that this was not in fact qual but was methamphetamine in solution because that is a method that is used to smuggle methamphetamine through the border it said you see them so they did a presumptive test and the test kit turned the color blue and she was placed under arrest we do not contest there was probable cause for the arrest she was then placed in custody she was charged with illegal importation of four fifty five kilograms of methamphetamine well beyond the mandatory ten year term that invokes the presumption of detention under the bill reform act in fact she was given a bail twenty five thousand dollars but she could make it to counsel him in it if we could start with the held after that point regardless of which sort of law enforcement privilege we do or don't apply how is it in bowman committing the element of false imprisonment that requires that he be detaining your client after that point even if he wants to let her go he can't just go to the detention center and let her out right well he was the case agent and responsible for conducting the relevant investigation on two separate occasions on two separate occasions on the nd of september he was asked would you please contact the e a a the lab as for rush and on the th he was asked would you find out what the status of the chemical analysis is and he did nothing in response to that well that well that may that may bear on your negligence claim but on the false imprisonment you have to show a detention by by him right and my question is how is how is he and detaining her responsible for detaining her once the  that she be held recklessness as well as intention is sufficient for a finding that somebody is falsely detained his refusal to do those things that he was obligated to do in order to investigate the case resulted in the illegal detention of this michel the supreme court in the case of manual versus city of joliet said that not only is there required to be a showing a probable cause at the beginning of pretrial detention but that if at some claim that only lies against the jail are essentially the holder courier what why and why is that not right that false imprisonment as a tort only lives against he or she who is doing the imprisoning it because of the nature of causation in other words causation is the issue the jailer or the the jailer is merely doing a ministerial function of keeping somebody in custody if the issue is was there a causation of that by either the initial illegal conduct of the agent in arresting without probable cause or as a result of as in manual versus joliet perjury or in this case reckless disregard of the obligation to do what the case asian is supposed methamphetamine this is quo and boman says yes and you are a liar and she says well they have to test this don't they he says yes they do and you are still alive there after technician she tested all of the quality and by the th of september by the th of september using g c m s gas chromatography mass spectrometry which is the state of the art gold standard for chemical analysis she found that this was not a controlled substance to a level of scientific certainty ninety five percent certainty instead of and this is where we have the concurrent and if i could judge miller may i also address the negligence with this because they go to both issues both of faulty president on the negligence but here's she realizes on the th of september none of this is a controlled substance instead of doing a report or calling the agent or letting somebody do something she does nothing for two nothing she doesn't call the case agent who she's already met on one occasion the night of june she doesn't notify her superior she doesn't notify the assistant u s attorney she does nothing now to her we say she's negligent and the district court clearly urged as a matter of law in saying in order for her to be liable for negligence she had to have positive knowledge that this woman was still in jail and since she said i don't know if she was in jail or not she's not negligent or the question is and before you even get to the question of whether she is negligent you have to show that she's not engaged in the performance of a discretionary function what we said was after viewing the evidence is that the issue of when she decides to test is within the discretion of the da and within to a certain extent her own discretion because that decision of w the test involves the waiting of resources finite personnel etc so she could have decided to have tested a month earlier three months later and that was legitimately with discretionary function but once she finds out that is not a controlled substance once she knows that and she knows it for certain she has no discretion to delay two months for a couple of reasons one is there was never any evidence a deuced that the issue of doing the report involved discretion or that they could put that off and there were two reasons for that one is doing the report involve simply this they press a button on the computer which is incorporated all the data and generate this one page report so the thing that kept going to michelle in custody for almost three months after they knew she was not guilty of anything was embry's is failure to do that action and is there any is there any policy or regulation and so is what she's supposed to do once she is completed the task her you're just making the argument that discretionary function exception to the federal tort claims act cannot violate the constitution and in this case when a representative of the government knows to an absolute certainty that a human being it is reasonably foreseeable that somebody or serving the united states or so in the united states the constitution doesn't provide for any waiver of sovereign immunity that's solely up to the congress right congress can waive the united states is sovereign immunity in whatever way it wishes as long as it doesn't violate equal protection or something like that so how going to be a constitutional violation of congress has chosen not to waive its sovereign immunity in this circumstance congress will because st of all there are many many cases and we cited to them saying that the d f t cannot be invoked if it violates a constitutional requirement on the government and that does not least the legal analysis in those cases does not go into the issue that you raise regarding whether that implicates the original waiver of sovereign immunity  violation well i'm going to step farther out on the limb and say that when an authorized representative of the government has absolute knowledge that somebody is charged with a crime and they know for certainty that they're innocent that it violates due process of law for them to say nothing and do nothing in allow the person to continue to have their liberty deprived on the basis of nothing what so ever that's my submission to the court on that report what would you point to to support your view that i had a row who kept his vision i said how do you generate the report and she said oh it's not eval the data is in the computer you just push the button and prints out but i think she also said something about she has to seal all the evidence and other couple other things that she mentioned yes but that was all done in other words that's part of the testing procedure i'm talking about when that is done and she said that when it's done with the g c m s which is enough to give her absolute certainty on the because she wanted to make one hundred percent sure that there was no methamphetamine so on the th of september she did another test which is called g s c f id which involves did that i'm trying to recall judge bennett the district court judge's findings and he never ruled as i recall on that issue in other words of course negligence involves duty breach of which causes harm we say the duty of a rises and your duty is is the basic duty of everybody who's in the criminal justice system the famous words of berger versus united states t which is that guilt shall not a scape more innocent suffer and we say yes when you as an analyst know that somebody is innocent you owe them a duty and that is implied by the nature of your job by what you're paid to do and and yes by the constitutional requirements that are imposed upon every government actor in addition we argued and there was no specific finding that her knowledge as the asian is imputed to the principle which is the united states now could i just trespass for thirty seconds that and that is this what is so ugly about this situation is this on the one hand you have alexandra embry's who as of the th of september knows this is not a controlled substance and doesn't tell anybody for two and a half months and on the other hand you have the agent and the case aged is instructed by the way the assistant u s attorneys covered themselves in glory they did what they were supposed to they was saying t police chat with the d a and see what's going on with the analysis and had either one of them had either one of those two bothered to contact the other made an e mail a phone call a letter anything this woman would have had three months of her life instead because they decided they wouldn't do anything for whatever reason boy met without explanation made no attempt to one phone call twenty seconds thirty seconds we say judge bennett that at minimum the law imposes that duty on these two government officials all right  morning your honor's speech on behalf of united states may please the court at the outset i will acknowledge that this is an unfortunate situation this is certainly not what we wish to have but we do not look for people to be in custody longer than is necessary however we need to look at the reasons for how this occurred and why we got here what we have is one of the large one of the main reasons is there was no court order there was no  and if there had been either of those that would have then allowed the da lab to process this as a rush request and one reason or understand is why she says she did all she had to do was present button to complete it results are so st of all that's actually putting that in context that's just the preliminary part of the report at that point testing is done however before testing is finally completed and can be discretionary function exception and the supreme court in berkovitz is talking about with regard to the nd part of the test even if there's judgment involved is this of the kind that the exception was designed to shield how is the discretionary function exception designed to shield chemists delay in transmitting the results of a negative drug test where even if she didn't know for sure this woman was in jail she certainly had seen hundreds of cases where people who are charged with math are in jail so how does part two of the discretionary function test here protect what she did because we have to look at the reasoning your honor for the alleged delay what we have is as your daughter's correctly cited in the supreme court setting there as well we don't necessarily look at the listed reason or the professor reason we have to look at the content to see if it is of the nature by its nature susceptible to policy analysis now alexander ambry of the chemist said that she had to shift focus away she's constantly working at any given time on two thousand two hundred and twenty five exhibits tries to process around three hundred exhibits a year she's off and handling the initial doorway but the period of time after she knew with certainty that this woman had that these samples tested negative and that on that the fugitive defendant was at some point going to get either released or charges dropped or she wasn't in jail how does the discretionary function exception protect whatever judgment there was involved from the time she knew there was nothing to the time that that ultimately got to the case agent well st she didn't it was it's ever th that she knew with ninety five percent probability but even at that point it's still not done until the supervisor  question a different way but what were the policy considerations that would have been relevant to deciding you know should i send the result to the supervisor now or should i wait six weeks so the thought process at the point was not so much ok let off this one before i move on to another one there were other things going on that the kind of side to focus on with it doesn't sound like there was any thought process that's the problem and there does not even necessary have to be a specific this question behavior maybe she was rushed and distracted and by the pressure of work but that's not a policy judgment well so long as a conduct is susceptible to policy judgment that is the standard articulated by the supreme court and got there and should it make any difference whether what the preliminary or even the final at this point results of the test are is it is it the government's position that in  making this analysis it doesn't matter that the test results were totally negative to a ninety five percent certainty that doesn't matter not necessarily and the reason is because the te found one dollar to three dollars negative results per year with all this testing she was doing which is astonishing really when you think about it that she only encounters negative that's highly unusual i mean i can see if it's all positive oh yeah one more positive case where in this whole rush analysis ok it's got to get to the car's going to get to the court makes sense but it doesn't seem to make any sense with negative result well your honor there's no statute or rule or regulation that requires or to me only report the results of any test positive or negative and without that you know that's why we get into the discretionary issue wasn't precisely fully litigated but there are cases that addresses that are similar and they typically find the law enforcement does not but that's a different question right so even if you lost on the discretionary function you would still be free presumably to argue to the district court that she didn't know a duty to this defendant and as a result there can't be liability under the f t c against the united states even if we ruled against her on the discretionary function i wouldn't for clue was that argument that's correct you know question of whether or not there is a duty it would be separate they are intertwined to some extent you know the cases say and the circuit is held that the question negligence is irrelevant on the question of discussion or function because it were it otherwise and d f e would have little effect so you know the questions are intertwined but i wanted to also back to a point i was making earlier the case is about delay and plaintiff has raised time and time again we have to look at the reasons for the delay and when we look at the underlying criminal proceedings the plaintiffs are criminal defendants counsel had requested on his own three times for a continuance he's been enjoying counseling and i think we're all well well speak for anyone else i'm concerned about you know that the delay following the completion of the test and your  f your friend on the other side describes it as all she has to do is push a button and then i just i would appreciate if you could shed light on those for basic factual question of what happens once the tax test is done what does she have to do and i is is there anything beyond her deposition testimony not specifically in the record your honor it's a little bit more than is suppose you push one click and it's all done you know she does have to review it she does have to close  things out she clicks a couple different places to finalize just the preliminary report the preliminary report then gets sent to the supervisor for quality assurance review that is an important step because the supervisor can't kick it back and say hey i think you missed something  to do something else and i could then trigger additional testing right where but it but i mean if we're focused on what happens between now and when she does the test and when she sends it to the supervisor which here was close to two months you know the the more ministerial that is the harder it is done her stand how her decision to wait so long could it not that she you know i understand she doesn't have to be weighing policy considerations but how that decision could involve the laying of policy considerations and at that time you know she moved away from that has because she had to testify in court on another case she had work on other rush exhibits and this was a no on rush exhibit and she also i don't to go training so she's balancing multiple cases at the same time you know the question is not so much could she have done this faster because and we promise we get into the slippery slope and we're going to tell the d a level here's how you must do things you must follow everything through to completion before you go on to your next case and that's not unfortunately in the real world how they're able to do it because at any time if they're hit with additional rush cases they may have to drop the ball for all although we don't have to say all that we don't have to give detailed instructions to the d n a if we were to rule against you we might say that if in circumstances like this where you have a negative result this is not the kind of circumstance that the discretionary function exception was designed to protect so it wouldn't be impacting cases where they hadn't done a test only ones where they had come back with a negative how would that hurt the policies that underlie discretionary function exception if it were so limited well i mean there are a couple concerns your honor you know it is always easy of course in hindsight to look back and say well sure she could have done more attitude more quickly if we do run into a slippery slope as i've articulated and that's what's always been cern once we start to tell the g a lot how do you things you know where do we draw that line and that that's that's a big problem because it more be just a simple ok in this case to this it can also be read  it will be argued well then you should also when you're suspect that it is negative or when you've done one test that says it's negative that's you know that's a big difficulty of big challenge for you the chemist's you know we have other is to allow us to make a loser in one way or another on whether it is the support policy analysis what would be the appropriate disposition in that case well it's always a possibility to rema lines and her france and in her deposition about you know i have to fill up the evidence and look it over and some of the under the supervisor of if we can't tell that there are policy choices involved potentially involved in that decision that we would have to reverse right potentially i mean i would submit that in the records there is sufficient evidence because she did talk about things that are going on at that time and we have testimony and a lot of that are saying well here's why we have the policy which is to get everyone what they need when they need it you know we're balancing the southwest region lab supports many different states and many different somebody's agencies so it's always a balancing act and at some point generates the st part of this report and then the supervisor reviews it and these additional two lines are generated but she also i mean i'm looking at the deposition transcript that you referred me to earlier of the sort of hundred eight thousand nine hundred she also said that it typically takes her about a week to do once the test is done to prepare the report and she said you know there are brushes sometimes other things come up so it does sound reading that like she's the balance against other responsibilities i can only cite to you the record and her testimony she didn't say oh it was complicated or anything else basically she said i had training i had other things and i got busy and i forgot well that i needed just of her testimony if it typically takes about a week that does just that it's more than simply pushing a button well if that's the case then the government as a matter approved of the obligation to reduce the facts in the court below to show the applicability on the discretionary function exception there was no testimony from the lab director or from her that the issue of making the report involve the use of discretion or was subject to discretion or was it something that was involved trace or judgment in the act that's that there was no contention from either mr malone the lab director that involve choice or judgment it was just this is what we do now i guess i was sensitive to the legitimate exercise of the discretionary function exception when they say when it is where it is tested is absolutely within the discretionary function that involves policy judgment but the issue of doing the report they a deuce and this is simply on the record judge no no they a deuced no evidence whatsoever that there wasn't a policy of discretion or that they gave discretion or that there was any suggestion or rule of thumb or that they could put it off it was simply she forgot that's all  and there are cases that say if if you let somebody say my negligence was an exercise of policy discretion it can allow that exception  willing to go into mediation