case reminds me of that to a certain extent we have this officer brooks margaret who was brought on to the carlisle police the path as a volunteer which i'd never heard of before but he volunteered as a police officer and within a few months he had made contact with a young female cousin of the mayor who at that time was timothy humphries and invited her for a ride along in his police cruiser once again he's a volunteer he's not  he makes that very clear in his deposition he's not a police officer and during that right on supposedly according to officer brooks angie cole the young female cousin of the mayor says to officer brooks my mayor or my cousin actually he said that she said my uncle has a child pornography on his computer according to brooks called his lieutenant lieutenant snyder in september october this it's been a couple of months after groups came on with the carlisle police department carlyle's of the news out of the just north of here election in november and according to testimony from brooks he calls chief bogus and says the bogus guess what was told to me why haven't you nailed this guy this is the day before the election in two thousand and nine and officer brooks thought that the mayor was running for reelection when in reality according to the testimony in the record there were three councilman who were running that the mayor had supported the trial court will get to this point and after that call to voters the evening before the election where brooks says why haven't you gotten this time what are you doing bogus and slighter the next day november the focus on the legal arguments it appears here that this whole thing started because some of the founders looked in your client's computer at work and it was sitting on computers the district judge didn't make the right decision here i am trying to figure out when she would reduce the case down for the most basic elements were what is the  saying that there was a consent to search the laptop computer that was given by the city manager and i contend well i know for a fact there is no consent in the record given by the city manager for search  computer that's what i was getting to just a second ago she went down to the office you open the office the police offices when they immediately open up your computer the trial court even goes on to say that there may be as you said even if a reasonable j were as well from what i believe they claim they knew that they had a password and that is eleanor the prior mayor had a hamster or two computers there is nothing in the record to indicate that anything that the mayor would put on here was not protected by the ship that was given to the city manager was we hear that he has been looking and child pornography on his home computer and based upon that they start looking the police start looking at the laptop computer that is as judge donald has indicated government owned so there was no indication that the mayor was in any way using the laptop computer there was no trip there was no information that would permit a violation of his fourth amendment rights to privacy now a lot has been speaking over exactly exactly i'm speaking of the laptop computer that's in his office is the one that the police also searched the city own computer that's right the studio that was given to him for his exclusive personal use the defense has made a deal out of  the allegations that  someone else had used this for presentation at one time they've also made a deal that public records on this could be inaccessible that does not indicate that anyone could just walk in and use this without the mere permission this was a computer that was assigned to him directly it was in his office it was in his unlocked office and there was never in camp group or mission that would indicate he had done anything improper on his time to the office for that tha at child pornography on his computer therefore we want to go in and look at his city issue computer they would never they should never get a search warrant to do that and i think they knew that  testified that the one case before that he had involving child pornography he got an affidavit from the tipster he got not just the bare bones information you know about all somebody said that their brother stole something back in two thousand angie cool came forward she's the young lady took on the right nancy co present in the affidavit to the trial court as well as her depositions and i didn't say anything like that two officer books that was her sworn testimony where do you plead for your plea brooks is a matter of you know the trial of course unhappy weighing the testimony in that way so you know and what really sparked me in this case is i have great this judge's decision and i find light of all these places she says well that's a close question and there's a lot of facts here that you know aren't present a close question as far as the laptop invested in and the chips and the dispute between the parties as to what was said when it was that sort of thing and that really sparked me in that wait a minute that's not the way you decide a motion for summary judgment by saying even if the jury were to decide this and if you look at this when the trial judge says in her opinion even if the if there is a jury question as to whether there was a violation of the right to privacy there was consent by the city manager that's not true that's not in the record there was never consent by the city manager to look at this computer look at anything in this computer so that's one issue and i know that we can take a look at the say hey look the government owned this computer they could do anything they wanted to do with it because they can open it up they can look at it they can make allegations based upon what they see there but that's not the law that's not the just that one single element of ownership there we know you have public records on the air we have a freedom of information act request give us those public records would you please and you make that request to you know go into his computer and open it up and start looking at everything  decided whether it was a close question as to whether the plaintiffs had a reasonable expectation of privacy in the city own computer and the judge also decided it was a close question as to whether the city manager had consented now the city manager w them to the office she unlocked the door of the office she told them yes this is the city own computer she walked in and helped and watched them as they ran this priest search program but she said ok there's a somewhat of a close question on that and there's somewhat of a close question as to whether there was a legitimate expectation of privacy and what mr state has been mentioned is we're talking about qualified immunity here and qualified immunity analysis we get from ashcroft percivale kid which the united states supreme court just decided in two thousand and one of the says an official's conduct violates clearly established law when at the time of the challenge conduct the contours of the right were sufficiently clear that every reasonable official would have understood that what he is doing violates that right now the reason the judge was making the comment that wasn't really clear it wasn't clear to her for sure as to which way she wanted to go is that certainly it's not clear to every reasonable officer that one thing i didn't say before i started and i should have is i'm going for eight minutes and then mr president is going to go for six minutes after me and he's going to deal with the motion in limine the argument sorry about that so with respect to the analysis i think it's critical to look at the fact that we're trying to decide if these three officers from the village or carlisle which has five thousand people by a lated  clearly established rights and the log certainly in this area is not clearly established this computer that the plaintiff was given was the computer as your honor said that the previous merit had that his kids  used he used that he'd use it at the offices he used it at home it was given to humphries after he took office he didn't change the password and used the same password it was used to give presentations or at least a presentation at the city offices it was a city owned computer it was kept in the city office the city didn't have a policy that said you don't have a right to privacy and you know this materials it's all belongs to the city easement these are public records that are on this computer and you have no reason to believe that you have any expectation to right to privacy so when lieutenant slider and she poses got this step that there was a possibility that the mare was looking at  child pornography simple thing to do to see if there was any of it on the city computer not only is that a violation of the criminal law that would be a violation of the city's policies on the marriage saying well i wasn't subject to the city's policies because i'm not employed but the city policies applied to the computers and applied to all the materials on the computers of the applied his just as much as they do with everybody else's and so far as these are public records etc so the fact of the matter is is that yes if he had pornography of any kind not just offered a fee on that laptop computer that was a violation of the city policy as well as the fact that it could have been a crime if it was child pornography once tended slider and she poaches had an opportunity to run this pre surgery which by the way is not an intrusive search where they looked at all those emails in all its files or something of that nature it was a short search were just photographs popped up once they had an  unity to review that they saw photographs on arabic clearly depicted pornography now cheap lieutenant slighter has testified and testified under oath that he thought several of them involve child pornography an older person and a chop he knew that they were man on man he knew that they were pornography and he thought that some of them were man and shot so once he'd seen that once he'd actually he then he has probable cause and then what does he do she focuses and lieutenant slighter don't just charge the mayor with a crime they say ok call the sheriff and say what should we do what's the best way to proceed with our investigation he said here's a prosecutor for warren county who deals with these particular issues you should speak with her they met with the prosecutor the prosecutor wrote the search warrant the search warrant strew the search warrants out as exactly what lieutenant slider thought he saw on the computer they took the search warrant to the judge just bronson who is a very experienced judge moore county and he didn't just sign it he took the officers into the room he asked them questions that he signed and then he sealed so they have a search warrant that point in time and it was based upon the images that they saw on the computer now one space obtained the computers through the search force they were taken to the f b i no charges  followed this time the search warrant is sealed no one from the village none of my clients have said anything at all about whose computers were taken or anything at all about the investigation they go to the f b i and to the special unit the f images that are clearly pornography that were on this laptop that harks are the closest ones to whether or not their child pornography or not he said i don't think the child pornography and robin testified that when he met with posed that they both thought several of them more child pornography and he said he thought their belief that they were child pornography was a good faith belief and it was a reasonable belief what he said was in these child pornography cases you have to identify these people somehow and these people were not identifiable and that when they're fifteen sixteen or seventeen years old it's very difficult to prove so he didn't think he had a case he didn't think he had child pornography but that it was reasonable for my and the previous mayor said he gave the computer back in like may december fourteenth before december twenty seventh director said that he thought it was somewhere around december fifteenth that he cleaned the computer but then the mayor said that it was he got it in two thousand and eight i think that was a question of fact as to when the images were placed on there and i don't think that applies to my clients because how could they have not and even with this with this city computer it seems to me that it's more than just whether or not previous mayor the current mayor with the money because you have to look at access and i think that a lot of people have access to this computer including family members of the various officials and perhaps friends of the officials absolutely true and that's why i stopped one time the investigation completely and and but you know they had also in the meantime through the search warrant gotten the home computer of the mayor and that was to determine if there was any child pornography on the home computer and it was found that there was pernod a fee on the home computer but no child pornography so i would i would probably say meant that it would be very difficult to approv this with respect to the laptop that he was there was child pornography on there it was from the mayor but certainly with respect to his home computer they could approve that but the fact is that my client had no way of knowing that some analysis done you know years later would show that these photographs were put on perhaps prior to in america possession ok is it your position that there's no genuine issue of fact and that the lower court's ruling it's correct and if that is your position tell me why that's not a question of fact here that is our position your honor in our army quickly tell me why there's a question right there's there's no point there's no question of material fact there are some small issues about when did mark brooks tell lieutenant slider that he had gotten this tip from me and she called what exact words it is you call you when she gave him that i think if you drill down to it there's no material facts right because the fact of the matter is is that mark say there's no material fact i think that's that's ok thank you very much morning your honor one of my name is jane craig and i represent seven of the eleven applebee's before you this morning before i get started i'm going to try to leave a minute or so left for mr meyer at the end he's here to argue the motion to dismiss my question and i know he's prepared to submit that in the briefs so if you have any questions for him certainly let me know when i can wrap up and he's all ears ok i want the store just by bringing some clarification as to who my clients are and what they have to do with the appeal that's before and the and the short answer is not a whole one three of my clients or the city of carlisle officer badger and officer moore  they are not a part of this appeal all claims against them were dismissed by judge a lot of those claims are discussed in the appellants three with respect to david sugar really he is the law director for the city of carlisle and he is only referenced in this appeal for the purposes of a breach of contract claim i which i'm prepared to submit on the briefs and i don't know that i have a whole lot more than that had been than what's in the briefs unless you have questions  respect to jerry elder the former mayor he is only mentioned in the context of a civil conspiracy claim he and also ron hubbell the former city manager he was also mentioned in the context of  for conspiracy claim and i'll talk just very briefly about sherry callahan is my other client she is the city manager for kaffir carlisle and nearby can tell he's not conspiracy claim just along the side of venomous merits that it didn't have any any merit and dismissed it as well but he also decided that the in for corporate conspiracy doctrine applied which kind of makes you know the i v person should have training mr hubbell did have thirty seven years experience with the federal government as an i t director and did have training he did have a background and i think he you know testimony that was going to be offered by a councilman brian greene there are a few privileges that were involved with that the executive session privilege which is created under statute under under ohio that you and the attorney client privilege judge the law found that both of those privileges applied there were two separate meetings there was an actual executive session that took place on the summer of twenty second of two thousand and nine and then there was the subsequent meeting in the spring of two thousand and two thousand and nine executive session i just wanted to be clear that at the outset there's a two year statute of limitations under ohio law for a challengers to the propriety of an executive session and the clock struck midnight on that in december twenty second two thousand and eleven and there were no challenges brought with respect to the executive session until the depositions were occurring in this case in two thousand and twelve her position is  policy mr humphries was not put on notice that anything would could be searched on this computer for anyone to have access to this they're referring to a hard day's nine which was a  rule that was passed by counsel regarding employees a hard day's night i referred to this in my reply brief and that deals only with e mails of employees and that an e mail would go to a server and they could look at the e mails and that they have to be for government purposes that sort of thing there is no policy there was no policy that's right regarding the use of this computer it was given to the mayor and the mayor was both used as computer for your  that had broker who was an outsider a volunteer cursing the mayor and having ill will toward the mayor which certainly would be outside his scope of least officer a volunteer anything of that sort let's deal just specifically said i have a personal vendetta against the mayor i know i can't get him for a crime but i want him to be recall and this was not an executive session it was not a legal nation i quote for the quarter section one two of the harvey five code which is the general was of ohio which provides that all these meetings must be open to the public and there is nothing in the carlyle charter which provides for executive sessions