good morning your honor so my name is jim lopes and i represent mr bond of earth i'd like to reserve five minutes for a bottle the central issue in this appeal is whether or not the officers are entitled to qualified immunity for their illegal entry into immunity and i submit you should do the same coming days like this case was a domestic violence case cummings the officer in that case with the spouse outside the house actually the spouse was in a different house at the time that the officers arrived your honor i don't you know in the cummings in our case the spouse was outside the house with the child with the child and with no intention of going back inside  which the officers knew in the coming scase i don't know that they give the name of the woman who made the report but she reported from the house that she shared with mr cummings and by the time they got there mr cummings was in the house next door so the woman who reported is in one house and the police went to a different house where me where the reporting victim is and then officer sherman put his foot when the door was partially opened inside the door so that he could block closing it and he did block closing it and the holding of cummings was that when cummings attempted to come and attempted to close the door constituted it terminations of consensual encounter and communicated his lack of consent to any further intrusion by the officers and the police officers in that case argued that well we didn't know it wasn't clearly established how were we to know that that was a communication of it expressed refusal to enter and the court  said this is on page sixty seven of the cummings opinion one need not go any further than the supreme court precedent to see that cummings constitutional rights were clearly established and they relied on the u s supreme court cases in peyton and welsh becomes case was decided in two thousand and five so let me just go back that the two incidents or events that i see is relevant to vitiate in the consent where the the door and then also his effort to close the door once they got in is there anything else that we should be looking at i think you can also look at the statements that he made when he did come to the door he did come to the door and it's undisputed that he said you're going to pay for that he testified and it's in the record that he said what do you want it's also undisputed that the officer sergeant  ordered him to come out or we're coming in which is a blatant violation of the fourth amendment and contrary to u s supreme court precedent you don't have to come out and there's this sort of strange heads we heads i win tails you lose kind of aspect to the officers position here initially sergeant jim says he was disturbed that things were so quiet things were so quiet that he had a concern that he had to talk to mr bond over and then he ordered him to come out which he has no right to do window and open the door and come in they break sergeant coombes breaks the window which is something he has discussed with all the officers that he's going to do he's got two officers behind him he puts his hand through the he says he put his hand through the hole in the of a chaotic video for sure even judge wright says the video doesn't really clearly show much and it doesn't show where his feet are so the video doesn't help you you have the undisputed testimony of combs and bolivar that he's inside his house when he's taste when he's taste he's hit with one dart but he's not hit with the other dart and you need to hit a person with both darts for a taser to work in that fashion they can't most assume that there was a constitutional violation the leading supreme court case on refuse always georgia vs roundoff yes and that's a pure search cases and yes it doesn't involve a domestic disturbance was more involved domestic violence and corkran involves i believe drugs but even if the cummins court was wrong in two thousand and five that wasn't clearly established then by the time two thousand and twelve i believe comes along we have all these other cases from a from the circuits we have williams and cummings you have a couple of district court cases and what the district court relied on this case is more and you will decide but i think more is nothing like this case more never came to the door ever even though he was asked to come to the door both by police who knocked and rang the bell and said come to the door it's a long chain of events in moore the police had mr morris house under surveillance beginning i think at about eight o'clock in the morning and they don't actually enter is house until after eight o'clock at night they're surveying it they're surveying it they see the fiancee leave and go to work early in the morning they see he come out and go to the garage once in the afternoon they go to the door they knock they announce themselves he doesn't come to the door nothing he doesn't speak to them nothing they then try ventura later in the afternoon calling his fiance they call his fiance and they reach her she's at work they get information from her about who's inside the house she says my sister my three children and moore inside the house they say we want to get it she comes home she gets home in the early evening hours i don't remember exactly when she says i got my keys she tries to open the door but the d can we kick the door and she says yes and they do more never came to the door more never spoke to them or never engage them in any way never said anything to them he never said that in this case after he was shot with  taser after already saying you're going to have to pay for that and what do you want he used the f word in turn turn around and why does it make such a difference that more never spoke to them as far as from the police's point of view whether this is an established right or not they had gotten consent from a person who lived there right she said it was not to use force you know when i talk my using force now we're talking williams at least as i read it was more like this case where the guy is shutting the door on them they said that was affirmative or is more was i suppose they called him acquiescence yes so they so that was what at that point it seemed that i by the time we had more on the eighth circuit had williams we had drawn a line between i guess like the quiet acquiescence and then the person who claimed tries to shut the door on so my position is sort of twofold your honor it's you don't need a case but if you do need a case you have several i mean you have williams you have cummings you have sims which is a district court case and i realize that corcoran is not a  fourth amendment case but it's a ninth circuit case from one nine hundred seventy which again recognize the obvious the holding of a case is the closing of the door constituted the requisite refusal of admittance if their position is right then i going to take five minutes to address the integral participant issue and i'm going to do my best to address everything else right of course the key issue here is is georgia versus randolph  a january of two thousand and twelve when this conduct took place what is expressed refusal of consent well how can you get more express the turning the locking the door well revisited its holding in randolph discussed the randall holding at length no the issue there was presence it wasn't expressed refusal however the fernandez court did state quote if randolph is taken at its word that it applies only when the objector is standing in the door saying stay out when officers proposed to make a consent search all of these problems disappear in the court of me discussing all of the problems that could att and he tries to close the door on him as they come in doesn't mean if you try to come into my house and i try to shut the door on you do i have to say stay out i'm trying to shut the door on you while here here's with the what's what's problem here here's what the court go one step further so that you answer both of questions hopefully at the same time the fact that you have to break a window to get into somebody's house isn't that a clue that you knew at the time that somebody didn't want you to commit well at that point were still within the scope of ms osmonds original consent she told the officers that they could go in the doors were locked there's no question about that but you know i think we know from us first on the carol that the mere fact that doors are locked in doors were mccarroll that's a case that was on the books in two thousand and seven this in your brief yes and the court there discussed express versus implied at length and here some of the language the court used in the carroll about what express refusal means in the context of a door close and quote to be sure the district court could have inferred that shutting the door in the face of an imminent arrest amounts to an implied directed to the officers to stay out regardless we conclude that randolph's narrow holding does not apply here they went on to say and this point they were addressing the ambiguity of the gesture because the argument that was being made was well he's not shutting the door because he's telling the officers to stay out he shutting the door because he wants to avoid being arrested is it a fine point absolutely it is but here's what the material court said about that quote while mccarroll asked us to infer that he imply had lee refused to consent when he closed his doors to the police the parties legitimately dispute whether this conduct related to materials desire to avoid arrest or to his desire to direct the officers to leave his property and refrain from searching or both whatever meaning we could decipher from the carrolls action randolph explicitly declined to conduct this inquiry when it required the defendant to have expressly objected to the search so yes it's a fine point but if you look at the language used by the court in randolph as not express refusal within the meaning of of randolph's only be asking this court to say that it had to be stated verbally orally has to be stated in so doubt i don't think the court needs to reach that issue frankly and i it's fairly debatable but the point is well you know was it clearly established in january of two thousand and twelve if th dispute here about what happens after they put their hand through the officers but their hands through the door and he's there and they're having these verbal back and forth is there any ambiguity in those statements about what well i don't know but ambiguity in the statements or i suppose that say is there potential come natural conflict because they didn't hear that i think they heard with an ice i certainly think there's ambiguity in the conduct after this individual mr barber has been shot twice with a taser at point blank range and you can see this in the video he's reacting instinctively to being shot by a taser and he's waving his hands around swiping at the wires backing up what anybody would do in that situation i suppose try to put whatever physical barrier you have at your disposal between you and these people who are shooting tasers at you i think his conduct is just as consistent with trying to get away from the supply us with some freeze frames from the video in the brief and i don't know how you can compare the second frame with the sixth frame and conclude that mr boehner did not advance through his doorway s certainly a closer call what if muslims now i'm sure because they had from side well if if i were not arguing qualified immunity and i was just arguing whether or not that should be considered express refusal i would agree because it's it makes sense but given the language that was contained in these cases particularly in the carroll the legal landscape that existed as of january two thousand and twelve i  it it wasn't clearly established so they did it for that as you know i understand that carol court said what what difference for the purposes of the inquiry we're about here today does it make whether the guy thinks there was drugs inside the house and doesn't want them to come in or just doesn't want them to come out well i'm not sure we're  n a means by what difference does it make but i know i was listening when you the case you're relying upon says that makes a difference dichotomy i think that macau said yes and i think what is the difference between those two things well then it's not expressed refusal under randolph or at least that's fairly debatable and the qualified immunity requires that the issue be be on  and given the languages can sing in these cases i just don't think it was as of january two thousand and twelve so but could the district court if we remain on could the district court of the conclusion of evidence agree with your position could the district court agree with my position certainly and in the case at that point yes let me touch on a couple of the other except for so you know you're kind of cutting in your  i would agree with mr bonner that the cases indicate that if the possible victim or alleged victim of the domestic violence is not in the house  outside and in no apparent jeopardy as long as there is nothing going on nothing else going on inside exiting circumstances doesn't really fit but what's not discussed in the briefing is frankly something that i just thought of as i was preparing you know if if these officers had a constitutional right to deploy their tasers that mr on of or when they did where they did and i understand there's a dispute over that but let's just say they did if they had a constitutional right to deploy their tasers when they did where kind of some twisted logic so i have after a shoot you know i've created i know there's not danger creation but you know you've kind of created this circumstance i know i know you know that that one kind of twists maybe you but i just went too far well right  know i mean you know here you have an officer as it's what code for no problem inside she says there's no guns there is no problem why not what are they why do they want to go in there they want to arrest him right well well certainly at the good morning your honors please the court and trivet on behalf of the a certain county defendants there are three issues on appeal today that relate to the a so in county defendants the first involves integral participation can the deputies be held liable for sergeant combs is warrantless entries into the home when it was the clarkston officers who investigated the crime and made the decision to make the warrantless entry before the deputies ever arrived on scene and when the deputies had no reason to believe that the warrantless entry would be unlawful the second issue is whether the deputies had an independent and lawful basis for the entries they actually did make into the home given that at the time they made that decision sergeant holmes was already locked inside the house alone with mr bond avert engaged in an apparent struggle the third issue is whether they're entitled to qualified immunity i have limited time today i'm prepared to address the integral participation argument but if the court would prefer to hear argument on consent or exhibit c or the emergency doctrine i'm prepared to answer those questions also in this case plaintiffs counsel misconstrues the integral participation law he argues that any time an officer provides armed backup to an entry or search that officers automatically an integral participant the issue here is not that simple it is not whether the deputies provided backup or participated in the  the issue is whether they participated in the decision to make a warrantless entry or otherwise knew that that entry would be unlawful and we know that this is the correct analysis if we look at integral participation case law we look at the white the policy i'm sorry the white the poly case and we look at public policy all of the cases cited to you involving integral participants courts have found that officers who are providing backup to others were integral participants when those officers either in gauged in the decision to conduct the unconstitutional act or they knew the act itself would be unlawful and you can look at boise benton county as one of the best examples of that that was a case where officers entered a home with a warrant and the issue was whether the use of a flashbang was constitutional or not and when the court ruled that every backup officer was integral participant it specifically held that those officers all participated in the decision to use the flash playing they didn't object to it and they participated in its use i would submit that if another officer arrived on scene and either didn't participate in that decision to use the flashing or didn't know the flash thing was going to be used then that officer would not have been an integral participant is there any evidence that any of the officers you're talking about asked or objected were said why don't we just get a warrant before they went in the a certain it is certain county defendant you know the evidence is that they did not respond on the scene until after the investigation was complete there is no evidence that they participated in the discussion about whether there should be a warrant or whether to use a warrant the only discussion they participated in with sergeant combs was how to enter the home what plan should they use for officer safety purposes and at that time did any of them say she maybe we ought to get a warrant the doors are all locked the officers assumed well they the officers assume there wasn't a warrant given the time they knew there wouldn't have been time to get one and they also assumed reasonably that the combs sergeant combs that officer purcell would have conducted whatever investigation we take you back a minute there wasn't time to get one why she's outside there's no one in the house that's getting any danger of getting hurt telephonic warrants aren't that don't take that long to get my attention was that these officers knew that sergeant combs hadn't gotten a warrant because it would have taken him about an hour to do so so they knew he didn't have one at that time the reason there wasn't time to get a warrant goes to the exit in an emergency situation which i could address as well but in this case these officers had no reason to believe that  have applied that existence you wouldn't have applied or that the emergency doctrine wouldn't have applied because there could have been facts that had unfolded before those officers ever got to the scene they would absolutely have justified a warrantless entry i submit that there were and we know that this is the right test if we look at whitey pauli we can't say on the one hand that an officer who responds late to a scene has a right to assume that those before him follow proper police procedure but then on the other hand say that that late responding officer is going to be responsible if one of the first ones made a constitutional error but if there there is armed macro correct and at that point let's as let's assume that they assume consent is on the table at that point isn't it also imputed them the information about the locking of the door and once the begin to enter the house or officer holmes would say aren't they there and integral part of what happens at the doorway if we say that's true if we say that all the information that the officers that clarkson officers had were automatically imputed onto the a so in county deputies or soon as they arrived then the policy implication from that is that they are going to be integral participants and that every single time a police officer responds to a scene to serve as backup for safety reasons those officers would have to conduct an independent investigation to determine whether the backup that they're providing is an assistance to a constitut unconstitutional search or entry i was just looking at the situation from the time that everyone's at the door then they don't need any old information to figure out what the immediate information is i mean would they then be tagged with what's happening in his closing of the door and all of that at the very best what's happening at the door could impact whether or not mr bond ever had express refuse consent to entry that's only one of the bases for these officers to know that there would be a basis for warrantless entry the officers could also believe that the reason for the warrant was entry was under ex circumstances or the emergency doctrine and certainly they had enough information to know that that was a possibility and they know that she was outside well if you're going to assume that they're i'm asking you did they know yes or no that she was outside when they arrived on scene they knew people were outside but they didn't interview any of those people are know who they are the only evidence in this record is that they discussed the plan to effect an entry into the home thank you i just want to say a few things about the integral participation issue council has referred to the white people the case that the u s supreme court handed down very early this year in that case the supreme court talked about quote a reasonable officer who arrives too late to an ongoing police action in circumstances like this and say in a moment what the circumstances were can assume that proper procedures were followed when white arrived where he arrived within a second or two a man named daniel burst out of his house with a shotgun and started firing at police white did not quite arrive too late to know virtually anything except his fellow officers were being fired on in this case the record shows that these certain officers arrived twelve minutes after the clarkson officers they heard the police radio the police they the code for you know everybody outside and they had there was nothing on going and they had time and there is testimony in the record that they formulated a plan and counsel said you talked about how to enter the home and they talked about it and combs told them well we're not going to kick the door in we're going to break the window that will cause less damage and counsel said in the i forget what the name of the case is she she mentioned she said there was no  d there was no objection by the other officers to the use of the flash bomb and there was no objection here to the use of breaking to breaking the window boyd holds the holds that officers present to provide armed backup are in for girl participants to a search and in hopkins this court said that boyd settled things such that there would not be qualified immunity for a case decided in two thousand and nine of or exit in the house or not and he's referring to the video what is your position on that i think the video does not make it possible for you to know  if you said you did look at the video your honor my recollection is it shows one of the side door jambs but not the other but i might be wrong about that but in any event you cannot tell from the video whether any part of mr bo breaks the plane for which the door would create i think it is possible to construe the video as saying that his upper body that he leaned part of his upper body were an arms that make a difference you know when i only n y only discussing whether he's outside or inside i don't think it makes a difference but i was asked what the video shows so i have one other question and that is you didn't really discuss or i don't know even reference the fernand the california case which was sort of reprice on randolph i just appreciate your thoughts as to whether that changes the consent and alice's that we're looking at here i don't think so i think as mr curly accurately said fernandez was a case about presents i reckon i was trying to remember fernandez came to the supreme court from the ninth circuit i kind of think it did but at any event mr fernandez was arrested and taken away he had previously said you can't come in he was arrested and taken away when he was now gone they said well what are we going to do and the question in fernando's was does his previous expressed refusal to come in continue to operate when he's no longer there court said no that's not the issue in this case is ther was always there and there is a sentence in fernando's that says something about paraphrasing the holding in randolph and does use the word it only applies when a person is present is saying stay out i do not think that you could read that as some sort of dictum which settles and and says that what express means in in randolph is that you have to speak the words and i have given some thought to that word express the respondents always seem to treat the word express as if you have to use your lips to express it i think the word expressed was actually used in randolph to mean clear close the door he also says f you that's pretty express thank you thank all council for your argument this morning the case of band of art versus clarkson is submitted