Legal Case Summary

Sitting our first case this morning is James versus the city of Wilkesbury Mr. Morgan-Sturr May I please the court my name is John Morgan-Sturner. I represent the appellance defendant in this case officer Michael Marshall and the right township police department I would like to reserve reserve five minutes rebuttal. Let me just interrupt you for one second. Eric at my clock is not Okay, yeah, yeah, the granny Your honor the question of this case is whether on September 28th 2009 There was a clearly established constitutional right to be free from a police officers' insistence that at least one parent a company their suicidal teenage daughter in an ambulance to the hospital Now the Supreme Court has Rule that it is paramount that a district court Define the clearly established constitutional right in fact in a recent case out of the sixth circuit The court held that in deciding a right has been clearly established the Supreme Court has repeatedly warned lower courts Not to define the right at a high level of generality now in this case we have the police officers being called to the James's residence September 28th 2009 in response to a 911 call that their daughter had texted one of her friends that she was going to attempt Suicide the police showed up and then ultimately Convinced the parents to allow the paramedics to take the Child to the hospital and then the police officer allegedly insisted that at least one of the parents accompany the child What was the level at some place in one of the briefs? there two references to the blood alcohol level of the mother Yes, one one of you say it was 0

.23 or 0.22 or something like that of a 0.223 approximately five hours after the call and there was another reference to a point 007 or yes, or that was about 12 hours Question in this respect and point 223 that's that's a very high level of intoxication. How are you? Interacting with a parent at that stage telling the parent to go somewhere if they're that drunk? Well, you're on or this could be a functioning alcoholic

. We don't know Office from Marshall as he walked in the door of the residence that night had no way of knowing what her blood alcohol content would be had no Baseline to know how she acted normally what he knew is that he needed to save her daughter She had texted that she was attempting to kill herself, but they had to consent though They had the consent of the parents to have the daughter taken to the emergency room Ultimately following some resistance ultimately they had to consent right and then the next issue is whether or not the mother was compelled By the police officer to leave with the daughter. That's correct your honor. So the question that I have is isn't it Conjunctive between the constitutional violation and the state right the law makes them conjuncted right I'm not sure I understand what you mean well, here's what I mean it Following up on judge nansky's question if We determined that there was no arrest It's irrelevant whether there's a clearly established right Right no your honor the the Supreme Court has ruled you don't have to take the two Questions in that order you can consider consider the Establishment of the clearly established constitutional right first And therefore that right has to be You don't If we found there was no arrest would that be the end of the inquiry? If there was no arrest for Forth amendment purposes that would be the end of the inquiry, but did you preserve that argument? Yes, or honor we argued that there has been no arrest that the That the plaintiff Cheryl James voluntary Went to the hospital any ambulance If there was no arrest And you're you're making two alternative arguments. You're saying there's no arrest you win Even if there wasn't a rest on these facts It wasn't the violation of clearly established law That's correct your honor

. We are looking at this case from a the perspective of the reasonable police officer and Whether or not he knew whether in fact it's whether every Police officer in his situation would have reason to know that There was a clearly established right which he was violating all right That's prong to but the initial prong of whether there's a constitutional violation Is it an object of a subjective test as to whether or not the mother would have felt? compelled to go to the hospital It's going to be an objective test when we're examining it at the 12b6 stage for purposes of Qualified immunity What wouldn't this be a good case for targeted discovery and Just to determine what exactly happened at that house and what the condition of the mother was you know 0.223 A couple of hours after the encounter with police officers. I recollect two Respectfully or under this This is some discovery move for summary judgment. That's what individual case management is for well qualified immunity is immunity not just from liability It's immunity from having to defend the lawsuit in this case

. We have a 283 paragraph Complaint 43 pages. There's no need for discovery in this case to develop a record further It could not be more particular than a plaintiff has already pled and what the plaintiff has pled is that The officer showed up at her house in response to an 911 call and insisted that she accompany her suicidal daughter in the ambulance to the hospital now in in this case the District court when the matter was sent back to the district court to articulate the clearly established constitutional rate Wrote here a reason of a police officer would have known that it violates the Constitution to use his authority as a police officer to force Someone to go where they do not wish to go when that person has no legal obligation to do so This statement is insufficient. This is exactly the generalized Statement of the law that the Supreme Court and the third circuit has held is unacceptable in these cases It's overly broad and it fails for that reason in fact It's not even a true or accurate statement of the law It is so overly broad that it's not true in fact if that statement were true Every traffic cop directing traffic at a detour Every officer working crowd control at a sporting event would be subject to Civil lawsuits for constitutional violations. What would have happened here if mother told the officer Take her away

. I'm staying here. I'm going back. I'm going inside or I'm going to bed What would have happened? It's not for us to speculate because the never the matter never got there was there anything in the record to indicate that that mother was Threatened with arrest If she did not accompany daughter to the hospital there is not There is some we're looking specifically at paragraphs roughly 50 to 55 of the complaint and you'll notice that What the plaintiff has pled is that they insisted that the daughter be taken to the hospital She admitted that she had taken pills she had admitted that she had intended that evening to kill herself So daughter was arrested then no the daughter was sent in the ambulance to the hospital Well here was she was compelled to go to the hospital was she not if daughter was not Compliant in getting into the ambulance then she was going to be placed under arrest. Well, I think it's Clearly beyond the Fourth Amendment in that case we're we're really talking about a community caretaking exception to the Fourth Amendment in that situation Which is something that I do want to ask the court to adopt today in the third circuit is And a third circuit has recognized the community caretaking exception, but don't you knock that there because There's no issue of consent with regard to the daughter The issue is compulsion with regard to the mother that as pled yesterday Yeah, right the daughter doesn't have a constant of course

. That's really not that's really a side. Yes, sir So here we're we're talking about Defining the clearly established constitutional right on September 28th 2009 and No reasonable police officer would think and in fact clearly not every police officer in this position Would have thought that there that what he was doing and insisting that one of the parents accompany the child to the hospital would have violated constitutional rights Now the plan is also attempted to Define the clearly established right at issue in this case and the the plaintive rights at their brief page 1920 Whether or not a police officer would have reason to know that it would be unlawful to order an intoxicated and medicated person to leave that person to him in the middle of the night without any indication that person had committed an offense And again that ignores why they were there in the first place that simply said it's simply stating that police officers Do not have a right To remove someone from their home and they're intoxicated Without any indication they've committed an offense and this statement also Fails because it's too overly broad. This would indicate that Any officer called to the scene of a drug overdose or any call involving drug or alcohol use would be Potentially in violation of the fourth amendment for sending a person in an ambulance or taking them ourselves We'll hear you on your bottle, Mr. Morgan sir

. Thank you Mr. Brando Good morning to this honorable court May I please the court my name is James Brando. I represent the Appalee plaintiff Cheryl James Warren James and the coal James We're before this honorable court this morning as mr. Morgan store stern represented to discuss the the Nile of the appellant defendants Motion to dismiss claim for qualified immunity on the grounds that the law was clearly established at the time of the incident rise the complaint That a police officer could not by show of authority compel a person To terminate their freedom of movement Against the will and there was no clear and unquestionable authority of law Allowing the officer to do so now

. I'd like to address a few of the points mr. Morgan stern made briefly At the beginning here. He stated that there was no way That officer Marshall could have known that Cheryl James had a high blood alcohol content level and that is not correct The complaint itself states that Cheryl James and Warren James informed officer Marshall of their concerns And why it is that they did not wish to leave but what they what you what you know legend your complaint is not that There was a that the officer knew that there was a high Drug alcohol level what you alleged is he was informed that she had had I don't I don't remember whether it was drink or drinks he knew she had had alcohol but There's nothing in there that I recall that with any specificity lets the officer know I'm drunk There was The officer was informed of the fact that she had been drinking and that she was on Anti-depression medication and then that state left her unable to travel safely I think that was indicated in the complaint at this stage. I understand that there are some facts that could be developed Better at this stage and we certainly wanted to conduct discovery to get to that point But this stage on motion to dismissal the question is whether or not looking at the facts and light most favorable to the non-moving party There'd be a statement for a claim and our position at this point is that officer Marshall wasn't formed of James and Cheryl James's Convition at the time that he ordered one of the two parents to leave and this is We don't say where do you say I'm sorry

. I'm sorry You don't let you don't let in the complaint that they informed the officer that they were drunk Warren James was not drunk Warren James was on heart medication I know it's been brought up several times that he was intoxicated That phrase has been used rather loosely during the course of Disappeal Mr. James was on heart medication. He has a heart condition That is what he informed the officer of Cheryl James on the other hand has anti-depression medication and Was under the influence of alcohol and formed officer Marshall of both of those conditions. How about my question? Certainly you're on the complaint doesn't say that they were drunk It doesn't alleged that they informed the officer that they were drunk They did not inform the officer that they were drunk As your honor states

. Yes, so there's no way to know the answer to Judge van Eskie's question with regard to the Point to to eight I think that's what it was whether or not he would have been aware of the exact but alcohol contact I agree with that. There's no specific amount certainly Okay And there's nowhere in the complaint where you've alleged that the officer Marshall ordered One of the parents to accompany the daughter There's nowhere in the complaint your honor though argued at the motion to dismiss stage that the insistence of our of officer Marshall above the James's objections Constituent in order but an argument doesn't help you It needs to be in the complaint it needs to be pleaded Well, once again your honor. This is looking at the facts in the light most favorable to the non-moving party and the facts has pleaded Not the facts has argued by counsel that is true your honor But all that need be provided the federal level is a plain statement entitling the plaintiff to relief and while I understand that There are specificities we could get into well, let's let's do that. Let's get into specifics certainly As I recall the avertment in the complaint Your client was faced with an officer who insisted That she or her husband accompany the daughter to the hospital. Is that correct? That's correct your honor initially He insisted that both parents go with Nicole Jay right and then he insisted that one go yes after they had objective all right Is there any allegation in the complaint Stronger than the officer's insistence that one parent accompany the daughter Other than him telling them that they need to go now. There's no stronger then We've scoured the case laws best weekend and I don't recall your brief citing any case Which indicates from any federal court not just a pellet courts, but a district court somewhere that an officer insisting That a person who's in her own home accompany her minor daughter to a hospital Rises to the level of a seizure under the fourth amendment. Am I mistaken about that? You're not mistaken about that your honor. I'm glad you raised that point because that has certainly been a a matter of contention between the parties on appeal The appellant has been arguing that the right at issue that is say the right that must have been clearly established at the time of the conduct Giving rise to the complaint

. Is that correct? That's correct your honor initially He insisted that both parents go with Nicole Jay right and then he insisted that one go yes after they had objective all right Is there any allegation in the complaint Stronger than the officer's insistence that one parent accompany the daughter Other than him telling them that they need to go now. There's no stronger then We've scoured the case laws best weekend and I don't recall your brief citing any case Which indicates from any federal court not just a pellet courts, but a district court somewhere that an officer insisting That a person who's in her own home accompany her minor daughter to a hospital Rises to the level of a seizure under the fourth amendment. Am I mistaken about that? You're not mistaken about that your honor. I'm glad you raised that point because that has certainly been a a matter of contention between the parties on appeal The appellant has been arguing that the right at issue that is say the right that must have been clearly established at the time of the conduct Giving rise to the complaint. We need to be awareness of a right not to compel a mother to go with and take care for minor minor child or something to that fact I may be paraphrasing but The fact of the matter is that the right is not a fact-bound right is a right That applies within the totality of the circumstances and considering All of the legal precedent available and all of the legal rules applicable to that conduct at the time But we don't need a case directly on point in order to overcome qualified immunity But we need to show that there was a clearly established right at the time that an objectively reasonable police officer Would have recognized when he was ordering Cheryl James to leave her home You've jumped ahead of you've jumped it you've jumped ahead to clearly established I'm focused on whether there was a constitutional violation at all. Probably one under sauce here certainly If there's no case look anywhere persuasive or controlling That would persuade us to hold that an officer insisting that a parent accompany a minor child to the hospital It seems we don't have a violation of the fourth amendment I don't want to rehash the brief but I wouldn't know that there's a lot of precedent that's been established in the course of the appeal that shows that Where an officer uses force of authority which can include tone of voice or language used Then that force of authority When used to terminate a person's freedom of movement Constituces seizure and a seizure force of authority on with you if he handcuffs her if he draws his his revolver and says you're coming with me If he handcuffs her if he restricts her movement if he forcibly grabs her and places her in the ambulance You're clear you've got a seizure Certainly, but I'm trying to parse the complaint because we need to do that I think because as you indicated it's a rule 12 you got thrown out before you got your chance to take discovery What do you have besides the allegation that an officer verbally insisted that mother accompany daughter you talk about show of force Generically What fact do you plead besides the verbal insistence? Besides the verbal insistence over the complaint of the parents There is no other fact in the case that applies that question or I would like to Deal with the issue you raised which is that's a high level of generality when you're dealing with a force The the the show of authority acting as force and I would Note that you do not need to have a formal arrest in order for there to be a rest You don't have to have an officer use the word arrest or place his hands upon the plaintiff or act in the manner that would be Standard with a formal arrest you just need the officer to act In a manner and this has been clearly established by president acting in a manner that would convince a reasonable person To believe that they were not free to not comply with the officer's order Now in mending hall I think it was just a steward Said that didn't amount that situation Remember the woman that they the the tame and the script search right yes, you're right So so just the steward says that didn't amount to a seizure so help us now And I think this is the point that my colleagues are making if that's not a seizure. How can this be of course? I'd be happy to distinguish mending hall your order in mending hall the officers who ended up strip searching the plaintiff Or I'm sorry actually in this case was the defendant because it was a criminal charge. They were trying to choose trying to overcome told the detainee that You Can leave Okay, this is voluntary you can go at any time that was in the facts of that case that they informed her that this Was not something she had to do that she could walk away at any time that she did not have to consent to the strip search They ultimately performed and she consented that is a far cry from this case where the officer told the individuals He was trying to compel to leave their home You have to go they objected to it and said they wouldn't go because of their medical conditions or because in the case of child James of her Nebriation and then insisted over there So you're suggesting that that from now on let's say we agree with you from now on Here's what the lawyers Whenever a police officer finds him or herself in a situation with a minor child Uh with a parent present And there's an injury involved or some sort of Situation that requires parental involvement That they can do no more than say Your daughter has to go to the hospital to jail whatever Uh, and what can they even under your scenario make a suggestion that it would be nice You know to accompany your child and that's it of course they can make a suggestion that it would be nice if you'd send your daughter to the hospital

. We need to be awareness of a right not to compel a mother to go with and take care for minor minor child or something to that fact I may be paraphrasing but The fact of the matter is that the right is not a fact-bound right is a right That applies within the totality of the circumstances and considering All of the legal precedent available and all of the legal rules applicable to that conduct at the time But we don't need a case directly on point in order to overcome qualified immunity But we need to show that there was a clearly established right at the time that an objectively reasonable police officer Would have recognized when he was ordering Cheryl James to leave her home You've jumped ahead of you've jumped it you've jumped ahead to clearly established I'm focused on whether there was a constitutional violation at all. Probably one under sauce here certainly If there's no case look anywhere persuasive or controlling That would persuade us to hold that an officer insisting that a parent accompany a minor child to the hospital It seems we don't have a violation of the fourth amendment I don't want to rehash the brief but I wouldn't know that there's a lot of precedent that's been established in the course of the appeal that shows that Where an officer uses force of authority which can include tone of voice or language used Then that force of authority When used to terminate a person's freedom of movement Constituces seizure and a seizure force of authority on with you if he handcuffs her if he draws his his revolver and says you're coming with me If he handcuffs her if he restricts her movement if he forcibly grabs her and places her in the ambulance You're clear you've got a seizure Certainly, but I'm trying to parse the complaint because we need to do that I think because as you indicated it's a rule 12 you got thrown out before you got your chance to take discovery What do you have besides the allegation that an officer verbally insisted that mother accompany daughter you talk about show of force Generically What fact do you plead besides the verbal insistence? Besides the verbal insistence over the complaint of the parents There is no other fact in the case that applies that question or I would like to Deal with the issue you raised which is that's a high level of generality when you're dealing with a force The the the show of authority acting as force and I would Note that you do not need to have a formal arrest in order for there to be a rest You don't have to have an officer use the word arrest or place his hands upon the plaintiff or act in the manner that would be Standard with a formal arrest you just need the officer to act In a manner and this has been clearly established by president acting in a manner that would convince a reasonable person To believe that they were not free to not comply with the officer's order Now in mending hall I think it was just a steward Said that didn't amount that situation Remember the woman that they the the tame and the script search right yes, you're right So so just the steward says that didn't amount to a seizure so help us now And I think this is the point that my colleagues are making if that's not a seizure. How can this be of course? I'd be happy to distinguish mending hall your order in mending hall the officers who ended up strip searching the plaintiff Or I'm sorry actually in this case was the defendant because it was a criminal charge. They were trying to choose trying to overcome told the detainee that You Can leave Okay, this is voluntary you can go at any time that was in the facts of that case that they informed her that this Was not something she had to do that she could walk away at any time that she did not have to consent to the strip search They ultimately performed and she consented that is a far cry from this case where the officer told the individuals He was trying to compel to leave their home You have to go they objected to it and said they wouldn't go because of their medical conditions or because in the case of child James of her Nebriation and then insisted over there So you're suggesting that that from now on let's say we agree with you from now on Here's what the lawyers Whenever a police officer finds him or herself in a situation with a minor child Uh with a parent present And there's an injury involved or some sort of Situation that requires parental involvement That they can do no more than say Your daughter has to go to the hospital to jail whatever Uh, and what can they even under your scenario make a suggestion that it would be nice You know to accompany your child and that's it of course they can make a suggestion that it would be nice if you'd send your daughter to the hospital. I wish that happened the case And there you are and that's it when and when you have evidence of a suicidal teenager Yes, you're out of that's what if they follow what up what if the suggestion is not Taken then what if the officer says and I want to let you know if you don't come They may involuntarily commit your daughter into a mental institution That that would be fine or honor that would be informing the parent Of what might happen to her daughter in the event that they don't provide permission which is just how Things would naturally evolve, but this really isn't that case. This is a case where a couple of times you've used a word Or ordering you said you ordered the parents But what was the actual language? The actual language was your honor if I recall my plaintiffs or my clients correctly and Obviously we haven't done enough discovery yet to know what officer Marshall's side is their claim is that he said First you need to go with her and then After they had objected one of you needs to go One of you needs to go one of you needs to go Okay, are there any further questions or do you like me to continue there a few brief Arguments I wanted to make if I have the time you you have time. Okay briefly your honor I want to know that there's a bit of an argument between the appellant and the appellees Namely regarding the degree to which we should be analyzing Whether or not there's a constitutional claim state or whether or not there's a cause of action for false arrest and I'm going to be sort of Siting to the standard that was raised in Cohen versus beneficial industrial loan corporation it's been referenced in Mitchell v4 site which is the precedent the appellant defendant has used to raise this appeal It's also been mentioned by the honorable judge monthly in his opinion as to why qualified immunity would be denied what essentially states is that where a claim is Where where a right such as qualified immunity is collateral to an independent from the right that forms the cause of action Then an appeal can be taken from that But where it isn't independent of that cause of action such as where we're talking about analysis of whether or not a false arrest claim has been properly made That isn't Something that can be appealed under Mitchell v4 site or Forbes versus the township of lower marion or the the Cohen rule That is the the question on a motion to dismiss appeal of a qualified immunity right is whether or not the right was clearly established At the time of the occurrence giving rise To the cause of action alleged in the complaint and I would argue that under the facts provided this complaint The law was clearly Established as at a much higher level of specificity than suggested by the appellant Defendant and respectfully your honors. I see the remainder of my time to my opponent

. I wish that happened the case And there you are and that's it when and when you have evidence of a suicidal teenager Yes, you're out of that's what if they follow what up what if the suggestion is not Taken then what if the officer says and I want to let you know if you don't come They may involuntarily commit your daughter into a mental institution That that would be fine or honor that would be informing the parent Of what might happen to her daughter in the event that they don't provide permission which is just how Things would naturally evolve, but this really isn't that case. This is a case where a couple of times you've used a word Or ordering you said you ordered the parents But what was the actual language? The actual language was your honor if I recall my plaintiffs or my clients correctly and Obviously we haven't done enough discovery yet to know what officer Marshall's side is their claim is that he said First you need to go with her and then After they had objected one of you needs to go One of you needs to go one of you needs to go Okay, are there any further questions or do you like me to continue there a few brief Arguments I wanted to make if I have the time you you have time. Okay briefly your honor I want to know that there's a bit of an argument between the appellant and the appellees Namely regarding the degree to which we should be analyzing Whether or not there's a constitutional claim state or whether or not there's a cause of action for false arrest and I'm going to be sort of Siting to the standard that was raised in Cohen versus beneficial industrial loan corporation it's been referenced in Mitchell v4 site which is the precedent the appellant defendant has used to raise this appeal It's also been mentioned by the honorable judge monthly in his opinion as to why qualified immunity would be denied what essentially states is that where a claim is Where where a right such as qualified immunity is collateral to an independent from the right that forms the cause of action Then an appeal can be taken from that But where it isn't independent of that cause of action such as where we're talking about analysis of whether or not a false arrest claim has been properly made That isn't Something that can be appealed under Mitchell v4 site or Forbes versus the township of lower marion or the the Cohen rule That is the the question on a motion to dismiss appeal of a qualified immunity right is whether or not the right was clearly established At the time of the occurrence giving rise To the cause of action alleged in the complaint and I would argue that under the facts provided this complaint The law was clearly Established as at a much higher level of specificity than suggested by the appellant Defendant and respectfully your honors. I see the remainder of my time to my opponent. Thank you mr. Brando mr. Morgan Stern Rebottle Thank you ours First of all judge van ask its page 0199 of the record is where the Issue of the blood level blood alcohol levels resolved that is a medical record. It was actually attached to the complaint So it's properly before the court I knew there were both numbers there

. Thank you mr. Brando mr. Morgan Stern Rebottle Thank you ours First of all judge van ask its page 0199 of the record is where the Issue of the blood level blood alcohol levels resolved that is a medical record. It was actually attached to the complaint So it's properly before the court I knew there were both numbers there. I didn't know how to interpret it Because both numbers appear on that page right? Yes, they do the right near the top of the page. I was curious about that as well. Well, so the response Now in this case, I think judge pardon me that you're correct in your analysis that If I'm understanding one of your last questions correctly that there probably was no arrest in this case And so how do we get here? We are before the court today on an immediate appeal from a 12b6 order denying qualified immunity And so discovery has not begun in the case Marshall's deposition is going to be taken anywhere, right? I mean Even if even if he has qualified immunity from the city's this part of the whole Incident that occurred at the house That remains to be seen or are because the rest of this very long complaint involves the events that occurred at the Wilkesbury hospital The plaintiff has already stipulated to the dismissal of the other plaintiff right this play yes this plaintiff and Well, really the focus of the case seems to be the constitutional violations involving Cheryl James So the other two officers are to see at the house have already been voluntarily dismissed from the case Now in this case, I believe it is proper for the court to consider the issues all the issues including the first prong of the test The whether or not to tell us where you preserve that though because it seemed to me that the the focal point here was on The question of whether a right was clearly established and it's We have a lot of precedent requiring that issues be joined and argued We can affirm for any reason, but you're not seeking affirmates. You're seeking reversal

. I didn't know how to interpret it Because both numbers appear on that page right? Yes, they do the right near the top of the page. I was curious about that as well. Well, so the response Now in this case, I think judge pardon me that you're correct in your analysis that If I'm understanding one of your last questions correctly that there probably was no arrest in this case And so how do we get here? We are before the court today on an immediate appeal from a 12b6 order denying qualified immunity And so discovery has not begun in the case Marshall's deposition is going to be taken anywhere, right? I mean Even if even if he has qualified immunity from the city's this part of the whole Incident that occurred at the house That remains to be seen or are because the rest of this very long complaint involves the events that occurred at the Wilkesbury hospital The plaintiff has already stipulated to the dismissal of the other plaintiff right this play yes this plaintiff and Well, really the focus of the case seems to be the constitutional violations involving Cheryl James So the other two officers are to see at the house have already been voluntarily dismissed from the case Now in this case, I believe it is proper for the court to consider the issues all the issues including the first prong of the test The whether or not to tell us where you preserve that though because it seemed to me that the the focal point here was on The question of whether a right was clearly established and it's We have a lot of precedent requiring that issues be joined and argued We can affirm for any reason, but you're not seeking affirmates. You're seeking reversal. So tell us where you preserve the issue That there is no constitutional violation no arrest We'll or see in the context of qualified immunity Uh, and again, it was appealed directly on qualified immunity, which is the appealable issue if we are only challenging the arrest The appeal would not have been possible at this state. It can you cite where we are? We're in the brief or in the record It's been preserved on appeal Uh off the top of my head your honor. I cannot accept To say in the analysis of the first prong of the two prong tests officer Marshall did not violate The plaintiff appellese rights. He did not violate his rights because he didn't arrest her Um, I also want to point out that he didn't violate his her rights because of the community caretaking exception Uh, this again, this is a um A matter I believe ripe to be addressed by the court the assessment or the application of the community caretaker exception In an instance like this it would seem to me to be precisely not the case to do that Because as I understand the community caretaking exception what you what you want us to hold You're inviting us to hold is that even when someone's arrested If they're arrested in good faith for purposes of community caretaking it's okay So why would we even get there if there's no arrest that's why I asked you where you preserve the The argument that there was no arrest at all

. So tell us where you preserve the issue That there is no constitutional violation no arrest We'll or see in the context of qualified immunity Uh, and again, it was appealed directly on qualified immunity, which is the appealable issue if we are only challenging the arrest The appeal would not have been possible at this state. It can you cite where we are? We're in the brief or in the record It's been preserved on appeal Uh off the top of my head your honor. I cannot accept To say in the analysis of the first prong of the two prong tests officer Marshall did not violate The plaintiff appellese rights. He did not violate his rights because he didn't arrest her Um, I also want to point out that he didn't violate his her rights because of the community caretaking exception Uh, this again, this is a um A matter I believe ripe to be addressed by the court the assessment or the application of the community caretaker exception In an instance like this it would seem to me to be precisely not the case to do that Because as I understand the community caretaking exception what you what you want us to hold You're inviting us to hold is that even when someone's arrested If they're arrested in good faith for purposes of community caretaking it's okay So why would we even get there if there's no arrest that's why I asked you where you preserve the The argument that there was no arrest at all. There's no if there's no seizure We it doesn't implicate the fourth amendment You're right you're on then there can be no violation of a constitutional right because there was no arrest But if I wasn't clear in uh in my papers really that is the crux in the principal brief of the first argument made Uh, that there was no violation of a constitutional right that being because there was no arrest There was an insistence was there a restriction on movement yes as alleged in the complaint yes uh and That restriction of movement however was not sufficient to so as to constitute an arrest uh under the Facts as pled I would just like to point at one case this is um a three-week-old case out of the 10th circuit Story versus Taylor this is where the 10th circuit did address the community caretaking exceptions and they held These functions may include for example restraining and intoxicated individual Empounding a vehicle left on the side of the road or transporting an individual to safety These the 10th circuit has gone a step further than the third circuit has in past cases in the application of the community caretaking exception however that was Clearly the role officer Marshall was playing on the evening of September 28 2009 But so I don't I don't know why you're bringing this up So we would have to find that there is an arrest and there's a clearly established right if we did then you want us to go to the Community caretaking exception What you are the community caretaking exception falls within the clearly established right clearly there was no clearly established right because in light of Community caretaking exception cases and all other cases you cannot say that every police officer In officer Marshall's position that night would have known that what should have known what he was doing was violating a constitutional right That's where the community caretaking exception Thank you mr. Morgan Stern. Thank you, mr. Brando case was very well argued appreciate your candor

. There's no if there's no seizure We it doesn't implicate the fourth amendment You're right you're on then there can be no violation of a constitutional right because there was no arrest But if I wasn't clear in uh in my papers really that is the crux in the principal brief of the first argument made Uh, that there was no violation of a constitutional right that being because there was no arrest There was an insistence was there a restriction on movement yes as alleged in the complaint yes uh and That restriction of movement however was not sufficient to so as to constitute an arrest uh under the Facts as pled I would just like to point at one case this is um a three-week-old case out of the 10th circuit Story versus Taylor this is where the 10th circuit did address the community caretaking exceptions and they held These functions may include for example restraining and intoxicated individual Empounding a vehicle left on the side of the road or transporting an individual to safety These the 10th circuit has gone a step further than the third circuit has in past cases in the application of the community caretaking exception however that was Clearly the role officer Marshall was playing on the evening of September 28 2009 But so I don't I don't know why you're bringing this up So we would have to find that there is an arrest and there's a clearly established right if we did then you want us to go to the Community caretaking exception What you are the community caretaking exception falls within the clearly established right clearly there was no clearly established right because in light of Community caretaking exception cases and all other cases you cannot say that every police officer In officer Marshall's position that night would have known that what should have known what he was doing was violating a constitutional right That's where the community caretaking exception Thank you mr. Morgan Stern. Thank you, mr. Brando case was very well argued appreciate your candor

Sitting our first case this morning is James versus the city of Wilkesbury Mr. Morgan-Sturr May I please the court my name is John Morgan-Sturner. I represent the appellance defendant in this case officer Michael Marshall and the right township police department I would like to reserve reserve five minutes rebuttal. Let me just interrupt you for one second. Eric at my clock is not Okay, yeah, yeah, the granny Your honor the question of this case is whether on September 28th 2009 There was a clearly established constitutional right to be free from a police officers' insistence that at least one parent a company their suicidal teenage daughter in an ambulance to the hospital Now the Supreme Court has Rule that it is paramount that a district court Define the clearly established constitutional right in fact in a recent case out of the sixth circuit The court held that in deciding a right has been clearly established the Supreme Court has repeatedly warned lower courts Not to define the right at a high level of generality now in this case we have the police officers being called to the James's residence September 28th 2009 in response to a 911 call that their daughter had texted one of her friends that she was going to attempt Suicide the police showed up and then ultimately Convinced the parents to allow the paramedics to take the Child to the hospital and then the police officer allegedly insisted that at least one of the parents accompany the child What was the level at some place in one of the briefs? there two references to the blood alcohol level of the mother Yes, one one of you say it was 0.23 or 0.22 or something like that of a 0.223 approximately five hours after the call and there was another reference to a point 007 or yes, or that was about 12 hours Question in this respect and point 223 that's that's a very high level of intoxication. How are you? Interacting with a parent at that stage telling the parent to go somewhere if they're that drunk? Well, you're on or this could be a functioning alcoholic. We don't know Office from Marshall as he walked in the door of the residence that night had no way of knowing what her blood alcohol content would be had no Baseline to know how she acted normally what he knew is that he needed to save her daughter She had texted that she was attempting to kill herself, but they had to consent though They had the consent of the parents to have the daughter taken to the emergency room Ultimately following some resistance ultimately they had to consent right and then the next issue is whether or not the mother was compelled By the police officer to leave with the daughter. That's correct your honor. So the question that I have is isn't it Conjunctive between the constitutional violation and the state right the law makes them conjuncted right I'm not sure I understand what you mean well, here's what I mean it Following up on judge nansky's question if We determined that there was no arrest It's irrelevant whether there's a clearly established right Right no your honor the the Supreme Court has ruled you don't have to take the two Questions in that order you can consider consider the Establishment of the clearly established constitutional right first And therefore that right has to be You don't If we found there was no arrest would that be the end of the inquiry? If there was no arrest for Forth amendment purposes that would be the end of the inquiry, but did you preserve that argument? Yes, or honor we argued that there has been no arrest that the That the plaintiff Cheryl James voluntary Went to the hospital any ambulance If there was no arrest And you're you're making two alternative arguments. You're saying there's no arrest you win Even if there wasn't a rest on these facts It wasn't the violation of clearly established law That's correct your honor. We are looking at this case from a the perspective of the reasonable police officer and Whether or not he knew whether in fact it's whether every Police officer in his situation would have reason to know that There was a clearly established right which he was violating all right That's prong to but the initial prong of whether there's a constitutional violation Is it an object of a subjective test as to whether or not the mother would have felt? compelled to go to the hospital It's going to be an objective test when we're examining it at the 12b6 stage for purposes of Qualified immunity What wouldn't this be a good case for targeted discovery and Just to determine what exactly happened at that house and what the condition of the mother was you know 0.223 A couple of hours after the encounter with police officers. I recollect two Respectfully or under this This is some discovery move for summary judgment. That's what individual case management is for well qualified immunity is immunity not just from liability It's immunity from having to defend the lawsuit in this case. We have a 283 paragraph Complaint 43 pages. There's no need for discovery in this case to develop a record further It could not be more particular than a plaintiff has already pled and what the plaintiff has pled is that The officer showed up at her house in response to an 911 call and insisted that she accompany her suicidal daughter in the ambulance to the hospital now in in this case the District court when the matter was sent back to the district court to articulate the clearly established constitutional rate Wrote here a reason of a police officer would have known that it violates the Constitution to use his authority as a police officer to force Someone to go where they do not wish to go when that person has no legal obligation to do so This statement is insufficient. This is exactly the generalized Statement of the law that the Supreme Court and the third circuit has held is unacceptable in these cases It's overly broad and it fails for that reason in fact It's not even a true or accurate statement of the law It is so overly broad that it's not true in fact if that statement were true Every traffic cop directing traffic at a detour Every officer working crowd control at a sporting event would be subject to Civil lawsuits for constitutional violations. What would have happened here if mother told the officer Take her away. I'm staying here. I'm going back. I'm going inside or I'm going to bed What would have happened? It's not for us to speculate because the never the matter never got there was there anything in the record to indicate that that mother was Threatened with arrest If she did not accompany daughter to the hospital there is not There is some we're looking specifically at paragraphs roughly 50 to 55 of the complaint and you'll notice that What the plaintiff has pled is that they insisted that the daughter be taken to the hospital She admitted that she had taken pills she had admitted that she had intended that evening to kill herself So daughter was arrested then no the daughter was sent in the ambulance to the hospital Well here was she was compelled to go to the hospital was she not if daughter was not Compliant in getting into the ambulance then she was going to be placed under arrest. Well, I think it's Clearly beyond the Fourth Amendment in that case we're we're really talking about a community caretaking exception to the Fourth Amendment in that situation Which is something that I do want to ask the court to adopt today in the third circuit is And a third circuit has recognized the community caretaking exception, but don't you knock that there because There's no issue of consent with regard to the daughter The issue is compulsion with regard to the mother that as pled yesterday Yeah, right the daughter doesn't have a constant of course. That's really not that's really a side. Yes, sir So here we're we're talking about Defining the clearly established constitutional right on September 28th 2009 and No reasonable police officer would think and in fact clearly not every police officer in this position Would have thought that there that what he was doing and insisting that one of the parents accompany the child to the hospital would have violated constitutional rights Now the plan is also attempted to Define the clearly established right at issue in this case and the the plaintive rights at their brief page 1920 Whether or not a police officer would have reason to know that it would be unlawful to order an intoxicated and medicated person to leave that person to him in the middle of the night without any indication that person had committed an offense And again that ignores why they were there in the first place that simply said it's simply stating that police officers Do not have a right To remove someone from their home and they're intoxicated Without any indication they've committed an offense and this statement also Fails because it's too overly broad. This would indicate that Any officer called to the scene of a drug overdose or any call involving drug or alcohol use would be Potentially in violation of the fourth amendment for sending a person in an ambulance or taking them ourselves We'll hear you on your bottle, Mr. Morgan sir. Thank you Mr. Brando Good morning to this honorable court May I please the court my name is James Brando. I represent the Appalee plaintiff Cheryl James Warren James and the coal James We're before this honorable court this morning as mr. Morgan store stern represented to discuss the the Nile of the appellant defendants Motion to dismiss claim for qualified immunity on the grounds that the law was clearly established at the time of the incident rise the complaint That a police officer could not by show of authority compel a person To terminate their freedom of movement Against the will and there was no clear and unquestionable authority of law Allowing the officer to do so now. I'd like to address a few of the points mr. Morgan stern made briefly At the beginning here. He stated that there was no way That officer Marshall could have known that Cheryl James had a high blood alcohol content level and that is not correct The complaint itself states that Cheryl James and Warren James informed officer Marshall of their concerns And why it is that they did not wish to leave but what they what you what you know legend your complaint is not that There was a that the officer knew that there was a high Drug alcohol level what you alleged is he was informed that she had had I don't I don't remember whether it was drink or drinks he knew she had had alcohol but There's nothing in there that I recall that with any specificity lets the officer know I'm drunk There was The officer was informed of the fact that she had been drinking and that she was on Anti-depression medication and then that state left her unable to travel safely I think that was indicated in the complaint at this stage. I understand that there are some facts that could be developed Better at this stage and we certainly wanted to conduct discovery to get to that point But this stage on motion to dismissal the question is whether or not looking at the facts and light most favorable to the non-moving party There'd be a statement for a claim and our position at this point is that officer Marshall wasn't formed of James and Cheryl James's Convition at the time that he ordered one of the two parents to leave and this is We don't say where do you say I'm sorry. I'm sorry You don't let you don't let in the complaint that they informed the officer that they were drunk Warren James was not drunk Warren James was on heart medication I know it's been brought up several times that he was intoxicated That phrase has been used rather loosely during the course of Disappeal Mr. James was on heart medication. He has a heart condition That is what he informed the officer of Cheryl James on the other hand has anti-depression medication and Was under the influence of alcohol and formed officer Marshall of both of those conditions. How about my question? Certainly you're on the complaint doesn't say that they were drunk It doesn't alleged that they informed the officer that they were drunk They did not inform the officer that they were drunk As your honor states. Yes, so there's no way to know the answer to Judge van Eskie's question with regard to the Point to to eight I think that's what it was whether or not he would have been aware of the exact but alcohol contact I agree with that. There's no specific amount certainly Okay And there's nowhere in the complaint where you've alleged that the officer Marshall ordered One of the parents to accompany the daughter There's nowhere in the complaint your honor though argued at the motion to dismiss stage that the insistence of our of officer Marshall above the James's objections Constituent in order but an argument doesn't help you It needs to be in the complaint it needs to be pleaded Well, once again your honor. This is looking at the facts in the light most favorable to the non-moving party and the facts has pleaded Not the facts has argued by counsel that is true your honor But all that need be provided the federal level is a plain statement entitling the plaintiff to relief and while I understand that There are specificities we could get into well, let's let's do that. Let's get into specifics certainly As I recall the avertment in the complaint Your client was faced with an officer who insisted That she or her husband accompany the daughter to the hospital. Is that correct? That's correct your honor initially He insisted that both parents go with Nicole Jay right and then he insisted that one go yes after they had objective all right Is there any allegation in the complaint Stronger than the officer's insistence that one parent accompany the daughter Other than him telling them that they need to go now. There's no stronger then We've scoured the case laws best weekend and I don't recall your brief citing any case Which indicates from any federal court not just a pellet courts, but a district court somewhere that an officer insisting That a person who's in her own home accompany her minor daughter to a hospital Rises to the level of a seizure under the fourth amendment. Am I mistaken about that? You're not mistaken about that your honor. I'm glad you raised that point because that has certainly been a a matter of contention between the parties on appeal The appellant has been arguing that the right at issue that is say the right that must have been clearly established at the time of the conduct Giving rise to the complaint. We need to be awareness of a right not to compel a mother to go with and take care for minor minor child or something to that fact I may be paraphrasing but The fact of the matter is that the right is not a fact-bound right is a right That applies within the totality of the circumstances and considering All of the legal precedent available and all of the legal rules applicable to that conduct at the time But we don't need a case directly on point in order to overcome qualified immunity But we need to show that there was a clearly established right at the time that an objectively reasonable police officer Would have recognized when he was ordering Cheryl James to leave her home You've jumped ahead of you've jumped it you've jumped ahead to clearly established I'm focused on whether there was a constitutional violation at all. Probably one under sauce here certainly If there's no case look anywhere persuasive or controlling That would persuade us to hold that an officer insisting that a parent accompany a minor child to the hospital It seems we don't have a violation of the fourth amendment I don't want to rehash the brief but I wouldn't know that there's a lot of precedent that's been established in the course of the appeal that shows that Where an officer uses force of authority which can include tone of voice or language used Then that force of authority When used to terminate a person's freedom of movement Constituces seizure and a seizure force of authority on with you if he handcuffs her if he draws his his revolver and says you're coming with me If he handcuffs her if he restricts her movement if he forcibly grabs her and places her in the ambulance You're clear you've got a seizure Certainly, but I'm trying to parse the complaint because we need to do that I think because as you indicated it's a rule 12 you got thrown out before you got your chance to take discovery What do you have besides the allegation that an officer verbally insisted that mother accompany daughter you talk about show of force Generically What fact do you plead besides the verbal insistence? Besides the verbal insistence over the complaint of the parents There is no other fact in the case that applies that question or I would like to Deal with the issue you raised which is that's a high level of generality when you're dealing with a force The the the show of authority acting as force and I would Note that you do not need to have a formal arrest in order for there to be a rest You don't have to have an officer use the word arrest or place his hands upon the plaintiff or act in the manner that would be Standard with a formal arrest you just need the officer to act In a manner and this has been clearly established by president acting in a manner that would convince a reasonable person To believe that they were not free to not comply with the officer's order Now in mending hall I think it was just a steward Said that didn't amount that situation Remember the woman that they the the tame and the script search right yes, you're right So so just the steward says that didn't amount to a seizure so help us now And I think this is the point that my colleagues are making if that's not a seizure. How can this be of course? I'd be happy to distinguish mending hall your order in mending hall the officers who ended up strip searching the plaintiff Or I'm sorry actually in this case was the defendant because it was a criminal charge. They were trying to choose trying to overcome told the detainee that You Can leave Okay, this is voluntary you can go at any time that was in the facts of that case that they informed her that this Was not something she had to do that she could walk away at any time that she did not have to consent to the strip search They ultimately performed and she consented that is a far cry from this case where the officer told the individuals He was trying to compel to leave their home You have to go they objected to it and said they wouldn't go because of their medical conditions or because in the case of child James of her Nebriation and then insisted over there So you're suggesting that that from now on let's say we agree with you from now on Here's what the lawyers Whenever a police officer finds him or herself in a situation with a minor child Uh with a parent present And there's an injury involved or some sort of Situation that requires parental involvement That they can do no more than say Your daughter has to go to the hospital to jail whatever Uh, and what can they even under your scenario make a suggestion that it would be nice You know to accompany your child and that's it of course they can make a suggestion that it would be nice if you'd send your daughter to the hospital. I wish that happened the case And there you are and that's it when and when you have evidence of a suicidal teenager Yes, you're out of that's what if they follow what up what if the suggestion is not Taken then what if the officer says and I want to let you know if you don't come They may involuntarily commit your daughter into a mental institution That that would be fine or honor that would be informing the parent Of what might happen to her daughter in the event that they don't provide permission which is just how Things would naturally evolve, but this really isn't that case. This is a case where a couple of times you've used a word Or ordering you said you ordered the parents But what was the actual language? The actual language was your honor if I recall my plaintiffs or my clients correctly and Obviously we haven't done enough discovery yet to know what officer Marshall's side is their claim is that he said First you need to go with her and then After they had objected one of you needs to go One of you needs to go one of you needs to go Okay, are there any further questions or do you like me to continue there a few brief Arguments I wanted to make if I have the time you you have time. Okay briefly your honor I want to know that there's a bit of an argument between the appellant and the appellees Namely regarding the degree to which we should be analyzing Whether or not there's a constitutional claim state or whether or not there's a cause of action for false arrest and I'm going to be sort of Siting to the standard that was raised in Cohen versus beneficial industrial loan corporation it's been referenced in Mitchell v4 site which is the precedent the appellant defendant has used to raise this appeal It's also been mentioned by the honorable judge monthly in his opinion as to why qualified immunity would be denied what essentially states is that where a claim is Where where a right such as qualified immunity is collateral to an independent from the right that forms the cause of action Then an appeal can be taken from that But where it isn't independent of that cause of action such as where we're talking about analysis of whether or not a false arrest claim has been properly made That isn't Something that can be appealed under Mitchell v4 site or Forbes versus the township of lower marion or the the Cohen rule That is the the question on a motion to dismiss appeal of a qualified immunity right is whether or not the right was clearly established At the time of the occurrence giving rise To the cause of action alleged in the complaint and I would argue that under the facts provided this complaint The law was clearly Established as at a much higher level of specificity than suggested by the appellant Defendant and respectfully your honors. I see the remainder of my time to my opponent. Thank you mr. Brando mr. Morgan Stern Rebottle Thank you ours First of all judge van ask its page 0199 of the record is where the Issue of the blood level blood alcohol levels resolved that is a medical record. It was actually attached to the complaint So it's properly before the court I knew there were both numbers there. I didn't know how to interpret it Because both numbers appear on that page right? Yes, they do the right near the top of the page. I was curious about that as well. Well, so the response Now in this case, I think judge pardon me that you're correct in your analysis that If I'm understanding one of your last questions correctly that there probably was no arrest in this case And so how do we get here? We are before the court today on an immediate appeal from a 12b6 order denying qualified immunity And so discovery has not begun in the case Marshall's deposition is going to be taken anywhere, right? I mean Even if even if he has qualified immunity from the city's this part of the whole Incident that occurred at the house That remains to be seen or are because the rest of this very long complaint involves the events that occurred at the Wilkesbury hospital The plaintiff has already stipulated to the dismissal of the other plaintiff right this play yes this plaintiff and Well, really the focus of the case seems to be the constitutional violations involving Cheryl James So the other two officers are to see at the house have already been voluntarily dismissed from the case Now in this case, I believe it is proper for the court to consider the issues all the issues including the first prong of the test The whether or not to tell us where you preserve that though because it seemed to me that the the focal point here was on The question of whether a right was clearly established and it's We have a lot of precedent requiring that issues be joined and argued We can affirm for any reason, but you're not seeking affirmates. You're seeking reversal. So tell us where you preserve the issue That there is no constitutional violation no arrest We'll or see in the context of qualified immunity Uh, and again, it was appealed directly on qualified immunity, which is the appealable issue if we are only challenging the arrest The appeal would not have been possible at this state. It can you cite where we are? We're in the brief or in the record It's been preserved on appeal Uh off the top of my head your honor. I cannot accept To say in the analysis of the first prong of the two prong tests officer Marshall did not violate The plaintiff appellese rights. He did not violate his rights because he didn't arrest her Um, I also want to point out that he didn't violate his her rights because of the community caretaking exception Uh, this again, this is a um A matter I believe ripe to be addressed by the court the assessment or the application of the community caretaker exception In an instance like this it would seem to me to be precisely not the case to do that Because as I understand the community caretaking exception what you what you want us to hold You're inviting us to hold is that even when someone's arrested If they're arrested in good faith for purposes of community caretaking it's okay So why would we even get there if there's no arrest that's why I asked you where you preserve the The argument that there was no arrest at all. There's no if there's no seizure We it doesn't implicate the fourth amendment You're right you're on then there can be no violation of a constitutional right because there was no arrest But if I wasn't clear in uh in my papers really that is the crux in the principal brief of the first argument made Uh, that there was no violation of a constitutional right that being because there was no arrest There was an insistence was there a restriction on movement yes as alleged in the complaint yes uh and That restriction of movement however was not sufficient to so as to constitute an arrest uh under the Facts as pled I would just like to point at one case this is um a three-week-old case out of the 10th circuit Story versus Taylor this is where the 10th circuit did address the community caretaking exceptions and they held These functions may include for example restraining and intoxicated individual Empounding a vehicle left on the side of the road or transporting an individual to safety These the 10th circuit has gone a step further than the third circuit has in past cases in the application of the community caretaking exception however that was Clearly the role officer Marshall was playing on the evening of September 28 2009 But so I don't I don't know why you're bringing this up So we would have to find that there is an arrest and there's a clearly established right if we did then you want us to go to the Community caretaking exception What you are the community caretaking exception falls within the clearly established right clearly there was no clearly established right because in light of Community caretaking exception cases and all other cases you cannot say that every police officer In officer Marshall's position that night would have known that what should have known what he was doing was violating a constitutional right That's where the community caretaking exception Thank you mr. Morgan Stern. Thank you, mr. Brando case was very well argued appreciate your candor

Sitting our first case this morning is James versus the city of Wilkesbury Mr. Morgan-Sturr May I please the court my name is John Morgan-Sturner. I represent the appellance defendant in this case officer Michael Marshall and the right township police department I would like to reserve reserve five minutes rebuttal. Let me just interrupt you for one second. Eric at my clock is not Okay, yeah, yeah, the granny Your honor the question of this case is whether on September 28th 2009 There was a clearly established constitutional right to be free from a police officers' insistence that at least one parent a company their suicidal teenage daughter in an ambulance to the hospital Now the Supreme Court has Rule that it is paramount that a district court Define the clearly established constitutional right in fact in a recent case out of the sixth circuit The court held that in deciding a right has been clearly established the Supreme Court has repeatedly warned lower courts Not to define the right at a high level of generality now in this case we have the police officers being called to the James's residence September 28th 2009 in response to a 911 call that their daughter had texted one of her friends that she was going to attempt Suicide the police showed up and then ultimately Convinced the parents to allow the paramedics to take the Child to the hospital and then the police officer allegedly insisted that at least one of the parents accompany the child What was the level at some place in one of the briefs? there two references to the blood alcohol level of the mother Yes, one one of you say it was 0.23 or 0.22 or something like that of a 0.223 approximately five hours after the call and there was another reference to a point 007 or yes, or that was about 12 hours Question in this respect and point 223 that's that's a very high level of intoxication. How are you? Interacting with a parent at that stage telling the parent to go somewhere if they're that drunk? Well, you're on or this could be a functioning alcoholic. We don't know Office from Marshall as he walked in the door of the residence that night had no way of knowing what her blood alcohol content would be had no Baseline to know how she acted normally what he knew is that he needed to save her daughter She had texted that she was attempting to kill herself, but they had to consent though They had the consent of the parents to have the daughter taken to the emergency room Ultimately following some resistance ultimately they had to consent right and then the next issue is whether or not the mother was compelled By the police officer to leave with the daughter. That's correct your honor. So the question that I have is isn't it Conjunctive between the constitutional violation and the state right the law makes them conjuncted right I'm not sure I understand what you mean well, here's what I mean it Following up on judge nansky's question if We determined that there was no arrest It's irrelevant whether there's a clearly established right Right no your honor the the Supreme Court has ruled you don't have to take the two Questions in that order you can consider consider the Establishment of the clearly established constitutional right first And therefore that right has to be You don't If we found there was no arrest would that be the end of the inquiry? If there was no arrest for Forth amendment purposes that would be the end of the inquiry, but did you preserve that argument? Yes, or honor we argued that there has been no arrest that the That the plaintiff Cheryl James voluntary Went to the hospital any ambulance If there was no arrest And you're you're making two alternative arguments. You're saying there's no arrest you win Even if there wasn't a rest on these facts It wasn't the violation of clearly established law That's correct your honor. We are looking at this case from a the perspective of the reasonable police officer and Whether or not he knew whether in fact it's whether every Police officer in his situation would have reason to know that There was a clearly established right which he was violating all right That's prong to but the initial prong of whether there's a constitutional violation Is it an object of a subjective test as to whether or not the mother would have felt? compelled to go to the hospital It's going to be an objective test when we're examining it at the 12b6 stage for purposes of Qualified immunity What wouldn't this be a good case for targeted discovery and Just to determine what exactly happened at that house and what the condition of the mother was you know 0.223 A couple of hours after the encounter with police officers. I recollect two Respectfully or under this This is some discovery move for summary judgment. That's what individual case management is for well qualified immunity is immunity not just from liability It's immunity from having to defend the lawsuit in this case. We have a 283 paragraph Complaint 43 pages. There's no need for discovery in this case to develop a record further It could not be more particular than a plaintiff has already pled and what the plaintiff has pled is that The officer showed up at her house in response to an 911 call and insisted that she accompany her suicidal daughter in the ambulance to the hospital now in in this case the District court when the matter was sent back to the district court to articulate the clearly established constitutional rate Wrote here a reason of a police officer would have known that it violates the Constitution to use his authority as a police officer to force Someone to go where they do not wish to go when that person has no legal obligation to do so This statement is insufficient. This is exactly the generalized Statement of the law that the Supreme Court and the third circuit has held is unacceptable in these cases It's overly broad and it fails for that reason in fact It's not even a true or accurate statement of the law It is so overly broad that it's not true in fact if that statement were true Every traffic cop directing traffic at a detour Every officer working crowd control at a sporting event would be subject to Civil lawsuits for constitutional violations. What would have happened here if mother told the officer Take her away. I'm staying here. I'm going back. I'm going inside or I'm going to bed What would have happened? It's not for us to speculate because the never the matter never got there was there anything in the record to indicate that that mother was Threatened with arrest If she did not accompany daughter to the hospital there is not There is some we're looking specifically at paragraphs roughly 50 to 55 of the complaint and you'll notice that What the plaintiff has pled is that they insisted that the daughter be taken to the hospital She admitted that she had taken pills she had admitted that she had intended that evening to kill herself So daughter was arrested then no the daughter was sent in the ambulance to the hospital Well here was she was compelled to go to the hospital was she not if daughter was not Compliant in getting into the ambulance then she was going to be placed under arrest. Well, I think it's Clearly beyond the Fourth Amendment in that case we're we're really talking about a community caretaking exception to the Fourth Amendment in that situation Which is something that I do want to ask the court to adopt today in the third circuit is And a third circuit has recognized the community caretaking exception, but don't you knock that there because There's no issue of consent with regard to the daughter The issue is compulsion with regard to the mother that as pled yesterday Yeah, right the daughter doesn't have a constant of course. That's really not that's really a side. Yes, sir So here we're we're talking about Defining the clearly established constitutional right on September 28th 2009 and No reasonable police officer would think and in fact clearly not every police officer in this position Would have thought that there that what he was doing and insisting that one of the parents accompany the child to the hospital would have violated constitutional rights Now the plan is also attempted to Define the clearly established right at issue in this case and the the plaintive rights at their brief page 1920 Whether or not a police officer would have reason to know that it would be unlawful to order an intoxicated and medicated person to leave that person to him in the middle of the night without any indication that person had committed an offense And again that ignores why they were there in the first place that simply said it's simply stating that police officers Do not have a right To remove someone from their home and they're intoxicated Without any indication they've committed an offense and this statement also Fails because it's too overly broad. This would indicate that Any officer called to the scene of a drug overdose or any call involving drug or alcohol use would be Potentially in violation of the fourth amendment for sending a person in an ambulance or taking them ourselves We'll hear you on your bottle, Mr. Morgan sir. Thank you Mr. Brando Good morning to this honorable court May I please the court my name is James Brando. I represent the Appalee plaintiff Cheryl James Warren James and the coal James We're before this honorable court this morning as mr. Morgan store stern represented to discuss the the Nile of the appellant defendants Motion to dismiss claim for qualified immunity on the grounds that the law was clearly established at the time of the incident rise the complaint That a police officer could not by show of authority compel a person To terminate their freedom of movement Against the will and there was no clear and unquestionable authority of law Allowing the officer to do so now. I'd like to address a few of the points mr. Morgan stern made briefly At the beginning here. He stated that there was no way That officer Marshall could have known that Cheryl James had a high blood alcohol content level and that is not correct The complaint itself states that Cheryl James and Warren James informed officer Marshall of their concerns And why it is that they did not wish to leave but what they what you what you know legend your complaint is not that There was a that the officer knew that there was a high Drug alcohol level what you alleged is he was informed that she had had I don't I don't remember whether it was drink or drinks he knew she had had alcohol but There's nothing in there that I recall that with any specificity lets the officer know I'm drunk There was The officer was informed of the fact that she had been drinking and that she was on Anti-depression medication and then that state left her unable to travel safely I think that was indicated in the complaint at this stage. I understand that there are some facts that could be developed Better at this stage and we certainly wanted to conduct discovery to get to that point But this stage on motion to dismissal the question is whether or not looking at the facts and light most favorable to the non-moving party There'd be a statement for a claim and our position at this point is that officer Marshall wasn't formed of James and Cheryl James's Convition at the time that he ordered one of the two parents to leave and this is We don't say where do you say I'm sorry. I'm sorry You don't let you don't let in the complaint that they informed the officer that they were drunk Warren James was not drunk Warren James was on heart medication I know it's been brought up several times that he was intoxicated That phrase has been used rather loosely during the course of Disappeal Mr. James was on heart medication. He has a heart condition That is what he informed the officer of Cheryl James on the other hand has anti-depression medication and Was under the influence of alcohol and formed officer Marshall of both of those conditions. How about my question? Certainly you're on the complaint doesn't say that they were drunk It doesn't alleged that they informed the officer that they were drunk They did not inform the officer that they were drunk As your honor states. Yes, so there's no way to know the answer to Judge van Eskie's question with regard to the Point to to eight I think that's what it was whether or not he would have been aware of the exact but alcohol contact I agree with that. There's no specific amount certainly Okay And there's nowhere in the complaint where you've alleged that the officer Marshall ordered One of the parents to accompany the daughter There's nowhere in the complaint your honor though argued at the motion to dismiss stage that the insistence of our of officer Marshall above the James's objections Constituent in order but an argument doesn't help you It needs to be in the complaint it needs to be pleaded Well, once again your honor. This is looking at the facts in the light most favorable to the non-moving party and the facts has pleaded Not the facts has argued by counsel that is true your honor But all that need be provided the federal level is a plain statement entitling the plaintiff to relief and while I understand that There are specificities we could get into well, let's let's do that. Let's get into specifics certainly As I recall the avertment in the complaint Your client was faced with an officer who insisted That she or her husband accompany the daughter to the hospital. Is that correct? That's correct your honor initially He insisted that both parents go with Nicole Jay right and then he insisted that one go yes after they had objective all right Is there any allegation in the complaint Stronger than the officer's insistence that one parent accompany the daughter Other than him telling them that they need to go now. There's no stronger then We've scoured the case laws best weekend and I don't recall your brief citing any case Which indicates from any federal court not just a pellet courts, but a district court somewhere that an officer insisting That a person who's in her own home accompany her minor daughter to a hospital Rises to the level of a seizure under the fourth amendment. Am I mistaken about that? You're not mistaken about that your honor. I'm glad you raised that point because that has certainly been a a matter of contention between the parties on appeal The appellant has been arguing that the right at issue that is say the right that must have been clearly established at the time of the conduct Giving rise to the complaint. We need to be awareness of a right not to compel a mother to go with and take care for minor minor child or something to that fact I may be paraphrasing but The fact of the matter is that the right is not a fact-bound right is a right That applies within the totality of the circumstances and considering All of the legal precedent available and all of the legal rules applicable to that conduct at the time But we don't need a case directly on point in order to overcome qualified immunity But we need to show that there was a clearly established right at the time that an objectively reasonable police officer Would have recognized when he was ordering Cheryl James to leave her home You've jumped ahead of you've jumped it you've jumped ahead to clearly established I'm focused on whether there was a constitutional violation at all. Probably one under sauce here certainly If there's no case look anywhere persuasive or controlling That would persuade us to hold that an officer insisting that a parent accompany a minor child to the hospital It seems we don't have a violation of the fourth amendment I don't want to rehash the brief but I wouldn't know that there's a lot of precedent that's been established in the course of the appeal that shows that Where an officer uses force of authority which can include tone of voice or language used Then that force of authority When used to terminate a person's freedom of movement Constituces seizure and a seizure force of authority on with you if he handcuffs her if he draws his his revolver and says you're coming with me If he handcuffs her if he restricts her movement if he forcibly grabs her and places her in the ambulance You're clear you've got a seizure Certainly, but I'm trying to parse the complaint because we need to do that I think because as you indicated it's a rule 12 you got thrown out before you got your chance to take discovery What do you have besides the allegation that an officer verbally insisted that mother accompany daughter you talk about show of force Generically What fact do you plead besides the verbal insistence? Besides the verbal insistence over the complaint of the parents There is no other fact in the case that applies that question or I would like to Deal with the issue you raised which is that's a high level of generality when you're dealing with a force The the the show of authority acting as force and I would Note that you do not need to have a formal arrest in order for there to be a rest You don't have to have an officer use the word arrest or place his hands upon the plaintiff or act in the manner that would be Standard with a formal arrest you just need the officer to act In a manner and this has been clearly established by president acting in a manner that would convince a reasonable person To believe that they were not free to not comply with the officer's order Now in mending hall I think it was just a steward Said that didn't amount that situation Remember the woman that they the the tame and the script search right yes, you're right So so just the steward says that didn't amount to a seizure so help us now And I think this is the point that my colleagues are making if that's not a seizure. How can this be of course? I'd be happy to distinguish mending hall your order in mending hall the officers who ended up strip searching the plaintiff Or I'm sorry actually in this case was the defendant because it was a criminal charge. They were trying to choose trying to overcome told the detainee that You Can leave Okay, this is voluntary you can go at any time that was in the facts of that case that they informed her that this Was not something she had to do that she could walk away at any time that she did not have to consent to the strip search They ultimately performed and she consented that is a far cry from this case where the officer told the individuals He was trying to compel to leave their home You have to go they objected to it and said they wouldn't go because of their medical conditions or because in the case of child James of her Nebriation and then insisted over there So you're suggesting that that from now on let's say we agree with you from now on Here's what the lawyers Whenever a police officer finds him or herself in a situation with a minor child Uh with a parent present And there's an injury involved or some sort of Situation that requires parental involvement That they can do no more than say Your daughter has to go to the hospital to jail whatever Uh, and what can they even under your scenario make a suggestion that it would be nice You know to accompany your child and that's it of course they can make a suggestion that it would be nice if you'd send your daughter to the hospital. I wish that happened the case And there you are and that's it when and when you have evidence of a suicidal teenager Yes, you're out of that's what if they follow what up what if the suggestion is not Taken then what if the officer says and I want to let you know if you don't come They may involuntarily commit your daughter into a mental institution That that would be fine or honor that would be informing the parent Of what might happen to her daughter in the event that they don't provide permission which is just how Things would naturally evolve, but this really isn't that case. This is a case where a couple of times you've used a word Or ordering you said you ordered the parents But what was the actual language? The actual language was your honor if I recall my plaintiffs or my clients correctly and Obviously we haven't done enough discovery yet to know what officer Marshall's side is their claim is that he said First you need to go with her and then After they had objected one of you needs to go One of you needs to go one of you needs to go Okay, are there any further questions or do you like me to continue there a few brief Arguments I wanted to make if I have the time you you have time. Okay briefly your honor I want to know that there's a bit of an argument between the appellant and the appellees Namely regarding the degree to which we should be analyzing Whether or not there's a constitutional claim state or whether or not there's a cause of action for false arrest and I'm going to be sort of Siting to the standard that was raised in Cohen versus beneficial industrial loan corporation it's been referenced in Mitchell v4 site which is the precedent the appellant defendant has used to raise this appeal It's also been mentioned by the honorable judge monthly in his opinion as to why qualified immunity would be denied what essentially states is that where a claim is Where where a right such as qualified immunity is collateral to an independent from the right that forms the cause of action Then an appeal can be taken from that But where it isn't independent of that cause of action such as where we're talking about analysis of whether or not a false arrest claim has been properly made That isn't Something that can be appealed under Mitchell v4 site or Forbes versus the township of lower marion or the the Cohen rule That is the the question on a motion to dismiss appeal of a qualified immunity right is whether or not the right was clearly established At the time of the occurrence giving rise To the cause of action alleged in the complaint and I would argue that under the facts provided this complaint The law was clearly Established as at a much higher level of specificity than suggested by the appellant Defendant and respectfully your honors. I see the remainder of my time to my opponent. Thank you mr. Brando mr. Morgan Stern Rebottle Thank you ours First of all judge van ask its page 0199 of the record is where the Issue of the blood level blood alcohol levels resolved that is a medical record. It was actually attached to the complaint So it's properly before the court I knew there were both numbers there. I didn't know how to interpret it Because both numbers appear on that page right? Yes, they do the right near the top of the page. I was curious about that as well. Well, so the response Now in this case, I think judge pardon me that you're correct in your analysis that If I'm understanding one of your last questions correctly that there probably was no arrest in this case And so how do we get here? We are before the court today on an immediate appeal from a 12b6 order denying qualified immunity And so discovery has not begun in the case Marshall's deposition is going to be taken anywhere, right? I mean Even if even if he has qualified immunity from the city's this part of the whole Incident that occurred at the house That remains to be seen or are because the rest of this very long complaint involves the events that occurred at the Wilkesbury hospital The plaintiff has already stipulated to the dismissal of the other plaintiff right this play yes this plaintiff and Well, really the focus of the case seems to be the constitutional violations involving Cheryl James So the other two officers are to see at the house have already been voluntarily dismissed from the case Now in this case, I believe it is proper for the court to consider the issues all the issues including the first prong of the test The whether or not to tell us where you preserve that though because it seemed to me that the the focal point here was on The question of whether a right was clearly established and it's We have a lot of precedent requiring that issues be joined and argued We can affirm for any reason, but you're not seeking affirmates. You're seeking reversal. So tell us where you preserve the issue That there is no constitutional violation no arrest We'll or see in the context of qualified immunity Uh, and again, it was appealed directly on qualified immunity, which is the appealable issue if we are only challenging the arrest The appeal would not have been possible at this state. It can you cite where we are? We're in the brief or in the record It's been preserved on appeal Uh off the top of my head your honor. I cannot accept To say in the analysis of the first prong of the two prong tests officer Marshall did not violate The plaintiff appellese rights. He did not violate his rights because he didn't arrest her Um, I also want to point out that he didn't violate his her rights because of the community caretaking exception Uh, this again, this is a um A matter I believe ripe to be addressed by the court the assessment or the application of the community caretaker exception In an instance like this it would seem to me to be precisely not the case to do that Because as I understand the community caretaking exception what you what you want us to hold You're inviting us to hold is that even when someone's arrested If they're arrested in good faith for purposes of community caretaking it's okay So why would we even get there if there's no arrest that's why I asked you where you preserve the The argument that there was no arrest at all. There's no if there's no seizure We it doesn't implicate the fourth amendment You're right you're on then there can be no violation of a constitutional right because there was no arrest But if I wasn't clear in uh in my papers really that is the crux in the principal brief of the first argument made Uh, that there was no violation of a constitutional right that being because there was no arrest There was an insistence was there a restriction on movement yes as alleged in the complaint yes uh and That restriction of movement however was not sufficient to so as to constitute an arrest uh under the Facts as pled I would just like to point at one case this is um a three-week-old case out of the 10th circuit Story versus Taylor this is where the 10th circuit did address the community caretaking exceptions and they held These functions may include for example restraining and intoxicated individual Empounding a vehicle left on the side of the road or transporting an individual to safety These the 10th circuit has gone a step further than the third circuit has in past cases in the application of the community caretaking exception however that was Clearly the role officer Marshall was playing on the evening of September 28 2009 But so I don't I don't know why you're bringing this up So we would have to find that there is an arrest and there's a clearly established right if we did then you want us to go to the Community caretaking exception What you are the community caretaking exception falls within the clearly established right clearly there was no clearly established right because in light of Community caretaking exception cases and all other cases you cannot say that every police officer In officer Marshall's position that night would have known that what should have known what he was doing was violating a constitutional right That's where the community caretaking exception Thank you mr. Morgan Stern. Thank you, mr. Brando case was very well argued appreciate your cando