focus upon though with regard to the issues in this case and there are various immunity issues specifically judge jack corney who was the judge of state court ordered that mr keene washington's projected status of being on probation would be suspended upon his payment of the fun explaining that washington's fine of eight hundred ninety five dollars was to be paid by october twenty fifth two thousand and seven at five pm in the event the fine was paid he would the two fact that i think are most interesting to me and you can tell me if this was going to be fact number three but i'm interested in precisely what rivera heard washington tell the judge and what she heard him being told by this other person colonel did she hear him say to the judge i'm going to pay it right now and did she hear colonel say it's fine if you leave the courthouse right now to go to the a t m and come back and there is nothing in the that establishes whether she heard that or not there are allegations that she was in the courtroom while the while that was sit in the complaint what is the complaint say about that just remind me the complaint says that  that the judge told him that he could pay it in there's an allegation that he said that he was he asked if he could go to the a t m and get it that day and the judge said that was ok and rivera when was the complaints about rivera was rivera  a motion and particularly with regard to there is a defense not raise which is official immunity under state law which they were able to played around that but based upon the facts that i mentioned certainly the qualified immunity and we asked the court to extrapolate that to a state probation officer briefly only cause a judicial immunity argument that the function that is looked at it has to be something that's intimately associated with the judicial phase of criminal process and i want to point out something that up that i realize may not be as clear in the brief but the law is the law and the the statutory scheme governing the state court  of brown county is different today than it wasn't the two thousand and ten version in the two thousand and ten aversion it was incumbent upon and it was set up so that the state court judge was authorized  set up by probation department using candy resources if they can agree the legislature the general assembly changed that in the two thousand and fifteen version and flipped it so that today it is the king only governing authority that can do that with the consent of the state court judge and i believe that that that's like a critical difference because it shows that with regard to the state court of bryant county this probation department was set up by a judge jack horney yes the county has to agree to it but if he doesn't authorize it it doesn't happen as it always been the case under georgia law different from the federal provisions that issue and judge holds opinion that and i'm not sure this is dispositive but perhaps relevant that the pianos in georgia are defined as peace officers as opposed to i think in the federal system they are actually organized under the judicial branch i don't think that makes a difference it is different it is different and i think that shows that she is in maybe a dual capacity there are a couple of cases that talk about the dual capacity and they may may serve more than one function and what the other circuit seem to have said is that you know dual capacity where the p o is you know doing a p s r something that's really judicial and we're going to give the immunity for that where they're basically acting as a police where a police officer swearing out a warrant no qualified immunity that is what the that is that is correct that is correct out and i'll get qualified immunity in just seconds but with regard to that particularly in georgia because of the way this debt or scheme was set up in two thousand and t n under the constitution of article six paragraph one section one one two and seven it's clear that the general assembly set set up the courts and state george and it's clear that state court judge judge corney is acting on behalf of the state and because he is authorized to set up the probation department i believe that is a distinction that does make a difference here because shannon rivera has no reason whatsoever to be looking at mr washington status on probation but for our obligations to report to judge carney who authorized the probation department to be set up the way it was it's not that way anymore in two thousand and fifteen that changed the statute that statute has changed  bunch over the year since two thousand and two but but most recently there have there has been a change whereas when this happened judge corning authorized the existence of this time companies so under your argument under the two thousand and ten version any action that a probation officer took would be entitled to judicial manatee not if they were not if it was a purely administrative  function which is going to be which would be somewhat similar to what the other circuits have have haled so you're not drawing the distinction between the pre sentencing reports which would be for the benefit of the court and then law enforcement actions like seeking an arrest warrant you're not you're not drawing that distinction i'm not it's clear i think that pre sentence investigation reports have been pretty much universally held to be munity where i think it's different here is because judge corney himself was responsible for setting for authorising and essentially establishing the probation department in state court i don't see how that helps you a whole lot it that almost goes to give my dad anything to probation officers do have judicial amenity and we know  that we don't look at it that way we look at it function by function and it's hard for me to get around the mallee case in the supreme code i don't see any difference between argument so i'm going to if you don't mind i'm going to flip to the qualified immunity argument and whacking i agree with you that qualified immunity is a strong the king's lynn case doesn't control here because i think kingsland at least at the district court level have had a number of is it is different in king's lynn is that the this is not a case where there's a false occasion and knowing lack of probable cause the critical fact goes back to one of the three i mentioned earlier is what is in the clerk's notes that was told in open court and shannon rivera was there to hear and that is that is alleged that she was never told that he had come in and pay and they allege that clearly and so this would be more along as was it was analyzed in kingsland in the post case more of a good faith mistake she had information that would would have allowed her to believe there was probable cause to seek an arrest warrant could she have done more that's always debatable but if that is the standard then kingsland is going to swallow the qualified immunity rule i'll reserve the rest of my thank you circuit and then was decided by the supreme court and once again and in reliance upon malley focused on a particular function that a prosecutor in their case had done which was under oath to swear to the facts to obtain an arrest warrant if you look at cleaner you'll see that the supreme court differentiates between how it would treat other actions of a prosecutor in accord absolute immunity to that but they focused in on the third of the three actions that were challenged in that case the third being swearing to an arrest warrant and for that the court said that's a function that a law enforcement officer does such as in the mallee and that's not a function for which a a government official will be given absolute immunity so it is your response to your adversary citation of judge alice opinion and norman that she was just wrong the good news for us that she's not here today was just wrong and that district court opinion i think that she was but let me also point out that there are there's a distinction of course when you're dealing with federal probation officers which i think really did kind of change the equation if i had to look back at how that case turned out because in dorman it was a federal probation officer whose action was being scrutinized and in that situation the law itself that sets up the probation officers at least at that time for purposes of carrying out their functions places them squarely under the supervision of the courts not under their supervision of any other entity not under a law enforcement supervision provision so i believe that for purposes of when we look at when we when we accept the cords direction that we look first at the function is being performed to determine whether or not absolute requalified immunity will be the immunity on which it defendant can rely i believe that the combination of mally and fletcher makes clear that when a government official swears to the facts upon which they are seeking an arrest warrant that that's a law enforcement function and that is not a function for which they enjoy absolute immunity i would if i may also point out that the folks who are now assesses exactly the nalla says that the court used again the supreme court used again in the case  priors and anderson which i decide for which i provided to the court yesterday by way of filing which was a rejection there of a court reporter's claim to absolute immunity accord to porter surely works closely with the court the court reporter surely has it has information on which the court realized the issue presented by one involved a court reporter who had failed to prepare a transcript in a criminal defendant allege that the two years or so length of time that the transcript had not been prepared it deprives them of due process you know you waiting that case the supreme court rejected the proposition that proximity or closeness to the court which i think is really all that revere is able to rely on somehow means that the action that one takes simply means that you get absolute immunity so how about qualified immunity i think we've telegraphed in our questions that we think that's actually the stronger argument for your opponent so tell us about qualified immunity what is it that clearly established the law in your favor here what if i'm a hundred like to touch on what i think is a critical part of understanding their argument and what i think actually takes the rug out from their argument this whole paragraph in the complaint on which they were allied to claim that she knew that the clerk was to contact her in the event that washington paid the the fine does not say that rivera heard does not say that rivera was aware of that notation the notation that you see in let me see here's here's what it reads in paragraph twenty seven it simply reads that after the judge made his announcement that that my client could go get the money and come back and paid the clerk made a notation on the written calendar card that's the source for this allegation and that notation by the clerk and i dare say that's a notation to herself and two or assistant read quote that  washington paid the fine the clerk's office was to call shannon there is no allegation in the complaint that rivera ever saw the clerk's notation or ever heard the the statement to the effect that the that the clerk would call or instead and again this is a judgment on the pleadings so i'm now going to refer to what shannon rivera said in her answer in our answer rivera denies knowing anything about washington getting additional time to pay in response to paragraph twenty four rivera denied that she heard washington tell the judge that he was going to get the money and in paragraph twenty five her response to paragraph twenty five was to deny that she heard the judge to  if you paid the fine by late october he would not be on probation the notation interger of twenty seven simply means that or clerk wrote a note to herself and her staff to call shannon if washington paid the fine and nowhere does the complain allege that rivera heard anyone say that she would receive a call from the clerk's office in the event that washington paid is that is that the necessary for her side of the case i mean don't you to overcome qualified immunity sort of need a smoking gun that in fact she knew something bad not that she didn't know something good when i did it i'm sorry that makes sense yes or first of all she knew and you the complaint alleges she's in the courtroom the whole time when the important statements are made by the court and the request for additional time to pay is made by my client she hears all that and that is specifically alleged in the complaint if i may  what the complaint alleges by way of example is that even though she knew that washington was being well i'll start with this premise the complaint alleges that when she when she heard that  washington was going to have additional time to pay it meant one thing about the payment of the fine it meant that the fine was going to be paid to the clerk's office the complaint also alleges that under those circumstances when persons have been given additional time to pay she herself had contact at the clerk's office to find out whether or not a payment have been made rivera swore that washington failed to pay as fine despite hearing the judge give him additional time and despite knowing that that meant he was going to pay the clerk and out and out rivera he swore the washington failed to pay the fine without contact in washington as program fifty four without contacting the clerk of court as paragraph sixty in ninety four without asking your own assistant allison ellis and the specific allegation in the complaint at her graph sixty five is she took no steps to determine whether washington at the this is a case as presented on a judgment for the judgment on the pleadings motion where the facts alleged by by the plaintiff when they are facts rather than some conclusion of law are matters for which the pla isn't titled have the court view them in the light most favorable to the plaintiff the court cannot infer or into it in favor of washington that she heard something written down on a piece of paper assumption if we read the complaint that the reasonable inferences from the complaint are that she not only heard a bad thing you want her to hear but she also heard that the clerk office was going to call her if and when washington did they assume that as a fact just for purposes of this question does she not get qualified immunity under those fa me let me ask you why this is not wrong seems to me that there simply is this situation frankly put it close call on the constitutional issue whether that would be unreasonable and therefore unconstitutional you get your burden is a little bit high it has to be clearly a step leashed so that you have you have to have either case materially similar on point or it has to be a matter of obvious clarity that when she understood that if washington was actually pay she was going to receive a call from the clerk's office she did not receive that girl so her deficit deficiency is that she failed to double check where your honor i think you are correct in saying that there is not a case on all fours there isn't a case that holds that a probation officer even though they think approach to pay somewhere else if they don't hear otherwise then they can swear out arrest warrant claiming that there is probable cause like i agree with that the by the same token the upshot of the allegations of the complaint simply stated are that she did no investigation none whatsoever despite knowing that and that and saying to me to help you much because if it is true that she heard the everything that went on and knew that if washington paid the clerk's office was going to call her i don't see why she needed any other investigation i mean she knew she didn't get a call she you know sort of just falsified cation the other case than the tillman is also pretty outrageous in the sense that as i understand it the police officer just arrested this woman to identify or while that was stated there was of course the correlation between the person who has been sought by the warrant and the name of the two individuals the person who was arrested had a name that either was identical or close and that's the basis on which the sheriff then arrested the older woman the woman who was forty years old and had her brought in but didn't we say in our opinion that the arrest was solely for the purposes of benefit cation that's a pretty outrageous police practice that that is your honor and of course their lawyers clearly established that the chair of cannot do that by the same token what took place then in the tillman case was an officer having some hunch sown some information that would give rise to a possible suspicion that warrant should be executed against that forty year old failed to make any investigation into whether or not the age was the same as the younger person if i may your honor the appointed two cases that i think are also in this area of making the law clearly established the first that outsiders rank and versus evans which is in my brief which cites to tumen to affirm that or no resting officer is required to conduct a reasonable investigation to establish probable cause i will point out that in rank and the court concluded that the officer did just that the next case that i cited to is howard versus g where the officer the court declared that the officer failed to conduct a reasonable investigation before charging out howard the plaintive with assault noting that there were readily available corroborative witnesses who the officer failed to to contact if it's the case even if is the case that rivera heard something to the effect of please record her something to heard something to the effect that she was going to receive a call that information alone does not give her probable cause to have my client arrested and that information on loan then does what it has her understand there in order to know whether or not my client to pay the fine she has to find out whether or not the clerk actually received the money she can both say oh i thought it was supposed to get a call and have the implication be that the clerk either received the money or didn't and that's the that's the important fact that she has to know before she seeks out an arrest warrant or she didn't have this information at all and i daresay if the if the complaint does not allege that she heard that notation that the clerk put on the page then she has no available qualified immunity defense at all thank you ron thank you so much it's like your honor i'm a little bit i guess surprise that the at at rand casting this says she was able to hear part of what went on in the courtroom but not hear what the judge said the court was taken down because heretofore the plaintiff has basically made the argument that my client had no way of knowing whether the silence from the clerk's office was because washington it failed to pay or because the immunity in a number of instances outside of its facts at least at the district court level and this is nowhere near that and so knowledge that the better argument is qualified  immunity that was so little there with regard to judicial immunity it is something that certainly an area that you know need some guidance from this chordal understand that got it might not be helpful to my class in this particular case but thank goodness there also qualified immunity so if there are other questions about about either the application of king's lynn or qualified immunity i'll be glad to take those if not i'll briefly touch on the state law argument the one thing that the court may notice we haven't yet we didn't raise the the argument official immunity they're only individual capacity claims in this case there is another defendant tina ellis who was the  things it really went germane to the issues in the complaint so i don't know why it would be in there but but the official mubarak has not been a race but raised we rely upon the kind of bootstrapping i guess because there's not a lot in georgia either about that was a judicial munity that by stone holes a verse is handed smith versus hancock which neither a probation officer cases but that we would get cause i judicial immunity but the more interesting argument for this point is that under the georgia tort claims act in the definitions or the or the specific language and you know from a standpoint of statutory construction generally words are held to mean what they say and to be entitled to immunity under the door to tort claims act a person need be acting quote only half or in service of the state i do go back to the point about the change in the statutory construction to support this argument under the in well at the time it was forty two day eight x one hundred all of it was contained within one hundred section one hundred the tab that the new version that is the new version and that applies to   derivation chart showing how all of the changes came about almost the entire statutory structure in two thousand t and was under forty two that shape dash one hundred all of those in and why is that better for you then what the new low is because the new law flips around the authorization for establishing only probation offices it manal authorizes candies to do it with the cooperation of the state court judge whereas in two thousand and ten that statutory scheme or it was actually in place back in zero five it allowed the state court judge to establish the county probation but really the difference is who initiate that is correct and why should that matter because it shows where the authority for that entity flow from which it flows it doesn't flow from the getting the facts and the law i'll take a look in the law as applied regardless of what those allegations or she in that position is serving to master so to speak within that probation report seems to me that this section on which you rely on which i'm reading it's from fifty days twenty one days twenty two seven and you rely on the language very same provision but the term does not include an independent contractor doing business with the state seems to me that the city provision an independent conduct contractor being excluded would prevail over the general which is persons acting on behalf of the state even though an independent contractor might well be acting on behalf of the state and the in the capacity of what she has been sued she is acting on behalf of judge corny it goes back again to the change to the statutory scream scheme about probation in georgia but about a constitutional provision that's the general assembly that sets up the