at the time of the motions she is represented by counsel and after that the summary judge was granted dismissing her two causes of action she was briefly pro se and i was i was retained  i think this case deserves a closer look than it has received so far i would note that in a procedure i just haven't seen before there was just a text order by the district judge not an actual decision obviously that's his right but i'm just pointing that out to the court that really all we have is the magistrates decision  constitutes the role of the district court and for our purposes that that's that's that's correct i'm just saying that in my perhaps limited experience i see some attempt by the district judge to grapple with the issues and that was not done and the judge has every right to do that but that's the fact i think what one of the issues one of the problems with this case frankly is that mr colby who is the trial counsel is a very formidable litigator and i think he has done a marvelous job at the trial court and in his briefs to make this case look perhaps like the slam dunk that it really is and i think it's actually a fairly close and pretty complicated case so let me get right into it just as yes sure sure in the in the in your opponent's brief they say your client does not dispute that there was probable cause for arrest that that morning that's a page seven you carry with you i think that is actually a very murky issue which showed been thinking about it all all morning i think what counsel perhaps in artfully was trying to say was that if what we believe is the in court the false information provided by mr winter was the sole basis for the arrest that 's false and i think that it was not really a meeting of the minds i think judge mccarthy ends up saying that even without any of the winter  that just because a deputy calmly saw some road on an unspecified map which i can find in the record again coming late that there was probable cause independent of what wynter said and i think what plaintiff's counsel was saying was really different so i kind of and given the murkiness as i pointed out in th of the common law in this area the confusion here we have i do shout told it's my third time in federal court this week trying to convince judges to say that this  case should be limited to it's it's facts and it's not really relevant it's not really relevant to this case so given the murkiness of the common law doctrines the players council is dealing with i really think that issues before the court i really do and even if it's not understand correctly you're saying that we should interpret this concession as meaning no more than that we're not suing the de because they didn't do anything wrong if mr winter had provided true information and that information was true then there was probable cause i think that is that the interpretation you want to put on that i think so honor i think that's a fair statement of our and then you would be arguing that the correct inquiry is whether there was probable cause assuming that there was false information from mr winter that that should be excluded when evaluating mr winters my ability i i think so your honor but also perhaps the magistrate did not understand what plans councils position was but what i'm saying is that without the winter information there isn't there isn't remotely probable probable cause and even if technically it court found had been abandoned well thank you for asking that question because the one thing i want to do today is to say that the magistrate did err error in relying on justice name orders very lengthy if perhaps they haven't located it but mr colby's summary judgment excellent brief in the trial court talks about church made numerous decision all over the place and probable magistrate mccarthy talks about that decision on page eight and also implicitly on page twelve no five and on page thirty on page thirteen so you of the the issue you're raising about the lower portion which was later determined after extremely whatever was later determined to be the actual facts about what was public and what was not didn't magistrate judge mccarthy say that there was nothing sufficient to raise a triable issue of fact as to whether winter learned from the town attorney via an intermediary before the arrest that rocky mountain road was not abandoned then he says well there is some question as to whether the mr chavez authorized the work but why does whether he authorized the work matter isn't what matters whether ms polk is blocking a public road and if mr winter was told that this road was not abandoned and he conveyed that information to the deputy why isn't there probable cause right there regardless of any exaggeration or error or anything else that mr winter said with respect to the town of fernie authorized work somewhere i don't think that i don't think that plaintiff's arrest winter learn from history shows that rocky mountain road was not formally abandoned that you know with all destroyed that's that's not my understanding of the record but i do believe that that judge mccarthy did use judge me more years later decision in holding that that was a public road i think we're not conceding that at the time of the arrest there's probable cause that that's a public road there's no marking i have there's one photo who may not be conceding it but what is the issue of fact as to whether mr winter was told by an intermediary from the town attorney that the road was not abandoned before the arrest what casts doubt on that makes that a triable issue affect i think that he had my understanding of the record that he indicated that he talked to the town attorney and i think your honor syndicate talked to a staff member i think that's what the staff member supposedly i mean what the finding is whether he learned from mr sharon's via ms aren't you i mean if he's if he says i'd like to talk to ten attorney here's the question and somebody comes back and tells them i passed your message on to mr shouts here's what he says you are saying that it is an actionable also the sufficient to give rise to a claim for false arrest that mr winter didn't specify to the deputy that i heard this through an intermediary from the town attorney rather than i spoke to him directly well i think that is a significant difference to talk to talk to the difference when talking to an attorney is it a different is it make a difference as to whether the officer th properly has probable cause to make the arrest based on the information if you've been told it was called the town attorney left a message what i heard back was from the intermediary that the town attorney said it's a public road you're saying that if that truthful statement meticulously truthful statement had been made there would not have been probable cause because he needs to have heard it from the very lips of the town attorney well you raise a good question basis for probable cause was an unspecified map you have there is one photo in the evidence is document forty five seven which shows that this road needed needed to be mowed if you look at the factual portions of judge me more his decision he talks about how this is this the middle part portion of the road is a wash between mountains and close this did not from the record look like a road at all so i think that judge mccarthy did err in making that determination and particularly in relying on the decision of judge me more which happened afterwards and i know counsel is disputing that but he relies heavily signing a half of mr winter first of all i thank my learned brother for the kind words if there's a transcript that i can purchase i would like to know where where i could obtain that but just say going off some of the points even even today the i'm sorry distance of correct on try if i misspoke right that the below the plane of conceded the probable cause existed for her arrest and even here there's no there's no definitive no there got it here i have the appendix here there's no point in my looking for it and the contents correct yes thank you so again she can see a blow that probably cause existed but even if the court were to allow her to revisit that issue  you know that she's unable to satisfy the you know the showing that they need to says i first of all you know a lot of discussion has been hand with respect to what was said to whom and the whole series of conversations between mr winter who is the town clerk and then the town an attorney who was taking his daughter off the couch frankly as the court found here the only statement from winter that is germane whatsoever to the probable cause determination is the fact that he said  town vehicles need to get over there to do some work and she had her vehicles parked in a section of the road and again counsel argues that well judge mccarthy erred by relying on judge decision i don't think that's an accurate reading and that's not what had argued below either the deputies based on their own personal information they testified that based on a review of maps and g p s that this was a public road and we knew it to be a public road judge nimoy is decision however just confirm that in fact after issue was litigated the state supreme court ruled that this section of road where she was had a cars parked was in fact a public road so i ask you about the abuse of process claim here what's the status of existence of probable cause also defeat an abuse of process claim they are found it was unclear in the second circuit and you know i cite a number of cases in our brief decided by this court one of which was not published decision but that other courts district courts have cited for the proposition that probable cause the existence of probable cause is in fact defeats a claim for abuse of a process but regardless even if you were to find that it remains an open issue in this circuit  our or judge mccarthy's alternate ruling was that ok if it is an open question then you are mr winters at least in title to qualified immunity i don't know if that was answering your question  hybrid it's a little bit here that you would give of unity to him in that position rather than to arresting officer it's the accusation is he provided false documents how does he benefit from qualified immunity  the circumstances i think i raise a good point that the typical scenario is whether or not the arresting officers based on the on certain information at the scene of the rest should be entitled to qualified immunity  road and said by the way we need to get our vehicles past the past the black a so so i guess i would concede that it is at least unclear as to whether or not you have patient cough and immunity you know would would apply here had you have to have a warrant issued something in the legal process of use of legal process claim it depends on the idea that you are using a legal document to subpoena a warrant or no there is no use of regularly issued legal process at all and certainly not to obtain some collateral objective the objective is  was exactly what he said get the trucks off the road it's not for some reason other than legitimate reasons it's not like it is there's no allegation here that he didn't like and so he wanted to get her in trouble and so he concocted something in order to get a legal document to be misused for the wrong purpose not that i'm aware of although i'm sure that they don't have much love l work and the new york words what's the reason for the declaration was it was a sporting deposition and it was just in support of the complaint i don't know why they didn't get it at the complaint that was filed subsequently your complaint was filed and she deputies took her to see a town just as they couldn't locate a town just so they gave her an appearance taken the following day they went to winter and he signed a supporting deposition in support of the criminal complaint that was signed by the deputies and again he's saying that independent of his findings which i find somewhat confusing the issue of winter was told that he was disregarding that he was making a probable cause determination independent of that and i think probable cause is is lacking without reliance on justice name or his decision the other issue that the false arrest claim that  we disagree with was from the magistrate's report is this notion that winter had to fail to make some explicit order for the deputy to take her into custody  but i think that under the fourth amendment custody is it can be a lot less than deprivation of liberty can be a lot less than being booked or to me custody implies sort of a formal booking process but he did tell my client you are going to and again in the fourth amendment even a small deprivation of liberty for a short period of time is one of the judges point out that a he's not really a civilian he's that he's actually a government official so again that whole line of cases which judge mccarthy relied on and judge as well obviously do not apply to