were violated and when they're not in the district courts award of attorney's fees to the plaintiff for obtaining a preliminary impermanent injunction question about this case that is just an oddity to me and i'm just makes me think i'm missing something about how the case proceeded yes it's quite unusual to have a case where the color of the kooky nine hundred three claim that's left is the man now claim against the county in o c usually those claims we see in connection with claims against the individuals and i just found myself puzzled here given all the record evidence and given all of your claims while i don't know why there is not in front of us claims against the individual officers that did you know the search with respect to her or the seizure with respect to this dog or that dog in addition i mean i certainly would understand why you would still have the now claim that it makes perfect sense to me but i don't understand why we don't have the individual officer claims is there some reason the ordinance so i understand that and i can understand why you focus on that and then you just didn't have a chance to amend the complaint is that the point it's not i think that we didn't have a chance in the courts in a very aggressive scheduling order in this case we conducted we had about i mean months i'm not an expert trial lawyer a trial judge but there's one thing i know no trial judge ever sets an order until there's a complaint so why didn't the complaint focus on all these individuals that you have so much evidence about when i say individuals the officers that eventually knew jackson was involved yes and he never chose to move i mean it doesn't matter how aggressive a schedule a judge set you can always move to yes that's we could have moved to amend but we did moving in the case we'd obtain the injunction the court had an aggressive scheduling order we want to move forward with the case and we didn't want to slow it down to a man i do want to talk first about fourth amendment issue it an issue in this case here these were seizure no dispute here and there were never any warrants issued for the seizure of the plaintiff's pets and additionally there was no issue there was no consent given for any of the seizures the city a consented and we in argue before the trial court below that the consent any consent that may have been given was under duress and was not actual consent sufficient to meet a fourth amendment analysis and the district court never relied on that argument there was never frankly a challenge by the defendants below was certainly never a point of contention in the district court's analysis traditionally when you have warrantless seizure that's presumed to be unreasonable unless hard one dog number one i don't know there was evidence of the dog was harassing people there was a report that the officer testified about his affidavit but there was no witness with the officer of the dog harassing people with the dog when the officer right at that point to seize a dog outside when it's outside you know out of the house which is now when the officer did here instead of waiting back i don't know how that's the one dog that was seized inside the house i grant you that but why isn't that an accident circumstance even if you're the officer you don't say to yourself hey keep jumping out of the window it's way to the comes outside again where it's more dangerous when it's inside fewer people at risk again it's fair to me i don't know that's fair because again we're now talking about reaching a man's home and entering his home without his permission he's not at home to grant permission when there is opportunity in the dogs not jumping to the front yard or running in the street the dog jumping to a backyard  of the fourth amendment i think two things number one the ordinance itself which said that officers could see this without upon the officer determination of probable cause any animal it believed to be in violation of the ordinance those pushing the ordinance of the court struck down additionally defendant harry ward who is the director of the animal control department in the city testified that that was their standard operating procedure they picked on top if they believe they were unlicensed or if they believe they were loops he testified that he never in seven years one time he remembered having to obtain a search warrant or a seizure war there policy was to take dogs they believed to be in violation well that's ok for you i think that they didn't have sufficient i guess objective guidance to guide them in their determinations of what did and did not violate the audience i mean my gosh that out for me i think if i mean joe yeah it's a question i think the problem with the fourth amendment analysis here is they never went to obtain warrants they never went in didn't matter when they were exigent circumstances or not they never obtained warrants they just seized people's pets without bothering to go get a warrant i don't know that i don't think the record contains it and i don't know the answer to this question but it's hardly obvious to me that the way police deal with dangerous dogs around license dogs is getting warrants that's not obvious to me i sassoon what usually happens is people get calls there's a menacing dog they go and that's the exigent circumstance or they see that it's not licensed and they pick the dog up i just think that's the way i don't know but it's not impossible that that's how it works i just don't know what it means that there's not a track record of getting more and it seems to beg the question it doesn't tell me doesn't prove it's they had a policy that violates the constitution so that's what i'm struggling with well i think the circumstances under which many of the plaintiffs dogs here were scenes these were dogs who were seized that were playing with their owners in their front yards there's no reason to call to the police though there is a single one that they see seizing license dogs even by your own concession i'm i don't think it's like i think there are a lot of people in the city of detroit that just don't license their dogs i think the now we understand there was times you're going to i mean there was testimony in there's an entire procedure that has to be followed to seize the dog which includes sending notice to the county treasurer that that's the law that's a state law but also in the city of detroit ordinance incorporate sept part of the state law it says dogs who are said you know we believe the dog is unlicensed in we need to go season nobody ever went to see if the dogs are maddest saying or harassing people they don't need a war if they're actively menacing and harassing people yes and the officer michigan law and under detroit policy without going through a specific process so it seems like this is in the individual coin because even and i agree with judge sutton as if there's a different court memon analysis but you go back to what this is an individual liability issue this is a policy or custom and what you're saying is the policy or custom has both a process and seems permissible under the fourth amendment i'm not certain that i agree but  the policy or custom had a process where you said it came from the ordinance in the ordinance that this process in place to seize a dog without a license and you had to go through certain steps that seems perfectly permissible if that would have been i grant you that the ordinance is invalid and credit to the city for acknowledging that i'm not defending it anymore but what's the man now side of this all right you have to show the policies on constitutional and then each of the constitutional violations occurred because of the policy and it's very tricky about this case is the one instance where they actually did the worst thing allowed by the ordinance going to the house seems perfectly justified given big mama or whatever the pit bulls name that behavior was that seems sufficiently man to sing them to be actively menacing that that justified what happened everything ounces outside houses sometimes on property sometimes not but it's hardly obvious that they were were doing what they did because of the ordinance as opposed to seeing an unlicensed dog a stray dog a menacing dog and kind of as proved by the fact that every single one of them was unlicensed so you have to show you now have to just so something that was bad an unconstitutional policy of to show they caused these violations and so that's what i that's what i'm struggling with again i think it's what violation of the local law there's nothing in the there's nothing in the record below that shows that the officers were actually in plain view that they saw the dog was somehow unlicensed i e you can't just walk by a dog and there's no nothing in the record below that indicates the officers simply walked by the dog and said oh i recognize that to be an unlicensed dog it's a paperwork issue that they have to look up back at the d a see after all we do know they were all licensed again after the fact yes we do have one yes what's the deprivation or the due process have this is not a situation where people are minding their own business in the comfort of their own home and so he started listing in a best way to put his case and i you know i think he's he's listening to our questions and he sang the policy is the ordinance and he's allowed to do that think that's that's perilous an ordinance you agrees unconstitutional and as for causation he says it's the ordinance that led to each of these seizures and if that's true you've got your m claim the ordinance if it is yours were unconstitutional but let's just let's just accept for the sake of argument that there are some issues of fact about it's this or that seizure how do you respond to the point that the policy is the ordinance and whether it caused it that's what the officers were doing with each of these seizures the ordinance was never applied in any of these cases the unconstitutionality it wasn't harry words policy it wasn't the ordinance permitting an authorized authorized entry into homes that went into play in seizing any of these dogs i asked you about that look i just want to answer why why do you say that that's very important with the portion of the ordinance that the that was challenged and that was ruled unconstitutional and that has been enjoined is a portion of the of the ordinance that allows the unauthorized warrantless entry into a home to seize a pet it says property doesn't say i don't think it just says home the only issue the only issue is a new are allowed officers to enter allows entry into the property but these seizures didn't with the exception of mr harder it's case which your honor his or we got the pitbull right we got that one all of these seizures occurred on seven mile road and warmer street i mean we private and then so because i'm here impermissibly that's plain view or you can't make that leap this is part of the record once once the once the officers made entry into the home again they didn't know what was going on in the home one of the into the home pursuant to the dog jumping back into the window they didn't know whether there was a baby in there that had been that have been if there is and they had to secure the evidence there at least isn't there at least a material issue of fact as to whether or not this circumstance constituted an exigent circumstance sufficient for them to take the actions that they took not a few believe that an officer that comes on to that scene has x ray vision into the home and can see whether there is a person that's being molested by that minute but by their dog i mean we have no evidence of that to be evidence they had been accidents he was the dog was going in and out harassing people on the outside so once you get the dog you   puppy in the basement that was nursing off of the dog that was jumping in and out they made a determination that that dog should go with its mother or might my parents not plain view plain you and once they're inside they heard the dog  around and they are also in the process securing the securing the premises to make sure that there's no injured people in there one of the reasons why they would have made the entry in the first place is they don't know whether there's somebody that's injured on the inside of the house it's unable to control the dog once it's going in and out of the house that was a reasonable thing for them to do for the sake of argument cabin that went off let's go to the other ones that were as i think it's pretty easy if they're stray they're not property what about the other ones that allegedly were took it from the yard it had just recently escaped it had been it lurched and had been at large it was also one licensed in our position on all of the unlicensed dogs is that their contribution to the end there is no property interest in property so th time but you don't have to be on your own problems on the property no not in that not in the probably the courtenay i pop that have money in myrtle rice's dog they saw the dog come out the front door and the dog was that was correct but that is that the same edmonds ruled on the ground that there was no summary judgment no material tribal issue factors to each one of the seizures in terms of a fourth amendment violation and that's one way to think about the case and i know you've argued that both in your brief but the other way to think about the case is this separate alternative was there a policy that caused each of these alleged violations so even assuming for the sake of argument their violations i'm still struggling what the policy that was being implemented was his argument is that well it's the ordinance in the army and said you can go on any property you want and that's how this all happened and how do we respond what's the answer does is it because words said no you don't beat don't implement irrelevant when they make the scene and they determine that there is an exit in c and in many of these cases there was a voluntary there was a voluntary surrender once the once the homeowner in one in one of th mcconnell drove the dog to the facility itself and if there is a policy and seizing the dog immediately upon seeing upon seeing that they are in violation the ordinance it certainly was not a policy it was fall in that situation because mcconnell was allowed to take the dog to the to the detroit animal control shelter herself and others were given the option in fact  it was i believe mr wims that opted to have the dog taken to another facility where it was where it bit the workers at the other facility at the private facility and was destroyed as a result of the fact or what if so what did you think that the policy was under which the five operating can you articulate and state the policy for if here well i don't believe that any of these seizures were undertak is then conducted pursuant to orton's yes that's the policy and but the but the only part of the policy that was found to be unconstitutional was the portion of the policy that allowed and that was never applied to any of these any of these individuals was the portion the policy that allowed free warrantless entry into the premises of someone's home i thought wasn't the ruling what it means that the law said officers man to quote any real property within the city for the purpose of capturing collecting or stringing any animal what part of that is any part of that still good it's been written here your honor i mean that of property of the of the paths of the what of the patcher but that can be out in the yard that can be in the house correct but in the instances there down to an elf thing it's just really whether there's a triable issue of fact as to each of these violations i mean you one on that it's not the of the world if you win you win but that seems like that what the case ultimately is about given that the ordinance are they doing what they were doing we have no other policy we have no other directive we have no other guidance we just have the words of an admitted the unconstitutional policy we also have the words of the officers that were involved in what they were now you were  of what they actually did was what subjectively was going through their minds at the time they came onto the scene in the scene a dog that it just bitten another human or it just bitten another animal in those in those instances the again the cation of the word insulin for worthless seizure you hear relevant you agree that two hardest individual seizure cases are the poppy where that's not why they go into the house although i  don't think it's crazy to hear another dog and bring the puppy with the mother that doesn't seem crazy to me but but still that's not why they went in the house and and it was in the basement and then the second one is when they saw the dog the dog was not misbehaving they had no reason to know it was on license because it was on property but what they did know about that dog was it had been outside the property before those of the two hardy one cd yes you do agree though that it's not for you to say what the hardest ones i mean you  know i'm trying to give you a chance to tell us how to deal with the hardest ones is what i'm trying to say no point talking about the ones where they just saw the dog bite somebody or the other the other aspect of the second case that you say your honor was this was not the first instance in which that dog had large and so we have a constant circle of the animal control officers going and coming back and we've got one hundred thirty nine point two square miles to patrol in the city of detroit  authorize a warrant under those circumstances is unreasonable it's not what the fourth amendment requires and again as the judge is judge edmonds correctly ruled there's a sliding scale that's it play here i mean is the rights of the neighboring homeowners are being infringed upon by these people who you know the a lot of people they don't license their dogs but they want their neighbors now to pay them hundreds of thousands of dollars after they didn't license their dogs for constitutional violations while and punished and punished their neighbors and the other taxpayers pay for a lot of constitutional violations of our officials but that's part of the product of it right i mean you can't say that i mean what you're saying is just because it's more difficult to make the see here reasonable sometimes it's hard for the officers to buy with the law that they still need to do so it's not there's no exception of the constitution that says it's too often but there is a constitutional premise under under the skin or case which the judge which the judge cited that that does institute this issue of there being a sliding scale and as the the exercise of the the plaintiffs property rights here have a negative impact on people that are outside of their homes is is greater than their right to their rate to a warrant is i mean ok thanks so much for your argument appreciate m entirely like not in the backyard not in the house and that's it's pretty funny to say it's just hard to see how the ordinance or anything else caused it so what but but that what that still leaves are the dogs that were seized in the one case inside the house or other cases may be in the property so how would your argument there so with respect to the one where they you know it was on the property so maybe they wouldn't know it was unlicensed but they had information that this dog  off the property why wouldn't that justify since i think you agree strip a stray dog you can pick up this had been a stray with the answer to that i think number one the officer is not coming on the scene seeing that this is a stray dog and there may have been a report somewhere or or but they're about to verify any oscillation and that's that's ok but i don't think that rises to the level of an existent circumstance and that relaxes the work requirement every time he co they're supposed to get a warrant because the dog was off the property once they can just go and say what's going on here and they can go and see what's going on here and they may get a kind of voluntary relinquishment of the dog but i don't think they can just go because somebody reported a stray dog go up to somebody's house and take the dog which did happen in this for which the dog was see so we don't want to ride on the same yes when they arrived on the scene they were following up on reports that a dog bite had taken place or a dog altercation had taken place they didn't see it and have been months since the action it happened and they want to