may have placed the court on the turn of a lorry jones representing the city of atlanta and the individual defendant officers in this case we have brought this appeal requesting that the court reverse the district court's finding of denying qualified immunity to the individual officers and the district court finding of municipal liability in this case why should why should we hear the ruling with regards to municipal liability in any year in the interlocutory appeal when the decision on the qualified immunity issues at least as i see it are not going to control necessarily the decision on municipal liability i'll give you for example the question of whether or not there is a municipal policy that led to an alleged constitutional violation that issue doesn't arise at all in the qualified immunity appeals we have to decide that issue a new if we get to the city's potential liability so why is or jurisdiction to review that claim your honor i would submit to you that the issues are inextricably and intertwined the district court's order speaks to the end in finding liability against the miss municipality the district court used the deposition testimony of the thirty six witness which had later determined by sanctioning the city that was in a proper thirty six witness and the fact witness sergeant burns and that was the testimony of those those that was deposition testimony is that the court the district court used in finding liability against the city so our argument is better those are not but that's not the same testimony that was used to deny qualified immunity to the officers no your honor but one of the individual officers just individually named defendant in this case was also one of the deposition testimony is that was used against a municipality in determining municipal liability but that can't be the basis for hearing the city's municipal liability argument that was that one witness overlapped both in his individual capacity and it's thirty six capacity right well it's it's a basis for the same facts and the same law finding liability against the city and then there was the issue of whether that was an in fact a properly designated witness our position is that the issues are in extreme struggle in one qualified immunity going to spend all your time thank that was that that was where i was beginning judge doesn't want to be sure i answered your questions this court has long since determined that the analysis for determining qualified immunity is once an officer is determined to be acting within the scope of his discretionary authority the plaintiff must establish and in this case the appellee must establish the defendant's conduct violated a constitutional right and the right was clearly or stablish our position is that the right was not clearly established in this case your honor both elements of the qualified immunity pronk must be met as this court has found in grider v city of auburn which is a twenty eight in eleventh circuit case the court made no and no full analysis of the clearly established right prong of the qualified immunity stand standard and thus we feel that the case should be reversed or the finding should be reversed the defendants did not have any fair warning in this case that their conduct was unlawful in fact it was the opposite they believed that they were doing exactly what they were supposed to be doing pursuant to what the constitution or their own policies pursuant to the ordinances of the city of atlanta which the city of atlanta has a license and permeating division there are qualified law enforcement officers post certified law enforcement officers that work in that unit and their purpose is to enforce the city's license and permitting law but they also have the fourth amendment well your honor even if even if those court finds that th they had a fourth amendment right at four o'clock in the morning we do believe that they did have a fourth ago right but even though they're entered without a warrant at four o'clock in the morning but you are even if you've even if you find that there is love i mean amendment there's still the second prong to the qualified immunity analysis that has to be met this court has determined that both elements of the qualified immunity problem must be met before quote before there can be time the officers went in without a warrant i think that it was established that the officers reasonably believe that they had a right to investigate this matter of factual determination i'm asking you in terms of pure fourth amendment law what if anything do you think was clearly established at the time the officers went in without a warrant nothing nothing but martial versus adar barlow's didn't set out anything that i understand an argument that it didn't provide enough specificity to give these officers warning i understand that argument but i don't understand the argument that there was nothing out there that told the officers what they could and couldn't do you know your honor that the difference in marshall and the situation in this case the government inspectors and marshal were inspecting an electrical and plumbing installation business premises in marshall was that whether the government inspector could inspect a public area of a private business without a warrant this case is about entry into the business without a warrant i submit the same thing i submit to you that those are two different issues what are these officers going to do inspect write while they were actually going to determine what if anything was going on in this business past the hours of operation that are allowed by the city ordinance call it is section call it investigation that's what they were trying to do or they were trying to investigate yes but there is no establishment that you see there so police officer you think that is you think at the time these officers went in there was no law that told them one way or the other whether they could go in abscission exigent circumstances into a commercial establishment without a warrant your i would direct you to  albertson which this court decided in two thousand and fourteen i believe your honors which are flat and jordan were as a part part of that finding in that case in that case there was a owner of a rental property that rented out its property for parties and the officers had received noise complaints about noise and loud music emanating from this this commercially released establishment the dish court granted mistress the motion for judgment on qualified immunity and found no municipal liability the eleventh circuit affirmed that case because they found that it was sufficient was not sufficiently clear that a reasonable officer would understand that what he was doing violated any right it was not sufficient clear based on the city's ordinances that allows for regulation of these types of establishments this was a commercially zoned area they were out inspecting other businesses and happened upon mr brown motorcycle club they are the loud music coming from it they weren't supposed to just walk away because their job is to diligent diligently no harm no the back and search you can't go in to any place without a warrant just because you think something improper is going on well this is not any place your honor this is a commercial case sound location unless limited to a commercial establishment you're telling me that it is permissible under the fourth amendment forget about clearly established not let's talk just about general fourth amendment principles you think that if police officers happen upon a commercial establishment let's say a restaurant and the restaurant is playing music at a time when it's not supposed to be playing music and the restaurant has its doors locked for its patrons privacy the officers can go in without a warrant to deal with the music issue i think the difference in the present hypothetical that you're giving to me and this situation is that the doors were not lot ok doors or give a taint doors were not locked in my hypothetical they can go in without a warrant and this was also after hours  operations for according to the city's ordinal give you all of those facts this is a restaurant that's supposed to operate until midnight and my restaurant is operating at twelve thirty in the morning and his doors are closed but not locked the officers can go in without a warrant to deal with the music issue or or whatever issue they feel like might be going on in there that maybe hal ation of the code yes your honor i would submit to you that there is no however however i would also want to continue to remind this court that says that even if there is a finding i mean we can we can come up with hypotheticals and there can be different situations and that's a finding of fact i understand what the court has said that's far but it wasn't a clearly established right these implied invitation to go in that yes you're on time based on the facts and the totality of the circumstances that were facing them at that time means that anybody making racket at four o'clock in the morning and inviting the police to come in without a warrant argument is that the law and in fact establishes the invitation what i'm saying is that because they just listen to me they're there and that's commercial area and your argument analytically is that because of the the city of atlanta people in that situation i am gladly vining the police to come in without a warrant and if are open to long or making some noise or whatever it for closely regulated businesses that are authorized to regulated under the city of atlanta's ordinances i under probation and vice and probably a sponsor to commit yes or no so when there's a basically what they're talking about is so that's a good way to look at the administrative inspections exception to the fourth amendment that essentially when there is a license your scheme that's exactly right your lungs are dot the i's and cross the t s correct so when when a search certain closely regulated businesses such as there's been the supreme court identified for coal mines liquor establishment  running any sort of business he was not selling alcohol to the public certainly he the the problem is that the city in contravention to the way the supreme court and this court has defined the administrative inspections exception to the fourth amendment the city offered direct evidence that its policy is that any premises that is in a commercial zone district or even a premises that is outside of a commercial zone district but which officers suspect is conducting business is subject to be to warrantless intreat and inspection and that policy that the city has defined runs in  one hundred and eighty degree different direction than the clearly established law by this core and the u s supreme court which establishes clearly now the question you asked to my co counsel was what was the law clearly established as to with respect to this issue and the law is clearly established and under the fourth amendment that the owner of a property including a commercial property has a right to be free from my warrantless inspection or search of his or her premises subject to a number of narrow clearly the find exceptions to the fourth amendment and in the absence of one of those exceptions which the party asserting that it except coach should be reversed it seems to me we look at the situation we look at what they are vs reasonably perceived as they approached and as they approached clubs alcohol establishment were located they hear loud noise coming from the inside the when those are black and  it seems to me reasonably appears to these after service that a nightclub is operating inside if it reasonably appears to have says that night club is being operated in sad it should invitation to enter when the business is open sounded like the business was open to them so they try the door and the door is unlocked the wet public is welcome there's no bouncer at bell there's nobody else at the law to suggest at them that they should not enter and they go in and there is adult entertainment thanks it looks like a night operating now would not the offices reasonably think that that the administrative inspection and exception plashed and if it does and other work and less is clearly established that it does not then you lose i understand that argument your honor i think that the m the important thing here is to look at the record in this case and to see what did the officers believe when they came upon the premises and why did they make the decision to thought is that not true i believe it is your honor but i think we can look to what is objective a reasonable based on objective way what did he observe and certainly he observed the music coming from the premises an observed cars parked out front and that may be reason to believe there is some sort of commerce going on inside this premises but the administration is a common reason a reason to believe that the business is open supposed to be licensed if it is a if it is a again part of one of those narrowly defined so for example if i have my loftus and you know heard of a nightclub operating in loud music they didn't see that until i think it's too late that was reasonable to assume when they were out with loud music like that it was not religious music i disagree with you on that your honor i think that there are all sorts of human activities that we do that we're allowed to do and we're allowed to do in in privacy and a commercial district where a lot of like clubs are absolute with loud music would have helped if it's the music would describe b people everyone has every citizen of the united states has the same fourth amendment rights and that that those rights don't change based on forego the officers who just love the way they they they see this kind of this was a warrantless intrigue that was from its inception a search this was not a situation where an officer went into a premises but is the test of an office  assume that is the ordinance why that's a i don't want to make that assumption because i don't believe that is the ordinance and if that is the ordinance that is an unconstitutional ordinance you don't think a business open to the public that sets forth the law that would apply to measure real defined of kilis with it is what it aim and i'll correct your honor and this is not a swat team cases though there are a series of swat team cases in which there is no question that the officers had the authority to conduct an administrative inspection and the question in those cases is whether once they did that whether they exceeded the scope of what is allowed for an administrative and that is where they misbehave once they get inside correct your honor this case is about whether there was authority to conduct an administrative inspection to begin with you had spoken about the license your scheme and the the bargain inherent in that that once you obtained this license you were then put on notice of what of inspections might you might face that isn't of genitive thing we can look to here to say and the officers testified in the depositions that there is a database and they know whether a premises is within that license your scheme and therefore they know whether this is a premises that can be inspected without a warrant pursuant to the alcohol license or scheme this was not such a premises this is not a business that had entered into that agreement with the city had not received a license had never did not represent to the public that they were open for business lurking behind as this whole thing and that was a pretext to enter answering yes your honor and that was my intro and i wanted to enter and then they saw some shenanigans going on the the city in their own brief to this court has said the reason why they entered the premises was because they quote suspected criminal activity this was a criminal investigation from the inception this was not a situation where an officer goes into a premises observe someone committing a crime and the raps arrest that person or in the case of a search goes and submits that evidence to a magistrate and then get have to look at it could be relevant and the end of the day i believe it's a relevant question if the case went to trial it's all relevant i believe it's relevant to qualified immunity because if this were a situation where the officer said we just thought it was open for business we were going in just like any member of the public and then we saw something that gave us cause to believe it was a search i think that would be a better argument for qualified immunity but because they went in with the intention the from it inception the the the crossing of the threshold into this premises was motivated by the desire to conduct a criminal investigation and this court's clearly established law says that the administrative inspections exception may not and cannot be used as a pretext for a criminal investigation and they are on the record saying that was their motive in fact was do you think there's no dispute about that there's no do they this that's in their briefing to this court date they objective intention behind the officers in in entering this premises was not to go in as a member of the public might in other words to accept an invitation but was to conduct a criminal investigation and that is completely an a fourth amendment that would violate the fourth member yes your honor and all of the officers made the decision made the decision to do that and so this is not just a question of it being a technical violation of the officers didn't know what the law was this is officers with the entire body of clearly established law saying that the administrative inspections exception is narrow and it may not be used as a pretext for criminal investigation made the decision to conduct an unlawful entry an investigation your honor it would take me a minute to find specifically if i knew the page number that ca counsel was speaking of i don't i don't doesn't change the situation well i think that that the semantics of investigation versus inspection yes that would probably change some of the dialogue that we were we're having here but i think that th hinged on and we talked all about the administrative inspection the ministry for inspection and inspection there was no intent to necessarily go into do a search there was no intent to necessarily go into arrest someone about a criminal my knowledge of what my law clerk says the record is the intent was to conduct inspections for compliance with the license plates and if your honor determines that that's a criminal investigation then i submit to you that that's what they're doing well but no but you have to really try to answer the questions that are being asked i understand the officers began on a detail to conduct an inspection for licenses and administrative compliance as judge anderson said right yes they then figured out that a lot of the a number of the establishment they were going to inspect were closed they were too late yeah i think yes and then one of them says oh i've heard or seen about this place let's go there this was not on their planned inspection  right yes this was done because they ran out of places to inspect during their normal planned activities that evening right yes your honor and it's my and so you have to analyze whatever happened at this establishment has to be analyzed individually because it was in part it wasn't like this was establishment number five on a list of ten and they were going to go see that place regardless because it was on their schedule they only went to this place because they ran out of other places they had shut down they had already shut down is that understanding correct or not correct well i was about to just clarify one issue it was it wasn't that they sought out mr brown's establishment they happened upon it it was really nobody mentioned it beforehand i thought i thought there was testimony from some of the officers there is a difference between being someplace and going someplace you they were in a general area whatever number of blocks wide the places they were going to go see were closed they couldn't conduct their planned inspections right right adjacent businesses but this was not directly adjacent they moved right they had to go physically physically whopped yes yes  an adjacent was it next door and it was because one of them said oh there's this other place and i've heard that these things are going on and that's why they went there right yes your honor that's what i understand what did they say about that place when they decided to go there why were they going to go there it's my understanding that there was from what i remember from the record that there was an officer who had been to this location before and it spoken to mr brown about his not having the permits to operate his club the way he was operating it and that's what you know caught there at one of the officers in fact i had been to this location before and had excuse me and managed mr brown that he needed to get the permits did any of them mention going there for a criminal purpose a criminal investigative purpose not to my knowledge your honor it was it was about license and permit ing and business license on or not permit so if we look at me both of you are saying completely opposite things so if we look at this record there isn't going to be any testimony from any of the officers that they were going there to conduct a criminal investigation the only testimony that's that is in the record right now is  deposition of sergeant burns who is the leading who was the leading officer at the time you know there are no other officers were deposed in this case no your honor no it was just a thirty six when witness and sergeant burns who was the leading investigative officer at the time the other officer when they were not going to what did he say about the purpose of this of the inspection search whatever we want to call it it was determined whether there arguably yes not arguably yes well i mean that's what i'm doing here i mean it's just you know it's one thing what they said it's one thing to argue a position and we all understand the difficult the difficulty of being a lawyer advocating for a client we understand that we've we've all been lawyers before and we hope we haven't forgotten that but when you're asked what a person testified to that's not arguable someone testif x or he didn't testify to x and my question is just did he did if he was the only deponent did he say that they were going there for criminal investigative reasons or did he say they were going there for