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case number 15-7098.

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Matthew Corrigan, Appellant versus District of Columbia at L. Ms.

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Rademacher for the Appellant, Mr. Shipley for the Appellees.

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Good morning.

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Good morning.

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My name is Tony Brackenridge of the William & Mary Law School, and I'm just here to introduce Elizabeth and Rademacher, who will argue on behalf of Mr. Corrigan.

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Thank you.

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Counsel?

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Good morning, your honor.

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May it please the court.

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On February 3rd, 2010, DC police violated Matthew Corrigan's Fourth Amendment rights when they searched his home without a warrant, without consent, and after he had been restrained outside his home.

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We ask this court to reverse the summary judgment from the district court below for all defendants for the following reasons.

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First, the warrantless entry occurred without consent and without indicia of danger to others.

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Second, no exception to the Fourth Amendment justifies the search of Mr. Corrigan's home, nor may the district collaterally attack its unconstitutionality after its failed prosecution of Mr. Corrigan.

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Third, the right against warrantless entry in such a situation is clearly established.

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And fourth, the district has an unconstitutional custom or practice in place, which caused Mr. Corrigan's rights to be violated.

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First, there were no indicia of danger to others.

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Police need indicia of danger to themselves or the community to enter a home without a warrant.

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So let's see.

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The district court at the end of its opinion made a series of findings.

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Yes, Your Honor.

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And the district court talks about sort of the two interests that need to be balanced here in terms of qualified immunity.

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that, as I understand her position, that there were exigent circumstances.

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Yes, Your Honor, that is what the district court concluded.

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However, we argue that there were no exigent circumstances that justified this entry.

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So is your position that the police, having taken all of these precautionary measures and Mr. Corrigan having been taken out of the house, the only reasonable

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action consistent with the Fourth Amendment would have been to have obtained a search warrant for his house or his apartment.

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The police could have done several things, Your Honor, including get a search warrant.

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They also could have not searched Mr Corrigan's home at all.

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Our position is that no exigent circumstances justified going inside without a warrant, though.

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They had six hours to do so to obtain a warrant, and they did not.

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And moreover, we would argue that there were no indicia of danger that justified such a warrantless entry.

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So the indicia, as I understand it, on which the officers say they were relying in going in, was

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They had been called to the home of someone who was suicidal.

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At least that was their reasonable understanding based on the information that they received.

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And it was someone who had military explosives expertise.

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He had a bag, a military bag in his apartment that his girlfriend said, he said contained military, she should not touch it.

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raising perhaps a reasonable inference that there was something volatile or dangerous in it, perhaps.

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When they arrived on the scene, there was a smell of gas.

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They tried to get Mr. Corrigan to come to the door.

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He didn't.

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He delayed.

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They don't know why at that time, and they're just acting on the information that they have.

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Mr. Corgan, as they understand it, is generally pretty miserable.

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He has PTSD.

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He is not being cooperative.

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He has sent them to a false address after they speak to him on the phone.

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So is it your position that no reasonable officer, when confronted with those circumstances, would think that there's probable cause

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for concern that there might be some explosive causing danger to the community.

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Your Honor, we dispute several of those factular inferences that are posited by the district for why the officers would have had a reasonable suspicion.

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Okay, so let me just take two questions.

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Sure.

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Before you dispute the factual basis that I listed,

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If those are in fact undisputed facts of record, do you think on the basis of those facts there is nonetheless not reasonable cause, probable cause to believe that there is a risk?

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Your Honor, we would say no.

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We think that Mr. Corrigan's background as a veteran and the fact that he is PTSD caused the officers to speculate about what would be happening inside his apartment, but that these speculations or these inferences that they made were unreasonable because they automatically jumped to the conclusion that he had something dangerous in his home simply because he served in the military and because he has a bag of military items.

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Okay, so that's your

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purely illegal.

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And then you said you dispute some of the facts.

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So if you could tell us what you think are the material factual disputes and just catalog those, that would be helpful.

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Yes, your honor.

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First, there's a dispute about whether it was actually a smell of gas at all that night.

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For instance, on J 53, the police internal report says that there was a noted strong odor of gas.

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However, none of the police that are defendants to this action smelled gas on the night in question.

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For instance, on J.A.

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193 in Sergeant Pope's deposition, he says that he didn't smell any gas.

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And at J.A.

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377, Officer Leon also says he didn't smell anything.

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Undisputed.

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They had the gas company turn off the gas in the area.

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Is that correct?

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They did call the gas company, Your Honor, to ask them to turn off gas.

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However, it is within the record there are some inconsistencies about whether anyone actually did smell gas that night.

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What's your other disputed fact?

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Our other disputes of fact, Your Honor, include the fact that Mr. Corrigan said that he wouldn't hurt anyone else according to the district.

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Now on JA557, Mr. Corrigan says in his deposition that he did not say he wouldn't hurt anyone else.

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He says that first he was asked if he would hurt himself and then if he would hurt others and he answered no to both questions.

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However, the district says that Mr. Corrigan said it affirmatively that he wouldn't hurt anyone else.

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So we would say that there is a genuine dispute of that fact.

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in the record.

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And also, Your Honor, there is a dispute about whether or not the police would have gone inside at all that night if they had smelled gas, if there were any gas.

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For instance, on JA 619, Lieutenant Glover says that they needed to go inside because there was a risk of a natural gas leak.

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But then on JA 293, Sergeant Pope is talking in his deposition about how they would have backed off if there was something dangerous or an explosive that could have been a risk to the ERT team.

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What about the

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the district court's finding that they didn't know where the girlfriend was.

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And she and a plaintiff had a somewhat testy relationship.

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Your Honor, the fact that Mr. Corrigan's ex-girlfriend had been contacted, the police could have asked her where she was, but they did not.

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And a reasonable jury could find that there was no reason to believe that she was inside the home.

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Moreover, just because- I guess my question is, if she's being held by him,

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she's not going to be able to signal to them where she is.

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Maybe they didn't investigate far enough, but I'm just trying to understand.

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Because when the district court makes the findings it makes, it doesn't rely on these disputed facts that you're talking about in terms of concluding that there were exigent circumstances justifying the entry.

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Your Honor, when the police spoke to Mr. Corrigan's ex-girlfriend, they didn't ask her where she was at all, as far as the record indicates.

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Now, the fact that they automatically assumed that she was inside and that Mr. Corrigan had hostages, we are saying is unreasonable because it was speculative.

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They also asked Mr. Corrigan's landlord if he had any overnight guests or if he lived alone.

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The fact that Mr. Corrigan has ever had an overnight guest in his life does not indicate that he had overnight guests that night.

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And moreover, no one saw an overnight guest that night.

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So we're saying that this is at best speculative.

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Do you think that officers have to be able to establish both probable cause and exigent circumstances?

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Your Honor, in order to go inside for an exigent circumstance, this court is held in United States v. Dawkins that they must have exigent circumstances and probable cause to go inside for the purpose of the exigent circumstances doctrine.

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And that's not probable cause that a crime has been committed or that they'll find evidence of a crime, but probable cause to believe that there is such an exigency?

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Is that how you understand it?

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That's my understanding, Your Honor.

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In the Evans case, that the, oh, I'm sorry, Your Honor, did you have a question?

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Who has the burden to show exigent circumstances?

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I think there's a line, at least in your brief, characterizing it as an affirmative defense, and I wasn't sure whether you, I don't believe you cited a case for that.

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Your honor, I believe what we were referring to in the brief is that at the district court, or sorry, not the district court level, at the DC Superior Court level, that there was an affirmative duty on behalf of the district to show that, to not suppress the evidence, that there was some extant circumstance that justified their entry.

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I believe that's what we're referring to.

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Whose burden is it here in the civil case?

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In a civil case, Your Honor, I believe that the plaintiff has to show that there was no probable cause.

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The plaintiff has to show a lack of exigent circumstances.

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I'm not sure, Your Honor.

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So the plaintiff shows warrantless entry.

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without justification under the Fourth Amendment.

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And as part of that, we're assuming that the plaintiff has to show there was no exigent circumstance giving a justification.

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Yes, your honor.

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Now, under the Evans case from the D. C. Court of Appeals, we feel that it is related to this case and very helpful for understanding the issues here.

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In that case, the court said that police must have an objectively reasonable belief that they need to go inside someone's home.

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They can't operate on a we have no way of knowing standard or a bare possibility standard.

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Instead, they need an objective, reasonable belief.

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And what we're arguing here, Your Honor, is that there was no objective, reasonable belief.

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Moreover, Mincy tells us that an emergency can justify such a search, but it can only happen if you can articulate specific and articulable facts, that there's a reasonable belief that there's an exigency that exists.

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In this situation, there is no such belief.

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Would you like to say the rest of your time for rebuttal?

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Yes, Your Honor.

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Thank you.

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Good morning, and may it please the court.

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Carl Schifferle for the District of Columbia, please.

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The district court correctly determined that the search was reasonable under the alarming and dangerous circumstances that officers confronted that night.

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At the very least.

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What about the fact that the officers had taken all of these precautionary steps, gotten the gas company to turn off the gas, they'd evacuated the building, they'd taken the plaintiff into custody,

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So at that point, why wasn't a warrant required if they wanted to go into his apartment?

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Especially when he told them he did not consent and he closed and if they said lock the door.

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Because the exigency existed still at the time that Mr. Corrigan left his apartment.

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What was it?

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Well, there was the reason that was given for the search.

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And first of all, that there was the concern about persons inside who might need assistance.

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They evacuated the building.

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They evacuated the people upstairs in the separate unit.

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But as far as the basement apartment, there was a concern that there might be somebody inside.

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But Mr. Schifferle never even asked the girlfriend where she was.

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And they said, oh, there was no way to confirm her location.

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I would think the first way one would try to confirm a location if one is concerned about a person in danger is to ask that person.

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Yeah, well, the record, unfortunately, doesn't reflect whether that was asked and what the response was.

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But the point is, as Lieutenant Glover testified, because it's a conversation by cell phone, you cannot be sure of the girlfriend's location.

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But it just belies the notion that there was any active concern at that time that she was in there with him.

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It seems like that was, I mean, they thought she was in there with him.

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Where are you?

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Are you safe?

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We don't have any information that any of that was pursued.

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Right.

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But regardless of whatever response she might have given, police would not be able to ascertain her physical location through a conversation by cell phone.

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She may be under duress, or there may be some other reason she is not.

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If she said, hey, I live two blocks away.

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Do you want to talk to me?

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Send someone over.

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That would have resolved that, right?

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Right, but we have no, I would submit it's planned as part and we have no indication in the record that that would have resolved it.

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In addition, you're not sure whether there are other persons in the apartment, other people?

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There were actually two searches here, right?

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The ERT goes in there, they find no person, no contraband, no, I mean nothing happens at that point.

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And yet there is a second more intrusive search.

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So once they know there's nobody in there that's in any immediate danger, why then wouldn't they get a warrant?

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Well, there is the additional concern about hazardous materials, and that is an exigency that would excuse the warrant requirement.

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There is no contention even that a warrant would be available to search for hazardous materials.

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What's the concern?

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What's the basis of the concern that there are hazardous materials here?

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Well, we do have to look at the totality of the facts and circumstances.

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I think, Judge Pillard, you laid out the facts that the officers had and that they are undisputed facts.

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The only contest I heard this morning was with respect to the gas, but it is undisputed that police at least received reports

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of a gas leak, because the gas company did come out and shut off the gas line.

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So by the time they're searching, though, the gas leak is no longer a problem.

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If that was a problem, it's been turned off.

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So we're not worried about that.

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So what's the basis of the exigency that there is hazardous material here?

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Well, I disagree that we're no longer concerned about gas.

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The gas could still be remaining in the apartment.

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It could be a symptom or an indicator that there is some hazardous condition that remains.

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I would point this court to the Tyler case, Michigan versus Tyler.

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That involved a fire.

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And the Supreme Court explained just because the fire's out doesn't mean it's not reasonable.

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In fact, it is reasonable to investigate further to determine the cause in order to ascertain whether there is some continuing hazardous condition existing.

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And we have all the facts and circumstances that were discussed earlier.

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So any veterans... Go ahead.

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I'm sorry.

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Well, first of all, the gas company has turned off the gas.

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If there were continuing circumstances of that kind, you would think it would be the gas company's employees and not the police who would be trying to verify that.

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But leaving that aside, what else is there?

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Well, there are the various facts that we had a several-hour barricade situation in which Mr. Corrigan had been threatening suicide with a gun, that he had weapons, multiple weapons, that he had a bag full of unknown military items which had

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He had instructed his girlfriend specifically not to touch, that he was an expert in improvised explosive devices that he had trained others.

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Now you're going to say that if you are former military, you've got a green duffel bag, and it may have military items in it, this justifies people just coming in and doing a completely intrusive search of your home when you've not given consent?

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No, Your Honor, I'm not saying that at all.

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Again, all the facts and circumstances.

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All right, the only other facts you have is he called, mistakenly, the suicide hotline.

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So it's the rule that anyone who calls a suicide hotline who has military training and refuses to allow the police to enter his or her apartment

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Is subject to a warrantless search?

[00:17:40] Speaker 06:
No, Your Honor, because there's a lot more facts than that.

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What more is there here?

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That he lied to police about his whereabouts.

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How many units are in this building?

[00:17:50] Speaker 06:
Just two.

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There's the basement apartment and the individuals living above.

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All right.

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So everybody is out of the apartment.

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And as Judge Brown's question points out, the first search determined that there was no one inside.

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That's correct.

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And so, but we still have the concern about hazardous materials.

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And is the concern, tell us more what they're worried about.

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So there was a natural gas purpose or washing gases turned it off.

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Tell us, it's not the guns.

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What is the hazardous material concern?

[00:18:33] Speaker 06:
Well, the guns and the ammunition can obviously contribute to a hazardous condition, just as the gas can.

[00:18:39] Speaker 06:
I would also point out, too, we do argue, even though the officers didn't search for firearms, the existence of the firearms, the need to secure them to prevent them from being used and concealed, was an exigent circumstance as well.

[00:18:51] Speaker 03:
But why?

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He's out of the house.

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The question is why you don't have a warrant.

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So yes, you may want to secure those firearms and the ammunition, but that isn't something that you couldn't get a warrant to deal with.

[00:19:04] Speaker 03:
The question here is, what was exigent?

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What was the emergency?

[00:19:09] Speaker 06:
It's exactly the Hendricks case, for example, which we've relied upon in other cases from this court, where the firearm, the existence of the firearm, the concern that it could be used later or concealed later created the exigency.

[00:19:21] Speaker 03:
By whom?

[00:19:22] Speaker 03:
You have taken away Mr. Corrigan.

[00:19:25] Speaker 06:
He's no, he's not under arrest.

[00:19:28] Speaker 06:
He has voluntarily admitted himself.

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He could decide in fairness.

[00:19:33] Speaker 04:
He voluntarily committed himself.

[00:19:35] Speaker 04:
But as soon as he admitted, as soon as he released himself, he was taken to the fifth district and charged.

[00:19:43] Speaker 04:
So the implication is if he hadn't admitted himself, he would have been charged that night.

[00:19:47] Speaker 06:
No, it was three days later.

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He was arrested pursuant to an arrest.

[00:19:51] Speaker 04:
He was in the hospital three days.

[00:19:54] Speaker 06:
That's right, but the concern was he could, as soon as he checked himself into the hospital, could have come back out, he could have had somebody else arrange to retrieve the gun.

[00:20:04] Speaker 02:
Wouldn't, I mean, it would be less intrusive to post someone outside.

[00:20:08] Speaker 02:
the house when he comes.

[00:20:10] Speaker 06:
I don't think that's required under the case law.

[00:20:14] Speaker 06:
For example, the same argument could be made in Hendricks and other cases.

[00:20:17] Speaker 02:
The facts in those cases show someone is still in the apartment.

[00:20:21] Speaker 02:
Those are factually, they don't get you all the way there.

[00:20:25] Speaker 02:
So what we're facing is a situation of what is the exigency in these facts.

[00:20:32] Speaker 02:
One of the difficulties that I think you have is that it's pretty clear from the officer's testimony that they believed when they came in one of these helping calls, you know, responding, not investigating crime, but somebody in distress and, you know, trying to basically save him without officers getting killed, that they didn't need probable cause.

[00:20:56] Speaker 02:
They pretty clearly said that, so they're just like, oh, we're here on that kind of search, and therefore, you know, exigent circumstances, and therefore we're not even thinking about probable cause, and we kept someone there, and we stayed in, and we went in, and kind of with camel's nose under the tent, allowing them, they seem to think.

[00:21:16] Speaker 06:
Well, first of all, the test for exigent circumstances is not probable cause, as the Supreme Court indicated in Fisher, for example.

[00:21:23] Speaker 06:
It's an objectively reasonable basis to believe that someone might be needing assistance or that there might be hazardous materials inside.

[00:21:30] Speaker 06:
We also have the community caretaking doctrine, which we haven't talked about.

[00:21:32] Speaker 06:
And that does cover, more broadly, circumstances that might not fall within the narrow scope of exigent circumstances we discussed.

[00:21:39] Speaker 02:
Don't you want either of the each other?

[00:21:41] Speaker 02:
I mean, you're not saying that you can invade a home and do the kind of search.

[00:21:46] Speaker 02:
the officers did here without... I'm for shorthand referring to it as probable cause, but an objectively reasonable belief based on the facts and circumstances known to the officers that there is an exigency, that there is... Correct, correct.

[00:22:01] Speaker 06:
There has to be some basis, and it's an objectively reasonable basis.

[00:22:05] Speaker 02:
More than a reasonable suspicion type basis, but really...

[00:22:09] Speaker 06:
Well, I don't know.

[00:22:10] Speaker 06:
I don't think it's quite as high a standard as probable cause.

[00:22:13] Speaker 06:
I think it is difficult to articulate without a specific factual context.

[00:22:18] Speaker 06:
And that's why also qualified immunity comes into play here as well, because we don't have, even assuming that the search was unconstitutional, a reasonable officer could have believed, in light of clearly established law or lack of clearly established law, indicating that this search was unconstitutional in these particular circumstances.

[00:22:35] Speaker 06:
So we have the qualified immunity argument as well,

[00:22:38] Speaker 02:
I thought that the case law said, the Supreme Court said, exigent circumstances, you have to have probable cause to believe.

[00:22:47] Speaker 06:
No, I think if the exigent circumstance is based on criminal activity, for example, the concern that criminal evidence is going to be destroyed or the hot pursuit of a suspect, a criminal suspect.

[00:22:59] Speaker 06:
In the criminal context, yes, probable cause.

[00:23:02] Speaker 06:
Where the exigent circumstance and the fact the need to help people inside who might need assistance and to check for hazardous materials, those aren't criminal-based investigations.

[00:23:15] Speaker 06:
We're not talking about probable cause.

[00:23:18] Speaker 02:
Probable cause is a threshold to protect the privacy of the home.

[00:23:22] Speaker 02:
And even though the content of the showing, as you correctly point out, would be focused not on crime but on some other counterbalancing governmental interest, why would it be a lower

[00:23:36] Speaker 02:
level of concern in the non-criminal law enforcement context that would suffice to override the privacy.

[00:23:43] Speaker 06:
Right.

[00:23:45] Speaker 06:
The courts have talked about this, that where the officers are not engaged in the, quote, competitive enterprise of ferreting out crime, that there's less of a

[00:23:55] Speaker 06:
concerned there's less of a need for the warrant requirement.

[00:23:58] Speaker 06:
In fact, the warrant requirement may not even apply at all because it applies in the context of criminal investigations.

[00:24:05] Speaker 06:
But where there's no criminal investigation, where the officers are acting out of community caretaking interest, there's not even a warrant requirement.

[00:24:12] Speaker 06:
Or there's not a warrant requirement, and there may not even be a warrant to obtain in the first place.

[00:24:16] Speaker 04:
Of course, this court has not decided whether that doctrine applies.

[00:24:23] Speaker 04:
in this context.

[00:24:24] Speaker 06:
Sure.

[00:24:25] Speaker 06:
But that ambiguity creates qualified immunity for the officers that there is not that clearly established law we pointed to cases for other circuits.

[00:24:33] Speaker 04:
Suppose there's a clearly established law that if you want to go into somebody's house and you don't have probable cause to arrest that person, you've got to get a warrant.

[00:24:43] Speaker 06:
Well, that's true in the criminal context, which is not basically what we have here.

[00:24:48] Speaker 04:
So you're arguing where there are all these 20 police officers in a barricade

[00:24:52] Speaker 04:
It's not a criminal situation.

[00:24:55] Speaker 04:
And you've evacuated the building.

[00:24:58] Speaker 04:
So anybody who has firearms in the house, you can go in to get those firearms, because the occupant may come back or get somebody else to go into his apartment and get the guns.

[00:25:12] Speaker 06:
I mean, that's just one of the bases we're relying on.

[00:25:14] Speaker 04:
And that's Hendrix.

[00:25:15] Speaker 06:
We're not asking for anything more than Hendrix decided.

[00:25:18] Speaker 06:
And other cases of this work.

[00:25:19] Speaker 04:
This is not Hendrix.

[00:25:20] Speaker 04:
I mean, you've got to.

[00:25:22] Speaker 06:
But in any event, even if the law were unclear, even if there are concerns about the constitutionality of the search, the existence of qualified immunity would cover the officers here because there is no clearly established law.

[00:25:35] Speaker 06:
The plaintiffs point to no case with any analogous factual circumstances.

[00:25:38] Speaker 06:
We pointed to the Fisher case from the Supreme Court, the in-race deal case from this court.

[00:25:42] Speaker 04:
No, but I guess the plaintiff starts with the basic proposition that if you want to come into my home and you're a law enforcement official,

[00:25:51] Speaker 04:
you need to get a search warrant.

[00:25:54] Speaker 04:
That's where we start.

[00:25:56] Speaker 04:
And so if you don't have a warrant, you've got to establish that one of these limited exceptions applies.

[00:26:06] Speaker 04:
Well, when I first read this case, I thought, well, the police acted very responsibly.

[00:26:13] Speaker 04:
They got the gas company to turn off the gas.

[00:26:16] Speaker 04:
They took the other people out of the building.

[00:26:19] Speaker 04:
They tried to contact the plaintiff.

[00:26:22] Speaker 04:
When they finally did, he came out of the building and admitted himself.

[00:26:28] Speaker 04:
to this hospital.

[00:26:30] Speaker 06:
Well, as the Supreme Court said in Kentucky versus King, the ultimate touchstone is reasonableness, and that reasonable supplies even to exceptions to the warrant requirement.

[00:26:39] Speaker 06:
So reasonable exceptions would apply even when a warrant is required.

[00:26:44] Speaker 04:
But exigency can't be near suspicion, though.

[00:26:50] Speaker 06:
Well, all I can do is point to the Supreme Court in its objectively reasonable basis to believe.

[00:26:55] Speaker 06:
I would discuss the facts in Fisher, where the individual was throwing objects.

[00:26:59] Speaker 06:
There was no indication that anybody was inside, but the Supreme Court said it was still reasonable to believe that there might be a person who was at the receiving end of what was being thrown, even though there was no evidence whatsoever that there was, in fact, anybody else inside the home.

[00:27:13] Speaker 04:
What about the first search?

[00:27:15] Speaker 06:
I'm sorry?

[00:27:16] Speaker 04:
What about the first search?

[00:27:20] Speaker 04:
establishing no one was in the apartment.

[00:27:24] Speaker 06:
That's true.

[00:27:24] Speaker 06:
But then there's the concern about hazardous materials.

[00:27:27] Speaker 04:
So that's all we're dealing with here.

[00:27:30] Speaker 04:
That's the only justification for going in back in to the apartment.

[00:27:37] Speaker 04:
Well, I mean, everything else is taken care of because the police have evacuated the building, turned off the gas.

[00:27:47] Speaker 06:
Well, the concern about somebody else being inside is taken care of.

[00:27:51] Speaker 06:
But the larger public safety concerns are not taken care of.

[00:27:54] Speaker 04:
Why is the larger public safety concerned?

[00:27:56] Speaker 06:
That there is some hazardous condition inside that apartment so that there could be an explosion that could affect.

[00:28:06] Speaker 06:
These are row houses.

[00:28:07] Speaker 06:
So their houses immediately join on both sides.

[00:28:09] Speaker 04:
So normally, would the gas company come to check for leaks?

[00:28:14] Speaker 04:
There's, there's... No, I mean, the police, a police officer isn't a trained... Right, but you would... Yes.

[00:28:20] Speaker 06:
I, I, respectfully, I can't even...

[00:28:22] Speaker 06:
You can see that in this particular situation under these sets of facts that you would send the gas company in rather than police officers where you have the indications of military items in the house, weaponry.

[00:28:34] Speaker 06:
There was thousands of rounds of ammunition inside.

[00:28:36] Speaker 02:
So what did they think?

[00:28:37] Speaker 02:
They didn't know.

[00:28:38] Speaker 02:
A weapon with a gun and ammunition with nobody to shoot it.

[00:28:42] Speaker 02:
Just tell me more about what the concern is.

[00:28:47] Speaker 06:
Well, in terms of the hazardous condition, just looking at that, right, that the weapons could be, or the ammunition could be booby-trapped in some way, that they did actually check for that.

[00:28:57] Speaker 06:
There's some sort of explosive condition.

[00:28:59] Speaker 02:
So they're basically thinking there's some bomb that's been set.

[00:29:04] Speaker 02:
It's not that there's just guns and ammunition.

[00:29:07] Speaker 02:
It's not that there's just Washington gas gas.

[00:29:10] Speaker 02:
Don't they have to think that there's something actually been

[00:29:14] Speaker 02:
you know, as they say, fused object, there's something that's been set to go off.

[00:29:19] Speaker 06:
Otherwise, well, an objectively reasonable basis to believe that that might be true.

[00:29:24] Speaker 06:
Yes.

[00:29:25] Speaker 06:
Either that it's been set, I mean, something intentional, or it could be something unintentional.

[00:29:29] Speaker 06:
Something had become unstable.

[00:29:31] Speaker 06:
One of the military items had become unstable.

[00:29:33] Speaker 06:
That perhaps in the course of contemplating suicide, that he rigged something up.

[00:29:39] Speaker 06:
That whether intentional or unintentional,

[00:29:41] Speaker 06:
The officers are operating in uncertainty and they're always going to operate uncertainty in these particular cases.

[00:29:47] Speaker 06:
And I think in light of the Supreme Court cases, Fisher and others that have just exited circumstances.

[00:29:54] Speaker 02:
quite different on its back.

[00:29:56] Speaker 02:
There's blood everywhere, there's smashed windows, there's a smashed up pickup truck outside, there's an ongoing melee of violence that they see the guy through the window, you know, shouting, pummeling.

[00:30:08] Speaker 06:
Yeah, but there's no indication that anybody else is there.

[00:30:11] Speaker 06:
The blood, he has a cut on his hand, which officers can see.

[00:30:14] Speaker 06:
In fact, they can see into the home well enough to see him and what he's doing.

[00:30:18] Speaker 06:
The blood is explainable by the cut on the hand.

[00:30:21] Speaker 02:
Even to protect him, it seems like there's some

[00:30:24] Speaker 02:
There's some interesting going on someone who's been an accident and bleeding.

[00:30:30] Speaker 06:
Well, we have, in this case, many more facts supporting a search than in Fisher.

[00:30:38] Speaker 06:
We have somebody who is clearly suicidal called a suicide hotline and threatened to kill himself with a gun.

[00:30:45] Speaker 06:
We have the existence of firearms.

[00:30:46] Speaker 06:
We have military items.

[00:30:47] Speaker 06:
Again, none of these facts existed in the Fisher case, suffering from post-traumatic stress disorder, domestic issues with a girlfriend.

[00:30:56] Speaker 04:
No indication that this man has any explosives.

[00:31:00] Speaker 04:
No indication that he's a bomb builder.

[00:31:05] Speaker 06:
Well, I think there is, that he is an expert.

[00:31:07] Speaker 04:
No, he knows how to dismantle them.

[00:31:11] Speaker 06:
Well, that's still expertise in the subject matter.

[00:31:14] Speaker 04:
I understand, but I mean, what do the police need to come into my house?

[00:31:20] Speaker 06:
Well, I mean, we have.

[00:31:23] Speaker 06:
I want to emphasize that each fact, you could look at each fact in isolation and say it's relatively mundane.

[00:31:30] Speaker 06:
It doesn't arise to the level of an objectively reasonable police.

[00:31:33] Speaker 04:
No, what I was trying to get you to focus on is the police have taken these precautionary steps.

[00:31:39] Speaker 04:
The gas is off.

[00:31:40] Speaker 04:
They've evacuated the building.

[00:31:43] Speaker 04:
The plaintiff is in custody outside of his apartment.

[00:31:49] Speaker ?:
Right.

[00:31:49] Speaker 04:
Then I was stopping there, but then Judge Brown's question points out there was a first search.

[00:31:56] Speaker 04:
There is nobody inside.

[00:32:01] Speaker 06:
That's correct, but that doesn't eliminate the hazardous condition that might exist inside the house.

[00:32:06] Speaker 04:
Because he's been in the military, or he has weapons.

[00:32:12] Speaker 06:
That's part of the factual context.

[00:32:15] Speaker 06:
It's not the entirety of it.

[00:32:16] Speaker 06:
And the Supreme Court said that even lawful conduct can be a basis for concern when you look at the totality of the circumstances.

[00:32:23] Speaker 06:
You also have to judge the officers not with hindsight, but from their perspective on the scene in a tense and uncertain situation where they have to react and make quick decisions

[00:32:34] Speaker 04:
And that's what almost six hours we're talking about now.

[00:32:38] Speaker 04:
They've got a barricade.

[00:32:39] Speaker 04:
Everybody's out of the building.

[00:32:41] Speaker 04:
The gas is off.

[00:32:42] Speaker 04:
And they're just waiting for this man to respond to phone calls.

[00:32:46] Speaker 04:
And he finally does.

[00:32:48] Speaker 04:
But I mean, four hours has passed.

[00:32:50] Speaker 04:
Five hours has passed.

[00:32:51] Speaker 06:
Yeah.

[00:32:51] Speaker 06:
Well, it's a constantly evolving situation.

[00:32:54] Speaker 06:
Information is coming in.

[00:32:55] Speaker 06:
They're trying to contact Mr. Corrigan.

[00:32:57] Speaker 06:
He's not responding.

[00:32:58] Speaker 06:
Things develop and occur.

[00:32:59] Speaker 06:
I would also point this court to the Ninth Circuit decision, another Fisher case, in which the court said that

[00:33:05] Speaker 06:
in this type of standoff barricade situation that it's unreasonable to require officers to go get a warrant at the same time they're trying to deal with a situation like this.

[00:33:14] Speaker 06:
Their efforts should be focused on peaceably resolving the situation, and to require them to go get a warrant is just bad policy.

[00:33:21] Speaker 06:
In fact, it would suggest that police officers should act hastily in order to avoid creating the time in which a warrant could arguably

[00:33:28] Speaker 06:
be obtained, it also encourages individuals to continue the standoff so they have an argument that, well, a warrant should have been obtained.

[00:33:34] Speaker 04:
In the seventh circuit, it only takes 30 minutes to get a warrant, according to its case.

[00:33:39] Speaker 04:
But here, I gather one of the supervisory personnel said it would take three or four hours?

[00:33:46] Speaker 06:
Four to five hours.

[00:33:47] Speaker 06:
And that was undisputed.

[00:33:48] Speaker 06:
And it was late at night.

[00:33:48] Speaker 04:
I don't understand that at all, since judges are on emergency call in the Superior Court with magistrates.

[00:33:54] Speaker 04:
US attorneys are on emergency call.

[00:33:57] Speaker 06:
I mean, you know.

[00:33:59] Speaker 06:
Right.

[00:33:59] Speaker 06:
Lieutenant Glover testified that, and this is based on his experience, that it tastes.

[00:34:03] Speaker 04:
No, I know.

[00:34:03] Speaker 04:
We have that there in the record.

[00:34:04] Speaker 04:
I understand.

[00:34:05] Speaker 06:
And it's late at night.

[00:34:06] Speaker 06:
The weather is very poor.

[00:34:08] Speaker 06:
It's snowing.

[00:34:09] Speaker 06:
It's icy.

[00:34:10] Speaker 06:
There's no provision in the Superior Court rules for a telephonic warrant.

[00:34:14] Speaker 06:
So it's a perfectly.

[00:34:17] Speaker 04:
So the Fourth Amendment's just set aside.

[00:34:20] Speaker 06:
No, Your Honor.

[00:34:21] Speaker 06:
I think we've decided.

[00:34:23] Speaker 04:
That can't be the explanation.

[00:34:26] Speaker 04:
all right that they're icy conditions so we just don't worry about the Fourth Amendment.

[00:34:30] Speaker 06:
No, Your Honor, I was just responding to the question about how long it would take to obtain a warrant.

[00:34:35] Speaker 06:
And that's part of the calculus, part of the factor that it would take four or five hours to get a warrant.

[00:34:40] Speaker 06:
And in that amount of time, a lot of things could go badly.

[00:34:43] Speaker 06:
There could be somebody inside needing assistance.

[00:34:45] Speaker 03:
Those four to five hours are going to be critical.

[00:34:48] Speaker 03:
We're already past that.

[00:34:49] Speaker 03:
There's nobody inside.

[00:34:51] Speaker 06:
OK, we're just talking about the additional incremental intrusion.

[00:34:55] Speaker 04:
What the police know is he has guns and he's a military man.

[00:34:59] Speaker 04:
who knows how to disable bombs.

[00:35:03] Speaker 04:
And he's suicidal, but he's outside now, in police custody.

[00:35:10] Speaker 06:
Well, we have all the facts.

[00:35:12] Speaker 06:
I'm not limiting myself to anyone.

[00:35:14] Speaker 06:
And I would point out qualified immunity as well.

[00:35:16] Speaker 04:
But what about Judge Pillard's inquiry to you about where did the police indicate they were concerned that there might have been some fuse-making emergency?

[00:35:28] Speaker 06:
I'm sorry, did you say fuse me?

[00:35:31] Speaker 04:
He had set a bomb.

[00:35:34] Speaker 06:
Again, it's not limited to him intentionally setting a bomb, but the existence of the military items that the girlfriend had been told do not touch, his military expertise, his suicidal state, post-traumatic stress disorder, depression, he was taking medications,

[00:35:51] Speaker 06:
This is a highly unstable, volatile situation.

[00:35:55] Speaker 06:
You have to look at all those facts and circumstances to consider whether a reasonable officer could believe, even again, even if this court is not inclined to find this search was constitutional, under qualified immunity and clearly established law, there's no clearly established law that would say under these entirety of facts and circumstances we have here,

[00:36:13] Speaker 03:
that would be unreasonable for an officer to believe that there was... But this burden is incredibly broad because you're saying, well, the community caretaking exception is broader than exigency.

[00:36:28] Speaker 03:
So let's assume that's true.

[00:36:29] Speaker 03:
But I see no limiting principle to what you're describing.

[00:36:34] Speaker 03:
Someone calls a suicide hotline doesn't even mean they're suicidal and there are indications in this record that that was not the case, that he actually accidentally got the suicide hotline.

[00:36:50] Speaker 03:
But let's assume that the police think that he's suicidal.

[00:36:57] Speaker 03:
But the only other thing they have is, once you put that aside,

[00:37:03] Speaker 03:
Just about everything else you're describing could apply to very many people.

[00:37:10] Speaker 03:
Ex-military, has firearms, knows something about IEDs.

[00:37:20] Speaker 03:
So that sets you up for this very broad-ranging search.

[00:37:26] Speaker 06:
But the undisputed evidence is that Mr. Corian was, quote, an expert in

[00:37:34] Speaker 06:
and provides explosive devices.

[00:37:35] Speaker 06:
And we have all the facts and circumstances regarding this.

[00:37:37] Speaker 03:
The idea that he's an expert comes from the ex-girlfriend who says he used to dismantle IEDs and he has a green duffel bag.

[00:37:48] Speaker 03:
There are going to be a lot of people in the population who have that experience.

[00:37:55] Speaker 03:
If that's it, that's all there is?

[00:37:58] Speaker 06:
Well, I don't think a lot of people are experts in improvising explosive devices and actually train others.

[00:38:03] Speaker 06:
This is also on the speed of train others in handling these devices.

[00:38:06] Speaker 06:
That seems to me a very small population.

[00:38:09] Speaker 03:
But if from that you make the leap that he's a bomb builder because he knows how to take them apart, then you make the leap that there's something hazardous in his apartment?

[00:38:19] Speaker 06:
Well, not just from that one fact.

[00:38:21] Speaker 06:
There's all the facts and circumstances here.

[00:38:24] Speaker 02:
Special relief whose burden is it to show exigency?

[00:38:28] Speaker 02:
The Dawkins, for example, says warrantless search does require probable cause, whether it's of the exigency or of criminal conduct.

[00:38:41] Speaker 02:
And it is the government's burden to show that the conditions obviating the warrant requirement are present.

[00:38:49] Speaker 06:
I think, as Ms.

[00:38:51] Speaker 06:
Rademacher acknowledged, that it is the burden on the plaintiff in a civil case, ultimately, to prove her case, his case.

[00:38:58] Speaker 06:
And so the burden of proof is on the plaintiff.

[00:39:00] Speaker 06:
I would also point to the fact that on qualified immunity, this court in Doe v. District of Columbia found qualified immunity because exigent circumstances was not clearly established.

[00:39:11] Speaker 06:
That case had to do with removal from a child from a home.

[00:39:14] Speaker 04:
But the point there that... Had what?

[00:39:16] Speaker 06:
that case involving sorry involved the removal of a child from my home.

[00:39:21] Speaker 04:
But the issue was in the home.

[00:39:23] Speaker 06:
Right, right.

[00:39:24] Speaker 06:
But in awarding qualified immunity, this court recognized that the scope of the law regarding exigent circumstances is not clearly established and granted qualified immunity there.

[00:39:35] Speaker 06:
We pointed to the McDonald case from the First Circuit, which also granted qualified immunity based on the community caretaking doctrine.

[00:39:41] Speaker 06:
It recognized the uncertainty of the doctrine was precisely why the officers were entitled to qualified immunity.

[00:39:47] Speaker 06:
In that case, once again here,

[00:39:49] Speaker 06:
We've relied upon that doctrine to the extent the law is uncertain and doesn't support the constitutionality of the search under that doctrine, does warrant qualified immunity as the First Circuit held in the McDonald case.

[00:40:02] Speaker 06:
I would also point out that officers Pope and Leone relied upon Lieutenant Bauer and his directive to search the apartment and so that their reliance on a supervisor's directive in a situation where they were not in a position to question it given

[00:40:16] Speaker 06:
given the tense and rather dangerous and alarming circumstances.

[00:40:21] Speaker 02:
But the property wouldn't apply to the District of Columbia.

[00:40:24] Speaker 02:
And we have, as I mentioned before, we have the lieutenant's glover testimony that he believes that 99.9% of the time when they come in response to something like this, a suicide,

[00:40:40] Speaker 02:
situation, they barricade, they're going to go in.

[00:40:43] Speaker 02:
He says they don't need probable cause to go in.

[00:40:46] Speaker 02:
This is a different kind of a search.

[00:40:49] Speaker 02:
Why isn't there at least a factual issue for Trump

[00:40:54] Speaker 02:
of Columbia's liability here?

[00:40:56] Speaker 06:
Well, because municipal liability does require a rather rigorous standard of culpability and causation so that it doesn't collapse into respond yet, superior liability.

[00:41:08] Speaker 06:
What Lieutenant Glover testified to is not sufficient to support a theory of municipal liability.

[00:41:14] Speaker 06:
This is the emergency response team, and they are only deployed when there are specific criteria that are met.

[00:41:20] Speaker 06:
dangerous situations like this, hostage situation, barricade situation, high-risk warrant.

[00:41:26] Speaker 06:
And so it's not surprising that they typically go in.

[00:41:30] Speaker 06:
And when they do go in, it is either because they have a warrant, and so the search is lawful, or they have exigent circumstances, and so the search is lawful.

[00:41:37] Speaker 02:
If they thought Mr. Corrigan was setting up an explosive vice, inadvertently or inadvertently, wouldn't they have had to storm the building

[00:41:48] Speaker 02:
when he didn't respond when they first got there.

[00:41:54] Speaker 06:
Well, again, this is an evolving situation.

[00:41:58] Speaker 06:
So all the officers know initially is that the person is suicidal.

[00:42:01] Speaker 06:
They try to contact him.

[00:42:02] Speaker 06:
Contact and contact him.

[00:42:04] Speaker 06:
Efforts aren't successful.

[00:42:05] Speaker 06:
They gather more information.

[00:42:06] Speaker 06:
They learn about his military background and expertise with IEDs.

[00:42:12] Speaker 06:
And so the situation is developing.

[00:42:14] Speaker 06:
And so I don't know at what point maybe

[00:42:19] Speaker 06:
what your honor pose might be true, but even then, I don't think there's any record or any evidence to sort of question police judgment or police tactics in handling the situation.

[00:42:30] Speaker 02:
He clearly feels like it's quite gratuitous.

[00:42:32] Speaker 02:
They're going in after after the fact that they've swept for people, he's out of there, and they go in and he also has a challenge against the scope of the search, which I mean I know searches are

[00:42:44] Speaker 02:
Your house doesn't look good after it's been searched.

[00:42:47] Speaker 02:
But clearly, he also thinks this was given the stated interest, that the scope of this search was excessive.

[00:42:55] Speaker 02:
And so I guess the question is, if it feels to him gratuitous and destructive,

[00:43:06] Speaker 02:
The government needs to say, no, no, we were doing promptly everything we genuinely had to do in response to the threat.

[00:43:13] Speaker 02:
And I'm thinking, well, really?

[00:43:14] Speaker 02:
There's a threat that the whole building is going to blow up?

[00:43:17] Speaker 02:
You're going to be outside waiting for him to wake up?

[00:43:21] Speaker 02:
and pick up the phone?

[00:43:22] Speaker 02:
There's a little tension there.

[00:43:24] Speaker 06:
I don't know that even if that's true, that rushing into the building with somebody who has several guns, that doesn't sound like a good idea.

[00:43:35] Speaker 06:
And certainly, again, there's nothing on the basis of this record in which you can question the officers in that particular situation.

[00:43:44] Speaker 02:
I just wonder if there's an inconsistency between the

[00:43:49] Speaker 02:
you know, objective and reasonable belief that there's a time-sensitive explosive situation that might harm, you know, seriously harm this block and the decision not to.

[00:44:08] Speaker 02:
further inquiry into that earlier.

[00:44:12] Speaker 06:
By actually forcing entry into the home when the individual is inside, he's armed, he's suicidal, he's got all kinds of military items.

[00:44:19] Speaker 02:
They don't know he's inside because at the beginning they've just come and they've heard it from the girlfriend, but they've gotten no response from him.

[00:44:31] Speaker 02:
They know he's a veteran, they know he has IED experience, they've smelled the gas, they're getting no response from him.

[00:44:39] Speaker 02:
you know, maybe he's killed himself already, and the thing is going to go off in five minutes.

[00:44:44] Speaker 02:
I mean, I'm just... Right.

[00:44:45] Speaker 06:
That's the difficult situation that police officers face.

[00:44:47] Speaker 06:
They have to operate under these immense uncertainties.

[00:44:50] Speaker 06:
They have to make decisions with limited information.

[00:44:53] Speaker 06:
There are very high-risk situations.

[00:44:57] Speaker 06:
You know, this is the sort of thing why the Supreme Court has recognized that we evaluate these situations from the perspective of an officer on the scene, and we recognize and give deference to their judgments

[00:45:08] Speaker 06:
in these sorts of situations because it's so easy to second-guess in hindsight what they did when, you know, it's simply unfair to judge them in that respect.

[00:45:18] Speaker 02:
So is it immaterial that

[00:45:21] Speaker 02:
the police say that they found it very important that he, quote, turned around and locked the door when he came out.

[00:45:31] Speaker 02:
That's immaterial, no?

[00:45:33] Speaker 06:
Oh no, that is part of the calculus, part of the facts here.

[00:45:37] Speaker 02:
But that's disputed as a factual matter.

[00:45:39] Speaker 06:
No, it's undisputed that he locked the door.

[00:45:41] Speaker 02:
Well, it's disputed in this regard.

[00:45:43] Speaker 02:
They were drawing an inference from him taking the care to go back and lock the door, when in fact, I think there's a dispute, a factual dispute in the record.

[00:45:50] Speaker 02:
He says he turned the little tab in the doorknob and then actually mistakenly pulled the door closed, oops, locked it.

[00:46:00] Speaker 02:
So he didn't actually go and do anything.

[00:46:03] Speaker 02:
He just stepped out and closed the door.

[00:46:05] Speaker 02:
And the officers say, oh no, we've never seen someone take so much care to close the door.

[00:46:10] Speaker 02:
So it seems like, at least in the record, there's a factual dispute.

[00:46:13] Speaker 02:
And I think either you would say, no, that's not material, or that has to be tried.

[00:46:17] Speaker 02:
Likewise, they have this, seem to place a lot of emphasis on, I'm not intending to hurt anyone else, pregnant implication that I have already hurt someone.

[00:46:29] Speaker 02:
that's not what he said he said no.

[00:46:32] Speaker 02:
So is that a factual dispute?

[00:46:33] Speaker 02:
Is that material?

[00:46:34] Speaker 02:
Because they seem to be acting on, oh, he implied there's someone else.

[00:46:38] Speaker 06:
OK.

[00:46:39] Speaker 02:
So I think you have to say those are not material, or you have to say we need to resolve them.

[00:46:44] Speaker 06:
Well, as to the latter, no.

[00:46:45] Speaker 06:
There's no factual dispute.

[00:46:48] Speaker 06:
Police negotiator was told by Mr. Corrigan was, I'm not intending to hurt anybody else.

[00:46:54] Speaker 06:
And the negotiator relayed that to Lieutenant Glover.

[00:46:57] Speaker 06:
What Plantis is talking about is a different conversation with the hotline call taker, where he says he was asked if he intended to hurt somebody.

[00:47:05] Speaker 06:
And he just said no.

[00:47:06] Speaker 06:
So there's two different conversations we're talking about.

[00:47:08] Speaker 06:
It's not a factual dispute.

[00:47:10] Speaker 06:
As far as the door being locked,

[00:47:13] Speaker 06:
Well, the testimony, as I recall, is that the officer saw him close and lock the door.

[00:47:18] Speaker 06:
But in any event, however you characterize the conduct, the officer said that he had never seen anybody in a barricade situation act like that, that that was unreasonable, and that was suspicious to him.

[00:47:28] Speaker 06:
And that is the sort of inference that officers are allowed to draw.

[00:47:31] Speaker 06:
I would point to the Ryvern versus Huff case, in which an individual didn't respond to inquiries by the police.

[00:47:38] Speaker 06:
And then after talking to the police man back inside,

[00:47:40] Speaker 06:
The lower court said, well, that's lawful.

[00:47:43] Speaker 06:
There's nothing inherently suspicious about it.

[00:47:45] Speaker 06:
It's lawful conduct.

[00:47:47] Speaker 06:
And the Supreme Court said no, that a reasonable officer could be legitimately concerned, even though you can explain away the conduct, even though you can call it innocuous, even though it's lawful.

[00:47:58] Speaker 06:
It still can be suspicious, and an officer is entitled to rely on his or her suspicion in these circumstances.

[00:48:04] Speaker 06:
And at the very least, the officers would be entitled to qualified immunity.

[00:48:10] Speaker 03:
On that question of qualified immunity, the district court here doesn't really address the scope argument.

[00:48:18] Speaker 03:
Doesn't that have an implication for whether qualified immunity is appropriate?

[00:48:23] Speaker 06:
No, Your Honor, there was no scope argument that was raised below.

[00:48:29] Speaker 06:
The only argument that was raised, and as I understand continues to be raised, is that they should not have searched for hazardous materials at all.

[00:48:35] Speaker 06:
The bomb technicians should not have gone in at all.

[00:48:39] Speaker 06:
They don't dispute that all the bomb technicians did was search for hazardous material.

[00:48:43] Speaker 06:
in places where the hazardous materials might be, that everything was pursuant to establish national protocols.

[00:48:50] Speaker 06:
There's no dispute about the scope in that sense.

[00:48:52] Speaker 06:
It's only whether that incremental intrusion.

[00:48:56] Speaker 06:
I don't want to concede that there were two searches here.

[00:48:58] Speaker 06:
There was one search with two purposes.

[00:49:00] Speaker 06:
That second purpose resulted in an incremental intrusion.

[00:49:05] Speaker 06:
But in the overall scope of things, all the facts and circumstances, it was reasonable.

[00:49:11] Speaker 06:
And so that scope argument is not a basis for reversal or remand.

[00:49:17] Speaker 04:
All right, thank you.

[00:49:19] Speaker 06:
Okay, thank you.

[00:49:24] Speaker 04:
Council for a vote.

[00:49:34] Speaker 01:
Thank you, Your Honor.

[00:49:35] Speaker 01:
We just have two points that we would like to make.

[00:49:38] Speaker 01:
First, this case is inappropriate for summary judgment.

[00:49:41] Speaker 01:
We would just reiterate that this should not have gone to summary judgment.

[00:49:45] Speaker 01:
The district court relies on facts that are in dispute, including Mr. Corrigan saying that he wouldn't hurt anyone else on page 618.

[00:49:56] Speaker 01:
and the purported concern about gas on page 619.

[00:49:59] Speaker 01:
These facts are in dispute and arguably this case should not have been granted summary judgment for that reason.

[00:50:06] Speaker 04:
So the five, I think it is reasons that the district court gives, you're saying even if those reasons are not disputed, they are inadequate to show

[00:50:24] Speaker 04:
exigent circumstances that a reasonable officer could enter.

[00:50:30] Speaker 01:
Your Honor, we're saying that a reasonable juror could find that there were, because of these disputed facts and evidence, they could find that there was no exigent circumstances justifying that entry.

[00:50:38] Speaker 01:
And I also believe, Mr. Shepard, they might have misstated my position.

[00:50:45] Speaker 01:
It is the burden for the defendant to prove that there is an immunity defense.

[00:50:50] Speaker 01:
So in this situation, we are saying that we have met our burden.

[00:50:55] Speaker 02:
And what's, to prove an immunity defense or to prove exigency?

[00:50:58] Speaker 01:
An immunity defense, Your Honor.

[00:51:00] Speaker 01:
I believe that my mistake, I believe he accidentally misstated my position.

[00:51:05] Speaker 01:
But I just wanted to reiterate that it's on the defendant to prove an immunity defense in this situation, and that has not been proven here today.

[00:51:14] Speaker 04:
So you heard counsel for the appellees say that

[00:51:21] Speaker 04:
in response to Judge Brown's question that in the district court, no objection was made to the scope of the search.

[00:51:29] Speaker 01:
Your Honor, I believe docket entry 120 at page 8, we did raise arguments about the scope of the search, that it was not narrowly circumscribed.

[00:51:39] Speaker 01:
So these arguments have been made about the scope of the search.

[00:51:44] Speaker 01:
Thank you.

[00:51:44] Speaker 01:
Anything further?

[00:51:46] Speaker 01:
No, Your Honor.

[00:51:46] Speaker 01:
If there are no further questions, we'll take the case under advisement.

[00:51:50] Speaker 01:
Thank you, Your Honor.