is mark bradford representing the appellant officer scott thompson we're here today to ask the court to reverse the district court's denial of officer thompson's motion for summary judgment based on the doctrines of qualified and official immunity  think there's some confusion about what your sticks in this court has and i want to be very clear that we are not asking the court to resolve disputed fact questions we are asking the court to apply undisputed facts which i'll get to in a review the record to determine whether the facts support a claim for qualified immunity when it comes to qualified immunity the standard obviously is familiar the doctrine shields government actors like officer thompson from  unless their conduct violates clearly established constitutional rights that a reasonable person would have known and as the supreme court has artfully put it it protects all but the most plainly incompetent officers are those who knowingly violate the law now the principal conduct issue in this case is officer thompson's discretionary decision under minnesota statute to transport miss me him who is intoxicated in public to a treatment facility you can see that arrest right i can see that's an arrest and in our brief essentially we have received what cannot be lost in the analysis is that there is a minnesota statute and it's two thirty five b point zero five which gives officer thompson the discretion to do exactly what he did and that if he has probable cause to arrest if he has probable cause or argue with history probably make a finding on probable cause that the district court did not with the district court  statute says you can transport a person intoxicated in public to if a facility the district court did not determine whether officer thompson had reasonable excuse me probable cause or arguable probable cause to determine whether miss me him was intoxicated in public what the district court did was to go to an element that's not in the statute which is to say that officer thompson did not have arguable probable cause to believe she was a danger to herself or others if you apply the plain language of the statute let me just take you through some of the undisputed facts that established as a matter of law that officer thompson at least at the very least had arguable reasonable c determination because the whole purpose of qualified immunity is to take undisputed facts so that officers don't have to stand trial when there is no question that they had arguable probable cause for their conduct and in this case there's an abundance of facts and i'll grant that the issue of whether miss me hand was slurring her words or was uncooperative those are disputed facts ok what take those out of the equation but let's look at what the what the objective facts were of which officer thompson was aware at the time he made his decision to transport missed me hand to detox first of all when he arrived at the scene another officer who had been there and had encountered miss me hand advised officer  cell phone essentially when mr thompson officer thompson was trying to interact with her but we have a report from an officer to thompson so this is within his knowledge at the time he gets there that miss me had been belligerent but more than that that the two persons who came from the same location where miss me hand came from one of them made it ten blocks before she got in a car accident another one who missed me hand saw fit to get in the car with blue a point one eight and zero acknowledge that mere associations with with intoxicated in vidual standing by themselves that's not enough and dish as i wrote down this is this guilt by association right and what the supreme court has said is guilt by association standing by itself isn't enough but it's one of the factors that can lead a reasonable officer to determine who has reasonable probable can do a syllogism everyone who is intoxicated has been drinking but not everyone who has been drinking as intoxicated that's true not everyone has been drinking is intoxicated but there's objective in disha of intoxication in this record she had unquestionably incapacitated in with respect to her judgment call she got in a car with an obviously intoxicated person she told officer thompson she had been drinking now to determine if somebody who has been drinking is intoxicated to its or your question your honor what police officers do is they administered tests to make that determination well in this case decision to get out of the car and to try and interrupt in ongoing examination of the person who got in in an accident ten blocks from her house it's undisputed that officer thompson this is not refuted in the record that officer smell alcohol and missed me hands breath missed missed me had obviously made the poor decision to get out of her car and of course missed me and was intoxicated when she got to the facility she blew  point o way to even as judge but you pointed out that the judge did not make a determination that this officer lacked arguable probable cause if you take into consideration all of the facts in this case the undisputed facts it's clear that he at least had arguable probable cause to take miss me hand to detail did he ever at any point arrest her for d w i or for well there is no public intoxication  minnesota that's right that's right but this was his just i mean his own legal authority was to our character taking the caretaker function which is what is provided by by minnesota statute and what i'll point out is the argument that's essentially made in the response brief as well and that was made by judge frank was there's basically a a nother requirement of the statute that's not expressly provided for in the statute and that's that the person be a risk to themselves or others and what i would point out to the court is the precise argument was made i think this is the only other time the statute has been addressed by the federal court and it was by one of the courts colleagues in the carmen case where we're judge i believe it was judge murphy said minnesota statute two thirty five b point zero five is ambiguous as to whether a finding of dangerous required that's fair abuse interpretation that minnesota statute two fifty three b point zero five requires only that a person be intoxicated in public to be validly admitted to a treatment facility under the statute does not as a matter of law violate clearly established statutory or constitutional rights of which a reasonable person would have known excuse me it was diana murphy was the judge in that case so this the statute is  very clear on its face that all the officer has to have is arguable reasonable cause to believe that a person is intoxicated in public that the statute does not require absolution it does not require that the person below a point one five but the officer who's in the field at the time and is making his determinations based on objective criteria what another officer told me what i observed with respect to her conduct the other you're going to have on time let me ask you about the search issue was it objectively reasonable for officer thompson different yes tell me why because minnesota is a not a bright line state it's a multi factor state my goodness gracious well exactly right in recalling the context of qualified immunity the r has to be clearly established and in in minnesota you can't point to a case that says where you take somebody into custody for the purpose of transporting them to a locked facility as it was in this case that the officer has no right to conduct a pat down search before putting that person in the car and taking them to a facility like that was there are three male officer an unknown location there i'm sorry or was there a female officer also there no there there were three male officers come down what's a t o n last week on the fifth of may so anyways an interesting case the extreme court sort of slapped the fifth circuits hands for not giving full credence to the  claimants statements but we'll talk about that later maybe one writer in the issue the issue though is it's not a terry situation where this is this is a momentary stop where you have to have some articulable suspicion that the person is armed and dangerous we're talking about a statute that gives the officer authority to actually transport somebody in his vehicle or what about law issue complaining because he touched her physically  officer at the airport the way i read the response brief is they're complaining that this pat down search constituted a violation of the fourth amendment because it should never have occurred the defect in that argument is that it presumes that officers who are going to be transporting somebody an intoxicated individual in their car to a locked facility can't perform a limited pat down search to assure that the intoxicated person does not have weapons or does not otherwise pose a danger there's no law for that there's no case law in the context of the community caretaker function which would support that analysis would you know about the driver's license case from the minnesota supreme court rice dislike the a customer deal arrest this is essential in a search incident to an arrest as we pointed out in the beginning this is the functional equivalent equivalent of an arrest when you take somebody and you transport him to another facility the law is very clear that where you have a pat down incident to an arrest incident to the officer actually placing the person in the car the officer has the right to conduct a pat down search and to get back to your point of woman i don't think there's a claim in this case and if there is i think it would be precluded well there's a psychological injury to any of our case and say there has to be some evidence of physical injury what you have to have is more than de minimus injury and in fact in this case it's very clear it's for a jury to decide whether to menace or not if it affected her psychologically not not unless there's objective evidence in the record that it did and she confirmed in your deposition that she was not psychologically impacted the point where there's no question for the jury there i take it ok well we'll have reserve the rest of my time for rebuttal your honor i appreciate i only have a minute have you might think about this as i was reading that race is the key to this case or this down somewhere or not a key but interesting thing at this point where he finally said i've lost patience with you  tell that point he had no problem with this woman no it's not no i'll tell you why the issue of you an extra minute to her when you get to all these issues about did he give her enough time to find a sober and did he could have dropped her off somewhere he could have taken her to loans what you're getting into there is how the officer exercised his discretionary authority once you determine that the statute confers upon the officer to to do what he did to exercise discretion whether the officer should have done it should have given her fifteen minutes instead of ten those are all issues that go to how the officer exercised his authority which will get through it gets me to one of the questions i was going to ask your phone or we had to act as sort of a or police review board and your answer would be no that's essentially what they're asking you to do officer thompson was not obligated to extend an olive branch at all he could at once he made the determination that there was reasonable probable cause to believe she was  transporter at that or sees me for interrupt there was no split second decisions to be home long were they in contact with each other video takes a long time sixteen minutes from the moment officer comes and gets there to the time he leaves the scene it's eleven minutes from when he said you got to get a sober ride or i'm taking you to detox and she tried left the scene and that was terrible confusion about her daughter's but that's neither here nor right or what was my final question if i can think of one does the video itself port the officers conclusion that this woman was visibly intoxicated i believe it does well that's what you would say but does she was sitting there for a long time in the car was that well first the fact that she was there with the visibly entire goes back to the guilt by association well she made the decision to get a wrong decision to go with a drunk driver estimates and why did she decide to go with a drunk driver because she believed she was too intoxicated to drive so she self confirmed her own intoxication which was of course confirmed later at the detox facility as well thank you we'll give you some time for  start off by refuting some of the claims that he made in front of this court the first claim that he made that is not true is that ms me had had no psychological injuries from the frisk and the officers handling of her at the side of the in her deposition and it's noted in our appellate brief i will recall i recall vividly his black big black boot coming in between my legs and shoving them a far apart before he first me it was violating and it was violent it was horrid so there is evidence in the record of psychological injury or honor i wanted to correct that the other misstatement that council made was that the officer pursuant to his claimed lawful arrest and attention to miss me hand for star after that her before he even decided to take her to detox so it wasn't like he had her in a custodial situation that he was going to transport or he first her before she even got into the squad car and then he made the decision and that's the statement referenced by the court i've lost patience with you that's when he made the decision to take her to detox it wasn't a decision to transport frisk in the car so i wanted to correct that misstatement as well the other misstatement that holding up as a defense in this case is entitled emergency commitment that's the actual name of the subdivision now remembering back to in the stone ages my law school cost as a tory construction class i know that in his in his memo or his order public drunkenness statute is repealed we don't arrest people for being drunk in public in minnesota they're just not come downtown st paul on st patrick's day and you'll get a sampling of what goes on what we do though is we arrest people under the community caretaker function and that's to protect people it's not a criminal statute but that's to protect people who are intoxicated and i w you that the definition of intoxicated is far beyond what opposing counsel is is holding up but the statute provides that people who are intoxicated and can't provide for themselves are vulnerable out on the sitting in somebody else's car no can also it says intoxicated in public intoxicated i think you're not getting a fair answer the question well maybe i really don't know b don't know i may not understand my own question could you rephrase your know what what are these question is what are you getting the basis to think this has to be falling down drunk it says intoxicated in public where i'm getting it from is a community caretaker function and all of the fourth amendment cases from the supreme court of the united states when which they talk about helplessly drunk people who are standing in the middle of the street drunk and not making you know putting themselves in harm's way as far as oncoming traffic an individual who's passed out drunk in his car and could possibly drive away and kill himself that's the component well that's the far extreme but when january in st louis you heard a case in arkansas where this attack well the police officer didn't think the fellow was too intoxicated dropped him off short of where the fellow wanted to be dropped off and in the morning to find a fella dead of hypothermia know that's those are the facts of this case but they could well that's a she wanted to walk to this convenience store about two three blocks away right and if there had not been that confusion with a telephone call to her daughter someone would have come in time but that's all i don't know how relevant any of that is i mean the officer didn't know all right but i think what we're missing here is that the record below and miss me hands version of the events in the intake form at t detox center and the video all show that she is not impaired counsel isn't the real issue here we're kind of talking around it and i've led you there to talk around it but isn't the real issue here whether officer thompson a probable cause to believe she was intoxicated yes and the district court may of fact exist as to whether a reasonable officer independence position would have believed that transporting plaintiff to detox constituted a violation of her constitutional right to be free from unreasonable detention a right which was clearly she was intoxicated i think it does make that maybe you know in sort of a gestalt you know way he does do that he understands what the standard is and he understands the cases that have been submitted to him and i think implied in his order is they don't even get off first base because they haven't established with undisputed facts that there was probable cause to believe that she was intoxicated well if if he did if there was probable cause to believe she was intoxicated what where does that take us what it's all let's assume he makes that finding it the it depends if you buy into the argument that there needs to be the add a component of dangerousness to self or others if well i i think you have a tough time reading the statute in such a ways to say that that was transferred to a treatment facility and then the second says if they don't believe there is danger to themselves or others they may take them home so i read that the danger to themselves or others to give the auster the option to take her home which maybe he could have done in this case but but i don't see that as a mandatory requirement i'll give you an example of how no reasonable officer would believe that just intoxication alone could could get you could land you in detox let's say the officer p on the face of this earth that would then turn around to go well you're not guilty of d w one you're really not even close to the line but i'm going to take you to detox because you do have some modicum of alcohol in your system i've been practicing for twenty plus years i represent thousands of people wise and also in detox and i've never had somebody call me up and say get me outta here i didn't get a d w i last night but i was appoint all three in the officer took me to detox so i think in practice it's clearly established in  common sense terms it's clearly established they are asking you to write a bright line rule that would say that anybody who's intoxicated in public can go to detox or give an example last night at the wild game xcel center section one twenty two half the people in there probably have three four five beers in the course of the game what they're asking you to do is bless a mass arrest of section one twenty two and take them to detox that's the bright line rule that you're being asked to endorse and that simply is ludicrous i mean that sort of carte blanche is not going to be consistent with the fourth amendment well what what should officer thompson have done that he didn't he should have let her go he should've said ma'am what do you want to do i have no authority and i understand the predicament that i think you're driving at you're on you have a cop in the field he has a woman that can't drive i don't think he has the authority under the constitution to just take her to detox you can't deprive people of their liberty but would you haven't asked a question once assuming he resembled the way she was always mildly intoxicated you know judge  positive cases and we've had them you let somebody go on the side of the road they get hit they fall down taking them to a convenience store is not a very good alternative so there's really i mean he's really got three choices right back did he have any constitutional duty to did she request to be taken home why don't she rick she did two things one she said i walked to a one store which goes by the other is call her husband who was on his way the officer only wa four minutes after the phone call ended arranging a ride before he made that statement i've lost patience with you we're leaving and then he drove off just to get back to you're on his question i think you had some options number one drive drive home take her home that wasn't something that thompson of the time he checked you initially and i'm running out of time but i want to talk about if the court is ok and i will answer i have answer your question but i want to talk about the undisputed facts of intoxication in this case i talked about the video which shows her getting out of the of the anderson car she gets out with absolutely no impairment whatsoever and she walks onto the curb to engage the officers who are standing on the curb when you're listening to her on the on the audiotape it is a bit  there is absolutely no slurring of her words there's no inability on her part to not understand what was going on she's absolutely engaging with these officers about the situation she takes her friend's phone she has the motor skills to call home she remembers her home phone number she talks on the phone she's able to do all of the normal things that people do to take care of themselves and to and to handle the situation that she's presented  so when you're talking about the record and when you're talking about these undisputed facts we could have affirmatively move for summary judgment i believe in this case and probably gotten it when she gets to detox with officer thompson he marks down all of these things and it's at page eighty in the appendix he checks off all these boxes but what's interesting is what he doesn't check off he doesn't indicate that she can't care for herself pitch every night excuse me runners he doesn't indicate that she's incoherent he doesn't indicate that she's in a been able to unable to stand up she's not staggering she's not swaying he doesn't indicate that she's in imminent danger to others she indicate he doesn't indicate that she's an imminent danger to herself none of these things what he does say though are two false words at the beginning of that of the form it's that i asked him what are the reasons why she should be admitted he says deposition that she said i just asked why and you have to take that as being true for some original and then the other one is that she didn't cooperate with her own care that is not true she got on the telephone tried to call her family was in the process of doing that and she got sick of waiting for her and drove off and almost the court has any questions i'm out of time very well also you may proceed in virtually everything you just heard was an attack on the statute we're not asking the court to draw a bright line rule the minnesota legislature has already done that so the question is whether officer thompson  comply with a facially valid statute that has been in effect for three decades and somehow know that that statute violates missed me hands constitutional rights that was the exact issue that judge murphy addressed in her district court decision and she said statutes are presumed to be constitutional so an officer transporting a person who he reasonably believes to be intoxicated to detox can't know that he's violating that person's fourth amendment rights simply by transporting her because that's all the statute requires and it would be to what and to answer your question judgment about should we remand a judge frank the issue on appeal is  overall the standard of review is no but i think this court can make a determination based on the undisputed facts that he at least had arguable probable cause to detain her and transport her to detox i would say at the very least we get a real man but i think the court can consider it as a matter of officer was blatantly wrong i don't find the world in only there but let it pass let it pass you might do a west law search some day well i think what it i think what winters basically said he didn't use the word blatant or i tell you that much of it reiterate what the u s supreme court's holding  is that qualified immunity protects those all officers unless they're plainly incompetent or clearly violate the law or intentionally violate the law or you'll find that toll in case very interesting when you get back and read it in your office whether it will have any