional violation there be we'd have a much closer call we'd be much closer like our ten or  city rose and when i'm struggling with is i'm not sure that the eventual causation is part of the qualified immunity analysis it may be a reason that you should prevail at trial or in some other motion for su judgment but i'm not sure it's part of a qualified immunity analysis here it seems to be a disputed fact but that's that's that's why i was asking and i don't understand the inquiry even in those repossession cases like myers or harris you you actually have the police interfering and the person that whether they have a lawful right or not leaving with the property at that time and in all those cases the officer is still granted morning may it please the court my names that johnson's my co counsel bill nice we represent gary clark he's plaintiff i believe i think the court has identified the central question well it's not yet so here's my central question at do you agree that you sort of have the three claims that i described i think we have those three claims and i think there's also a th amendment claim or a law enforcement  officer participating in an illegal of ok that's the solved all clear that's a th or th amendment claim it's still the nd one i described here's your claim that i have a problem with the law enforcement officer does something you think is claim against the law enforcement officer for the loss of the property that was in the house tell me what supreme court case or case on ars provides clearly established law your claim against him at that time as well clark called him it's not clear whether mr karr called him before or after but let's assume he called them before you call a police officer and you say somebody is about to bulldoze my house and the police officer doesn't help tell me what supreme court case clearly committed i'm having trouble figuring out why he's at least not entitle to qualified immunity with respect to that claim so it's a causation question and it damages question it's what it's about for question i suppose i but for what he did that the landlord wouldn't bulldoze the house but that's not the issue the issue is what did he do wrong with respect to the bulldozing of that house well with respect to the bulldozing of the house t objective police officer looked at and said oh my god i got a phone call i must spring to action to prevent a demolition is there a case that says that i'm not aware of a case that says that but i would say that you know if if someone reports a crime which is essentially my home is being torn and i say i'm saying no it's a crime i call the police and say there's a crime occurring at my house and they don't show up is that a violation of the constitution i believe it is in this case because what kay says that i don't know that there is any contact can't find a case in any context it says it that's why it is correct and i can't i don't know of a case your honor but i do think given the factual background here in the causation issue of whether or not his july th order put into motion these actions by private actors the fact that he you know that the causation there's two parts of the causation  analysis one is did his did he himself cause the constitutional deprivation and argument is that that happened on july th he did that and then the nd part of it is is there evidence in the record that that's my problem it's sort of it's a very strange set of i mean admittedly it's an extreme version of an eviction i mean normally what would happen if someone would be dispossessed without the structure being physically destroyed he and i think for purposes of my question i think you may be entitled to damages for the wrongful addiction but you're making a separate question here which is that i i kept property in the house for three months after the after the police officer did whatever he did and then the one who can find bulldoze the house and destroyed my property and i want to hold the police officer liable for that and that's the one where i'm having trouble finding clearly established law that would suggest that he should have known that he he should have sprung into action and stop the bulldozing  i think we would have to prove a trial that the police officers actions were linked to that september destruction of the house in order to get damages for that part of it but of course our human is that the constitutional deprivation and the  is that was who are the ones who carried out the destruction on their own without the chief's help so just trying to figure out whether or not there's sufficient connection of the chief to the to the destruction and i'm not sure i see that but if i could ask you about the th amendment right to be free from seizure of his home i think the cover for and to show that maybe there was a th amendment right to be free from seizure of his home and was clearly established under these circumstances but it seems like forney held that the officer there had not committed a violation so that's insufficient guidance from the supreme court on this issue so other than fornia can you point us to any case that you believe stablish has that right so i believe that saul ball and thomas versus cohen from the six circuit both say that if a police officer participates in a landlord's illegal eviction and the tenant suffers a meaningful interference with their possessory interest that's a th amendment violation fournier i will say the court said the that right was clearly established but the facts of the that case that was another small town in oregon up on mt hood the clackamas county sheriff's deputies were called to a situation where the landlord had already thrown the tenant out of the house tenant leaves calls the sheriff when the sheriff gets up there the landlord says well actually i'm living in this house and the sheriff deputy said ok i don't know what's going on here but i'm going to preserve the status quo and somebody's going to have to get a civil civil or a court order or in the meantime i'm not doing anything and the court found the district court and circuit affirmed found that the police officer had arrived at a situation not of his own making and it that there was some lack of clarity around who had the right to be in this house up in rhododendron oregon but that's not here the case here is that everyone knows that cary clark is the tenant he's in the house and the police officers isn't really in an measurement or entanglement case this is a solo act or local police chief case he comes into the house and issues this order so factually it's very different than when when justice white wrote the unanimous opinion in saul dahl for the supreme court in one thousand nine hundred and two he said i don't think i'm opening up the floodgates for litigation here and it turned out he was right there aren't a lot of cases because every reasonable law enforcement officer knows you can't simply help a landlord do an end run around the well established fiction process by waltzing into someone's house and ordering them to leave under threat of arrest so you don't have a most the you know imprints of state action to this illegal eviction but they didn't actually participate in the way that chief davis did secondly even though that was also a fairly factually graphic case because this mobile home was pulled out of the into the street it was only there for five days before it was returned and so i would say that the nature of the deprivation in this case was has been more long lasting and permanent than what this all dolls suffered i think  on point question all right thank you very much you for the additional time responding to solved all couldn't be although it is a supreme court case it could not be the kind of clearly established squarely governing this case because they weren't even deciding whether or not the th amendment had been violated expressly stated that we're just talking about whether or not the th amendment applies here and then expressively said even  n numerous seizures of this type will survive constitutional scrutiny as often would be the case a showing of unreasonableness on these facts would be able boreas task indeed so i don't want they say that's that's the issue for trial they they weren't say we're just finding a th amendment violation but we're sending it back to determine your current immunity sure and i'm not arguing that sold also doesn't mean the th amendment applies i'm saying that it can't be used in a qualified immunity context and it's not supported by process sure and the and the argument is just that the amount of the participation well here they need to be what squarely got here the participation other than your causation issue what follows is vacation right that's the causation issue but i mean in terms of in terms of the participation it's greater here yeah and the only other case i would point the court to then if that's really where the inquiry becomes is as the more recent it's an  bergen the next one which is in the briefs where the allegation is still there still this difference and the allegation is that there is  some some bias by the police officer and so he actually issues a ticket over an easement dispute and even then he's found it have qualified and i see him over my time or things thank you thank you both