council when i when i read the facts in this case i kind of shared the feeling that you heard in your brief that there probably wasn't enough reason for the police to be there but it looked to me like it wasn't the fault of the police it was the fault of the neighbor his wife wanted to go to sleep she didn't like the noise she had her husband call the cops he called the one one call i mean they don't you know what is how do we how do we get that and how is that relevant well it is and it isn't your honor what is relevant is the is the information available to the officers at the time they receive the call no officer receiving a police dispatch reporting and a large fight going on at a location with cherries being thrown and police officers and people shouting to call the police that's the only information the officers have they have no way of telling whether that  ok there's a big fight going on these are plainclothes officers that are fairly nearby that are dispatched they get there they what well i guess it's disputed but somehow the door's open now if it's at that point when the when the person that answered the door it's not undisputed i guess the person didn't want to let a man but if they had turned around and got in their car and said oh i'm sorry the person doesn't want to let me  the people who would be suing the police department would be it would be the same people they just have a different claim they claim the police were negligent by not going into that house and that's really the quandary that we're looking at here i mean and actually on the issue of whether there's a dispute this motion rel probable cause for the and when i look at what the trial judge did the trial judge back and forth that even the trial and even the district court judge said all prongs that the collateral right that's correct but then found the interest of justice exception that's correct but specifically where do you think the court went wrong well the court went wrong  essentially assuming that it had unfettered discretion whether to apply collateral stoppel under the circumstances of a prior suppression ruling and what effect that has in a civil rights action there is that while there is an exception while there is a stoppel that's when you have been ministry to agency making a policy decision that's going to effect on a legal question and that's going to affect many parties that are not before the court under those circumstances we we do allow courts to weigh the circumstances and determine this discretionary exception are primarily cases that deal with federal administrative law which is a very different issue than an actual state court decision again  there i'm wondering how long the window was open for an appeal of the adverse decision on suppression i know the state judge denied the motion to suppress and then subsequently the times on the case wasn't dismissed been told until the jury was actually sworn in so there was a delay but at least a few months and it's time for an appeal had run younger i don't know if you understood my question sometimes to judge you could appeal and be in between but hard to do other times there was a delay if i understood you right you said there was several months between denial of the most mr press and the beginning of that jury selection preliminary hearing there's a separate motion to suppress made by the now pallies that was after the parties had been down hour that's correct well assuming that you can well ok first you have your argument in terms that what was found in terms of probable cause to get you in the door and then you make a secondary argument if i understand it that even if that is not binding that there was probable correct that's correct there's two bases for reversal on the on the search claim and the other one is qualified immunity claim where we accept the plaintiff's version and say even under those facts when police officers receive an urgent nine one one call like this we expect them to go and to go into a house and follow up on the emergency and there are there is there is there was a reference earlier to some of the facts being disputed now i want to be clear on this we think that the contents of the nine one one call and the work i knocked true to mean that the officers were proper him going into the home just to see what was going on suppose the officer officers had arrived and there were complete silence in the house well there could be someone inside injured from the fight who's hurt and who needs help or there could be loud voices outside that could mean that the fight is still going on the point is is that we have an urgent report of a emergency situation inside a house where someone could be entered where there's been a report of someone yelling to put down the chair to call the police we expect officers to be able to go in and to respond to a knock on the wall or one call like that and  bear hug and the other said he doesn't know exactly what happened but he said something like they do what they do pretty well and they've got me down on the ground then you have but and let's say you even get to that then you have the issue where one of the plaintiff's claims to be but now after he was arrested i and identified officers cracked that's correct well neither say you get richardson and digs out but then you've still got this last incident where the plaintiff is claiming that he was speeding after he was arrested and i think going back to the playstation two or things along those lines practice of the city and county that led directly to his being beaten up by uniformed by identifying uniformed officers then theoretically he could establish why ability on the part of the city what evidence in stare for that case all of the evidence from the court before the court is drawn from the plainest themselves we've accepted that there are no factual disputes about what happened in the house so there's no reason why the court can't rule on the legal issues of whether it's proper for an officer who's done it who's been attacked to arrest the person who's attacking him and it again it's undisputed the plaintiffs don't dispute that they attack the officers they simply say well we don't know who they were again this is an issue that's sorted out at a criminal trial an officer isn't there to make a judgement of someone's ultimate criminal liability and there is no way for an officer to know the state of mind of someone at the scene what the officer knows is that they've been attacked and  excerpt on it now is there is nothing in the record of the fifth district attorney's simply as a matter of their discretion dismissed the case there's no information in the record about why the district attorney did that just as when it happened apparently i think at trial anything and once a prosecutor i clearly understood there's a nest and ever heard of witnesses testifying before the juries impaneled apparently that in the criminal courts they allow witnesses to do this to preserve their testimony in case they're not around for at the time of trial address some of the cases but deal with what officers are supposed to do when they receive a nine one gavel recorder what those two witnesses said i don't believe that they're that that testimony is part of the record depositions are always with an opportunity to cross examine and them occasionally there in front of judges yes but again this is a part of the record of the criminal court and it's and while it's in the fermanagh court file it's not part of the record that's not for this recorder again because the reason why we presented the record of the criminal court was to highlight the issues that were raised in a draft and litigated at suppression hearing and those witnesses did not play into what so you are as i would like to go over many of the cases but i've dealt with nine one one calls in a qualified immunity context and it's important to remember that we need to consider the state of the law at the time that the  officers gauged in the challenge activity this is a search that occurred in one thousand nine hundred nine and we have to ask ourselves was there clearly established law at that time that gave the officers notice that they wouldn't that they were not authorized to conduct th search now there was no such law and moreover if you look at the gray case from the california supreme court which outlines the emergency doctrin this case it just recently come out and it had allowed officers to head in fact commanded officers who went in to investigate a call of an apartment door being open in the house being in shambles they had no other information about it ending emergency  that's all they knew in the california supreme court said yes under those circumstances an officer should go right into the house and if you look at the stations of court subsequent to night hundred ninety nine there have been many decisions that have come down saying that a nine one one call alone communicating and a current emergency is enough and if you don't matter who are decision or are you talking federal decisions from the supreme court or our court to do well your honor that the court is supposed to look in making a qualified immunity determination whether the law's clearly established the court is supposed to look at case law from states and from other circuits as well as from the supreme court in determining whether the to simply to point a gun at somebody that alone could constitute excessive force but then the court looks at decisions of other circuits all the other circuits they've gone the other way and said well given this conflict in the law we can't say that it's clearly established so the officer still got qualified immunity and in this case if you look at the nine one one case law in other circuits second circuit in the seventh circuit anthony case the holloway case these are all cases that said and nine one one call alone even a fault even of nine one one call that turns out to be false later is enough to justify the officers making an entry thank you i can easily see why you might sue the neighbor for telling a lie that caused all this trouble for your clients but from the police standpoint they got a call albeit based on a lie they don't know it's a lie that there's a big fight going on not just a fight on the television set but a real life fight between the participants a couple dozen people shares being thrown why shouldn't they is that even leaving aside collateral estop doesn't this the as a special exigency of that kind of nine eleven file justify barging into the house and ag getting everything under control while they see what's happening because the law doesn't provide for police officers on twitter discretion to go into a house one nine one one call and in this case you don't need unfettered discretion on any nine one one call you've got a particular call here with the description of the violence correct but this call was  are a lot of people there are people in the house the officers to say here you know i spent even just put that aside because i think there's conflicting on that but there still are twenty to twenty five people there right and for all they know there's a guy leading an unconscious on the floor as a result of the successful it is kind of quiet maybe the violence was successful well all the cases for these types of situations police officers are knocking on the door police officers are announcing themselves police officers are investigating before they go nine one one call it's a distress call it's immediate they get there what i mean much the sumed that either like it was domestic violence and someone comes to the door and says you don't need to and then just just leave well and so then the woman gets killed inside or let's say there's someone on the floor that's dying there's no doubt in my mind that the police department would then be looking at a lawsuit that they didn't do their job they didn't go in and at least check on the wellbeing of the individuals so it's one of th darned if you do darned if you don't want people call the police they don't expect them to come to the door and when when they've reported that there's a fight inside and saying well i think i'll just do it if you  doing the beat not usually wouldn't come out to my house and get me but ironically enough people who are in the house after these police officers came in the house one of the call the police because they thought they were the homes being what we are required by constitution by constitutional law decisions with the supreme court to look at this from the viewpoint of what the policeman knows but it's a test of the actively and let's take a look at the hockey skates but that this court decided back in they're getting the call right in right now they're going out right then as opposed to me calling the police department in spain well you know my neighbors beaten up his wife that doesn't mean it's happening right then now i just counterintuitive to say it doesn't matter when it's happening because the whole point is that it's happening right now and you've got to be concerned about people's safety and that's happened at some point that you know you can't just go into people certain that the noise that the police officers maintain was going on and inside the house is not disputed we'll dispute the characterization of the noise that the police talking to say was going on inside the house said they were screaming and yelling that's disputed that's disputed by the residents instituted by and for other independent witnesses so when the police officers get out of the house architecture nothing was happening this was a total false fal firefighters who might get out to a to a scene where there's no fire there's no smoke there's nothing nothing's going on you have a peaceful gathering of people do you think if the firemen get called there's a fire they get a nine one one call there's a fire it fifteen hundred  drive they go to fifteen hundred oak drive they don't see if fire they're not kind of there were nobody answers they should go away they shouldn't break open the door and look for from the smoke and it was pretty quiet and no baby crying by the time the firemen got there well that's your question i think before that the firemen go into the house they should have some dishes that there's a fire going announce themselves they don't tell them the people why they are there they don't identify themselves as police officers i mean otherwise let me ask about something else and come back to it the collateral estoppel it looks to me like you had several months there was a few months yes it was like why shouldn't there be collateral estoppel because the trial court at the criminal level case was going to go forward in the trial court at the criminal level actually said the issues that are raised by the defendant in this criminal courts are going to be tried again he didn't want the jury to have a whatever way the trier of fact wants to give certainly i trialed and then he said the very issues that the defendants are raising now will be at issue because they will go directly to the fundamental issue of whether the officers were actually acting under family at all it's the end of it at the end of the whole thing and the plaintiffs in this case defendants in that criminal case lost and they had several months to appeal and if the judge's reasoning was and at that point the court finds that officers are illegally in the house then my client just goes to obey what police officer is trying to do it seems to me your clients would have had to persuade the state judge that the policemen were lying when they said they saw two latin males fighting that's right the person that opened the door they tried to do that well they tried and evidently they failed i mean that the judge could have said i think the police i don't think they i don't think they saw anyone fighting i any way well that would have mattered to the criminal case now but it would but the fact of the matter is on the most mr press the judge did not make the finding of fact that the policemen were lying about one more one more chance to get back to what's really on my mind on this case if you've thought of something else i'm thinking it happens when you stay in hotels from time to time room next door they're playing the t v loud one in the morning screaming and and it sounds like fear it sounds like somebody second rate beat up in the room next to mine i expect the security people to barge into that room and if it was all a lie it's it's the person who called the peaceful citizens and the house are their houses invaded by plainclothes officers and going back to my example if the court hold that the police officers had a right to go in on the nine one one call have before me including visiting the scene that there was probable cause for the officers to go when now kitman would have provided a additional ground for the court to allow it to deny the suppression motion and under california law when there is more than from the residence perspective perhaps they feel that while the officers were in the house legally we're going to have a hard time explaining our actions and i agree on the other hand whether or not the officers were illegally in the house they weren't salted by is mad that it's undisputed and