please the court my name is jeffery rothman and i represent the plaintiff luis hernandez in this matter i've reserved three minutes for rebuttal and ruling upon the defendant's motions to dismiss on the  district court was required to assume the truth of the facts that were played by the plaintiff to treat those facts in the light most favorable to the plaintiff and to draw reasonable inferences from those facts in the light most reasonable to the plaintiff the district court did not do so however and because of this and other legal errors to district court erred in this missing plane of second amended complaint the plaintiff luis hernandez was born in brooklyn in one thousand nine hundred seventy four and thus was a native born citizen of this country who categorically could not be the target of an ice detainer mr hernandez his birth new york birthplace was also stated clearly on the new york city department of corrections inmate look up screen on their publicly accessible website despite this and other readily available sources indicate ing that the plaintiff was not the proper target of an ice detainer and i saw officer named william outlaw lodged in ice detainer against him on september twenty seventh two thousand and thirteen following his arrest for public lewdness and did so without engaging in even the most rudimentary checks to see if he was luis enrique hernandez martinez of honduran nationality who the detainer apparently was intended for as has been played in detail if it were not for the detainer mr hernandez would have been released on his own recognizance at his arraignment and would also have been eligible arraignment for a plea bargain involving three days of community service and no jail time because of the detain or however and only because of the detain or as a factual matter one dollar and nominal bail was set arraignment and this was done pursuant to the criminal courts and the new york city department of corrections record keeping requirements and was routine whenever a criminal court defendant was being held on a detainer and could not be released anyway that one dollar a nominal bail as per their own particular record keeping requirements was set soley so that the criminal court defendant could potentially get time credits if he or she were eventually hernandez and the birth dates were the same isn't right that is correct the birth dates were the same including the year the birth dates were identical direction now i looked up something over the weekend gould the birthday parent and the birthday paradox that if you have twenty three people in a room the odds are fifty fifty that somebody other than person number one has a birthday on the same month and date of the year and if you put seventy five people in the room the odds are ninety nine point nine out of a hundred now on that alone why isn't the probable cause i approaches statistical certainty though it never gets there and it can be wrong and it was wrong but he didn't have the exact same last name they had different names one was hernandez martinez and one was hernandez and i do after the arrest something must have notified him that there was an arrest yet the young one with this name the exact mechanism of how i switched notified is unknown but presumably when somebody is arrested either the in this kind of a scenario before issuing the detainer is there a law that says he has to do a search of the computer records what what what's out there familiar with any particular guidelines that have been set by the courts as to what precisely they have to do but they do need to do some basically rudimentary checks and it was clearly available to them as it was to the new york city department should they do have to do some basic rudimentary checks you except that as a premise and the gist of judge chin's question is what's the basis for the proposition as as i said there are readily available databases and  records that will show the number one most importantly i understand that and stand that what is the basis for the assertion that as a matter of law there is a duty to consult them because  as i've cited in my reply papers there is a duty to engage in reasonable investigative activities before in order to establish probable cause where there is ambiguity and your honor is aware of the the that didn't have to do with the complaint when we get reversed in the supreme court reverses again we remember we district judges a complaint containing any allegations with respect to kind of an  inquiry was made or should have been me whether it was a reasonable inquiry well they were there is an allegation that the most basic and simple inquiry of clicking a computer mouse and checking the department of corrections own website which stated that mr hernandez was born in new york was not done and also that there's a rap sheet available that would would state this this information as well that may be but  if there is a trigger if there is something that a red flag that immediately says that this person could not categorically and parodic magically be the target of an ice detain or then and then definitely some further inquiry needs to be made and that was available and that's with regard to the issuance of the painter and then we also of course have the more no claims against the city another matter i agree thank you thank you the agent did not make a reasonable inquiry that if you had made a recent inquiry he would have seen from the computer records that the individual who had been arrested was a u s citizen those are the conclusion or allegations in for the detaining yes you are and that's a speculative allegation and he he can only speculate as to whether he will would have alternately been released the would we do post one dollar on them for the fact that you know the person can't get out you're just doing it so that he can get credit while he's in detention well again you are the there is no there are no allegations here or at least no support for the allegation that in this situation where a bail is set on a criminal charge that the new york city department of corrections refuses to honor bales that are posted there are other cases throughout the country where individuals have alleged plausibly and without dispute that certain facilities do not accept bales that when they are posted here the plaintiff made absolutely no attempt to post bail and cannot why w simplest simplest solution is the best solution what's the simplest solution from your standpoint to this case well the simplest solution your are if you're suggesting that probable cause would resolve all that in a finding that there is probabl cause i'm suggesting that you're right but i'm saying it if you're right yes your honor and the going through the other the actual elements for the cause of action the plaintiff has failed to allege facts that would satisfy that aside from the probable cause element the plaintiff's confinement here was always on that one dollar bill i understand that the plaintiff alleges that it would not have made sense to post that we disagreed with you that that is a conclusory assertion or speculative assertion the question he said if you're wrong about that do you lose well no and then you go ahead and defend these such of the judge and ask you to make well my understanding is the assumption is that the that attention was not otherwise privilege issue with the on the first element the first element is that the defendant here the officer intended to confine plenty don't you issue a detainer with the intent that the person named in intent to confine i would agree that the notice of the detain or itself is a request to detain would be the intent i think that the point the governor was trying to make was the defendant or the plaintiff here was not being detained by the federal government i do think it's an important honor had noted that this is an individual who had identical or overlapping dames and an identical date of birth understand but is is that enough is it correct it's possibly alleged i think that if he had checked the computer he would have seen that the good morning eric lee for the city of new york this court should affirm the dismissal from the now as we brief we offer two grounds for affirming one was that there was a privilege detention here and the second that there is no plausible theory of it sounds like the court has made a decision on the privilege and made any decision we have asking questions all right well start with that then i think the key question is what is the character of his detention and was it otherwise privileged because that is one of the elements of his false imprisonment false arrest claim the question isn't the causation the argument was privileged because it was  that is element of the policy i understand at least it is alleged the policy of the city is that if somebody is held on a dollars being home and would but for the lack of the dollar be released somebody over a department of corrections puts up the dollar and they open the snow that's the allegation as i understand it that is delegation ok so that's a municipal policy wouldn't you say that is the that is the policy but that doesn't take away from the fact that in this case he was lawfully detained on a state criminal charge that he's that does not contest that i think if your honor is getting to the part about futility two points on that your hon or first this futility standard comes from a single judge in texas in a case that the fifth circuit has otherwise discredited and there's no real analysis in that case the mercato case why futility even matters in this context second as we explained in our brief even if the mikado futility standard apply here his allegations don't pass even that test he does not allege that he attempted to bait bail and had been rebuffed there's no allegation that he didn't even attempt to pay bail because  pursuant to an immigration detainer violates the fourth amendment if it's authorized by federal law but there's no provision of the city lolo's local to sixty two two thousand and eleven that's the right one is it yes yes the state authorities are forbidden from holding people because there's a federal detainer with the exception among perhaps others of a circumstance in which the person being held is subject to detain  because there's a removal order rights so far but it doesn't require the city did not require the city to hold someone in those circumstances it just carved to someone in those circumstances out of the provision that said thou shalt not hold anybody on the dangers with certain exceptions true that's right all right so at least on the face of local law sixty two it was up to the city whether or not they were going to hold the guy once on the basis of the federal detainer right the department of corrections right and then when the department of corrections made the decision to hold him not in a rest it was a yes it was attention but if your honor is getting at the fact that it might have violated state law that doesn't matter for the sake of a fourth amendment analysis and we explained in our twenty eight j letter says more is on this virginia vs more tells us that the legality of a detention of arrest under the fourth amendment is not dependent on state law because in that case the supreme court held that a police officer does not violate the constitution by making an arrest based on probable cause but  state law that's what we have in this situation which is why what does the city do when it receives a detainer in knows that the detainers wrong knows of the individual is a us citizen what does the city do in that situation i don't know why if the if you if you to hold someone on an immigration detainer knowing that the person were citizen i don't think so i think if if i plaintiffs that the new york city dock database show that his native it was in your mind or standing is that the information is all the information that goes into the database is mostly self reported and as judge kaplan pointed out there are that allegation what i'm asking is if the city had checked and had found that he was a u s citizen would it have been obliged to keep him detained or would the city have then let the proceedings  saying or any person any false arrest situation saying that's not me i'm not the right person but what the city had in this case is a detainer that specifically said then order of removal had been obtained and it had the option to comply or not comply as you agreed before now you shrugged you of the modelled clay saying if there was a violation of state law no more no question of course if it's only a violation of state law that's right but you have a further problem don't you because this isn't a motion to dismiss the complaint the complaint in the six course of action alleges the facts essential to a state law false imprisonment claim in addition to mono doesn't it but your honor he's not bring up false arrest claim against us well he's being only moan now claim again that's what the caption of that part of the complaint says but isn't it the fact that if a complaint pleads facts which gives rise to a right to relief on any basis it's within the court's ability to gra  you've agreed that holding him pursuant to the change was an arrest by the city and you needed probable cause for that arrest and there's certainly a lot of authority in the state courts  that this was not good if it went down the way it happened because you had no independent probable cause with respect to the commission of a crime by this man right yes it was a civil immigration detainer but the claim that he brought here was in the now claim and what policy a policy that honors attain or that says an order removal has been attained does not  while a detainer is distinct from an arrest it nevertheless results in the tension of an individual morales alleges that after her criminal custody had terminated she was detained for twenty four hours based solely on the detainer issued by the ice agent because morales was kept in custody for a new purpose after she was entitle to release she was subjected to a new seizure for fourth amendment purposes one that must be supported by a new probable cause justification and i also failed in my initial presentation to point out that because this was a warrantless arrest it is the defendant's burden to supply a probable cause justification is not meaning the government reply brief a decision from the second department wells v demarco which held that local law enforcement agencies have no authority under any law whether it be state law or federal law to detain somebody based on a civil immigration detainer and that that is the essential point this judge kaplan pointed out virginia v more related to probable cause to arrest for a crime that's a categorically different thing a local law enforcement agent needs some of the city have a duty to conduct a separate probable cause inquiry on whether to honor the detain or yes this is your law and that well particularly when they're placed on notice there is plenty of law and in the context for over detention cases where when somebody who's in a prison and says you're holding me past my lawful maximum expiration date and that's brought explicitly to their attention some steps have to be made to look into this isn't your easy easier argument on that point that if morality is right in the first circuit then the city had to have independent probable  cool and my further question to you would be whether assuming we send this back to the district court on this fourth amendment slash false imprisonment claim you would have meant to search state look laws of action against the city as well as the state  claim can't be brought because no notice of claim was broken so there is there is only a mo nel claim against the city but as your own i was asking about in the meaning of the local law from two thousand and eleven that with that reflected a conscious choice by the city council to have the department of corrections honor detainers that represented as did this detain or that an order of removal had been obtained for the target of the detain or they made it mandatory  made it mandatory when you read that it's phrased in a strange way at first the ordinance states not that shalt not and then it says that section shall not apply when and less the number of circumstances including when there is an order of removal so if the shall not shall not apply that it will shall and then if that's your position i think you know that makes this a lot simpler yes that's an official