that investigated and prosecuted the plaintiffs in these matters the context of that underlying print be indemnified for there is no right of indemnification from the federal government only if appropriated funds are available and the attorney general in his or her discretion decides to do so i think that that's a right that is that the rules of the agent is on the hook whether the agent actually pays or not i don't have that actual data before me today but even the threat of personal liability is why we have qualified immunity and in the two issues before this court one whether to recognize a fourth amendment they've been claim and to whether officer wipers entitled to qualified immunity would keep in mind the context of the underlying criminal investigation the juvenile sex trafficking as the human trafficking institute points out in its amicus brief trafficking victims are often severely traumatized when encountered by law enforcement and that's why the government advocates for a victim centered approach to human trafficking investigations trafficking victims often cannot or will not help bring their traffickers to justice until they trust that the law enforcement officers investigating their cases can provide them with safety and security now on the availability of the bivins remedy there are three reasons why a court this courts would not recognize one one most importantly the supreme court has never recognized the fourth amendment claim for wrongful prosecution and two there's binding precedent in this circuit holding otherwise the bens case the vents case holds that the criminal justice system is a special factor  a remedy and third year honors the involvement of congress in the criminal justice system in human trafficking congress has legislated frequently and intensively in these areas yet never allowed a personal damages remedy in the circumstances presented in this case and the supreme court said in a bosie as long as there are sound reasons to think that congress might might doubt the efficacy or necessity of a begins remedy or should hesitate and here we don't just have a special factor we have multiple special factors you mention the difficulty of human trafficking prosecutions and we actually had the miki kind of made the same point about the victim centered approach i guess my question is why does that matter i mean i understand why it matters generally but i don't understand why it matters for bevan's analysis and the reason why i say that is because we're not going to come up with a rule that accepts out bevan's actions for wrongful prosecution on sex on sex trafficking i think that would be an unworkable ru but have devon's for everything else i guess my question is why does it matter guys think it matters for both to the recognition of a business remedy i'll start with that and also to qualified immunity it matters to the recognition of a big money because the supreme court obasi said you need to look whether it begins reading in a particular context is going to affect government operations as a whole and what it intrude in the areas where congress has traditionally spoken and here congress has spoken on human trafficking beginning with the trafficking victims protection act in over fifteen years ago congress has repeatedly legislated in the area of human trafficking so that i think is one reason that congress has been involved in this area and congress has created private rights of action for victims of trafficking but not for anyone supposedly wrongly accused of trafficking so that i think goes to the point of whether or not to recognize a bit of ins remedy and qualified immunity i think the human trafficking aspect is especially important whether there's a clearly established constitutional violation the facts alleged in the complaint the well plain facts trafficking investigation unlike say a victim of burglary who has no reason not to talk openly immediately with a law enforcement officer a victim of human trafficking is often severely traumatized they're terrified of their traffickers sometimes they don't even identify as human trafficking victims at first and an officer in that situation that's to build trust as the supreme court recently said in several cases earlier this year d c versus was being casella versus use when you look at a clearly whether the law is clearly established you have to look at the specific circumstances confronted by the officer it's not enough to explain of say here that you say that you can't lie can't fabricate evidence that doesn't put officer wiper on notice or any reasonable officer of what to do here and this was a fraught situation with human trafficking victims yes again we don't dispute that they may have given conflicting accounts of what happened here but it's the court's responsibility to sort out conflicting testimony and judge credibility not in investigating officer and investigating officer is concerned only with probable cause and when qualified immunity is a stake all we need is arguable probable cause and turning back to the availability of a bivins remedy i think as i said there all we need is one special factor according to the supreme court to and here again we have many special factors and probably the most important special factors that there are alternative processes here for the plaintiffs to vindicate the rights as this court said invents the criminal justice system as an alternative process here at the criminal defendant made multiple motions to exclude evidence to dismiss the indictments and each and every time the police based on the allegations that are currently before hear the criminal court rejected those motions and in fact you know one of the most critical issues in this case and that the civil complaints raises jane doe to say but in the end when there was a motion to dismiss the motion to acquit based on jane tutus age the federal criminal court said that there was sufficient evidence presented that he jury could conclude the  federal jury could reasonably conclude the change to two was under age then it necessarily follows that officer white person title to qualified immunity or you're switching if you're talking about a special factor in a bit i was transitioning over to that your honor here the hyde amendment the unjust conviction act these are all areas where congress has spoken and i know plenty of sensible hey some of these laws don't apply to us well that's actually all the more reason this court should has the tate to create a begins remedy if congress has spoken in an area and congress has made a deliberate choice to limit the availability of of these potential remedies then this is the exactly the situation that the court in abbassi said the lower court's not supplement what congress did with an additional been the problem with that though is wrong with that analysis is that is as long as there mike the standard is low for judging hesitation here as long as there is a reason to consider that congress might have doubted the necessity of a bevins remedy and i think actually looking at the legislative history chairman hyde said that his amendment the hyde amendment strikes the appropriate balance between compensating wrong prosecutions and preventing a chilling of of hard cases chairman hyde actually cited sex abuse cases and rape cases saying look we don't want to over deter prosecution of difficult to prove cases so i think when you do look at the legislative history that supports our case too that congress did has a tape here in making a more expansive remedy that this wasn't something that was a mistake or inadvertent so that i think is a very much a special factor of all these alternative processes another special factors this court noted in vans is that it has again the potential to chill investigations that alone is a separate factor and that's something that the supreme court has mentioned time and time again that the next time a situation comes along like this in a difficult situation where an officer encounters potential human trafficking victims we don't want an officer not to investigate that case we want an officer to vigorously go forward and investigate and use that victim centered approach and by allowing pivot remedy that could chill law enforcement officers and other special factor mentioned by vans at the supreme court has also talked about is the impact on government operations and specifically bends noted that allowing it begins remedy in a situation like this could open the floodgates of litigation here anyone who claims they were wrongly prosecuted could offer to the officers who investigated them and that again should cause pause her hesitation to think about the potential impact that this could have on bivins litigation so i think there are a lot of reasons why the that this court has a tape and again you only need one reason to hesitate before disallowing opinions revathi say again why you think the sex trafficking context is a special factor t traffic in context is a special factor for two reasons one congress has legislated extensively in the area created private rights of action for other individuals but not the but not the plaintiffs here so when congress has legislated extensively in an area as human trafficking just like a boss who was national security which is not infer an additional bivins remedy i mean created actions for victims right created back room for victims so so that that the fact that congress has legislated in an area that's a he has says you should not supplement that so that's one reason the human trafficking context is important the second reason the human trafficking context is important what i said before about the chilling a fact that here these are difficult cases these are not your traditional  cases traditional crimes that human trafficking victims suffer a profound level of trauma not found in other cases and that that explains in a lot of situations why trafficking victims give conflicting statements or there hasn't to acknowledge what happened to them so that's a special factor too because we don't want to intrude on on an area that could show law enforcement and with that your honor i will transition to a qualified immunity but you think that there might be reasons to hesitate that's why i think human trafficking is unique and i think that's what the m amicus brief points out here that there's all sorts of science and studies in practice to back this up that these cases are unique they require different types of criminal investigation and this actually is a good segue into qualified immunity because you mention fabrication of evidence and the question is that's a what is fabricated here that's a conclusion reallocation that is entitle to zero weight under it paul when you if you agree  of action exists because the fight immunity would bar those claims and going back to this argument as i was saying when plaintiffs decide as a matter of law to get back to judge qualities question can we decided the matter law without getting to qualified immunity that section one thousand nine hundred three isn't available because  earliest possible stage of the litigation and here the district court has already ruled that qualified immunity does not apply to officer weicker so sending it back to to district court i think we're probably going to if the district court holds that there's a one nine hundred eighty three cause of action  officer fabricated a story about the the alleged victim in that situation and there's no question looking at ya scenes complaint that complaint says that alleged victim was a linchpin to the human trafficking investigation and they said the manufactured human trafficking investigation you know they all tie that back to every you know all three plaintiffs here they may have different claims but all of them their complaints all  sixth circuit opinion that's how that's how they justify their claims but the sixth circuit opinion was asking a much different question that is before this court the sixth circuit opinion said looking back in hindsight over everything did the government prove beyond a reasonable doubt that the defendants committed the crimes and the sixth circuit said no you know at least on the charge of a unified conspiracy the six circuits of the government proved at most multiple conspiracies and again if there was probable cause any probable cause for any crime officer wipers entitled to qualified immunity and the fact that the district court and the appellate court held that there was at least arguable probable cause cause for multiple sex trafficking conspiracies you're that's why she's entitled to qualified immunity it would be one thing of officer white her made up jane doe two completely but that's not the case here you know jane doe two did testify maybe her testimony was inconsistent at times but that's not a reason to deny qualified immunity to officer weicker especially given the undisputed facts here  that these young women were having sex with multiple men across state lines accompanied by members of a criminal gang nobody in the criminal trial disputed those facts here they didn't say you got the wrong guy they blamed it on the victims they said look these girls were promised us they did this for their own sexual pleasure that there was no money exchanged here nobody forced them to do that and again your honor for looking at those facts they're certainly arguable probable cause to show that off that argument probable cause to show that a crime was committed and officer white who should counsels cases that are going to be argued afterwards it's basically a jurisdictional case nowhere in the eighteen minutes or seventeen minutes that counsel argued or in the fifty plus page of the briefing did they discuss in any substantive manner mis seems case is not one of an arrest pursuant to legal process therefore both of the issues and all of the argument made by counsel in and miss weicker and her appeal and her principal brief as well as a reply is irrelevant this is not a warrantless arrest claim missed you seen was not arrested pursuant to an indictment she wasn't a sex trafficking suspect she was out of the country for the bulk of the you know the duration of this investigation she happened to be in the attacked with a knife by the key witness she calls nine hundred one minneapolis police respond and when they show up in the interim there that witness called officer white her walker then intercepted and tells him hey i have information and documentation that this person and my client who she had never heard of before i have information and documentation that this person is interfering in a federal investigation now so i want to go back to your jurisdiction argument you may well as you mentioned went on forfeiture but the government doesn't so i don't know if you can and i read the brief i don't know if you could enlighten me and explain to me exactly why we would lack appellate jurisdiction given that the district court said this is either bevan's or section one thousand nine hundred three and you've got a qualified immunity question pending out there the used if you don't if you don't make arguments in your principal brief you've waive them and that's effectively a jurisdictional problem is what the circuit has said i see so you're making basically a forfeiture a waiver argument at bottom and sort of labeling it in a i just wanted to i want to understand where there may whether you're making the argument that we lack the power to even hear the case at all had the arguments been made under this court's precedents and you know just call it is written extensively on this but under this court's precedent the kind and so we're just not in in any remote you know creating new bivins kind of territory all of that's true but there was there were different facts and bevan's there was a handcuffing of a man or a suspect without without a warrant in his home i don't think we have those facts here now so there is at least a modest extension it's much closer than the other the other defendants here but there's a modest difference in these cases there are thousands of different cases that have proceeded after bivins that and i don't bring this up to talk about indemnification because that issue is not before the court but it keys in on a major factor in all of these cases which is that all of the investigative work because of that is a very fact intensive inquiry when she was acting under color of state law for section one thousand nine hundred three versus when she was acting under color of federal law forbid district court's fine in that this is not a new context for bevan's bivins was a fourth amendment case about street level agents to make sure that street level federal agents play by the basic for the moment rules which is almost a exact quote from think all of the other apple is were careful not to plead grand jury testimony specifically in their complaint grand jury testimony sealed grand jury testimony as the subject of absolute immunity and great energy by the government was spent in the district court arguing for absolute immunity because some reference was made to grand jury transcripts of course what was presented to the grand jury is where the crux of an initial probable cause decision is made but knowing of the absolute immunity doctrine massaged man was careful to plead the investigative fabrications coercing of the witnesses the lad to the indictments so as to avoid absolute immunity absolute immunity is not under review before this court but the government spent significant time in ink and their reply brief arguing that miss osman has not played materiality because she hasn't said to all of the facts in the grand jury transcripts which are sealed there is no legal authority provided appellant none for the idea that a one nine hundred eighty three or bivins plaintiff alleging that they were arrested without arguable probable cause based on fabricated evidence must in order to plead materiality plead the details of the grand jury transcripts that's absurd and i ask you one question about that i know that we're going to flip flop back and forth a little bit here and i apologize for that but isn't that a darn good reason as i was reading this case that seems to me a very good reason not to extend that and the words the exact argument you're making which is the requirement of going in and looking at grand jury proceedings private investigatory techniques things like that is very very different from that itself even though it's the same cause of action isn't that a good reason not to extend bevins here is not because your honor we can never use as evidence of our claims the grand jury transcripts there are always going to be the subject of absolute  are never going to be heavily evaluator brought in evidence in these cases because the absolute immunity doctrine requires that we support our claims with her conduct during the investigative pre grand jury phase an case turns on the coercing of witnesses to fabricate evidence on the issue of materiality i will also point out that there's only one overt act in any of the indictments of any specificity attributed to my client mass woman and that is a twenty four hour bus trip by i suppose a jane doe three my client massage man had no relation to jane doe two one four or five only to those jane doe three only one twenty four hour long bus and that was how my client was detained and indicted for five and a half years i say all of that to say the key to materiality is that ozment plead that without those fabrications there is not arguable probable cause to arrest or indict her and that has clearly been plaid it's not required and there's been no authority provided them as ozment must plead every fact from the grand jury that would otherwise defeat probable cause i've only got three seconds left of my seven minutes so i'll cede my time let me ask you one thing what do you know about the other three apple e s who didn't make an appearance in the court of appeals  apparently don't have counsel at this point i know very little i know they're represented by another law firm at the district court that that law firm with drew i have three represented by the same firm yes that's correct that firm withdrew and you haven't heard anything from them now that's correct so i don't i don't know where they are or whether those clients are in the united states i would get my clients but i don't know whether those apple leaves are in the united states or or where they are i have no relation with them right ok thank you thank you others in that my client was never charged with being a participant in the alleged sex trafficking conspiracy he he managed to get himself indicted because he had the poor judgment of sending an e mail to young lady that he whose picture he saw on a website that he liked he thought she looked good he thought it would be you know as a young man will try to attract her attention and get together unfortunately he used to the word mission and one of his emails a word which among young somali had an ordinary common completely innocent meaning in other words what is the point of getting together what's the mission for our gathering and he says i have a good mission for you meaning we'll have a good time if we get together all of that itself has disappeared right there's evidence that says that that was code words that were were used to describe the sex trafficking ring and and when he says no that's that's just i want to hang out get together well i understand that but my client was indicted for lying about what the word meant to him not when it matched to the other alleged coconspirators or to the victim my client had no reason to know that this word had this terrible awful meaning all right the only sort of to do with waker that well the fact is that the only evidence that was used to bring my client into this situation is white or ask him gee you know did you ever did you send jane doe to this email asking about a mission yes i did what it what does mission into you he said well i'd like to hang out you know we have a good time together and then she asks well do you know these other people listing a number of the people alleged to be but yeah i know who they are well that's enough to have my client name an associate of a somali street gang that he must have known that mission really meant an assignment to go out to turn tricks for prostitution rather than the more common ordinary and innocent meaning of the word just words what's the purpose of getting together what are we going to do so how does that relate to either act question about whether to extend the vents or whether a weicker gets qualified immunity well it relates to that because my client's contention is that he was arrested detained indicted without probable cause in violation of his fourth amendment rights and i think that there brings it very clearly within the context of prior fourth amendment cases where a givens remy has been allo and is there any false of the key claims here that weicker falsified evidence fabricated evidence manipulated folks etc etc those are the those are the allegations does that apply to your client and if so how and try to get to the root you're telling us that i understand that and the reason the reason that all applies is this conspiracy alleged conspiracy got built up and white who wants to bring in as many victims as many defendants as she can and so she hits upon my guy who had the poor judgment to use the word mission in an e mail to a woman that he never even met and w had to know that because she was spending all that time with jane doe two but the only evidence they have is my client admitting that he actually knew who some of these other people were the other the alleged conspirators and that he used the word mission in his e mail to jane doe two so what did she do that you allege violated his rights well she  she put up evidence and she caused the prosecution to believe that my client knew that the word mission meant something other than what he said it meant that she just tell him the facts that you've told us and the prosecutor accepted that as sufficient ours are some claim that she fabricated something well the client well the fact is that she knows she she said or at least well that may be but i thought you said all she told the prosecutors is that he was an associate well yeah you know that he was associated with it but that isn't true because all he knew all that was the basis for that was my client's admission that he was acquainted with these people he knew who they were not that he admitted he was actually a produce opponent or an associate i'm having a lot of trouble figuring out what the violation was right now we have evidence that he was an associate knew them from before and they used the word mission which apparently had a different meaning to some in the ring she relayed that to the prosecutors all of that was true and then she expressed her opinion that maybe he's and or maybe your clients and i wanted to i'm still not seeing where there's falsification or fabrication of evidence anywhere well to the extent that the the  entire allegation that there was a conspiracy was based upon fabricated evidence that would apply to my client but in qualified immunity just because the just because the the investigator is wrong doesn't mean that the investigator violated your client's constitutional rights what a reasonable officer would have done under this circumstance were not this reports repeatedly said don't second guess officers don't do this hindsight twenty twenty so i'm just trying to figure out what i guess let me ask you this what's your best argument that there was some fabrication here i mean what piece of evidence really is sort of your smoking gu well the the the allegation that my client was associated with these conspirators and had reason to know that mission had a special meaning a line and i had one more question for mr nouvel if you could just step up from your as i understood your argument you say the government hasn't really even argued anything that's relevant is your client that's what you said right that's right what about their argument that when it came to the arrest of your client the they do argue as i understand that th e arresting officer independently investigated the situation and made a decision to arrest him therefore i gather the argument is what waker did didn't cause any officer weicker who said that she had this information and that he only changed course because of that he tells you seen in that car ride that he only changed course because of what she said the police report indicates that he formulated a plan to talk to them again after talking to me my client and the others after talking to officer weicker but it doesn't say that he actually did that in our complaint certainly doesn't say that he actually did that and that's why a judge erickson said look this isn't this isn't i'd like to focus on materiality because that's the common string that ties all three of these plaintiffs together here there is no exception in the case law that if you allege misrepresentation a grand jury proceeding that you don't have to plead materiality materiality is a required element of a claim and it is their burden to prove material well what about the fact that and another some dispute i think here maybe i'm wrong about that about whether the grand jury proceedings here open but if a grand jury proceedings are secret and you don't have the ability to figure out what actually happened does that mean they're just out of luck you can't you can't the claims not available to the plaintiffs even though it appears that all this evidence could have been fabricated ahead of time and presented to the grand jury you just don't know that's exactly what the tenth circuit said in the bright impact vs polished case when something was under seal they said it's the plaintiff's responsibility to go get that sealed information here because it's a required element of the claim but in this case i don't even think we need to delve into that grand jury material i think again if they can they have to show materiality and there's enough evidence outside the grand jury investigation to show that these alleged misrepresentations were not material even if you find that the complaints plausibly allege that officer white her lied or fabricated evidence that's not enough under franks they have to show that probable cause still did not exist not just for the crimes they were charged with but for any crime and then just seen as a good case here just seen admits that she and her friends started the fight with the alleged victim in that case  paragraph eleven says she slapped this person so was there at least arguable probable cause to arrest her for assault we think so likewise for all the claims about coercing witnesses like the jane doe's again the criminal courts stated the  it was in dispute that there's enough evidence outside the grand jury context to show that these alleged misrepresentations were not material and even the district court's acquittal order the very end the district court order said my order does not preclude any state charges based on the well and rape of jane doe two so there are other crimes here and that's what this court recently looked at last year in the case whitey jackson where an officer or an officer arrested somebody for one crime and there was a probable cause for that but there is probable cause for another crime so looking outside the grand jury record here there's a mountain of evidence to show that these alleged misrepresentations were not material and again it is plaintiff's burden to show this not officer wipers burden plaintiff have to show this and they cannot do that here with all the information in the record and under these circumstances the plaintiffs cannot show a clearly established constitutional violation while the record may be complex qualified immunity really boils down to a simple question what would a reasonable offered officer do in a similar situation and when you look at the situation officer white you're confronted her actions were not objectively unreasonable and she is therefore entitled to qualified immunity thank you isn't that a different point than clearly established is it clearly established that these actions that officer white her took a beating repeatedly with the victim does that amount to a a constitutional violation so i think that they are a bit tied together but