granted summary judgment particularly granting qualified immunity to sergeant kip the the question is war  sergeant kipps actions objective we reasonable and or was she player plainly incompetent in our position is that she was incompetent because she based her actions on speculation and speculation and did not do a competent investigation can i ask you a question that hopefully you'll know the answer i should know but i just don't is the  reasonable cause standard from our cases is it the same as probable cause or is it a lower standard do you  know i'm thinking it's about the same that's i'm not sure that that's ever been addressed exactly but i think i should know the answer i just wondered if you knew off the top of your head  but but so can i just distill down then the issue in my mind and you tell me if it's correct in order for you to prevail you would need to be able to establish that no reasonable officer in sergeant kipps position could have had reasonable cause to believe that your client was on his way to see the tara tara is that because that really is what created the emergency in sergeant kipps mind for the stop on the side of i five right that is correct ok so that's what we have to decide could any reasonable officer knowing the facts that she knew at the time have again that's why we want to what is reasonable cause me either reasonable cause or probably cause to believe that when he's driving on i five going south i guess it was that he is going to meet up with tara yes that i would say is the look and so why could no reasonable officer in her shoes have come to that  seen in terms of summary judgment taking things most favorably in light of the nonmoving party there are actually several different categories of time there there's what kip knew ahead of time and then there's what kip knew as she went along and so therefore the things that mr or could have been said by mr mendoza on alongside the freeway those have to be taken most favorably to mr mendoza as opposed to the things kip thought she knew ahead of time so i just of though she doesn't necessarily believe mr mendoza but yes to listen to him and take those things into consideration well that's correct then for the summary judgment standard he has to be it has to be construed in terms that conversation by the freeway most favorably to the most favorably doesn't mean she has to believe him no she doesn't have to believe him but i think the th well it has to be most favorably it has to be taken this what he says was true at that point no i don't think that's true that is to say when one summary judgment and willing in evidence on the record we have to take that is true but when we're talking about what her reasonable action was or was not it sometimes is entirely reasonable for an officer to disbelieve what the suspect is telling her now mr mihos not a suspect understand that and they ma been all kinds of good reasons why she should have believed it but she doesn't necessarily have to believe it for purposes of whether her action is reasonable for example when he says i didn't i didn't  write the motion my lawyer did that has to be that that's pretty much likely that that's true yeah another well that has to be taken most favorable for mistrial and it was it only has to the only thing that we have to take most favorably is that mr mendoza says he said that to her but we don't have to accept for purposes of this that the statement that he said is true oh only we have we have a second order problem here  we have if mr mendoza says i told the officer that i was on my way to my grandmother's the officer may or may not believe that she that he's on his way to his grandmother's she may have the basis for that she may not but if she says he never told me he was going to his grandmother's then there's a conflict in that evidence and what we do have to accept for purposes of your motion is that he told her he was going to his grandmother's i will i will move on to to get to the points upon which we base that it was objective and reasonable here's the things first of all there has to be articulable imminent serious physical injury there were no allegations of abuse there was a vague statement from calling  that said here's a here's a motion that carlos was protected from terra guy stuff because i thought you agreed with the premise that i started out with and you're now veering away from that i'm on i'm operating under the assumption so tell me if you're now disagreeing that our stand the standard that our cases establish would have been met if in fact your client had been driving on his way to go to meet up with terror because there was a basis to be concerned that the child would again once again be subject to serious harm and so so whether there was a beautiful seems to be all that's irrelevant we're just trying to figure out was there reasonable cause to think that he was on his way to meet up with tara and you started out by saying yeah you agree with that but now you're saying that i just understood your question because i don't agree with that guy and i apologize for that let me start this so what does it start with starts with this order she and and she has this motion and the motion is just that it's a motion it hasn't happened yet so what does she do she look at the motion she calls it a petition but she doesn't get the order underlying it and she disregards what call and hayes said this is the order protecting carlos from tara and so she overlooked that so she begins by not investigating the what it was all about now what she did was and he said that he and it was in artful i think he's a great everybody sees he wants to let me let me just get there so did to tara have a no contact order with with carlos yes he had to ok and did he did she have a no contact order with the son with l m yes through the criminal court ok there's a no contact order with both carlos and l there are no there is a car yes it's not the same one of the right but there are the other orders exist yes with respect to both carlos and l m that's correct as well as a no visitation parenting plan as well right but it's important to keep in mind that kip only knew of one of the orders protecting carlos there's not nothing in the record that know and how do we know that and how did officer kip know that because she speculated all along there was no evidence in the record that carlos intended to violate orders wh file a motion if you intended to violate the orders well because he had he had said he had said that he thought it was really important that their son be reunified with his with his mother that's right and to do that he filed a motion he went through the proper legal procedures a question with respect to the reasonableness of an officer's action it seems to me and we see this in various parts of life that you know the reasonableness of your action takes into consideration not only the probability that certain facts exist but also what happens if an unlikely event occurs if the if the event is unlikely but the consequence of the event is really catastrophic you might be quite reasonable in saying you know what there's a five percent chance this is going to be true but but but what happens if the shoe is really bad you may act to prevent the five percent chance except in to follow that that's assuming that carlos would allow her even if she were present with him and he were violating the order which she didn't and wouldn't then he would allow her to abuse the child neuer stand but what i'm after here is that it may be that for officer kip to have acted reasonably she didn't necessarily have to conclude that there was a better than fifty fifty chance that he was on his way to take l m to tara the thing is she had she had already believe that what you say sergeant graf and i were side of the road where he was there why didn't she then fill in the points upon what she had speculated and i think that is probably an essential issue there she should have said well where are you going paulose sis why going to see  how do i know that well here's the folk art you want to call your sandia see she never did find tara just because chairs somewhere doesn't mean that carlos is going to allow find out right but the danger from the officers standpoint if she doesn't know where tara is that then tara can be just about any place including places that she doesn't typically have it to eat well that's true but then you have to speculate that carlos is going to be violating the order and just because she thinks she lied earlier does not mean there's a bit of the problem is that carlos has indicated in papers that he thinks it's important that l m see his mother that yvette is correct but she didn't ask him she did not ask him what he meant by that and what it isn't that it doesn't seem plain no for him he says hey i'm going to north carolina i don't want to be hampered by these restraining orders and i can't talk to tara if things work out that tara is acquitted because i've looked into this and based upon the information i know then i want to be able to mimic it with terror in order to resolve issues between us as far as salem goes that was the reasoning there and had kip asked her if she would have had answers to answer her speculation and she she he  says hey i'm head now to town tomorrow night if you want to camp on my doorstep you're welcome to do it but that's what i do and i've been north carolina by the twelfth i think it's i've only got a couple minutes left plenty reserve and th willing to credit your position that if in fact mr mendoza was on his way to see tara that there was a sufficient urgent need to stop that right that if the child were reunited with the mother at any point that there was reason to fear for the shots if you some willing to grant that but don't you then still need to show that a reasonable officer in sergeant kipps position  had a basis to believe that that is in fact where he was going because if not if he's instead going to any of the other five million different places he could be on his way to there's plenty of time to go get a warrant right well in the facts here do  see that there was that concern that he was on the way to see tara but yes i mean there was i mean you could speculate that maybe that's where he was going but i guess i read our cases as saying quite helpful for for us because it makes it really easy because we have plenty of cases in the criminal context right and i guess i would say my recollection of these cases a little hazy but even if officer kip had had received an anonymous phone anonymous tip saying that hey this guy has the one year old in the backseat of the car and he's on his way to go see tara right i don't think that that would give i think are the cases are pretty clear that unless you then cooperate enough of the facts to confirm that hey this person that just released this information to me is reliable you would have probable cause to intervene at that point and and all i'm saying is that you don't even it's not even like she had an anonymous tip that that's where he was going she just was piecing it together from pretty thin reeds right and i would disagree with you on that and specifically the motion that was filed just days before she took element to custody it fall in motion with the court indicating that he did not believe the allegations that they thought they were untrue that he wanted to reunite the family that he was not did not hear his child being in terrorist presence that coupled with the fact that that same day on december tenth two thousand and fourteen he was being suspicious about his whereabouts he was untruthful with the victim's advocate as far as where he was located in the kitchen he was in north carolina already when he was actually still and vancouver in the week prior he had indicated to the court in order to dismiss the dependency the first appearance the action with involving elam that he was going to be in california so all chance that that baby and the gravity of the harm involved wasn't was enough i don't think that's right i mean we're not talking about certainly the gravity of the threat that's on the other hand if in fact he's going to tear that's why i say i grant you that that that that exists i'm not questioning that but our cases are really clear that it's reasonable cause to believe that the child is going to be in imminent danger of serious bodily injury right so the the reasonable cause is the factual predicate that the child will be exposed to to that danger and here the danger only exists if the one place he's on his way to on i five is to go see terri if he's going to any of the other five million different places he could be going to that danger is nonexistent so it comes back to what's the factual predicate you have for making the assumption that that is in fact where he's going and you say well he was lying about this he had this motion and i guess i'm just saying that to me it's  pretty thin right especially for an intervention that's as severe as this one i mean you would credit i mean you grant i assume that having your one year old taken from you on the side of i five is a pretty pretty upsetting thing for any then verify that your hunch that he's on his way there that time cooperation i mean i don't know what specifically but other than just saying where you going in the person says i'm going to melt and you say well i don't believe you don't you have to take some steps to cooperate or when i think that she right she ran out of time i mean this all happened very very fast where at ten am on december tenth she learns about the motion that was filed where he said he wants to be one of the family that he's not afraid of tara and then by one thirty one thirty or two o'clock she's mr mendoza again you know i think that if this happened by the time that these tips surveillance to when she actually pulled up beside the car was about four pm within an hour there may have been time to continue that process but i think that at that point  following him she's she looked around there and i said so you're making it sound as though if she didn't act right then by having the police pull him over on the side of i five that the substantial bodily harm would be inflicted on the child that's just not true there was still time because you she didn't know where he was going how much further he had to travel so as a factual matter are you saying that because normally i thought you could get a telephonic warrant within like an hour there's not time to allow him to continue driving because the child is not in any danger in the car it's only if there is her option to call on the phone to get a telephone and want as she follows him and issue can she say to him now you go slowly so i can follow you i mean it was supposed to happen here assuming she tried to get a warrant was she going to do that well this is and i have to speculate how it would all unfold but i do think under these circumstances she sees a danger i mean this is all unfolding very quickly she follows the car she says that elam is in there he's in a car he's moving doesn't know where he's going is and come out and say you know something i'm very concerned i don't you know got eyes on you and then continue to follow continue to follow him wherever he was going and important she's out of our jurisdiction can she follow him or not we the question is not and i'm not entirely clear on how far how long she could qualify continue to follow him i know that she had to call the portland police to pull him over to execute the stop and then she just the purpose was to take l m at that point when she moment i guess i maybe i would grant you if he had pulled up to some place i understand at that point of course we're going to jump out and try to intercede before he can get into the house that makes perfect sense but without i mean it's just like th notion that somehow this was a you know a life or death death situation on the side of i five i just think it's laughable that's not the case it's trying to predict where he was on his way to that that needs to be made and i guess i'm  quite a while well and the reason why he was separated for so long from his father was because a few months later a court found that she was warranted that there was a personal cost a belief that he didn't understand the gravity of the harm that was in that case the only ted the only piece of evidence that the officer acted on was a tip from a mentally ill relative who had a fantastic story that the father was going to commit a ritual sacrifice of one of the children  have a very very different situation there was a child that was very severely harmed i mean that that risk was was real and there in this case as i mentioned this unfolding of the situation where we you know the tendency is dropped a week later he's filing a motion saying he wants to reunite the family he doesn't believe the allegations he's lying about his whereabouts under he's been in the car and he's moving and you know officer tippit been trying to obtain a warrant i mean all of this sort of unfolding so quickly i think in those situation these situations and of these facts just was not put on notice that that was not sufficient to create an imminent circumstance where she was entitled to remove without a warrant and on that basis i believe that such a you thank you i would like to correct a couple things there was not a dependency found and that is a mistake and there was a shelter care hearing which is a reasonable cause hearing and then the dependency was dismissed and the child was returned to him and he took the child to north carolina so that was a false statement secondly there the warrant r c w twenty six forty four zero five zero actually i just want to case on that statute in the in the state court a couple weeks ago it says that the way the order to be gotten is if is a is an order from the juvenile court under  thirteen thirty four for kipp to be going out and getting a warrant just to pick up a child was doing the wrong thing entirely so she was also following the wrong procedure as well as  basinger self on speculation to counsel what do you think is our strongest our strongest case that should have alerted officer kim she was violating the constitution well i think wallace notwithstanding what was what was just said  actually and i just ran across it and it was existing when i wrote my brief but there's some very good language in demaris v peterson eight eighty seven f thirty eight seventy that regarding that but in terms of facts in wallace they there wasn't an order but somebody told them there was an order and so they just went on ahead and speculating that that or it was there when it really wasn't there this night i realize we're going to take it we're time but don't  we just i just briefed that in the court of appeals in washington that itself is wrong i believe that she violated the in our local agreement and had no jurisdiction to do what she did and she had qualified immunity for that action and i now understand that's not in front of us at the but in your view and you know i think she was citizenship when she was when she was there alongside the road in oregon ok where you just jump to step ahead ok so whether or not she was authorized to make the call and then  bit but she supposed to recognize that much of her action is based on speculation and she needs to address every one of those points of speculation where you're going why are you north carolina why are you in california why did you tell hoffman what when are you going to be where you're going to be where are you going to for a minute although i'm not asking you to concede assume for a minute  she's still concerned gets all those answers and it turns out he has to give her explanations for why he didn't tell the truth i mean what he's doing now is not what he said he was going to do no that wasn't just no that wasn't dishonest he had he originally had planned to go to cal i should say since it wasn't a true he's doing now what he said he wasn't going to do we know that much he's doing now something different that he thought he was going to be doing and what he said he was going to be doing and he net and he then gets some answers and she's have said look call a major haley you called him back in the other investigation and he's going to tell you that i'm heading to north carolina in fact if you want to come are camped out on my doorstep i'd be happy to have you do it i'm leaving town tomorrow night so there were things she could have done there were things she could have done could she have followed him to where we was going i think she could have she believed the inner local agreement gave her jurisdiction and in fact if you look at the reasons for a warrant none of them fit the situation because carlos she wasn't even arresting carlos there by the side of the road well if you can't get a warrant how is that most she could have gotten a juvenile court order that's what she was supposed to do if if there was an order to be gotten ok so thank you very much and i would be that we would ask you to reverse the district