discuss with the court today and for any arguments that i don't address i would rely on the arguments raised in my brief however i'd certainly any answer any questions the court might have the first point i'd like to discuss with the court is the lack of any clearly established law concerning the domestic violence victims fourteenth amendment substantive due process rights when they conflict with the accused fourth amendment rights the second point i'd like to discuss with the court today is whether the district court correctly applied the fruits of the poisonous tree doctrine the officers were not deliberately indifferent to the minor plaintiff's rights when they taze plaintiff penry in the back so moving to my first point whether there are any clearly established cases that balance the domestic violence victims fourteenth amendment substantive due process rights particularly in a state created danger theory against the accused constitutional rights pretty much in this case fourth amendment claims so we start with the district court's analysis and they greed with the plaintiffs argument that in order to have a  danger claim for the domestic violence victim you need affirmative action on behalf of the and behalf of the police and this is where we respectfully disagree if we look at this court's oaken holding it said and repeated sustained in action in the face of domestic violence can be the basis for implicit prior surance as such that they've domestic violence act or believe they could act with impunity and this is one of the house yes so why was it necessary for them is me they wanted her to go to the door and tell him he was on her rest correct that doesn't sound like they are concerned about her being shot in the well and second that is that is a good point your honor but that was because they were trying to comply with the new york civil procedure law which requires a citizen's arrest on that section and so i don't have the actual section but the interplay is there is that the sworn to statement was made by daniel williams  domestic violence victim and in order to do that the officers because the domestic violence occurred outside of their presidents the way that they are to the procedure is for the victim to say that the individuals under arrest and in the officers going  exigencies stances well in this case we would say that if we look at the district court relied heavily on officers convinced he's testimony because he testified at the suppression hearing however if we look at the actual decision to make entry was the scene commander are maintaining here that there were exigent circumstances we're maintaining as a matter of was that the based on the plaintiff's test in the first question is whether we would have jurisdiction over this appeal because you do appear to be taking issue with with the facts at the district court assumed certain facts including that that that there really were exigent circumstances or that at least it district court recognize that fact and i am saying it's a close call no question about that it is arguable as your eyes pointed out but the whole point of the analysis and as this court has said in the tyranny case that it's a two were it gave qualified immunity to police officers when they made an entry into a house without a warrant saying that the combustible nature so you're making the argument based on the assumption that there weren't exigent circumstances but isn't there a factual question as to whether indeed there were exigent circumstances i guess i guess my argument is again i go back to the fact that it is a close call but on the facts taken on plaintiffs you know in late most farewell plans as we much are you arguing careful and the plaintiff never actually disputed the fact that he wasn't becoming more agitated and there is some questions of whether or not threatening words had been made by the plaintiff penry the day earlier however the the there is no dispute and players can see this much in the district court finds those facts that he had made those threats that they prior they argue that process we took them out of context things of that nature but those statements were still made on the record factual dispute whether whether the statements made at the heart of this appeal which is that these these officers were in the street faced with a domestic violence situation it's very clear under this court case law with the oking case that if they were to just roll up and leave the scene there is no question that based on these police reports these records existed at that time something terrible would have happened it's a play of perry would have killed daniel williams or possibly one of the children with the things they could have done that were short of entering into the house  well i know she they did they stood out there for forty five minutes actually sergeant washing came down to the scene they tried to they tried to talk him out of you know letting them into the home to make the arrest so they did employ deescalation somebody else to find facts find the facts and determine what went on at least out of the out of the trial process again under the qualified immunity stare in this court's jurisdiction we're supposed to look t district court's findings of facts and ambiguities are resolved in late most favorable to the plaintiffs and i agree the facts are that we're speculating to here is what would have happened if they didn't enter and we will never know that we could have a trial but still we won't know what happened if they if they did not enter in this case they erred on the side of caution and they made the entry and consequently we're not here with a wrangling that you would like us to reach is in light of all kind of police officers who are on the porch of some house where there are things going on inside if they're really if they are ostensibly domestic violence have some right to breach decades of constitutional law which says thou shalt not enter a house without a warrant or absent exigent circumstance in order to protect a victim who is not in the house or yes again i would rely on the tyranny case and not necessarily overturn decades of prior case which is a police academy one zero one way cautions police officers not to enter the home without a warrant or exigent circumstances coupled with probable cause the qualified immunity defense which is the burden of the defendants here has not been met there is questions of fact the court correctly found the need to be reasonable with respect to that defense would you just marshal warrant then tase my client's father which caused my client to get injured so the i'm such a circumstances do not involve the taser exigent circumstances are reasons that permit the police officers to enter the house without a warrant correct hazing is out of this what are those reasons that are in dispute well that whether the child was in danger and of course the case law that sets forth those basis upon which you can determine whether a child is in danger whether there's a fear of sexual abuse whether there was imminent threat of harm none of which occurred you don't have any sexual abuse and no imminent threat of harm he  act there's no imminent threat of harm he was asked to show the children on the porch they looked through the window they saw the children were fined he had those visitation that day in a custodial order he wanted to be left alone they were clear that he wanted to be left alone they were aware of that they did testified to that and yet they contrived this citizen's arrest in order to avoid what they knew was unlawful and i submit that that one forty ten provision that does not allow the police officer and the c p l to arrest someone for a violation that occurs outside their presence is actually evidence of knowledge that what they were doing was unlawful they knew they could not arrest him for the violation so they planted danielle in front of the door and said you tell him he's under arrest and then rushed the door so there is it least a tacit acknowledgement that they did not have the authority to enter that threshold not one inch as the district court found nor did they have exited circumstance nor did they have exit in circumstances and the court also found that that front porch was curtilage per se and that just going on to that front porch was in fact the fourth amendment violation the factual says circumstances that would constitute imminent danger to the child were not present as set forth in her versus rice nine twenty seven fed second seventy four second circuit case from one nine hundred ninety one the police officers are clearly aware that they can't get in there without a warrant but to the point that was argued by my my friend here from the city of utica that this oaken case present some kind of a a conflict of the law is really an argument that they're entitled to make a prophylactic or all the rest in order to avoid liability from a domestic violence victim that is an apples and oranges argument that really is not appropriate here because oaken does not force them to act o merely is it decision by this court this says that if you encourage domestic violence to the point where the the offender feels that they can do it with impunity then you may face liability that does not equate to a police officer having some kind of a conflict about whether or not they make an arrest based upon a dimiss domestic violence victims complaint of an occurrence that occurred outside the presence of the police officer that need to protect themselves from liability does not excuse a violation of the fourth amendment where the substantive due process rights of my client and his father whether of a right is clearly established is the same question as whether or not a reasonable officer would have known that the conduct in question was an unlawful that's the waltz a case and clearly they knew that their conduct was unlawful because they used a civilian arrest in order to gain entry to the home and alternately to her my client the fourteenth which would you agree and i don't let you sit down would you agree that  assert that qualified immunity defense what they have lost at this point in time is the right to a summary judgment on that defense yes  court my name is norman deep i represent mr penry miss my husband stole most of what i was going to say to you if the court is any questions they like to ask me i'd be more than glad to orrick you for served a minute yes thank you hours just briefly to follow up on some questions that were brought regarding whether or not we're pushing a question of fact here on this appeal the decision you can look to the district court's opinion they did find  the defendant watson found the victim or found that plaintiff perry was getting more agitated that's in the special appendix at page thirty three so thank your honour's i have nothing further to address thank you mr on thank you all three of you will reserve decision