[00:00:11] Speaker 01:
Good morning, Your Honors.

[00:00:13] Speaker 01:
I'm Lisa Damiani.

[00:00:14] Speaker 01:
I represent the appellant, Oleg Varlitsky, whose home was raided and destroyed by the appellees, Riverside County Sheriff's on October 24 of 2018.

[00:00:25] Speaker 01:
I would like to reserve five minutes for rebuttal with the court's permission.

[00:00:31] Speaker 01:
We're here today because the Appellees knew that they needed a warrant to enter Mr. Varlitsky's helm to arrest Sergei, who ultimately was determined to be Alexander.

[00:00:46] Speaker 01:
Yet they failed to do so.

[00:00:48] Speaker 01:
They are now seeking to shield themselves, and the district court shielded them from responsibility for their unlawful acts by arguing that the search warrant signed by Judge Montoroso justified their actions.

[00:01:02] Speaker 02:
the search warrant allowed them to enter the home?

[00:01:05] Speaker 01:
The search warrant that Judge Montroso signed would allow them to enter the home to conduct a specific search for evidence.

[00:01:14] Speaker 01:
The actual warrant that was signed

[00:01:18] Speaker 01:
allowed them to enter and look for an NRA hat, dominion and control documents, and other pieces of evidence.

[00:01:27] Speaker 01:
It specifically did not include a search and seizure of a person, the suspect, which is key.

[00:01:36] Speaker 01:
And so the only way

[00:01:38] Speaker 01:
that the only justification that the appellees are saying their actions were warranted was because there was a barricaded suspect in the home.

[00:01:54] Speaker 01:
The law is very clear that

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It's to the core of the Fourth Amendment that the home is a person's castle.

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And the sanctity of the home is what the whole Fourth Amendment is about.

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And so a person who is in their home has the right to stay in their home and doesn't have to leave if law enforcement is telling them to leave their home.

[00:02:17] Speaker 02:
Counsel, if there were in fact a barricaded suspect in a home that was subject to a search warrant,

[00:02:25] Speaker 02:
Is it your position that the officers could not try to clear that person out before conducting the search warrant?

[00:02:32] Speaker 01:
What is a barricaded suspect?

[00:02:34] Speaker 02:
You used that phrase.

[00:02:35] Speaker 02:
You said that they said there was a barricaded suspect.

[00:02:38] Speaker 02:
So I'm asking you, if that is in fact true, if there were a barricaded suspect in a home and the police had a search warrant for that home, could they clear that barricaded suspect out before

[00:02:53] Speaker 02:
effectuating the search warrant?

[00:02:55] Speaker 01:
Only if they have a warrant to search for that person and seize that person.

[00:03:01] Speaker 01:
That's what the law is.

[00:03:02] Speaker 02:
And it stems back from... Okay, so what case can we look to to support the proposition that if there is a barricaded suspect in a home where the officers are going to perform a search, they do not

[00:03:19] Speaker 02:
have authority to clear that suspect from the home before effectuating the warrant.

[00:03:24] Speaker 01:
What case is that?

[00:03:25] Speaker 01:
Well, I think we can, we'll jump to the case of Alexander versus the city and county of San Francisco I think is probably the most

[00:03:36] Speaker 01:
similar to this particular case.

[00:03:39] Speaker 01:
In that particular case, which was abrogated by the Supreme Court on a different issue, which was the Ninth Circuit's provocation theory on the excessive force issue, it did not abrogate the claim that the Fourth Amendment rights were violated based upon

[00:04:03] Speaker 01:
the pursuit of an administrative warrant.

[00:04:07] Speaker 02:
In that case... An administrative warrant is different than a search warrant.

[00:04:11] Speaker 01:
That's true.

[00:04:12] Speaker 01:
That's true.

[00:04:12] Speaker 01:
However, the analysis in the case is as such.

[00:04:18] Speaker 01:
In that case, they got an administrative warrant that allowed

[00:04:24] Speaker 01:
a forced entry.

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It was an elderly man who was demented, blind.

[00:04:31] Speaker 01:
They had to go in.

[00:04:32] Speaker 01:
They were wanting to check on health issues.

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And they asked for backup.

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They asked for SWAT to back them up.

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And as it turned out, as the SWAT team got there, they changed the purpose

[00:04:45] Speaker 01:
of the search.

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They changed it from a search for health issues, it then became we're going in and we're going to arrest him.

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So the whole purpose of the initial warrant was different and it now became

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that we're going in there and we're going to get him.

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We're going to arrest him.

[00:05:08] Speaker 01:
And the court held that that was a violation of the Fourth Amendment.

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The court also stated that since it was clearly established,

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that the officers were not entitled to qualified immunity.

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So I think that case in particular is probably the closest to this case.

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And that's 24 years, that was the site of 24 years before Verlitzky.

[00:05:37] Speaker 01:
There's also the case of

[00:05:40] Speaker 01:
San Jose Charter of the Hells Angels Motorcycle Club, and Mena versus City of Simi Valley.

[00:05:47] Speaker 01:
I think those two cases are very on point.

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And the whole point is that the officers exceeded the scope of the warrant.

[00:05:58] Speaker 02:
The case was a little different in that there was an administrative warrant for the agency to inspect the home.

[00:06:06] Speaker 01:
Correct.

[00:06:07] Speaker 02:
But the officers

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used it to arrest.

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So there wasn't

[00:06:16] Speaker 02:
Don't you think that's a little different than we had in this case?

[00:06:20] Speaker 01:
No, because in that particular case, the officers were saying that they had the authority to enter the home, to breach that important privacy right that the Fourth Amendment protects us for, that that was the basis for them to go in.

[00:06:37] Speaker 02:
The officers never had a warrant in that case.

[00:06:42] Speaker 02:
The agency had a warrant.

[00:06:44] Speaker 02:
In this case, the officers had a search warrant.

[00:06:49] Speaker 02:
Do you see that as a difference?

[00:06:50] Speaker 01:
Well, no.

[00:06:53] Speaker 01:
And the reason for that is because the fact that, let's assume that the agency had the warrant and the SWAT team assisted the agency in the search for health issues.

[00:07:08] Speaker 01:
That was permitted under the law.

[00:07:10] Speaker 01:
That's permitted because it's within the scope of the warrant.

[00:07:14] Speaker 01:
In this particular case, yes, it was the agency that obtained the search warrant.

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But the agency is bound by that search warrant and they cannot deviate from that search warrant.

[00:07:26] Speaker 03:
How are they supposed to execute the search warrant if there's somebody dangerous inside without trying to address that situation?

[00:07:35] Speaker 01:
The whole motivation was that they were going to arrest him.

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They claimed that they had probable cause to arrest him.

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So what they needed to do was just get on the phone and call Judge Monoroso and give Judge Monoroso the facts and say, we want to include him in the search and seizure.

[00:07:54] Speaker 01:
Can we have that permission?

[00:07:55] Speaker 03:
I mean, he wasn't actually arrested under this, you know, so I don't really know what relevance this is.

[00:08:01] Speaker 03:
It seems to me your argument was that this whole thing was just way too excessive for what they were trying to do.

[00:08:07] Speaker 03:
And that is how I interpreted your main claim, that it was sort of like a gratuitous use of force that exceeded the scope of the warrant in that respect.

[00:08:18] Speaker 01:
Yes, yes, that's all.

[00:08:19] Speaker 03:
You're here trying to get money for the house.

[00:08:21] Speaker 03:
It's not no, it's not a wrongful arrest claim.

[00:08:23] Speaker 03:
It's a property damage claim effectively.

[00:08:27] Speaker 01:
Right, and the constitutional violation is the violation of Mr. Varlitsky's Fourth Amendment rights.

[00:08:33] Speaker 01:
And that is to be secure from unreasonable searches and seizures in his home.

[00:08:39] Speaker 04:
And so the search warrant... But they had a warrant to search his home because they believed there was evidence of criminal activity.

[00:08:47] Speaker 04:
So I'm still not getting...

[00:08:51] Speaker 04:
to be able to search the home, and this is for armed robbery, and they believe there's an armed person in there.

[00:08:56] Speaker 04:
I mean, they can clear the house to be able to search the home.

[00:08:59] Speaker 01:
Well, I think that the Fourth Amendment and all of the cases that I'm happy to cite, Your Honor, and it starts with the case of, with Payton and this court's case, United States versus Prescott, where this court and the Supreme Court talked about the Fourth Amendment protections and

[00:09:22] Speaker 01:
Even if, they say in those cases, even if you have probable cause to arrest someone who is in a home, you need to have a warrant that gives you permission to go in there and arrest that person.

[00:09:35] Speaker 04:
But they were there to search the home, right?

[00:09:37] Speaker 04:
No.

[00:09:38] Speaker 04:
Didn't the warrant allow them to search the home?

[00:09:40] Speaker 01:
The warrant allowed them to search.

[00:09:42] Speaker 04:
That's what they were doing in trying to, I mean, this happens routinely.

[00:09:46] Speaker 04:
If they get a search warrant for an apartment or a house, they believe there's, say, drug activity.

[00:09:50] Speaker 04:
And the police will, they believe there's someone inside.

[00:09:52] Speaker 04:
They'll bash the door open.

[00:09:54] Speaker 04:
The ATF will bash the door open because they believe that's a precautionary measure that they take.

[00:10:03] Speaker 01:
I disagree, Your Honor.

[00:10:04] Speaker 01:
I think that the scope of the search warrant

[00:10:10] Speaker 01:
in analyzing whether the actions are unreasonable, the court must look at the scope of the search warrant and what type of an intrusion was there.

[00:10:19] Speaker 01:
The intent of all of these officers was clear.

[00:10:22] Speaker 01:
They all said, we want to go in there and arrest Alexander.

[00:10:27] Speaker 01:
That was the purpose of their actions.

[00:10:30] Speaker 01:
That's not what the search warrant said, but the purpose of their actions were to go into that house

[00:10:37] Speaker 01:
and arrest Alexander.

[00:10:38] Speaker 01:
Every single one of them said it.

[00:10:41] Speaker 01:
Initially, Salisbury said, get a Raimi arrest warrant.

[00:10:46] Speaker 01:
They didn't get a Raimi arrest warrant.

[00:10:49] Speaker 01:
Every one of them said, we were there to go in and get him.

[00:10:53] Speaker 01:
Brown said, when he knocked on the door, we wanted him to come out.

[00:10:57] Speaker 01:
We intended on arresting him.

[00:10:59] Speaker 01:
That was the purpose of their search and their seizure.

[00:11:03] Speaker 01:
And that was not authorized by the search warrant, by Judge Monoroso.

[00:11:09] Speaker 01:
And the law is quite clear that the warrant has to be specific regarding the place to be searched and the things and places, evidence and persons to be searched for and seized.

[00:11:26] Speaker 01:
very clear, and it's in decades of case law.

[00:11:34] Speaker 01:
Longstanding Ninth Circuit and Supreme Court authority has also made it clear that when a warrant is issued, police must stay within the bounds of the warrant.

[00:11:46] Speaker 01:
An unreasonably executed search warrant violates the Fourth Amendment, and that's U.S.

[00:11:52] Speaker 01:
versus Ramirez, 523 U.S.

[00:11:55] Speaker 01:
65.

[00:11:56] Speaker 01:
Again, MENA versus City of Simi Valley, MENA versus, and San Jose Charter.

[00:12:04] Speaker 01:
And Alexander, I think the court should look at Alexander because that case talks about what the purpose of the search is and how important it is with regard to whether or not the Fourth Amendment is violated.

[00:12:19] Speaker 01:
I also think the court should look at the case of Denvy versus Engstrom and it's not controlling for the court and either is the case of West because both were decided after 2018.

[00:12:36] Speaker 01:
But the analysis within this case I think is important and I think the court should adopt that analysis.

[00:12:51] Speaker 01:
If they believed that Alexander was in the house, and we'll assume he was, and they wanted to arrest him, they had to get that as part of the warrant.

[00:13:06] Speaker 01:
I think Judge Lee had a case recently where it was a case where there was a warrant that allowed the officers to search

[00:13:18] Speaker 01:
a motel room and they decided that they wanted to then go search a home and the officers picked up the phone, called the judge because it wasn't in the warrant and the judge said, yeah, it's okay, you can search the home.

[00:13:34] Speaker 01:
They didn't put it in the warrant and you held in that case that it was a Fourth Amendment violation but

[00:13:44] Speaker 01:
qualified immunity in that case was appropriate because it wasn't clearly established that a reasonable officer wouldn't think that his actions are unlawful.

[00:14:04] Speaker 01:
In this case, as I said, the purpose of going in was to get Alexander

[00:14:11] Speaker 01:
Initially, before the warrant was even executed, or it was ever written or drafted, Brown and Salisbury entered the cartilage of the home.

[00:14:21] Speaker 01:
They shut down the electricity.

[00:14:23] Speaker 01:
They ordered Alexander to come out.

[00:14:26] Speaker 01:
There was no obligation for him to come out at that point.

[00:14:28] Speaker 01:
No arrest warrant, no search warrant.

[00:14:31] Speaker 01:
They went to the side of the yard and shut off the electricity.

[00:14:37] Speaker 01:
And then Salisbury said get a remu warrant showing his intention that we're going in there to arrest him.

[00:14:47] Speaker 01:
The whole objective was to saturate the home so the suspect would come out and surrender.

[00:14:54] Speaker 01:
That was Winder said that in his testimony.

[00:15:00] Speaker 01:
And then the plan was executed by SWAT.

[00:15:04] Speaker 01:
They went in.

[00:15:05] Speaker 01:
They destroyed.

[00:15:06] Speaker 01:
The doors, they broke every window.

[00:15:09] Speaker 01:
They put holes in stucco.

[00:15:12] Speaker 01:
They deployed a ridiculous amount of contaminated chemical emissions into the home, rendering it inhabitable.

[00:15:26] Speaker 01:
The evidence of the damage, it was attached in photographs to Mr. Varlitsky's declaration.

[00:15:35] Speaker 01:
That was at 2 ER 66, 68 to 127.

[00:15:39] Speaker 01:
They collectively participated in the violation.

[00:15:47] Speaker 01:
Just quickly talking about

[00:15:50] Speaker 01:
integral participation because I see my time is running out.

[00:15:55] Speaker 01:
The officers, the deputy officers participated because they put the whole plan in motion.

[00:16:03] Speaker 01:
They knew that the search warrant that they were obtaining did not contain the right to search and seize Sergei, yet they continued with the siege and actually told them it was a barricaded suspect situation, all of them knowing there was no arrest warrant.

[00:16:26] Speaker 01:
So with that, I'll reserve if you have other questions.

[00:16:30] Speaker 02:
It appears not.

[00:16:30] Speaker 02:
Thank you, counsel.

[00:16:41] Speaker 00:
May it please the court, Michaela Sozio, Brooke Williams, and Sorensons for the appellees.

[00:16:47] Speaker 00:
To initially address the appellant's argument that there was no search warrant to arrest the suspect, thereby invalidating the search is incorrect.

[00:17:03] Speaker 00:
With respect to Payton, yes, warrantless searches and seizures are presumptively unreasonable.

[00:17:09] Speaker 00:
However,

[00:17:11] Speaker 00:
The United States versus Wells holds that a warrantless arrest in a home based upon probable cause is valid if the police enter pursuant to a valid search warrant.

[00:17:22] Speaker 02:
But Counsel, there was no arrest in the home in this case.

[00:17:25] Speaker 00:
No, I know, but just to address that point.

[00:17:28] Speaker 00:
They had, in this case, and just to take a step back for a moment.

[00:17:34] Speaker 00:
In this case, there were 14 armed robberies.

[00:17:38] Speaker 00:
There was surveillance video for 13 of those armed robberies.

[00:17:43] Speaker 00:
And with respect to another three of the armed robberies, the suspect had been wearing an ankle monitoring bracelet.

[00:17:52] Speaker 00:
So they were able to tie in the home, and they had a suspect.

[00:17:57] Speaker 00:
However, the suspect that they had was named Sergey,

[00:18:00] Speaker 00:
While they were at the home, they ascertained through the suspect's brother that that was not in fact Sergei, that he was in fact Alexander.

[00:18:11] Speaker 00:
Sergei was another brother that didn't live in the home.

[00:18:15] Speaker 00:
There was a positive identification by Deputy Brown, who before obtaining and executing on the search warrant had gone over to the house.

[00:18:28] Speaker 00:
He had studied photos, surveillance photos.

[00:18:31] Speaker 00:
and photos of the suspect prior to going over to the house.

[00:18:36] Speaker 00:
He was able to match and identify that an individual in the garage working on a motorcycle was in fact the same person who was in the surveillance videos.

[00:18:47] Speaker 00:
At that point in time, the search warrant was obtained.

[00:18:52] Speaker 00:
And because of the nature of the armed robberies, because one of the things being searched for was weapons, there was a reasonable belief

[00:19:01] Speaker 00:
that there were weapons in the house.

[00:19:04] Speaker 00:
Based on that, the deputies asked SWAT to execute on the search warrant.

[00:19:12] Speaker 00:
As part of that, the deputies, in order to, I'm sorry, the SWAT, in order to ensure that they're not just opening the door and perhaps subjecting themselves to getting shot, and for their own safety, as well as the safety of the suspect,

[00:19:29] Speaker 00:
they used the robot to remove the front door.

[00:19:34] Speaker 00:
Once the robot was inside, there were photos and other evidence that suggested that the suspect was in the attic.

[00:19:47] Speaker 00:
Based on that, the deputies and the SWAT team had a reasonable belief

[00:19:51] Speaker 00:
that the victim was still on the premises and therefore they didn't go in to conduct the search.

[00:20:05] Speaker 00:
At that point in time, there was a decision made by the SWAT team to use tear gas in order to

[00:20:14] Speaker 00:
see if they could drive the suspect out of the home.

[00:20:17] Speaker 03:
I mean, the opposing counsel, your opposing counsel essentially arguing, you know, this was, they had a search warrant, but really this was an arrest.

[00:20:25] Speaker 03:
And so then when you're doing all these things to destroy the home, it's pursuant to arresting him, which you didn't have a warrant to do.

[00:20:34] Speaker 03:
So how do you respond to that one?

[00:20:36] Speaker 00:
Two things, Your Honor.

[00:20:37] Speaker 00:
Number one, there was probable cause, because at that point in time, they reasonably believed the suspect to be in the house, and they reasonably believed that he was armed and dangerous.

[00:20:50] Speaker 00:
But the whole point of the SWAT being there was to execute the search warrant.

[00:20:55] Speaker 00:
But in order to get into the house, in order to execute the search warrant, they had to deal with the immediate issue of the fact that the

[00:21:05] Speaker 02:
Possibly armed and dangerous suspect was also in the house at the time Opposing counsel says all on the officers had to do was get on the phone and get a warrant for his arrest if they were

[00:21:17] Speaker 02:
if that was their view that he was in there.

[00:21:19] Speaker 02:
What's your response?

[00:21:20] Speaker 00:
Well, he wasn't arrested.

[00:21:22] Speaker 00:
And the whole point was to execute on a search warrant and to determine whether or not the certain items in the house, the hat, the weapon, and other items listed in the search warrant, whether or not they were present.

[00:21:38] Speaker 00:
They already had a probable cause.

[00:21:42] Speaker 00:
in addition to the search warrant based on the information that they had obtained but you know as your honor correctly pointed out at the start of my oral argument he wasn't in fact arrested at that time so so that's why i don't understand why you're discussing probable cause to arrest him okay i guess i'm sorry your honor no don't apologize i was just

[00:22:07] Speaker 02:
I didn't understand why we were discussing probable cause when he wasn't arrested.

[00:22:13] Speaker 00:
Well, I think it was, and perhaps I didn't articulate it as well as I should, I was trying to address the point that they were going in to execute the search warrant, but regardless, they did have probable cause to enter into the house, which would obviate the need.

[00:22:29] Speaker 03:
Without a warrant, though?

[00:22:30] Speaker 03:
I mean, if they didn't have a search warrant, could they have just gone into the house?

[00:22:35] Speaker 00:
But they did have a search warrant.

[00:22:36] Speaker 03:
Correct.

[00:22:37] Speaker 03:
But if they didn't.

[00:22:38] Speaker 00:
Yeah, I believe they would have, based on the fact that there was probable cause that existed at the time, that he had engaged in these... As some kind of exigency?

[00:22:52] Speaker 00:
Correct.

[00:22:53] Speaker 02:
What was the exigency?

[00:22:57] Speaker 00:
Well, the exigency

[00:22:59] Speaker 00:
Again, this didn't happen, but I think the exigency is the fact that the victim was believed to be on the premises at the time.

[00:23:06] Speaker 00:
Not the victim.

[00:23:07] Speaker 00:
I'm sorry, the suspect.

[00:23:09] Speaker 00:
Excuse me.

[00:23:10] Speaker 00:
The suspect was on the premises at the time.

[00:23:12] Speaker 00:
And in order to, I guess, ensure that there wasn't destruction of key evidence or the flight of the suspect, that

[00:23:24] Speaker 00:
it would have been appropriate at that time to go ahead and arrest the individual.

[00:23:31] Speaker 03:
I take your opposing counsel to be saying, you know, this whole thing was just a way to go and arrest him.

[00:23:37] Speaker 03:
And do you have, is there evidence in the record that you would point to to argue that that was not the sole goal?

[00:23:45] Speaker 00:
Your Honor, I would refer to the underlying motions for summary judgment and the facts that were in support.

[00:23:53] Speaker 00:
The characterization that the whole intent was to go in and arrest him is a mischaracterization.

[00:24:02] Speaker 00:
The intent was to go in, the entire time was to go in and execute on the search warrant.

[00:24:09] Speaker 04:
I mean, does it matter, the intent at all?

[00:24:11] Speaker 04:
I mean, it would matter if the claim was for unlawful arrest, that he didn't have an arrest warrant and he was arrested, then maybe it was Section 1983 claim.

[00:24:20] Speaker 04:
But here, it's about the damage to the House.

[00:24:24] Speaker 04:
Does it even matter at all whether you have ... I mean, clearly there's probable cause to search the House, right?

[00:24:29] Speaker 04:
I think that's undisputed.

[00:24:30] Speaker 04:
I'm not ... I'm a bit a little confused.

[00:24:33] Speaker 00:
Well, and I think, Your Honor, let's take a look at, for example, the fact that tear gas was used, especially looking at... And that discussion may be better directed at opposing counsel, but how I understood the issue is a little bit different from what's being presented today, so...

[00:24:51] Speaker 00:
from me your honor no okay sorry with respect to for example the tear gas like if we're looking the the district court granted summary judgment for the SWAT team members based on qualified immunity

[00:25:05] Speaker 00:
What the case law shows, for example, with the West case is that it is not a violation of federal law to use tear gas in order to have a suspect come out of the house.

[00:25:19] Speaker 00:
That's what was done here.

[00:25:20] Speaker 00:
There's been no law that has been pointed to that is

[00:25:25] Speaker 00:
would specifically identify clearly established law that was violated by either the SWAT team members or for that matter, the sheriff deputies, although the district court didn't get to the issue of qualified immunity because they found that there was no meaningful participation by the deputies with respect to

[00:25:50] Speaker 00:
on the damage that arose through removing the front door, administering or deploying the tear gas.

[00:25:59] Speaker 00:
And then with respect to the fire, I think it's important to note that the district court

[00:26:05] Speaker 00:
didn't find any facts whatsoever that the conduct of the SWAT team in any way caused or contributed to the fire.

[00:26:14] Speaker 00:
The type of tear gas that was deployed was, there was two types.

[00:26:20] Speaker 00:
The non-pyro-technic isn't flammable, so that would not have started the fire.

[00:26:26] Speaker 00:
The pyro-technic tear gas that was deployed was in a...

[00:26:34] Speaker 00:
Some canister and I burn safe burn safe.

[00:26:37] Speaker 00:
Thank you Was in a burn safe which prevents it from being flammable and causing a fire?

[00:26:43] Speaker 00:
moreover the temperatures Return to room temperature after 10 minutes the fire didn't start for two hours after the last tear gas was deployed the fire also started in the attic and

[00:26:59] Speaker 00:
The evidence showed that, and we have an admission from the suspect, Alexander Verlitzky, that he in fact had been in the attic the entire time.

[00:27:09] Speaker 00:
And the search the subsequent day found that there were cigarettes up there along with other things such as a bottle of urine.

[00:27:17] Speaker 04:
Might be a minor issue in terms of damage, but what was the justification for breaking down the door when I guess his brother said, I have a key to the house?

[00:27:25] Speaker 00:
That had to do with safety, Your Honor.

[00:27:28] Speaker 00:
They made a conscious decision that if they used the key to enter the front door, they were concerned that the suspect was on the other side of the door with a shotgun or a pistol or some other weapon ready to shoot them when they came in.

[00:27:43] Speaker 04:
Didn't they knock on the door before when they first approached?

[00:27:46] Speaker 00:
They did.

[00:27:46] Speaker 00:
They did.

[00:27:47] Speaker 00:
And they also had, they called him on his cell phone.

[00:27:52] Speaker 00:
They texted him on his cell phone.

[00:27:54] Speaker 04:
They knocked on the door beforehand.

[00:27:55] Speaker 04:
I mean, that could have happened then too.

[00:27:58] Speaker 04:
When you knock on the door, he could have been, you know, on the other side with a shotgun.

[00:28:04] Speaker 00:
Well, yes, except that they could have also been standing over to the side as opposed to opening the door and going in.

[00:28:13] Speaker 03:
How long were they out there waiting while he was in the house or believed to be in the house?

[00:28:20] Speaker 00:
From what time?

[00:28:22] Speaker 03:
From the time that the SWAT got to the scene and told him, ordered him to come out until they actually breached the house.

[00:28:30] Speaker 00:
You know your honor I'm not entirely certain of that time frame and I don't want to misrepresent.

[00:28:36] Speaker 00:
But they also had his father calling and texting the suspect as well and he failed to respond to that.

[00:28:43] Speaker 00:
Actions were taken.

[00:28:46] Speaker 00:
to try to have Mr. Alexander Verlisky come out voluntarily so that the search could be conducted.

[00:28:54] Speaker 00:
The whole point was not let's get him out so we can arrest him.

[00:28:59] Speaker 00:
It was have him come out so that the search could be safely conducted.

[00:29:02] Speaker 00:
So with regard to the deputies,

[00:29:17] Speaker 00:
involvement, the district court found with respect to that summary judgment motion that there had been no integral participation by the deputies with respect to the conduct of the SWAT team that resulted in the damage to the home, the front door, the windows being broken because of the tear gas, and then

[00:29:38] Speaker 00:
with respect to the fire, which I've already addressed that it wasn't related, but looking at that as far as whether or not there was participation, the appellant's argument is that the deputies are the ones that set the whole thing in motion.

[00:29:56] Speaker 00:
The district court correctly concluded in looking at the undisputed facts that there was that it's not a violation of clearly established law for the deputies to ask the SWAT to execute the search warrant.

[00:30:19] Speaker 00:
From that point forward, the deputies did not participate in the decision-making process.

[00:30:26] Speaker 00:
They had no say with respect to.

[00:30:29] Speaker 00:
what approach was going to be taken as far as executing the search warrant.

[00:30:34] Speaker 00:
They didn't participate in a decision to use tear gas.

[00:30:38] Speaker 00:
They did not participate in a decision, for example, to once the fire started in the attic how they were going to go about ensuring that the fire department could safely put out the fire because they too had a concern about their safety if there was in fact a suspect

[00:30:58] Speaker 00:
in the house at that time.

[00:31:00] Speaker 00:
And while appellants have argued that they set everything in motion, they didn't actually participate in the decisions that were made by the SWAT team.

[00:31:14] Speaker 00:
Sorry, I lost my train of thought for a second.

[00:31:31] Speaker 00:
And, oh, I'm sorry.

[00:31:33] Speaker 00:
And the fact that they, the appellants tried to argue that similar to, I believe it was the Boyd case, that the deputies should have spoken up and the fact that they were observing and didn't step in to say that this was some sort of violation of federal law or clearly established law puts the deputies, you know, makes the deputies liable.

[00:31:59] Speaker 00:
And again, the district court correctly found that any participation wasn't meaningful.

[00:32:06] Speaker 00:
And because they weren't part of the decision process, there wasn't the meaningful participation.

[00:32:14] Speaker 00:
For example, in the Boyd case, while only one of the officers threw the Chergan canister into the apartment, the other officers, while they didn't actually

[00:32:28] Speaker 00:
participate in throwing that canister into the apartment, they were still standing behind him.

[00:32:33] Speaker 00:
They were giving him armed backup.

[00:32:36] Speaker 00:
They were involved in the decision to use the teargan canister.

[00:32:39] Speaker 00:
That, the court, the Ninth Circuit has held, it was meaningful participation.

[00:32:46] Speaker 00:
which was not the case here with the deputies and their involvement with respect to that.

[00:32:52] Speaker 00:
So the district court correctly concluded that there was no integral participation by the deputies and thus they could not be liable.

[00:33:37] Speaker 00:
I was just looking at my notes your honor.

[00:33:41] Speaker 00:
So in some.

[00:33:42] Speaker 00:
This court should affirm on the district courts ruling because as I just discussed there was no integral participation in any meaningful way by the sheriff deputies and with respect to the members of the SWAT team.

[00:33:59] Speaker 00:
The totality of the circumstances when you're looking at everything

[00:34:05] Speaker 00:
the SWAT team did act reasonably and appropriately and while unfortunately their conduct did result in damage to the home none of their conduct violated any clearly established law and they are entitled to qualified immunity and the district courts ruling should be affirmed.

[00:34:27] Speaker 02:
Thank you counsel.

[00:34:34] Speaker 01:
To clarify our position on this appeal, I think it's clear from the case law that the focus and the analysis of whether the search is unreasonable is on whether the degree of intrusion matched the underlying purpose of the intrusion.

[00:34:56] Speaker 01:
So if the purpose of the intrusion was to go get Alexander, and the record is clear that each and every one of them had that same intent, that they wanted to go in and get Alexander, they wanted to arrest him, that was the purpose.

[00:35:16] Speaker 01:
That's how they're justifying the destruction on the home.

[00:35:21] Speaker 01:
If we looked at the search warrant that they had,

[00:35:25] Speaker 01:
Forget about whether Alex is in that house or not in that house.

[00:35:29] Speaker 01:
If we look at that search warrant, Judge Montoroso gave them the authority to enter that house and to search for specific evidence.

[00:35:38] Speaker 01:
If they believed that Alexander was in the house and they wanted to arrest him,

[00:35:43] Speaker 01:
they should have, under the law, gotten a warrant to search and seize him.

[00:35:50] Speaker 01:
So they didn't do that.

[00:35:52] Speaker 01:
And their focus was as if they had a warrant for his arrest.

[00:35:56] Speaker 01:
All of the cases where they go in, like West, for example, where they go in and they're bombing it with gas, there were outstanding felony warrants.

[00:36:08] Speaker 01:
In that particular case of West, the homeowner gave consent, and the consent was vague and ambiguous.

[00:36:16] Speaker 01:
But they had warrants.

[00:36:18] Speaker 01:
There were outstanding warrants for his arrest.

[00:36:20] Speaker 04:
Suppose the police had got an arrest warrant for him.

[00:36:23] Speaker 04:
I mean, wouldn't they have done the exact same thing?

[00:36:25] Speaker 01:
This would be a different conversation.

[00:36:28] Speaker 01:
It would be a different analysis.

[00:36:30] Speaker 04:
Would they have done the SWAT team would have done the exact same thing, thinking that he's armed and would have put

[00:36:34] Speaker 01:
Yes, if they had an arrest warrant, then they would have had a judicial authority allowing them to go in there to get Alex.

[00:36:47] Speaker 01:
And they're saying that all of those actions they took,

[00:36:54] Speaker 01:
that had nothing to do with searching for evidence.

[00:36:56] Speaker 01:
In fact, the actual search for evidence.

[00:36:59] Speaker 04:
That's the thing I'm just struggling with is that he was never arrested.

[00:37:02] Speaker 04:
So whatever violation there may have been, it didn't cause him any harm because he was never arrested.

[00:37:10] Speaker 01:
But it harmed Mr. Varlitsky's Fourth Amendment rights because they're justifying their actions based upon the fact that they're saying they had probable cause to go in and arrest him.

[00:37:21] Speaker 01:
So the violation, it's only Varlitsky's Fourth Amendment right that was violated.

[00:37:27] Speaker 01:
He had the right to be free from unreasonable searches and seizures in his home.

[00:37:31] Speaker 01:
The actual warrant that they had would have allowed them to come in, here's a key, go in, search for the evidence.

[00:37:38] Speaker 01:
They didn't need to tear down a door, break walls, break every single window, bomb it with chemical munitions, including military munitions.

[00:37:53] Speaker 01:
Brown saw him at about 2 o'clock on the 24th of October.

[00:37:58] Speaker 01:
He saw him in the garage.

[00:37:59] Speaker 01:
He sees him tinkering with his motorcycle, and then he shuts the garage door.

[00:38:04] Speaker 01:
There's no evidence that he had a weapon or that Brown saw a weapon in the garage.

[00:38:09] Speaker 01:
And then from that point for 12 hours up until the wee hours the next day, they were surrounding this place and bombing this place.

[00:38:19] Speaker 01:
Not one person saw him.

[00:38:22] Speaker 01:
or heard him.

[00:38:23] Speaker 01:
It's not like where he was in there saying if you come in I'll shoot you or anything like that.

[00:38:29] Speaker 01:
There was nothing that changed from two o'clock throughout the entire siege.

[00:38:36] Speaker 02:
All right, counsel, you've exceeded your time.

[00:38:38] Speaker 02:
Could you please wrap up?

[00:38:39] Speaker 01:
Yes.

[00:38:41] Speaker 01:
So we would ask that the court reverse the district court's decision and allow us to go back and conduct expert discovery and go to trial on this case.

[00:38:52] Speaker 02:
All right.

[00:38:52] Speaker 02:
Thank you, counsel.

[00:38:53] Speaker 01:
Thank you.

[00:38:53] Speaker 02:
Thank you to both counsel for your argument.

[00:38:55] Speaker 02:
The case just argued is submitted for decision by the court.

[00:38:58] Speaker 02:
That completes our calendar.

[00:39:00] Speaker 02:
We are adjourned.

[00:39:10] Speaker 02:
This court for this.