good morning your honor john whitesides for officers john tennis and randy lasagna i will reserve four minutes for republic the landscape of this case has altered  k then after completion of the briefing another panel within a few weeks issued a divergent opinion and that was the keats case thus i wrote the rule twenty eight a letter to this panel to apprise them of the interest circuit split and the corresponding constraints on what i can argue announced this panel to do this is your letter of june eleventh i believe so i only wrote one year ok very well i have and so what i've given thought to since that letter which was indeed june eleven was how can we harmonize these cases whether it's the history of the supreme court but getting back even before more verses east cleveland and coming through robert's and then rotary club and dallas vs stang one or whether it's this circuit's opinions whether under the due process clause in ward or as i said in the more recent divergent path that they've taken and i do think there are two factors that we can see in common for when a constitutional right is recognized in this area of intimate relationships we're talking first the moment what i'm about to say right now would transcend which amendment to the words i'm thinking however a court chooses to pigeonhole the association first or fourteenth there are still two features that it would have in common if i put aside expressive conduct which i feel i must give in the split and you suggest that these cases have some relevance to the ward case correct i believe ward philosophically embodies the two factors i'm about to express the first factor is there has to be a choice when roberts talks about a liberty interest in an intimate relationship the liberty that it is speaking of is the freedom of choice and the examples that the court gives our marriage procreation cohabitation each of those involves a choice the second layer is does that choice rise to a level where it becomes if you as a fundamental right for the purpose of the constitution and those same areas the supreme court identified as fundamental rights the right to marry the right to choose to live together the right to choose to have children how to raise the children and if we look at the vast majority of cases they involve judicial scrutiny of one of those choices and whether or not that choice rises to a high enough level to be afforded constitutional protection and depending upon the choice different results of occurred so for example this court is twice held once and i e k once an erotic service provider that prostitution an escort services although a choice do not have the quality or quantity to them that would trigger a constitutional protection the supreme court does the same in dallas for says stangl in hall it does the same in roberts and rotary club with the sort of civic benefit organizations of the jaycees and the rotary club in this case i don't think we reach either factor in a satisfactory way as ward pointed out when it followed the seven circuits decision in bell one of the problems with constitutional protection for siblings is there's no choice siblings do not choose one another one does not choose one's relatives other than spouse or children so there is no choice the second factor we look at is what are the characteristics of a relationship and this court has held in other contexts that to reach a high enough level for constitutional protection you have to be approaching one of those targets the supreme court has identified biological relation with the grandchild is not enough for constitutional protection there had to be a cuss stowed ial relationship which i would view as cohabitation in the vast majority of instances so we believe in this case because you have neither an association by choice nor a level of that association that would rise to the areas the supreme court has identified that there is no standing of the plaintiffs to so supreme court generally is made  to due process context correct yes this would all be substantive in this case there's no issue about procedural and so where the courts have started to diverge understandably because of the language in rotary club is what which amendment does it fit under and this circuit and analyzes all of that in id k and says it goes under the fourteenth that's the most faithful to roberts that's what the court expressly said in more verses east cleveland was the source of the right and there we had a grandparent who want to live with a grandchild and east cleveland's housing ordinances for debate that it didn't fit the definition of family and the court said that was unconstitutional because it deprived the grandparent in the child of substantive due process in terms of their right to live together no circuit has recognized at this point a protected association with out an expressive component for relatives who do process correct but let me put this to you is the analysis of the two princes in familiar relations a matter of think the way that i would harmonize that with the court's other decisions is that even though it is not a traditional family it still bears the in dish of cohabitation and potential child rearing that would qualify under the examples that the court gives so i think regardless of whether or not people are married or whether or not it's a traditional heterosexual marriage if you're cohabitate ing there's a strong argument in favor of constitutional protection and in fact the supreme court in the case where it dealt with foster homes talks about the fact that well there's not a biological connection and normally we require that but there is living together and certainly living together over a long period of time could qualify as an intimate relationship for a foster child and parent so i think the has left the door open for nontraditional relationships to qualify depending on the particular circumstances but i haven't seen any indication that they're go that outside of a household and no other circuit has suggested that that could be done outside the household accounts i have a question about qualified immunity to the district court mak finding and call a fight immunity its opinion was totally silent on the subject is that issue preserved was it preserved in the briefing yes it was raised in the motion argued by the opposition argued in the reply in the oral argument frankly we just ran out of time there was another matter behind us and we were so busy on the standing issue the court didn't ask and it never came up like many things in oral argument you just don't have time to get everything this would be too simple an approach but if we have difficulty identifying the parameters of the right at stake doesn't that almost by definition mean that we feel the second prong of the of it hard to say it's  can't figure out what it is precisely now i mean there's certainly no governing case that tells us the answer here we're we're trying to poll pieces from different precedence and fit them together in a very complicated way and of course now on top of that we've got an interest require expressive conduct i feel frustratingly that keats forecloses me from arguing that to you but as you just pointed out there are other facts about keats that it involve the targeted disruption of a parent child relationship where you had both cohabitation and targeted conduct that are clearly distinguishable from this case so i would agree keats does not control the outcome of this case what keats does is prevent me from arguing that a first amendment claim would have to require expressive conduct in keats there was none unlikely and you're still relying on a war officers of sacramento city after they failed to hit him with their automobiles as he was crossing the street they pursued him and shot him to death inflicting grievous harm on his siblings who have a right to come into court they have standing to complain of the constitutional tort which led to their brother's death with kids you say from well we look directly at roberts and rotary to give us the guidance that emphasizes how important the sibling relationship the family relationship the intimate relationships are which are entitled to protection how to get a run toward ward dealt very specifically with the fourteenth amendment and i think it could have gone either way they could certainly have said that siblings are protected by the fourteenth amendment there was no argument that there was a first amendment claim so therefore the court didn't have the option of saying but they could pursue  their their rights under the the first amendment as the court did express in levy but what they said narrowly what you said narrowly in in ward was that the protections of the fourteenth amendment did not extend to siblings and i think we can accept that and also rationalize the decisions of the supreme court in rotary and j c to say well then where do we look to protect the intimate association relationships of siblings whose who's close intimate relationship has been destroyed by governmental action and i think that it's very logical to look at the first amendment because that is specifically targeted to preserve and protect those relationships and the supreme court said there are lots of different relationships we are not going to enumerate them all we're not going to draw all the parameters we're going to take the cases as they come and with that guidance just for you for laying out on a keats to say law you're giving up the fourteenth amendment based on war right we feel constrained to do that your honor we are yes we are so so is your argument basically there's no interest circuit split on the first amendment first and a fourteenth amendment claim a right which was a bridge when her son was seized and then extradited the next day so clearly  one would look at that and say there was both a fourth amendment of course for the son who seized and the fourteenth amendment traditionally for the parent whose relationship was interfered with and the fact that the court recognized the first amendment right i believe is adequate authority for this court to proceed on that basis and decide here that the court below both in man and in cower and in and in other instances other district courts in engram for instance recognize that intimately lation is are protected in situations where constitutional torts interfere with and deprive siblings of those close relationships and it just it just makes sense otherwise if you if you think about how and i'm going to deal with the cohabitation question in just a moment but let's say you have two brothers who are living together and one is is seized by officers and removed whether it's in ny and a foster home or otherwise well then there's there's a recognized right under the first amendment for those siblings to come into court to complain about that that interference well if one sibling is not just removed but is in fact killed how could that then reduce the right itself doesn't express the deal with cohabitation it uses the language of of roberts to explain to indicate that they were in a relationship which presumed the intimate nature of the cohabiting that's right we did not play that and because we don't think it's we don't think it's determinative and i'm just going to address that now the question of cohabitation you would say will  at the time of the killing at some time previously or intermittently or ever or never those are those may be the factors that one would consider in assessing the nature of the relationship and the damages to which the the the sibling who's seeking recovery was exposed but not to establish standing it is too slippery and a concept and what does cohabitation mean does it mean intermittent or continual and i don't think there's there's been any requirement ever expressed of cohabitation there's a phrase in in robert's that says that in the string of relationships that could be entitled to that are entitled to first amendment protection includes  and even that is broader than siblings so i don't i don't believe that the cohabitation is a requirement it may be an indication of the nature of the level of intimacy which would bear on on recovery as opposed to standing so i think in arc in our case of course it's a difficult question that the over fell issue of  obstructions in the civil relationship well i don't think they relate to an intimate relationship i think that's the distinction that the court was making between expressive relationships and associations relationships and i think that the latter comments that you're that your honor is quoted relate to the nature of the of the association whether it's an intimate club for instance or some broad broad organization such as the jaycees or the rotary the first or the are the ones in that in that short list that that identify the types of intimate relations and i agree that marriage is clearly one i think that family relations are also included and when you're in any degree of conflict with well i think that that's a question for the court and and i think and it may be on a case by case basis as judge shub said below when he said when he when he ruled in favor of the sibling standing in man he said that that he doesn't have to actually identify all the situations that could be covered it might have to be on a case by case basis but certainly yes there are issues whether it's  a half brother a step step brother these are questions however brother is a word that is in common to all of them and i think we can we can at least recognize that simply are included within the protection how far outside of that line you go may be may very well depend upon the additional pleading this is the specific nature of the relationship that that can be described to that to the court but i think we're well within the guidance that we've gotten from the supreme court both in in roberts and j c and as recognized by this court in the first amendment does protect these intimate relations and that we have a right to proceed under the first amendment but if if if it is so clear what is your answer to the equal what immunity are going well the answer is that it was obvious that when the officers killed joseph man they were doing harm not just to him but to his mother to his father to his children and to his siblings at the minimum that kill so for the purpose of depriving relationships to parents or immediate family well this court in ward specifically addressed that question and  said that it was unwilling your honour's were unwilling to impose a requirement to show wrongful intent directed specifically at them to permit in that case parents or children to claim a violation the fourteenth amendment record that might even meet the test of deliberateness well yes we've we've certainly pled that he was chased and gunned down and that the the precedent that we would we would had no right either deliberately that is under and under the of the standard of which is the fourteenth amendment standard deliberately indifferent  or that is intent to cause harm those are the two alternatives and i think both of those are well clearly established that the officer should have known and recognized would prevent them from killing joseph mann thank thank you  judge stearns i don't think the answer you got responded to your question your question dealt with the showing of targeted dissociation with an intent to disrupt a relationship there are no allegations in this case that the officers knew anything about mr man much less that he had relatives so the answer that you got dealt with the underlying standard under the fourteenth amendment that would apply to the father's claim which was settled does not apply here here what we're talking about is was there some intent to disrupt this family and the answer is no there was no such allegation they had no idea who the person was they did not know his identity that's undisputed free go back quickly to the other of all of course if you read it the way that counsel did it would irreconcilably conflict with id k so we have to try to read it in a way that's harmonious we can do that it is true that there was a false arrest in an extradition in lee but that's not what the panel talked about when they talked about the first amendment they talked about the mother's subsequent attempts to contact the city and find out where her son was that's what they reference when they talk about the first amendment claim so we have petitioning activity that's going on and there's a refusal to his sister and that's what the court l  at now i think all of leah's dicta because neither party briefed this issue at all but if one treats it as precedent it involves expressive conduct and then finally counsel noted that well there could be a factual issue about past cohabitation there is no authority anywhere from any circuit has recognized standing to sue under either the fourteenth or the first based upon a prior relationship that no longer exists i mean under that analysis an ex ce would have standing to sue post divorce by virtue of the fact that they initially had a protected relationship even though it's over at the time of the injury so the focus has to be what is the relationship at the time of injury not what what was it years