you Number 11-1241 Gomez versus Fistner at all. Mr. Norton, Mr. Coons, Mr. Judge. May I be ready? I'm going to be ready. Morning, Your Honor. I have pleased the court. My name is Lawrence Norton. I represent the appellants in this matter. I'd like one minute to reserve one minute for a revival time. That's fine. The plaintiffs in this case and the appellants are a family, a father, his mother, and his two children. At the time that this raid occurred in 2007, it was a 16-year-old boy and a nine-year-old daughter. None of these folks were targets of any criminal investigation. The raid occurred in the apartment that was adjacent to there to Number 11. You could, we got the facts. How exactly was this door sealed that was between Number 11 and Number 9? Your Honor, it was sealed with plastic stripping that was nailed to the door and the door frame. Was the door actually nailed shut? The stripping was nailed to the door frame. There's a photograph, it's an exhibit. You have some exhibits there, I think the cryer was good enough to mark those. And one of them is at record 432E. And that shows the
... I've seen the guys for this. You tried. It was a real deal. There aren't any. Yeah, we don't have a document reader. But if you look at 432E, what you'll see is that door from my client's side, the Number 9 side, and this was taken by my client after the raid. And he put the door back up, the way it was, he testified that this is the way it was before the raid, and you will see plastic stripping that's nailed on to the door and the door frame. But of course you couldn't see that from when you come to Number 11, right? And that's the reason why we have conceded all along in this case that there was no constitutional violation, because reasonable officers could have thought, when they were in that bathroom in Number 11, that the door that they were looking at might have led to another room in Number 11. So what point does it become a constitutional violation? We appreciate your candor in concession, right? So they open the door and they go in. They open the door and they go in. And we also concede that after they go in, they have the right to do a protective suite, because now that area is open and better see whether there's someone there that can harm them, while they're doing the search in Number 11, they went through that, and the record is clear from a number of officers testimony that that protective suite ended within five to 15 minutes of the initiation of this raid. So our view is that at that point, five to 15 minutes into this raid, they had no right to remain there. They should have withdrawn, and the law was clearly established at the time, both in U.S. versus Ritter, a decision of this court, and Garrison versus Mailing. Does it make any difference that the person who was the target here, I think it was named as a Guerrero, is that right? Guerrero. That he had access, whether he had access or control over the premises in nine. In nine. Nine is opposed to 11. If he had access and control over the premises in nine, that would have given the officers when they were doing their surveillance
. They surveilled this house for a long time. They were surveilled from both sides, Number 9, Number 11. They saw him, the testimony was, they saw him at least once go into the doorway, not through the bathroom, but through the doorway into Number 11 or nine, rather. If they had thought they had enough information to search Number 9, as well as Number 11, yes. If they can show that, in the cases that are cited by the state, in this case, are cases for the proposition that, oh, you can get a search warrant for two units in a building. If you can show that there is control over the other unit by the perpetrator or the alleged perpetrator, there was no evidence to show that, and of course they didn't come up with any evidence either, because there wasn't any. Can we go back chronologically? They open the door, they do protective suite safety reasons and all. At what point should they have retreated or left the apartment, realizing that it's apartment 9 and it's not the apartment covered by the warrant? Five to fifteen minutes, when they finish the room. What should have given them notice? Well, they're, we put it this way. Or did give them notice. There were a number of defendants. We sued a number of officers. We dismissed the case against a bunch of them. And the only two remaining of the state officers are a feciner who was in charge of this operation at this locale, and Zola who was in charge of the entry team. They had coordinated this whole operation. Sure. They were in charge. Zola had testified at his deposition that he went through that doorway. Now, there's tests, we've argued, and I think fairly persuasively that there is a lot of evidence to show that they had to knock that door down. They had to kick the door in. That's an issue of fact. That's an issue of fact
. You don't issue a fact. Yes, it is. What would you just say, you just conceded it that you're not saying there's a constitutional violation? No, but they, but Zola, the evidence shows we think that Zola kicked that door in. So when he can go in through that door, I think he might have 11 on the other side. But once he realizes, as he testified, he did. He went downstairs, saw a complete kitchen, saw the doorways leading out of the number 9. He knew at that point he was on the other side of the building. So he, that's what gave him notice that he was in a different unit. They had a lot of things in advance. There were two electrical meters on the house. There were trash and other things. But then when he had to kick that door in and then went down and saw he was in another place, he knew at that point that now he had gone into number 11. He says, one of the reasons he didn't do anything. He said, well, I just continue with my work. I didn't go back and talk to Fistner and say, hey, we went into another unit. The reason is he said, I thought, they, clutfully said, I thought at that time they were involved. So I think, I think a jury could conclude that he went on thinking they were going to find evidence. Well, the proper thing at that point, you've done your protective suite. You have a magistrate waiting to get it to issue a warrant, search warrant, go back and show whether there's probable cause. They didn't have it, but that would be the proper thing. You can't just go through that for three hours. Take a police dog through their place, detain these people, take the 16-year-old and cuffs downtown of the armory
. He was there for three hours of the armory, then told the walk home. All of that, because they went into the wrong place, Fistner, the evidence is a little bit different with respect to Fistner when he should have known it. Was there evidence initially that they had agreed to take into school? Yeah. It's 16-year-old. Yes. There's a lot of evidence. In fact, even the ICE officers testified to their deputations. Oh, we thought he was going to school. He asked to go to school. We thought they were taking him to school. When initially did the diverse family tell them, hey, you got the wrong people here. This is a separate unit. It's not a very separate unit. And part of the problem is that my clients didn't realize what was happening. They didn't know why they were off. At first, they thought it was rovers coming in. After a while, you know, a minute or so, they realized these are police officers, a SWAT team. They've got helmets on everything else. They didn't know why they were there. And they don't speak English very well except the children. And so it was probably an hour or more before they realized, oh, the reason they're in our place is because they have a warrant for number 11. They didn't realize that
. They didn't know what was happening. So the, our contention is that there are five of, well, let me go back to officer Faizner. Let's assume for the moment that you, you established there was a, there was a violation of a constitutional right, especially in light of garrison. Once they found that they were in the another unit, they had to discontinue. But was it a, was it a clearly established right? That they, that the, that the, that the barracks said there was, saw CA says you have to have a violated constitutional right and it must be a clearly established constitutional right. Well, it's United States Supreme Court, Your Honor. And, and, and the third circuit court repeals in the circuit. And both of them say that the, the, the, the, the, the, Ritter says, and I quote the air. Once the reasonable officers should know the air and what they encountered versus what is authorized by the warrant, they're obligated to either limit the search to those areas. Clearly covered by the warrant or discontinued. Right now, are you talking here about the local officials, local officers, Zola and Faizner? Yes. Or are you? Okay. We have not, we have, we have not our only client against the federal officers has to do with the, the, the, the statement they made that caused my client to stop speaking in his own home. We have not said that those officers are because of the role that they violated, uh, Fourth Amendment rights. Now, as to those, well, let me just say as the Faizner first. Um, Faiz, officer Faizner, even though he was in control of this search, he says, oh, I really didn't go down through the whole building for a long time. Um, it's not clear exactly when an hour or more. My clients, however, testify that within, at the end of this 15 minutes, officer Faizner took them down from their house, down the hall, down into their kitchen, the other kitchen and out through the garage and up to the kitchen in number nine. And it is that going into that kitchen is at the point where officer Faizner knew or should have known that he was now on the other side of the building. As all of us says, he knew it immediately when he went in that kitchen. One of the ICE agents said, agent said when he went into the kitchen, he said, oh, another kitchen. So we think that it's pretty clear that Faizner knew that also at the end of that 15 minute period
. Now with respect to the federal agents, we are saying that these agents, number one, they were in the property. They were, they were authorized to be in the property, not because they got a warrant or had any legal right to be there, but because the state task force said, come with us. You can come help us out. So they had the privilege to be in my client's home that morning because of the state. And secondly, the testimony is clear. Faizner was in charge of that team says he assigned to those ICE agents. One of the tasks was to be the custodians of the residents of that house. So he was assigned that by state officials. And so it is our view that we have met the test in Lugar versus Edminson and they are acting on the state law. If you don't have a 1983 claim, well, is the crux of your cause of action against the equal protection? Yeah, it is. It is. It is. But it's threatening the, threatening the handcuffs someone. How do you find that to be a constitutional violation? Because it's, it's threatening to handcuffs someone because you are not a citizen. If you do not stop speaking and it caused him to stop speaking. So the constitutional right is both a First Amendment right to be able to speak and exercise his personal right to speak in his home. And the, and the reason that he is told and the reason for their action is because he's not a citizen. Where is it clearly established that threatening to handcuffs somebody and maybe making it, if true, an inappropriate comment that you, you can't speak or in effect, as your, your legal alien. Where, where is it say that somebody saying that somehow has a clearly violated a clearly established constitutional right? Well, you're honored the, you're saying Lugar? Well, Lugar, not saying Lugar stands for that proposition. No, you're honored. So, so, so what, what, what sets it out that you, well, there's no, no can do here. Citizens have the First Amendment right as do, or, or non-citizens have the First Amendment right as do citizens
. And that's bridges versus Wixson, 1945, United States Supreme Court. And they also are protected by equal protection laws, non-citizens who are here are protected by equal protection. That's the, I mean, you're, I think your adversary points out, isn't there a pleading problem here? I mean, you don't see equal protection in the complaint. You don't see that, that a particular allegation that the defendants acted with the discriminatory purpose. You know, isn't there a problem there if you're pleading? The, your honor, the, I think that there are a number of different claims were relying on against these officers. And one of the claims is the, and probably the clearest, I will conceive, one of the clearest claims to the complaint is a 1981 claim. Now, we have, you'd have to find that they were acting under color of law, state law, not only their, as federal officers, but paragraph 50 and 51 of the complaint deal with that. And in both cases, they say in taking the above actions, depriving plaintiffs of rights protected by their fourth, fifth, 14th, the memo to the Constitution, defendants intended to deny plaintiffs rights enjoyed by white citizens of the United States. And in the complaint, it's clear, we've also alleged in the complaint that the defendants, unreasonable intrusion, seizures and searches were motivated at least in part by defendants' animus toward just people of Hispanic origin and those who are non-citizens. And to, to kind of eliminate the Ickball problem and Thwondley problem here in this case, which has to do with really not alleging sufficient facts in the complaint, the complaint alleges, when plaintiff Williams of various asked by defendants were bothering them in number 9, when their West warrant was for number 11, one defendant told Williams to shut up, you're not a citizen. Now, it subsequently came out of depositions, who the defendant was. We didn't know who it was at the time this was filed, these were officers who were, who were massed, etc. But it came out of deposition. That was Christina that said that, right? That was Christina, we said it, you're on. Okay. What are we here from? Thank you. Mr. Coons. Thank you, Your Honor. May I please support my name is Calvin Coons. I represent officers, uh, Visciner and Zola. Let's, let's, in, in Mr
. Zola's deposition, he stated that he knew he was in number 9 when he entered the kitchen. Well, yeah, correct? Yes, well, what, yes, he did say he knew he was in that part of the house. And when did Visciner discover that he had entered number 9? Well, let me, first of all, Your Honor, if I may, back up. The fact that Visciner said that he was in number 9, he didn't conclude that that was a separate residence, which we think is the issue in the case. Uh, Visciner. Zola's the one who sort of led the charge. Yeah, he led the charge. I mean, he's the one who got the, the affidavit. I don't really see that there can be any claim against him because he says he, he has team led the charge. They left, um, within five or 10 minutes, he says. And, um, he says that even though he knew he was in number 9 when he went in the kitchen, he did say he left. Did you mean Fistner said he left? No, I'm sorry. That was Mr. Zola. I mean, I don't know if you're, uh, of your, of, of, uh, maybe see a Pellum brief, but I was, when the entire building was cleared, the team of which Zola was the leader left. But then page 13 of that brief said that, uh, Zola and Fistner continue with the search of both sides of the building for three hours. No, no, Your Honor, that's, that's not correct. If you read the testimony, it's a Pellum brief. Uh, which I'm sure. Yeah. Uh, the, uh, Zola says that he was there for about, uh, five, uh, to eight minutes. And that is at, at 334 D
. I, his notes of test testimony. But, but the point is if he was in charge, Garrison makes it about as clear as possible. That once you discover that you are in an area not covered by the warrant, but, but for in this case, you know, some sort of search for, for protective purposes. You, you cannot do a more exhaustive search. You have to discontinue. Well, let me say two things about that. And they, and they certainly continued on and did a full search of number nine. Uh, whether Zola had left or not, he was, he was the guy that was purportedly giving the orders. He was the guy in charge. No, no, Your Honor, he wasn't. Zola, Zola was in charge of the special operations group, which Fistner was, was in charge of the search. And Fistner entered, um, after Zola had completed the warrant. So they weren't communicating? I'm sorry. So Zola, Zola realized he was in the wrong place. No, he didn't. And you think that you have, if Fistner would have had to realize that once he saw that there was a separate kitchen. Well, I think the issue, Your Honor, is not so much whether he thought there were two residences, but whether a reasonable officer could conclude that they were connected by a common doorway in the bathroom. And I think that's what these officers reasonably believe. The doorway that you really had to apply some force, whatever, however much we don't know. Is that a material issue of fact of whether that doorway could be? I don't think so, Your Honor, because, because it's conceded that, that officer Zola was entitled to go through that doorway to secure the premises just beyond it. Okay. He was entitled to go through it
. Yes, right. The fact that it was difficult, right, arguably to go through it. Should that not have been a fact to consider when you realize there are two kitchens? Well, I don't realize that there are two units. I don't think so, because Your Honor, officer Fistner, who subsequently was in charge of the search, says that when he went through it, the door was open. And he says that he didn't notice the tape. That there's a material issue of fact of whether the door had to be kicked or not. Well, I don't think it's relevant to the issue of what the officer who conducted the search knew at the time. In other words, he says, un-disputedly, that he wasn't, that he did not see the tape. And there's no dispute. I gather the defendants are saying nobody kicked the door, but the plaint of the saying someone kicked the door. So whether or not someone kicked the door, is that not indicative of whether these were two separate units? Well, I don't think it's indicative. I'm not saying they shouldn't have gone through and the security search. But when they suddenly realize that there are two units, isn't that a fact that should have entered into their thinking about is this a different unit? Well, I suppose it might have entered into their thinking in your honor, but I don't think it's a material fact because there's no question the door wasn't properly secured, at least in the officer's view. Well, but that's the officer's view. You have to look at the plaintiffs' testimony about what happened that they had to kick the door to get through. Right. Well, they had to kick the door. They saw that there was clearly a different unit. You had a separate kitchen. You had the taverasas who were obviously not Guerrero. And you got a Supreme Court case that says that you need to discontinue. Or in this case, well, I suppose what you possibly could have done was gone back. And it said, okay, we're going to stop here and I'm going to go back and I'm going to get a warrant to search number nine. And here's based on whatever reasons. You didn't, that wasn't done. Well, you're under no, it wasn't. And when one of the ICE agents told Officer Feissner that they had, he had been told by one of the interviewees that it was a separate unit, then they did retreat shortly thereafter. What made Feissner, for example? I mean, Zoll and Feissner, they're together, right? Only very briefly. And the testimony is... But Zoll goes through and he realizes this is not number 11. So, did he not communicate that to anyone else? He did not. Your Honor, the testimony is in the... He just sort of just left. And well, let me explain, Your Honor, though, that what he said was, he said, in my opinion, this was one residence. I don't care what numbers you put in the outside. This building is one residence. It was not divided. And that, I think, is why he didn't, because he thought it was the two residences were..
. And it said, okay, we're going to stop here and I'm going to go back and I'm going to get a warrant to search number nine. And here's based on whatever reasons. You didn't, that wasn't done. Well, you're under no, it wasn't. And when one of the ICE agents told Officer Feissner that they had, he had been told by one of the interviewees that it was a separate unit, then they did retreat shortly thereafter. What made Feissner, for example? I mean, Zoll and Feissner, they're together, right? Only very briefly. And the testimony is... But Zoll goes through and he realizes this is not number 11. So, did he not communicate that to anyone else? He did not. Your Honor, the testimony is in the... He just sort of just left. And well, let me explain, Your Honor, though, that what he said was, he said, in my opinion, this was one residence. I don't care what numbers you put in the outside. This building is one residence. It was not divided. And that, I think, is why he didn't, because he thought it was the two residences were... I thought this is all you say? It's all a said that. And Your Honor, that's it, at 341D in the appendix. No, it's a testimony. But wasn't there also something in evidence that he knew that there were number 11 and a number 9 unit? Oh, yes. He did know that. I think there was evidence to that. So, he goes in and somehow, by virtue of seeing this door, oh, I was wrong. There's no number 11 and number 9. They're the same. Then he goes through the door and realizes, oh, yep, I clearly was right the first time. There are two units. And there's no Guerrero. I'm sorry, Your Honor. There are two units. Once he goes through that door, he realizes, whoops, these are two units. They're separate units. And this is a family in here that we have no... At this point, we don't know who they are, but they're not Guerrero. Well, again, Your Honor, our point is that it's.
. I thought this is all you say? It's all a said that. And Your Honor, that's it, at 341D in the appendix. No, it's a testimony. But wasn't there also something in evidence that he knew that there were number 11 and a number 9 unit? Oh, yes. He did know that. I think there was evidence to that. So, he goes in and somehow, by virtue of seeing this door, oh, I was wrong. There's no number 11 and number 9. They're the same. Then he goes through the door and realizes, oh, yep, I clearly was right the first time. There are two units. And there's no Guerrero. I'm sorry, Your Honor. There are two units. Once he goes through that door, he realizes, whoops, these are two units. They're separate units. And this is a family in here that we have no... At this point, we don't know who they are, but they're not Guerrero. Well, again, Your Honor, our point is that it's... It's reasonable. A reasonable officer could have concluded. But based on the fact there was an interior door in the bathroom, there's apparently unsecured or lightly secured. Well, but we don't know that. There's an issue of fact. Well, it had to be... There's a door in there that had to be kicked through. Well, that is what is contended, Your Honor. That's in looking at qualified immunity that we have to give credit to what the plaintiff is saying. Well... If there is an issue of material fact like that, then it's improper. It's this point of the proceedings to grant qualified immunity. Well, Your Honor, all I can say is that we think that it is rather a slim read to deny qualified immunity on that issue. And just direct your attention again to the Tories case, which we've cited, which goes to the fact that the law is not clearly established, that if there is an indication of common access or control that the two units can be considered one for purposes of the war. But it's pretty clear that once they went in and they saw no family living there, it wasn't common control. Well, and it's also common control of the person who is the target of the search. Your Honor, in Tories
.. It's reasonable. A reasonable officer could have concluded. But based on the fact there was an interior door in the bathroom, there's apparently unsecured or lightly secured. Well, but we don't know that. There's an issue of fact. Well, it had to be... There's a door in there that had to be kicked through. Well, that is what is contended, Your Honor. That's in looking at qualified immunity that we have to give credit to what the plaintiff is saying. Well... If there is an issue of material fact like that, then it's improper. It's this point of the proceedings to grant qualified immunity. Well, Your Honor, all I can say is that we think that it is rather a slim read to deny qualified immunity on that issue. And just direct your attention again to the Tories case, which we've cited, which goes to the fact that the law is not clearly established, that if there is an indication of common access or control that the two units can be considered one for purposes of the war. But it's pretty clear that once they went in and they saw no family living there, it wasn't common control. Well, and it's also common control of the person who is the target of the search. Your Honor, in Tories. That's Guerrero. In Tories, though, the court has stated the case, the issue in the disjunctive. And we think for that reason, the law is at least not clearly established. If it didn't Tories, in Tories, didn't the... I guess the target have access to the entire building? And is there evidence here that Guerrero had access to the entire building? Except for the use in the doorway one time? Well, there might have been your Honor, because of the common door in the bathroom. I mean, it's in the interior door, and we think it's reasonable for the police officers to have completed that there was common access for that reason. You know, the cases that might support you, or where you have a particular floor, and then you... an upper floor, and then you also have an attic, or you have a lower floor, and you might have a basement. But this happens in countless residences, you know, with somebody attached buildings. Throughout America. And you've got an officer saying, he knew. He knew beforehand. There were two units. He knew once he went into number nine, and went through that door, that it was a separate unit. And then you're stuck. You can do a protective sweep. But beyond that, if you want to go further, you've got to go get another warrant. Not done
. That's Guerrero. In Tories, though, the court has stated the case, the issue in the disjunctive. And we think for that reason, the law is at least not clearly established. If it didn't Tories, in Tories, didn't the... I guess the target have access to the entire building? And is there evidence here that Guerrero had access to the entire building? Except for the use in the doorway one time? Well, there might have been your Honor, because of the common door in the bathroom. I mean, it's in the interior door, and we think it's reasonable for the police officers to have completed that there was common access for that reason. You know, the cases that might support you, or where you have a particular floor, and then you... an upper floor, and then you also have an attic, or you have a lower floor, and you might have a basement. But this happens in countless residences, you know, with somebody attached buildings. Throughout America. And you've got an officer saying, he knew. He knew beforehand. There were two units. He knew once he went into number nine, and went through that door, that it was a separate unit. And then you're stuck. You can do a protective sweep. But beyond that, if you want to go further, you've got to go get another warrant. Not done. Okay. Let me ask you one other question. Oh, yes, here. The state officers... Why did they send Mr. Tveris' son to the armory for further immigration checks? Well, actually, the officer Fistner does not recall ordering that, or the director that he'd be sent. Well, who sent the... That was all in the gallery. After Gallagher took him to the armory, he doesn't remember who directs. Wasn't he supposed to take him to school to do that? I'm sorry. Wasn't he supposed to take him to school? Apparently, there was some issue with immigration, some question of immigration, which is why he was taking the armory by officer Gallagher, who's no longer defending him. But who said that they had said that they would take the 16-year-old son to school? Well, I honestly don't recall your honor. And they also had the young man in handcuffs, didn't they? That I don't remember either. Again, what I can say is that there was no evidence that officer Fistner is connected with that. Well, also, they made the 16-year-old then walk to school after three hours at this armory. Yeah, nobody had took him. That the S-R. Don't get a ride from him
. Okay. Let me ask you one other question. Oh, yes, here. The state officers... Why did they send Mr. Tveris' son to the armory for further immigration checks? Well, actually, the officer Fistner does not recall ordering that, or the director that he'd be sent. Well, who sent the... That was all in the gallery. After Gallagher took him to the armory, he doesn't remember who directs. Wasn't he supposed to take him to school to do that? I'm sorry. Wasn't he supposed to take him to school? Apparently, there was some issue with immigration, some question of immigration, which is why he was taking the armory by officer Gallagher, who's no longer defending him. But who said that they had said that they would take the 16-year-old son to school? Well, I honestly don't recall your honor. And they also had the young man in handcuffs, didn't they? That I don't remember either. Again, what I can say is that there was no evidence that officer Fistner is connected with that. Well, also, they made the 16-year-old then walk to school after three hours at this armory. Yeah, nobody had took him. That the S-R. Don't get a ride from him. Officer Gallagher is the lesson here, right? Well, he'd drive him in the armory. And the folks at the armory apparently didn't attend to him. Yeah. Okay. Thank you. Mr. Judge. Good evening, your time to Mr. Judge. May I please the court? My name is Timothy Judge on behalf of Immigrations and Customs Enforcement Agents, Dave Cristino, and Dan Eppley. Two points I'd like to make on behalf of the agents. Just the fact question. Did officer Cristino's threat take place after the ICE agents determined that Tavaris was or was not a legal alien? I don't believe it's clear from the record, Your Honor. It was at one point in the record alleged to have occurred in the first floor kitchen of the Tavaris residence, which would indicate that it would be towards the end of the time at the premises of 9 and 11, Westman, Roabin. But I don't think the timing of when the statement occurred is clear from the record before the court. Initially, the Tavaris family states that their claim against Immigration Agents is promised on an equal protection claim. Even if that statement was made that for him to shut up or he would be cuffed again because he's not a U.S. citizen, it doesn't rise to an equal protection violation. As the fifth circuit observed in retroclubs versus health and speech alone cannot constitute an equal protection violation. Additionally, the plaintiffs never pleaded in their amended complaint, nor has the Tavaris family indicated any of their briefs to this court. What the similarly situated persons who were treated differently are
. Officer Gallagher is the lesson here, right? Well, he'd drive him in the armory. And the folks at the armory apparently didn't attend to him. Yeah. Okay. Thank you. Mr. Judge. Good evening, your time to Mr. Judge. May I please the court? My name is Timothy Judge on behalf of Immigrations and Customs Enforcement Agents, Dave Cristino, and Dan Eppley. Two points I'd like to make on behalf of the agents. Just the fact question. Did officer Cristino's threat take place after the ICE agents determined that Tavaris was or was not a legal alien? I don't believe it's clear from the record, Your Honor. It was at one point in the record alleged to have occurred in the first floor kitchen of the Tavaris residence, which would indicate that it would be towards the end of the time at the premises of 9 and 11, Westman, Roabin. But I don't think the timing of when the statement occurred is clear from the record before the court. Initially, the Tavaris family states that their claim against Immigration Agents is promised on an equal protection claim. Even if that statement was made that for him to shut up or he would be cuffed again because he's not a U.S. citizen, it doesn't rise to an equal protection violation. As the fifth circuit observed in retroclubs versus health and speech alone cannot constitute an equal protection violation. Additionally, the plaintiffs never pleaded in their amended complaint, nor has the Tavaris family indicated any of their briefs to this court. What the similarly situated persons who were treated differently are. There is no comparative value. As a matter of fact, the equal protection was first raised in the opposition to some rejudgment. That's correct, Your Honor. And because of that, the claim fails on those two bases. First, that the equal protection claim cannot be established solely on speech alone in second, because there's no comparator class. Similarly, situated persons who were treated differently alleged. Second, the Immigration and Customs Agents should be afforded qualified immunity. And even if speech alone could constitute an equal protection violation, it was not clearly established at the time that the alleged statement was made. Additionally, especially agent Eppley, on an additional alternative basis should be granted qualified immunity. Bystander liability, as its alleged, he stood by and did nothing in response to the alleged statement. Bystander liability has not been extended beyond the excessive force context. Because it wasn't clearly established that he had duty to respond in the protection context. And because there was no reasonable opportunity to intervene in any potential violation, because this was speech alone with no further conduct, agent Eppley should also be afforded qualified immunity on that additional alternative basis. If the court has no further questions. No further questions. No further questions. I think the court puts on it, consideration. Mr. Jordan. With respect to officer's Fisner and Zola, one thing I think that is clear from the record is that yes, Zola was the head of the entry team Fisner was in charge of the search team, but they planned this together. They met together before the raid. They talked specifically about the possibility that there were two units here, number 9 and 11
. There is no comparative value. As a matter of fact, the equal protection was first raised in the opposition to some rejudgment. That's correct, Your Honor. And because of that, the claim fails on those two bases. First, that the equal protection claim cannot be established solely on speech alone in second, because there's no comparator class. Similarly, situated persons who were treated differently alleged. Second, the Immigration and Customs Agents should be afforded qualified immunity. And even if speech alone could constitute an equal protection violation, it was not clearly established at the time that the alleged statement was made. Additionally, especially agent Eppley, on an additional alternative basis should be granted qualified immunity. Bystander liability, as its alleged, he stood by and did nothing in response to the alleged statement. Bystander liability has not been extended beyond the excessive force context. Because it wasn't clearly established that he had duty to respond in the protection context. And because there was no reasonable opportunity to intervene in any potential violation, because this was speech alone with no further conduct, agent Eppley should also be afforded qualified immunity on that additional alternative basis. If the court has no further questions. No further questions. No further questions. I think the court puts on it, consideration. Mr. Jordan. With respect to officer's Fisner and Zola, one thing I think that is clear from the record is that yes, Zola was the head of the entry team Fisner was in charge of the search team, but they planned this together. They met together before the raid. They talked specifically about the possibility that there were two units here, number 9 and 11. And then Zola, we think had a responsibility and we found out it was number 9 to communicate that to Fisner. The immigration issue with respect to Wolfredo, that was determined early on by the ICE agents. And Fisner testifies that he believes that Wolfredo, the young boy, was taken down to the armory to check his immigration status. But the ICE agents say we had checked his immigration status early on and we had told Fisner that he was clear. And so there's a conflict between what Fisner says and what the agents say as to why he was sent down town. But the why were the immigration agents on the raid to begin with was Guerrero. Was he an illegal alien? Why were the immigration agents? I don't know that. I think they were there. They were called in, I think, to assist with the raid because they thought they had some language abilities. I don't think they had too much. And that they wanted to check immigration status. These were all Hispanics in this area. They wanted to check immigration status to the people that they saw. But when they got on the team, they were assigned other tax. They actually, one of the agents admitted he cuffed somebody. They participated in the search and they were granted the authority to be the custodians of the people all on the raid. The other thing it hasn't been mentioned is that they took money from my, that has never been returned. They took K.I. $605 from my, from my Mr. Tveris, never been returned. Who took the money? Zola Fisner? Fisner took the money
. And then Zola, we think had a responsibility and we found out it was number 9 to communicate that to Fisner. The immigration issue with respect to Wolfredo, that was determined early on by the ICE agents. And Fisner testifies that he believes that Wolfredo, the young boy, was taken down to the armory to check his immigration status. But the ICE agents say we had checked his immigration status early on and we had told Fisner that he was clear. And so there's a conflict between what Fisner says and what the agents say as to why he was sent down town. But the why were the immigration agents on the raid to begin with was Guerrero. Was he an illegal alien? Why were the immigration agents? I don't know that. I think they were there. They were called in, I think, to assist with the raid because they thought they had some language abilities. I don't think they had too much. And that they wanted to check immigration status. These were all Hispanics in this area. They wanted to check immigration status to the people that they saw. But when they got on the team, they were assigned other tax. They actually, one of the agents admitted he cuffed somebody. They participated in the search and they were granted the authority to be the custodians of the people all on the raid. The other thing it hasn't been mentioned is that they took money from my, that has never been returned. They took K.I. $605 from my, from my Mr. Tveris, never been returned. Who took the money? Zola Fisner? Fisner took the money. I think his testimony is clear on that. Have you filed any type of promotion or starting a type of process to get that money back? This is the process here on. Okay. Thank you. Actually, May I ask Mr. Koon, is the money never been returned? I'm sorry. Do you know why the money is never been returned? The money is in the custody of either the court or the police and it would be the subject of any forpature. But. Under what process? Yeah. You come out to the money. No, it was, I'm sorry, it was under what possible grounds? No, it was, it was, it was inventory and there was a search that, and the money was, was, was, but they were cleared, right? Was, was, well, they were seized as, and they, they weren't ever, nobody was ever charged. But all I'm saying is that the money is still an official custody. Why don't we give it back? And I think there are avenues to judge what. Why don't your avenues on your part to give it back if you shouldn't have taken that? I honestly don't know. You're on it. Yes. Okay. Thank you. All right. Thank you. Thank you to all counsel. We'll take the matter under advisement
. Thank you. All right. Jesus. The first thing you do is go on up the evidence