We're going after this third case, which is number 12-202-8-Gwin at all, the City of Philadelphia, at all, Mr. Purcelli and Ms. Istban, after this third case, we'll take a very short recess before the low case are forth. Hang on for once, I will just skip the... Take your time. Whatever you're ready for. Thank you, Your Honours. I brought up Purcelli for the appellance. If I may, I'd like to reserve three minutes for every bottle. Granted. Thank you, Your Honours. Your Honor, I believe that the really shown, as the case really is, the special needs case, one of the fourth amendment. Although I do want to point out that raised in... I'd like to start with the Rule 36 issue, the Dean's mission. The admissions issue? Yeah, I mean, because very shortly after the other side did not file a response to your request for admissions, and my guess is they would say because there were some kind of discussions taking place at that point. When those discussions fell through very shortly after the time period elapsed, they asked a court to allow them to file a court granted it
. We normally try, I mean, in this circuit especially, we try to get to the merits. And I don't see any great prejudice to your side for a few days delay. I don't think that's an argument that really flies with us. Your Honor, the reason that was raised in that particular scenario was because with the same judge in a different case, occurring at the same time as this one, where I was on the defense side, I tried to amend an answer to allow an unstoppable defense. The amendment was denied because they said that the plaintiff had relied on all the life that he's doing. So it was really more directed at if the facts for not allowing an amendment is a prejudice because you relied on something. Then it was merely presenting the judge back with in this situation, you would not allow me to amend an answer to add something that I couldn't have planted in an answer because we didn't know from discovery. So really, you know, why didn't argue it so much here about that? It was because it was more something ongoing with that particular district judge. Up here, the argument was preserved only to show the fact that the fact that the settlement with the city falls apart does not really establish a cost. And really, that's why I didn't want to focus on that because speaking with my counterpart, we kind of looked at this being a new issue, this needs issue, which this court really only looked at in the model case in 2012. And that was a drug case. That was the testing of drugs on that policy. And this does not fall in that category to special needs. Before I get to the special needs situation, which are the force of pre-import cases that we've talked about, I just do want to note that there was a qualified immunity argument made in the merit briefs. The qualified immunity defense, although played as a defense, was not argued by the appellate below, wasn't talked about by the district court. And there was no cross appeals. I don't really believe. Before you even get there, however, here, you've got a complaint to the police department about somebody in effect taking money from him on a stop on a street. And the department, when you agree to the department needs to investigate that
. They do. And that's the special needs situation the Supreme Court talked about. They talked about that in Skinner, O'Connor. And the O'Connor case, we talked about that. So what should the police department have done here with respect to officers, Gwyn and Ryan? With it? With Rinn and Warren, there is a direct a seven that does establish how these warrantless searches are supposed to be done. And as we know from the ash co-off case, the Supreme Court, we know from O'Connor, the Supreme Court case, we know from Skinner, the Supreme Court case, and we know for the Ontario case, the Supreme Court case. They've talked about these warrantless searches for the special needs. Now, my question is, what should the department have done with to investigate the kind that somebody was shaking down for $400 or whatever it was? Well, they can ask the officers. They can ask the officer to come back. They can go through their investigative stop and they have to follow their procedures. Which is what the Supreme Court says. What procedures were directed seven is the only direct police department has for warrantless searches and discovery had shown that that direct the applies equally to the police as it does the civilians. And they're directive their standards. That's what the Supreme Court saying is when you look at these warrantless special needs situation, you got to look at the standards of the employer. Because if the employer doesn't have them, it's a probable call standard and not a reasonable standard, which is what the district court said below. I'm applying a reasonable standard. We're here. There was a specific. But isn't there a standard a bit different here? Why don't we just adopt what the seven circuit did in Dribble? In Dribble, Dribble looked at the qualifying meeting and Dribble turned around and said, yeah, you can you can search, but you need your probable cost
. But the court said that the judiciary should defer whenever possible, consistent with the constitution to the superior expertise of law enforcement professionals in dealing with their respective personnel. All right. And in this particular case, the specific way that the police department had decided how it was going to deal with these types of allegations was to have without a warrant was to have probable cost or consent. Well, not well. Dribble does not is. Dribble does not say that that's the only way. I mean, if it's if it's consistent with the fourth amendment, it's it passes muster under Dribble and the facts of that case are almost identical to a case we have here. They are. And they also looked and adopted other matters, which we look at the seizures itself as to whether it was reasonable or not. They said we'd kind of look to see whether or not the officers were free to go in this particular case. The fact that they were they were not. They were in fact, they claimed dispute. Well, they claimed that they were afraid if they left, they would lose their job. There's also testimony from Sergeant he that they were not. What are you to go about? It's an effective test though. Is that not a subjective test? Whether a reasonable officer under those circumstances would would. Would think that he had he was staying because of his job or he was staying because he thought he was under fourth amendment compulsion. I agree you're talking the subject of the objective standard and subjective standard. We're not saying because they were intimidated
. I want to focus on the objective standards that we're being used by the courts to determine whether or not the Dribble test could be met in this particular case. They said they were concerned with whether or not the officer was allowed to go to the bathroom alone or not, whether it was being washed. And in this particular case. Well, you don't want them to go to the bathroom alone because it defeats the whole purpose of having their cool having them cool their heels while you're waiting for internal affairs. But isn't it isn't it true that in this case the police were acting in their capacity as employer rather than as law enforcement officer? No, that's not correct either. That's part of my argument because they concede in depositions that it was an IAB investigation. The 10th gives was turned over them, but it was not the 10th gives that was doing all this. It was the four district commanders who should not have been doing this once became an IAB. Well, if we consider who did it was a search that occurred. Rotterdam scope then was permissible under the O'Connor case. Yes, it was. And that's correct. How was it beyond what was necessary given the facts that were presented beyond the scope? No, because the first thing you have to do is you have to look to see whether or not they actually believe they were going to find something and consistent to all of the defendant's testimony was they never believe they were going to find find any money because they didn't believe they ever took it. So the reason of this of the search is it is a fact issue if you didn't believe you find it and you didn't believe they took it. Why are you telling them to empty their pockets? That's lives their pants because you have to go through all that for their own protection. You've got it. You've got to demonstrate to the punitive plaintiff who's going to sue the police department for stealing his money that he was wrong. True. He's a false accusation
. If you don't do the investigation to demonstrate that the officers didn't have the money on their person, then you've got a live case against the officer's brought by this complainant. You have to start with the scope. That's what the law says. You've got to start from the very beginning, which means either you had to read you had to have a reasonable basis or probable cause. Well, you agree they had a reasonable basis to search to look into the matter. Correct. Yes. Your brief says that they have. So the question is whether the quote search that they did was was was was reasonable concerning the complaint that they received. How was the search that they perform broader in scope that necessary to solve the answer to the complaint that they received? They didn't even know how much money was taken when they did the search. I don't know if they were looking for $10 $2 $405 $600. I know, but they knew that the complaint was that they stole money. What did they do which was broader in scope that was necessary in order to verify or to show that it's not. Fail to answer the issue. Fail to follow their directive seven. Directive seven specifically. The directive is not part of the fourth amendment. That might be good policy, but we're concerned with the fourth amendment here, not whether they followed the perhaps if they followed the directive, there would be no case here. But the fact that they didn't doesn't make it automatic or fourth amendment
. So the only hang up of having with this case is I know they had to do something and you acknowledge that in your book. And they did they called IAB. Okay, and they performed the search that they performed was that broader in scope in any way or more intimidating or false of it in any way other than was needed to refute or to verify the complaint. Yes, and they first ordered them in and to remain there and didn't tell them until the search was about to start why they're even there. The testimony and following the trouble cases and the four Supreme Court case says you don't get past the warrantless search area and into the special needs unless you can fit into the standards. And the first thing you looked to the first thing you looked to before you get to the search is. Is there a standard if there's a standard we're going to look at the reason will this if there's no standard in terms of that we look a probable cause an ash cough ash cough in 2012 repeated that. But in terms of getting to that standard the issue that we have here is when a police officer when is the police officer seized by his employer during an internal investigation. And Dribbl has said that there is an added element and Dribbl has followed by pennington of the six circuit in that malaria of the ninth circuit. There's no case that I see really on your side here. It says that in that context there is you have to have deference to the internal procedures of the police. And we don't have any problems with the eternal procedures because the case law all the cases say that if you have a procedure and you follow it we're going to look at the reasonable standard and we had a procedure and they admit they didn't follow it. And the Supreme Court, the Supreme Court ash cough case in 2012 said if you don't follow your own standards essentially you're back to the probable cause standard. Well, no, no, look we can't conclude that we agree with you if they were to follow the standard that would have been hunky door. But you can't from that reasoning conclude that if they don't follow the story their procedure it's automatically a fourth of them in violation. I can conclude that based on the Supreme Court's artiga and ash cough 2010 and 2012. Well, they don't I don't think that's the whole thing of those cases. If they don't follow the standard then we're into the open question as to what they what they did and whether it was beyond what was necessary for what was something was necessary. And if they did something that was beyond what was necessary to to refute or to verify the complaint then you're in fourth amendment territory
. So the question here is what did they do to these gentlemen beyond detaining them telling them to either pockets of the socks and so forth. What did they do which was beyond the scope of trying to verify or refute what what occurred. They held them in a room would not give them the free liberty to go to use their phone. They would even let them go get a drink in fact when Ryan tried to get a drink they would not let them leave in fact feed a sergeant feed a testify that has noted in record that he would have accompanied them everywhere would not have let them go alone. They weren't allowed to even go to their laws after they were released. I mean he had a company I'm to make sure that if they did have money on them that they didn't get rid of or they they testify they never believed they had the money. You can't get past their testimony which is one of the reasons that there were so many facts in dispute here that are that are genuine the things that we're talking about that some regegment really shouldn't have been entered because we should have established those facts. Whether they believe that it was the complaint was sure not did they have to go through the the motions in order to verify whether it wasn't it wasn't because the courts said that you have a standard you got to follow if you don't it's a higher standard on the fourth amendment they have a standard they didn't do it so went for the higher standard I agree there is a special needs it falls into the special needs but if it's going to fall into the special needs of the fourth amendment you have to follow the tests otherwise you have to go back to the fourth amendment and any of you have to go back to the fourth amendment. Even in Ashcroft in 2012 a public employee case they said public employees by the very virtual being government employees do not give up their fourth amendment protections the special needs situations falls into two categories safety which is the skinner case which is similar to the model case this court dealt with which is drug testing for safety and then we get into that other area. Let's hear from Mrs. Vaughan and then we'll get you back on the bottle. May I please the court I'm Janice Tan and I represent the city and I represent the supervisory defendant police officers in the case. I could start with the number of things but I'll pick up where. Let me start with the fact. What could the supervising officers know about the complaint that had been made at the time they conducted the search or asked them to turn their pockets inside out the center and that. There was a call to the station I believe that Mr. Artis had accused officer Gwyn of stealing $500 stealing $600. $600. When he had risked him and I believe that was it
. That was all they knew. Yes. So would any complaint be sufficient to justify a search or what is needed internally for them to have a search done of these two officers. With respect to this particular search study. You got the mean for example you could have called Mr. Artis and come on in give us some more facts and developed it further. Well I guess you had Mr. Artis and his brother. His brother also call in or did they speak with his brother at some point. I know that I believe that they that they call the FBI and I believe that the mother at some point or the aunt had also called and someone had called the FBI as well. Someone had called IV and someone had called the FBI. But the basic report was all the same Mr. Artis had accused officer Gwyn and Mr. Artis had also accused officer Gwyn on the scene right away of having taken the money. But regardless the accusation was all the same you took $500 from me $600 to me whatever the amount was. Is there a disputed question of fact here as to whether the two officers felt as though they were not free to leave. Fearing a adverse employment action or that they felt they were not free to leave you say were under arrest. Is there I mean that's their position they thought he thinks that they were under compulsion to stay by reason of the so isn't that a question of fact that has to be resolved by a jury if that's their position. There's no material there's no material dispute with respect or whether there's a seizure though judge can and that's the issue here because Dreeble and Aguilera and Penny Tentipel that it's not material whether you fear job loss
. Relying upon Mendenhall and how Mendenhall defines a show of authority and relying upon the custodial interrogation cases and relying upon Delgado they've held that fear of job loss is not sufficient to constitute a show of authority with respect to a seizure because the question is not whether you fear the job loss and you didn't leave because you feared the job loss arising out of your voluntary relationship with your employer. Rather the question is whether you were you somehow feared that you were you thought that you would be physically prevented from leaving the room whether there was a show of authority that caused you to reasonably believe that you would be physically prevented from leaving the room. All right well is it a question of fact that a jury should resolve they claim they were not allowed to leave you say were under arrest you say that they were being detained for employer position that there had been a complaint that they were trying to check out isn't it a question of fact as to whether objectively they had the reason to believe that they were under arrest or as you claim that they were really being detained from a proper employment check. I have two answers on that point Judge Canolan. I don't believe there's there's subjective testimony on that point and I don't believe there's objective testimony on that point and you need objective testimony on that point. Okay. Well they said they thought they were under arrest. I don't believe there's testimony on that point. They're subject. from their superior officers. And so it all relates to the employment relationship. I don't believe there's any testimony that they thought they were under arrest or that they would be physically prevented from leaving. They believe that they had orders. And if there is testimony in the record somewhere that they thought that they would be physically prevented from leaving, I'm not aware of that testimony. And even if there is such testimony, that belief wasn't reasonable under Dreeble and under Aguilera. You can see, though, that there's a dispute of material fact as to whether they consent into the search. Yes, I do. You can see that much that there's a dispute of fact. But that it's not material because the search was reasonable under the circumstances
. Well, how the appellance position is the search was not reasonable. Once you fail to follow the directive that was set up for this type of thing, then you're no longer... Then you've abandoned reason for this and you've gone into a fourth amendment search when you fail to use the directive that you set up to do this very thing. I don't agree with his position at all Judge Kahn. And I agree with you. There's a ton of law that states that our failure to follow our internal directives doesn't constitute a constitutional violation. I'm not aware that that's the holding of O'Connor. In fact, there's oppositional holdings to that effect in a lot of cases that our failure to follow our internal directives doesn't establish that. And this court cited a lot of cases that the special needs doctrine applies in these cases because we should have deference of clause tenfold. In a police case, I believe, we're trying to balance a right to investigate police misconduct. And I would invite the court's attention to the B&A case that specifically says there's a right for the police to investigate accusations of citizen misconduct. And we're balancing that against police rights and where there's an internal police investigation of police misconduct or an internal investigation of workplace misconduct, as O'Connor would say. As opposed to a criminal investigation, we get some leeway. And while police don't have watered down constitutional rights, we get a little bit of leeway when we're doing an internal investigation. We send police out there with guns and badges and we ask citizens to submit to their authority as Mr. Artist did. And therefore, they have to give a little bit of leeway and the B&A case is all about that. And that's why I'm being at the police department got a little bit of leeway when they had a police line up with 62 officers. Some of whom were suspected of misconduct and some of whom weren't. And that's why we get a little bit of leeway here. On the seizure issue, there's some evidence that could allow someone to infer here that there was a seizure. Superbising officers remained with officers when and Ryan during the entire time they were at the station. They waited. When and Ryan were instructed to turn off their cell phones, the superbising officers spoke to them in a stern manner. They were in charge. And that ultimately, when and Ryan were searched. Judge Amarrow, I believe under the totality of the circumstances test, which is what Dreeble tights applies here. And again, it's an objective test. Judge Hardham, in respect to this, that the reason that you do things like accompany people to the bathroom and ask people to turn off their cell phones is not to convey to them that they're detainees, but it's for security purposes. You don't want them getting their stories straight. You don't want them hiding the evidence, things like that. It's not to convey to them that they're detainees. And if you look at the totality of the circumstances, in this case, you simply couldn't infer from the circumstances that we were conveying the message that they were going to be physically prevent them from leaving. No one should their weapons here. They were sitting in an office. They weren't in an interrogation room
. And that's why I'm being at the police department got a little bit of leeway when they had a police line up with 62 officers. Some of whom were suspected of misconduct and some of whom weren't. And that's why we get a little bit of leeway here. On the seizure issue, there's some evidence that could allow someone to infer here that there was a seizure. Superbising officers remained with officers when and Ryan during the entire time they were at the station. They waited. When and Ryan were instructed to turn off their cell phones, the superbising officers spoke to them in a stern manner. They were in charge. And that ultimately, when and Ryan were searched. Judge Amarrow, I believe under the totality of the circumstances test, which is what Dreeble tights applies here. And again, it's an objective test. Judge Hardham, in respect to this, that the reason that you do things like accompany people to the bathroom and ask people to turn off their cell phones is not to convey to them that they're detainees, but it's for security purposes. You don't want them getting their stories straight. You don't want them hiding the evidence, things like that. It's not to convey to them that they're detainees. And if you look at the totality of the circumstances, in this case, you simply couldn't infer from the circumstances that we were conveying the message that they were going to be physically prevent them from leaving. No one should their weapons here. They were sitting in an office. They weren't in an interrogation room. They weren't threatened with arrest. The doors weren't, the office weren't locked. They kept their guns in their badges. They weren't invited to watch television. They were offered drinks. Most important, they went home in the evening. They were again, they were never actually. How long was the detention here at the station? The detention with respect to my clients was only an hour. I went about an hour, I believe. I even showed up and took over the scene. And it was I.E.B. who controlled the scene then and went and said we're leaving and we're going to interrogate. For the entire time that they were at the station, it was four hours because I.E.B. came back and then said you can leave. I did want to address also Judge Kaelin's question as to the breadth of the search because I don't think there's any question that the breadth of the search was reasonable given
. They weren't threatened with arrest. The doors weren't, the office weren't locked. They kept their guns in their badges. They weren't invited to watch television. They were offered drinks. Most important, they went home in the evening. They were again, they were never actually. How long was the detention here at the station? The detention with respect to my clients was only an hour. I went about an hour, I believe. I even showed up and took over the scene. And it was I.E.B. who controlled the scene then and went and said we're leaving and we're going to interrogate. For the entire time that they were at the station, it was four hours because I.E.B. came back and then said you can leave. I did want to address also Judge Kaelin's question as to the breadth of the search because I don't think there's any question that the breadth of the search was reasonable given. I suppose they want to script search the officers without a bit reasonable. I believe that the school cases would probably say no. And I would. I would. I thought you were of course, but. Right. And I think that's that's the issue is that we limited the search to outer clothing. We didn't touch the officers. We asked them to show the outer parts of their clothing. Should show their pockets themselves. The search was very limited. The search was very respectful. And it and again, it was it was justified in its inception, which is the first part of the special means doctrine because it was it was the two it was only the two officers who were suspected and I cited the cases where. Personal effects were searched and there wasn't even individual suspicion and in those cases, which are circuit cases. And in fact, suffer versus writing, which is a Supreme Court case, the court in passing implicitly suggested that that would be acceptable in a school case. And therefore, I would suggest that in this case that that we certainly didn't go beyond the breadth of what's acceptable in a reasonable list and I. But when they when they ultimately did the search that they suspect misconduct at that time or what or what was the reasoning as to why they did the search. I believe it's undisputed that they told the officers if you show me now that you don't have the money before you leave the scene, it will go well for you. And in fact, that's what happened
. I suppose they want to script search the officers without a bit reasonable. I believe that the school cases would probably say no. And I would. I would. I thought you were of course, but. Right. And I think that's that's the issue is that we limited the search to outer clothing. We didn't touch the officers. We asked them to show the outer parts of their clothing. Should show their pockets themselves. The search was very limited. The search was very respectful. And it and again, it was it was justified in its inception, which is the first part of the special means doctrine because it was it was the two it was only the two officers who were suspected and I cited the cases where. Personal effects were searched and there wasn't even individual suspicion and in those cases, which are circuit cases. And in fact, suffer versus writing, which is a Supreme Court case, the court in passing implicitly suggested that that would be acceptable in a school case. And therefore, I would suggest that in this case that that we certainly didn't go beyond the breadth of what's acceptable in a reasonable list and I. But when they when they ultimately did the search that they suspect misconduct at that time or what or what was the reasoning as to why they did the search. I believe it's undisputed that they told the officers if you show me now that you don't have the money before you leave the scene, it will go well for you. And in fact, that's what happened. They showed them that they didn't that they only had 20 and $30. I believe each of them respectively on their persons. And the captain documented that and all this. Because there's a bit of tension in terms of the briefing and what you said to the district court. I thought you said to the district court, they did this search because they thought it would demonstrate in fact they didn't have anything on them and they would be exonerated. Whereas be saying before us that you did the search because you suspected that there might be misconduct. And that seems to be intention with the statement that you made to the district court. In other words, I think you guys are okay. Just show us and like, let's go easy and you can get out of here. That's one thing. Or hey, we're going to search you because we have reasonable basis to suspect that we'll find evidence of misconduct. What my client said is I want to search you because I think I think it will go well for you, Judge Amar. I believe what you might be referring to is there was the IAB officer when he came back from interviewing Mr. Artis said that he believes that Mr. Artis might be telling the truth. But my clients, the IAB officers weren't sued. My client stated I don't think that you took the money and I want to demonstrate. And I think if you, if I search you things will go well for you. And I think that's been consistent and when I try to cite we're only the plaintiff's depositions and the plaintiff's affidavits since we are on summary judgment so that we wouldn't have an issue as to what's distributed
. They showed them that they didn't that they only had 20 and $30. I believe each of them respectively on their persons. And the captain documented that and all this. Because there's a bit of tension in terms of the briefing and what you said to the district court. I thought you said to the district court, they did this search because they thought it would demonstrate in fact they didn't have anything on them and they would be exonerated. Whereas be saying before us that you did the search because you suspected that there might be misconduct. And that seems to be intention with the statement that you made to the district court. In other words, I think you guys are okay. Just show us and like, let's go easy and you can get out of here. That's one thing. Or hey, we're going to search you because we have reasonable basis to suspect that we'll find evidence of misconduct. What my client said is I want to search you because I think I think it will go well for you, Judge Amar. I believe what you might be referring to is there was the IAB officer when he came back from interviewing Mr. Artis said that he believes that Mr. Artis might be telling the truth. But my clients, the IAB officers weren't sued. My client stated I don't think that you took the money and I want to demonstrate. And I think if you, if I search you things will go well for you. And I think that's been consistent and when I try to cite we're only the plaintiff's depositions and the plaintiff's affidavits since we are on summary judgment so that we wouldn't have an issue as to what's distributed. Any further questions? If I may, I'd also like to just get to the qualified immunity point real quick because we did we did raise call for the meeting in our answer. I believe the case law would say that qualified immunity is not waved. And this is a very strong case for qualified immunity because there is circuit law out there that would say that that that that that that that there in fact it's clearly established that there wasn't a seizure here. And it's clearly established that especially these document applies in these cases and that the search was reasonable. And so it's not clearly established and are sufficiently similar factual circumstances that what my clients did here was a constitutional violation and therefore if the court disagrees with me that there was no constitutional violation at the very least my clients would be established qualified immunity. Be entitled to call that a meeting. Thank you very much. Thank you. Mr. Terschelli. I it's noted to your to Ms. Ispan that this band that there was some evidence that there was a seizure but it seems that there was a whole lot of evidence that really wasn't a seizure. That this was an internal disciplinary investigation. They were not subjected to the usual formalities that would accompany legal search. I mean, you know, nobody would say you might help you if you turn out your pockets might show you your good shape. They were not in the whole of itself. They were just merely in the supervisor's office. They were paid overtime for this. They were permitted to make when was permitted to make a call to his wife and both officers stated they remained in room because they were following orders not because there was any legal or physical force
. Any further questions? If I may, I'd also like to just get to the qualified immunity point real quick because we did we did raise call for the meeting in our answer. I believe the case law would say that qualified immunity is not waved. And this is a very strong case for qualified immunity because there is circuit law out there that would say that that that that that that that there in fact it's clearly established that there wasn't a seizure here. And it's clearly established that especially these document applies in these cases and that the search was reasonable. And so it's not clearly established and are sufficiently similar factual circumstances that what my clients did here was a constitutional violation and therefore if the court disagrees with me that there was no constitutional violation at the very least my clients would be established qualified immunity. Be entitled to call that a meeting. Thank you very much. Thank you. Mr. Terschelli. I it's noted to your to Ms. Ispan that this band that there was some evidence that there was a seizure but it seems that there was a whole lot of evidence that really wasn't a seizure. That this was an internal disciplinary investigation. They were not subjected to the usual formalities that would accompany legal search. I mean, you know, nobody would say you might help you if you turn out your pockets might show you your good shape. They were not in the whole of itself. They were just merely in the supervisor's office. They were paid overtime for this. They were permitted to make when was permitted to make a call to his wife and both officers stated they remained in room because they were following orders not because there was any legal or physical force. Here on earth, the seizure that we're talking about you're saying they were paid overtime. That was a factual dispute as the way they were paid. There was no dispute that the D.A.R. was created. Where were they paid for the additional for the additional time? The two point on the shift. The two hours. Yes sir. They contended no. We asked for the checks to show that they were all that was produced during discovery was the D.A.R. Daily attendance records. What do we know now? We don't. Were they paid? They don't know. The city says that they have proof that they actually paid them. Well, they haven't shown that they were paid. The D
. Here on earth, the seizure that we're talking about you're saying they were paid overtime. That was a factual dispute as the way they were paid. There was no dispute that the D.A.R. was created. Where were they paid for the additional for the additional time? The two point on the shift. The two hours. Yes sir. They contended no. We asked for the checks to show that they were all that was produced during discovery was the D.A.R. Daily attendance records. What do we know now? We don't. Were they paid? They don't know. The city says that they have proof that they actually paid them. Well, they haven't shown that they were paid. The D.A.A. only shows they were put in for the time. Having doing this work, no. Were they, they're your clients? Were they paid or not? They, they say no. They say no. And that's why it's simply, you're telling us your clients were not paid for this? That's what they're saying. No, what are you saying? Were they just, were they, were they paid or were they not? This is a, this is not subject to confusion or debate. Were they paid or not for the overtime? I can't say they were or weren't because only asked for was objective evidence was the finance department. So you're angry? You don't know what it was? I don't know. I only know that I got a D.A.R., a daily attendance record. I only know that my opponent says he had evidence and sent it to me. And I told him I have no pay check. Well, you got to show me it's from the finance department that he got paid. And that issue is resolved. That has never showed up
.A.A. only shows they were put in for the time. Having doing this work, no. Were they, they're your clients? Were they paid or not? They, they say no. They say no. And that's why it's simply, you're telling us your clients were not paid for this? That's what they're saying. No, what are you saying? Were they just, were they, were they paid or were they not? This is a, this is not subject to confusion or debate. Were they paid or not for the overtime? I can't say they were or weren't because only asked for was objective evidence was the finance department. So you're angry? You don't know what it was? I don't know. I only know that I got a D.A.R., a daily attendance record. I only know that my opponent says he had evidence and sent it to me. And I told him I have no pay check. Well, you got to show me it's from the finance department that he got paid. And that issue is resolved. That has never showed up. Well, maybe we could ask for 28 J letters from the council on that because that does not seem to be a complicated analysis. Either the checks were cut, never paid or they were. Right. And that's all I've aroused for that evidence. Now, can you cite any cases from any jurisdiction, state or federal where officers were brought back to the station under similar circumstances where the court held there was a seizure for purposes of the fourth amendment? No, because these special needs cases hasn't really fit into this area. That what what they've done is they broadly stroke the area and said we're going to allow special needs area, the Supreme Court. And they said, but to get to that special needs area, you're going to have to show it's a standard. And if you don't go out inside the standard, meaning in this case, we have a standard. We have a director seven director seven is clear in this area applies citizens and police. It says if you do not have probable cause, which is what the police department decided is as the standard. They're the law enforcement people here. You need consent. My client said they didn't gave it to defend and say that that was a financial dispute. If I apply just the law that the Supreme Court has decided for special needs situations. I have here a situation where the standard adopted by the public employer is either consent or probable cause. True, case law may have said they could have gone lower, but they want to see the standard. And it's clear even the aqua gave us all of those factors to look at. And the defendants in this case rely heavily on aqua and it says if you have intimidation. If you have what they were trouble about not going through the bathroom, we don't have that here
. Well, maybe we could ask for 28 J letters from the council on that because that does not seem to be a complicated analysis. Either the checks were cut, never paid or they were. Right. And that's all I've aroused for that evidence. Now, can you cite any cases from any jurisdiction, state or federal where officers were brought back to the station under similar circumstances where the court held there was a seizure for purposes of the fourth amendment? No, because these special needs cases hasn't really fit into this area. That what what they've done is they broadly stroke the area and said we're going to allow special needs area, the Supreme Court. And they said, but to get to that special needs area, you're going to have to show it's a standard. And if you don't go out inside the standard, meaning in this case, we have a standard. We have a director seven director seven is clear in this area applies citizens and police. It says if you do not have probable cause, which is what the police department decided is as the standard. They're the law enforcement people here. You need consent. My client said they didn't gave it to defend and say that that was a financial dispute. If I apply just the law that the Supreme Court has decided for special needs situations. I have here a situation where the standard adopted by the public employer is either consent or probable cause. True, case law may have said they could have gone lower, but they want to see the standard. And it's clear even the aqua gave us all of those factors to look at. And the defendants in this case rely heavily on aqua and it says if you have intimidation. If you have what they were trouble about not going through the bathroom, we don't have that here. What we have is a confinement. They were not free to leave. In fact, even when they were told to free, they were free to leave. At the end, after 2.5 hours beyond their shift, they were allowed to go to their locker. They were not free to move about that district. They were in fact escorted out of the building. Have you had your response of the qualified immunity argument? The qualified immunity. Oh, I got a look at the dribble case. You decided the qualified immunity case. I can 2000 and two and said no, the law was clearly established. And that type of conduct that seizure was illegal. So if we're going to rely heavily on dribble, you better rely just as heavily on the qualified immunity case. And that was years before this event. Okay. Thank you. Thank you to both council. Well presented arguments will take the matter.
We're going after this third case, which is number 12-202-8-Gwin at all, the City of Philadelphia, at all, Mr. Purcelli and Ms. Istban, after this third case, we'll take a very short recess before the low case are forth. Hang on for once, I will just skip the... Take your time. Whatever you're ready for. Thank you, Your Honours. I brought up Purcelli for the appellance. If I may, I'd like to reserve three minutes for every bottle. Granted. Thank you, Your Honours. Your Honor, I believe that the really shown, as the case really is, the special needs case, one of the fourth amendment. Although I do want to point out that raised in... I'd like to start with the Rule 36 issue, the Dean's mission. The admissions issue? Yeah, I mean, because very shortly after the other side did not file a response to your request for admissions, and my guess is they would say because there were some kind of discussions taking place at that point. When those discussions fell through very shortly after the time period elapsed, they asked a court to allow them to file a court granted it. We normally try, I mean, in this circuit especially, we try to get to the merits. And I don't see any great prejudice to your side for a few days delay. I don't think that's an argument that really flies with us. Your Honor, the reason that was raised in that particular scenario was because with the same judge in a different case, occurring at the same time as this one, where I was on the defense side, I tried to amend an answer to allow an unstoppable defense. The amendment was denied because they said that the plaintiff had relied on all the life that he's doing. So it was really more directed at if the facts for not allowing an amendment is a prejudice because you relied on something. Then it was merely presenting the judge back with in this situation, you would not allow me to amend an answer to add something that I couldn't have planted in an answer because we didn't know from discovery. So really, you know, why didn't argue it so much here about that? It was because it was more something ongoing with that particular district judge. Up here, the argument was preserved only to show the fact that the fact that the settlement with the city falls apart does not really establish a cost. And really, that's why I didn't want to focus on that because speaking with my counterpart, we kind of looked at this being a new issue, this needs issue, which this court really only looked at in the model case in 2012. And that was a drug case. That was the testing of drugs on that policy. And this does not fall in that category to special needs. Before I get to the special needs situation, which are the force of pre-import cases that we've talked about, I just do want to note that there was a qualified immunity argument made in the merit briefs. The qualified immunity defense, although played as a defense, was not argued by the appellate below, wasn't talked about by the district court. And there was no cross appeals. I don't really believe. Before you even get there, however, here, you've got a complaint to the police department about somebody in effect taking money from him on a stop on a street. And the department, when you agree to the department needs to investigate that. They do. And that's the special needs situation the Supreme Court talked about. They talked about that in Skinner, O'Connor. And the O'Connor case, we talked about that. So what should the police department have done here with respect to officers, Gwyn and Ryan? With it? With Rinn and Warren, there is a direct a seven that does establish how these warrantless searches are supposed to be done. And as we know from the ash co-off case, the Supreme Court, we know from O'Connor, the Supreme Court case, we know from Skinner, the Supreme Court case, and we know for the Ontario case, the Supreme Court case. They've talked about these warrantless searches for the special needs. Now, my question is, what should the department have done with to investigate the kind that somebody was shaking down for $400 or whatever it was? Well, they can ask the officers. They can ask the officer to come back. They can go through their investigative stop and they have to follow their procedures. Which is what the Supreme Court says. What procedures were directed seven is the only direct police department has for warrantless searches and discovery had shown that that direct the applies equally to the police as it does the civilians. And they're directive their standards. That's what the Supreme Court saying is when you look at these warrantless special needs situation, you got to look at the standards of the employer. Because if the employer doesn't have them, it's a probable call standard and not a reasonable standard, which is what the district court said below. I'm applying a reasonable standard. We're here. There was a specific. But isn't there a standard a bit different here? Why don't we just adopt what the seven circuit did in Dribble? In Dribble, Dribble looked at the qualifying meeting and Dribble turned around and said, yeah, you can you can search, but you need your probable cost. But the court said that the judiciary should defer whenever possible, consistent with the constitution to the superior expertise of law enforcement professionals in dealing with their respective personnel. All right. And in this particular case, the specific way that the police department had decided how it was going to deal with these types of allegations was to have without a warrant was to have probable cost or consent. Well, not well. Dribble does not is. Dribble does not say that that's the only way. I mean, if it's if it's consistent with the fourth amendment, it's it passes muster under Dribble and the facts of that case are almost identical to a case we have here. They are. And they also looked and adopted other matters, which we look at the seizures itself as to whether it was reasonable or not. They said we'd kind of look to see whether or not the officers were free to go in this particular case. The fact that they were they were not. They were in fact, they claimed dispute. Well, they claimed that they were afraid if they left, they would lose their job. There's also testimony from Sergeant he that they were not. What are you to go about? It's an effective test though. Is that not a subjective test? Whether a reasonable officer under those circumstances would would. Would think that he had he was staying because of his job or he was staying because he thought he was under fourth amendment compulsion. I agree you're talking the subject of the objective standard and subjective standard. We're not saying because they were intimidated. I want to focus on the objective standards that we're being used by the courts to determine whether or not the Dribble test could be met in this particular case. They said they were concerned with whether or not the officer was allowed to go to the bathroom alone or not, whether it was being washed. And in this particular case. Well, you don't want them to go to the bathroom alone because it defeats the whole purpose of having their cool having them cool their heels while you're waiting for internal affairs. But isn't it isn't it true that in this case the police were acting in their capacity as employer rather than as law enforcement officer? No, that's not correct either. That's part of my argument because they concede in depositions that it was an IAB investigation. The 10th gives was turned over them, but it was not the 10th gives that was doing all this. It was the four district commanders who should not have been doing this once became an IAB. Well, if we consider who did it was a search that occurred. Rotterdam scope then was permissible under the O'Connor case. Yes, it was. And that's correct. How was it beyond what was necessary given the facts that were presented beyond the scope? No, because the first thing you have to do is you have to look to see whether or not they actually believe they were going to find something and consistent to all of the defendant's testimony was they never believe they were going to find find any money because they didn't believe they ever took it. So the reason of this of the search is it is a fact issue if you didn't believe you find it and you didn't believe they took it. Why are you telling them to empty their pockets? That's lives their pants because you have to go through all that for their own protection. You've got it. You've got to demonstrate to the punitive plaintiff who's going to sue the police department for stealing his money that he was wrong. True. He's a false accusation. If you don't do the investigation to demonstrate that the officers didn't have the money on their person, then you've got a live case against the officer's brought by this complainant. You have to start with the scope. That's what the law says. You've got to start from the very beginning, which means either you had to read you had to have a reasonable basis or probable cause. Well, you agree they had a reasonable basis to search to look into the matter. Correct. Yes. Your brief says that they have. So the question is whether the quote search that they did was was was was reasonable concerning the complaint that they received. How was the search that they perform broader in scope that necessary to solve the answer to the complaint that they received? They didn't even know how much money was taken when they did the search. I don't know if they were looking for $10 $2 $405 $600. I know, but they knew that the complaint was that they stole money. What did they do which was broader in scope that was necessary in order to verify or to show that it's not. Fail to answer the issue. Fail to follow their directive seven. Directive seven specifically. The directive is not part of the fourth amendment. That might be good policy, but we're concerned with the fourth amendment here, not whether they followed the perhaps if they followed the directive, there would be no case here. But the fact that they didn't doesn't make it automatic or fourth amendment. So the only hang up of having with this case is I know they had to do something and you acknowledge that in your book. And they did they called IAB. Okay, and they performed the search that they performed was that broader in scope in any way or more intimidating or false of it in any way other than was needed to refute or to verify the complaint. Yes, and they first ordered them in and to remain there and didn't tell them until the search was about to start why they're even there. The testimony and following the trouble cases and the four Supreme Court case says you don't get past the warrantless search area and into the special needs unless you can fit into the standards. And the first thing you looked to the first thing you looked to before you get to the search is. Is there a standard if there's a standard we're going to look at the reason will this if there's no standard in terms of that we look a probable cause an ash cough ash cough in 2012 repeated that. But in terms of getting to that standard the issue that we have here is when a police officer when is the police officer seized by his employer during an internal investigation. And Dribbl has said that there is an added element and Dribbl has followed by pennington of the six circuit in that malaria of the ninth circuit. There's no case that I see really on your side here. It says that in that context there is you have to have deference to the internal procedures of the police. And we don't have any problems with the eternal procedures because the case law all the cases say that if you have a procedure and you follow it we're going to look at the reasonable standard and we had a procedure and they admit they didn't follow it. And the Supreme Court, the Supreme Court ash cough case in 2012 said if you don't follow your own standards essentially you're back to the probable cause standard. Well, no, no, look we can't conclude that we agree with you if they were to follow the standard that would have been hunky door. But you can't from that reasoning conclude that if they don't follow the story their procedure it's automatically a fourth of them in violation. I can conclude that based on the Supreme Court's artiga and ash cough 2010 and 2012. Well, they don't I don't think that's the whole thing of those cases. If they don't follow the standard then we're into the open question as to what they what they did and whether it was beyond what was necessary for what was something was necessary. And if they did something that was beyond what was necessary to to refute or to verify the complaint then you're in fourth amendment territory. So the question here is what did they do to these gentlemen beyond detaining them telling them to either pockets of the socks and so forth. What did they do which was beyond the scope of trying to verify or refute what what occurred. They held them in a room would not give them the free liberty to go to use their phone. They would even let them go get a drink in fact when Ryan tried to get a drink they would not let them leave in fact feed a sergeant feed a testify that has noted in record that he would have accompanied them everywhere would not have let them go alone. They weren't allowed to even go to their laws after they were released. I mean he had a company I'm to make sure that if they did have money on them that they didn't get rid of or they they testify they never believed they had the money. You can't get past their testimony which is one of the reasons that there were so many facts in dispute here that are that are genuine the things that we're talking about that some regegment really shouldn't have been entered because we should have established those facts. Whether they believe that it was the complaint was sure not did they have to go through the the motions in order to verify whether it wasn't it wasn't because the courts said that you have a standard you got to follow if you don't it's a higher standard on the fourth amendment they have a standard they didn't do it so went for the higher standard I agree there is a special needs it falls into the special needs but if it's going to fall into the special needs of the fourth amendment you have to follow the tests otherwise you have to go back to the fourth amendment and any of you have to go back to the fourth amendment. Even in Ashcroft in 2012 a public employee case they said public employees by the very virtual being government employees do not give up their fourth amendment protections the special needs situations falls into two categories safety which is the skinner case which is similar to the model case this court dealt with which is drug testing for safety and then we get into that other area. Let's hear from Mrs. Vaughan and then we'll get you back on the bottle. May I please the court I'm Janice Tan and I represent the city and I represent the supervisory defendant police officers in the case. I could start with the number of things but I'll pick up where. Let me start with the fact. What could the supervising officers know about the complaint that had been made at the time they conducted the search or asked them to turn their pockets inside out the center and that. There was a call to the station I believe that Mr. Artis had accused officer Gwyn of stealing $500 stealing $600. $600. When he had risked him and I believe that was it. That was all they knew. Yes. So would any complaint be sufficient to justify a search or what is needed internally for them to have a search done of these two officers. With respect to this particular search study. You got the mean for example you could have called Mr. Artis and come on in give us some more facts and developed it further. Well I guess you had Mr. Artis and his brother. His brother also call in or did they speak with his brother at some point. I know that I believe that they that they call the FBI and I believe that the mother at some point or the aunt had also called and someone had called the FBI as well. Someone had called IV and someone had called the FBI. But the basic report was all the same Mr. Artis had accused officer Gwyn and Mr. Artis had also accused officer Gwyn on the scene right away of having taken the money. But regardless the accusation was all the same you took $500 from me $600 to me whatever the amount was. Is there a disputed question of fact here as to whether the two officers felt as though they were not free to leave. Fearing a adverse employment action or that they felt they were not free to leave you say were under arrest. Is there I mean that's their position they thought he thinks that they were under compulsion to stay by reason of the so isn't that a question of fact that has to be resolved by a jury if that's their position. There's no material there's no material dispute with respect or whether there's a seizure though judge can and that's the issue here because Dreeble and Aguilera and Penny Tentipel that it's not material whether you fear job loss. Relying upon Mendenhall and how Mendenhall defines a show of authority and relying upon the custodial interrogation cases and relying upon Delgado they've held that fear of job loss is not sufficient to constitute a show of authority with respect to a seizure because the question is not whether you fear the job loss and you didn't leave because you feared the job loss arising out of your voluntary relationship with your employer. Rather the question is whether you were you somehow feared that you were you thought that you would be physically prevented from leaving the room whether there was a show of authority that caused you to reasonably believe that you would be physically prevented from leaving the room. All right well is it a question of fact that a jury should resolve they claim they were not allowed to leave you say were under arrest you say that they were being detained for employer position that there had been a complaint that they were trying to check out isn't it a question of fact as to whether objectively they had the reason to believe that they were under arrest or as you claim that they were really being detained from a proper employment check. I have two answers on that point Judge Canolan. I don't believe there's there's subjective testimony on that point and I don't believe there's objective testimony on that point and you need objective testimony on that point. Okay. Well they said they thought they were under arrest. I don't believe there's testimony on that point. They're subject. from their superior officers. And so it all relates to the employment relationship. I don't believe there's any testimony that they thought they were under arrest or that they would be physically prevented from leaving. They believe that they had orders. And if there is testimony in the record somewhere that they thought that they would be physically prevented from leaving, I'm not aware of that testimony. And even if there is such testimony, that belief wasn't reasonable under Dreeble and under Aguilera. You can see, though, that there's a dispute of material fact as to whether they consent into the search. Yes, I do. You can see that much that there's a dispute of fact. But that it's not material because the search was reasonable under the circumstances. Well, how the appellance position is the search was not reasonable. Once you fail to follow the directive that was set up for this type of thing, then you're no longer... Then you've abandoned reason for this and you've gone into a fourth amendment search when you fail to use the directive that you set up to do this very thing. I don't agree with his position at all Judge Kahn. And I agree with you. There's a ton of law that states that our failure to follow our internal directives doesn't constitute a constitutional violation. I'm not aware that that's the holding of O'Connor. In fact, there's oppositional holdings to that effect in a lot of cases that our failure to follow our internal directives doesn't establish that. And this court cited a lot of cases that the special needs doctrine applies in these cases because we should have deference of clause tenfold. In a police case, I believe, we're trying to balance a right to investigate police misconduct. And I would invite the court's attention to the B&A case that specifically says there's a right for the police to investigate accusations of citizen misconduct. And we're balancing that against police rights and where there's an internal police investigation of police misconduct or an internal investigation of workplace misconduct, as O'Connor would say. As opposed to a criminal investigation, we get some leeway. And while police don't have watered down constitutional rights, we get a little bit of leeway when we're doing an internal investigation. We send police out there with guns and badges and we ask citizens to submit to their authority as Mr. Artist did. And therefore, they have to give a little bit of leeway and the B&A case is all about that. And that's why I'm being at the police department got a little bit of leeway when they had a police line up with 62 officers. Some of whom were suspected of misconduct and some of whom weren't. And that's why we get a little bit of leeway here. On the seizure issue, there's some evidence that could allow someone to infer here that there was a seizure. Superbising officers remained with officers when and Ryan during the entire time they were at the station. They waited. When and Ryan were instructed to turn off their cell phones, the superbising officers spoke to them in a stern manner. They were in charge. And that ultimately, when and Ryan were searched. Judge Amarrow, I believe under the totality of the circumstances test, which is what Dreeble tights applies here. And again, it's an objective test. Judge Hardham, in respect to this, that the reason that you do things like accompany people to the bathroom and ask people to turn off their cell phones is not to convey to them that they're detainees, but it's for security purposes. You don't want them getting their stories straight. You don't want them hiding the evidence, things like that. It's not to convey to them that they're detainees. And if you look at the totality of the circumstances, in this case, you simply couldn't infer from the circumstances that we were conveying the message that they were going to be physically prevent them from leaving. No one should their weapons here. They were sitting in an office. They weren't in an interrogation room. They weren't threatened with arrest. The doors weren't, the office weren't locked. They kept their guns in their badges. They weren't invited to watch television. They were offered drinks. Most important, they went home in the evening. They were again, they were never actually. How long was the detention here at the station? The detention with respect to my clients was only an hour. I went about an hour, I believe. I even showed up and took over the scene. And it was I.E.B. who controlled the scene then and went and said we're leaving and we're going to interrogate. For the entire time that they were at the station, it was four hours because I.E.B. came back and then said you can leave. I did want to address also Judge Kaelin's question as to the breadth of the search because I don't think there's any question that the breadth of the search was reasonable given. I suppose they want to script search the officers without a bit reasonable. I believe that the school cases would probably say no. And I would. I would. I thought you were of course, but. Right. And I think that's that's the issue is that we limited the search to outer clothing. We didn't touch the officers. We asked them to show the outer parts of their clothing. Should show their pockets themselves. The search was very limited. The search was very respectful. And it and again, it was it was justified in its inception, which is the first part of the special means doctrine because it was it was the two it was only the two officers who were suspected and I cited the cases where. Personal effects were searched and there wasn't even individual suspicion and in those cases, which are circuit cases. And in fact, suffer versus writing, which is a Supreme Court case, the court in passing implicitly suggested that that would be acceptable in a school case. And therefore, I would suggest that in this case that that we certainly didn't go beyond the breadth of what's acceptable in a reasonable list and I. But when they when they ultimately did the search that they suspect misconduct at that time or what or what was the reasoning as to why they did the search. I believe it's undisputed that they told the officers if you show me now that you don't have the money before you leave the scene, it will go well for you. And in fact, that's what happened. They showed them that they didn't that they only had 20 and $30. I believe each of them respectively on their persons. And the captain documented that and all this. Because there's a bit of tension in terms of the briefing and what you said to the district court. I thought you said to the district court, they did this search because they thought it would demonstrate in fact they didn't have anything on them and they would be exonerated. Whereas be saying before us that you did the search because you suspected that there might be misconduct. And that seems to be intention with the statement that you made to the district court. In other words, I think you guys are okay. Just show us and like, let's go easy and you can get out of here. That's one thing. Or hey, we're going to search you because we have reasonable basis to suspect that we'll find evidence of misconduct. What my client said is I want to search you because I think I think it will go well for you, Judge Amar. I believe what you might be referring to is there was the IAB officer when he came back from interviewing Mr. Artis said that he believes that Mr. Artis might be telling the truth. But my clients, the IAB officers weren't sued. My client stated I don't think that you took the money and I want to demonstrate. And I think if you, if I search you things will go well for you. And I think that's been consistent and when I try to cite we're only the plaintiff's depositions and the plaintiff's affidavits since we are on summary judgment so that we wouldn't have an issue as to what's distributed. Any further questions? If I may, I'd also like to just get to the qualified immunity point real quick because we did we did raise call for the meeting in our answer. I believe the case law would say that qualified immunity is not waved. And this is a very strong case for qualified immunity because there is circuit law out there that would say that that that that that that that there in fact it's clearly established that there wasn't a seizure here. And it's clearly established that especially these document applies in these cases and that the search was reasonable. And so it's not clearly established and are sufficiently similar factual circumstances that what my clients did here was a constitutional violation and therefore if the court disagrees with me that there was no constitutional violation at the very least my clients would be established qualified immunity. Be entitled to call that a meeting. Thank you very much. Thank you. Mr. Terschelli. I it's noted to your to Ms. Ispan that this band that there was some evidence that there was a seizure but it seems that there was a whole lot of evidence that really wasn't a seizure. That this was an internal disciplinary investigation. They were not subjected to the usual formalities that would accompany legal search. I mean, you know, nobody would say you might help you if you turn out your pockets might show you your good shape. They were not in the whole of itself. They were just merely in the supervisor's office. They were paid overtime for this. They were permitted to make when was permitted to make a call to his wife and both officers stated they remained in room because they were following orders not because there was any legal or physical force. Here on earth, the seizure that we're talking about you're saying they were paid overtime. That was a factual dispute as the way they were paid. There was no dispute that the D.A.R. was created. Where were they paid for the additional for the additional time? The two point on the shift. The two hours. Yes sir. They contended no. We asked for the checks to show that they were all that was produced during discovery was the D.A.R. Daily attendance records. What do we know now? We don't. Were they paid? They don't know. The city says that they have proof that they actually paid them. Well, they haven't shown that they were paid. The D.A.A. only shows they were put in for the time. Having doing this work, no. Were they, they're your clients? Were they paid or not? They, they say no. They say no. And that's why it's simply, you're telling us your clients were not paid for this? That's what they're saying. No, what are you saying? Were they just, were they, were they paid or were they not? This is a, this is not subject to confusion or debate. Were they paid or not for the overtime? I can't say they were or weren't because only asked for was objective evidence was the finance department. So you're angry? You don't know what it was? I don't know. I only know that I got a D.A.R., a daily attendance record. I only know that my opponent says he had evidence and sent it to me. And I told him I have no pay check. Well, you got to show me it's from the finance department that he got paid. And that issue is resolved. That has never showed up. Well, maybe we could ask for 28 J letters from the council on that because that does not seem to be a complicated analysis. Either the checks were cut, never paid or they were. Right. And that's all I've aroused for that evidence. Now, can you cite any cases from any jurisdiction, state or federal where officers were brought back to the station under similar circumstances where the court held there was a seizure for purposes of the fourth amendment? No, because these special needs cases hasn't really fit into this area. That what what they've done is they broadly stroke the area and said we're going to allow special needs area, the Supreme Court. And they said, but to get to that special needs area, you're going to have to show it's a standard. And if you don't go out inside the standard, meaning in this case, we have a standard. We have a director seven director seven is clear in this area applies citizens and police. It says if you do not have probable cause, which is what the police department decided is as the standard. They're the law enforcement people here. You need consent. My client said they didn't gave it to defend and say that that was a financial dispute. If I apply just the law that the Supreme Court has decided for special needs situations. I have here a situation where the standard adopted by the public employer is either consent or probable cause. True, case law may have said they could have gone lower, but they want to see the standard. And it's clear even the aqua gave us all of those factors to look at. And the defendants in this case rely heavily on aqua and it says if you have intimidation. If you have what they were trouble about not going through the bathroom, we don't have that here. What we have is a confinement. They were not free to leave. In fact, even when they were told to free, they were free to leave. At the end, after 2.5 hours beyond their shift, they were allowed to go to their locker. They were not free to move about that district. They were in fact escorted out of the building. Have you had your response of the qualified immunity argument? The qualified immunity. Oh, I got a look at the dribble case. You decided the qualified immunity case. I can 2000 and two and said no, the law was clearly established. And that type of conduct that seizure was illegal. So if we're going to rely heavily on dribble, you better rely just as heavily on the qualified immunity case. And that was years before this event. Okay. Thank you. Thank you to both council. Well presented arguments will take the matter