hearing us today we are here one appeal of a lower court decision denying motion for summary judgment filed by officer martini my client it's pronounced martini  consideration doesn't that require you to grapple with the facts i understand that you think that there are no genuine issues but as a for as an initial matter you've got a grapple with the facts definitely been dealing with this for twenty years a qualified immunity and it's a two that officer martini is entitle the qualified immunity these facts we rely upon and importantly in response to my opponent's arguments we do not rely upon anything from the affidavit of probable that he didn't think it was safe what in the record i submit to the quirk is there to corroborate his self serving testimony that the rude way was not safe for him to pull over about his own purse perceptions the photographs according to the record to at least give a question of fact as to whether or not there was a reason safe place to stop or not is judge greenway i think it's pointing out here is your own client is talking about whether or not there was a safe place to park or stop who are whether or not he engaged in a vase an activity to remove the officers overtures for him to stop we're back to aren't there just facts and how do we have jurisdiction and i would say you know that even though there may be some snapshots of that  was going to go over a cliff i would be hard pressed if the officer begin the pursuit at the base of a one lane bridge or suspension bridge in the middle of a hurricane and the end the in the driver didn't stop i knowledge that we'd be hard pressed to state the probable cause existed but here the totality the question as a matter of law is whether the totality of facts here that were available to the police officer at the time even though you've got is testimony that he drove only thirty five miles per hour during this entire pursuit i would say he's hard pressed to say that this was not he did not have an area to pull over we as it works have hell way in judge schwab's opinion a twenty a day judge rob actually in her analysis and i think this is critical it determining that my client is entitle to cough i did unity judge fraud in her analysis sa the point i'd like to make though your honor we are asking whether qualified immunity should close this police officer protection and of we didn't assess any of the trial i just submit to the court that the fact that we have a qualified immunity your honor as you know is that all but the plainly incompetent police officers are entitled to the protection he may have violated his rights but the proof the question of qualified immunity is whether a police officer or a reasonable police officer in that that night at one in the morning pursuing this individual who wasn't pulling over the spite lights and sirens for over a mile not to his speech or it doesn't have to be and that's one of the things that's true the statute does not require that it does not require a high speed chase and in fact your honor what's interesting too is that it doesn't require the face of maneuvering all it requires is that once the driver knows it's a police officer nuestra suka admitted that he knew it but it provides for the willfully doesn't hole over i'm with you i find i find some of these issues very interesting but at the end of the day the question is whether this we saw pictures entitle to qualified immunity clearly established right that's at issue here whether there was probable cause or the last word is the clearly established right that we have to decide if it exists whether or not an officer making a power over cause determination has to consider an affirmative defense which is what is it i think both are at issue where there is a claim as in this case it was rejected by the court that the officer placed also information i'm running out of time but certainly where i think this is a case in point where it is a pleasure the police officer fabricate information in the affidavit of probable doesn't have to be part should not be part of the analysis the analysis it ended a day is whether the undisputed facts in our material facts that we filed are nuff to shield the officer qualified immunity and let me ask you this assume for the moment i'm not convinced this but let's assume for the moment that there is jurisdiction right so we're getting into the the substance of it you talk about  there's a reason to go there so how is it that we are going to get to conclusively established as the standard that we should apply decided that it's interesting that the other courts that have been asked to call upon this have never squarely held that the affirmative defense applies in any case i don't know that the court necessarily has to make that determination and allstate wife i would just add another minute  the the court and look squarely at the facts as they have reached us from mr ward and make a determination of probable cause we'll known those without aggressing the affirmative defen the probable cause determination right yes your honor i'm with you how would that work if we were if we were to hold that an affirmative defense is a part of the equation being considered by an officer on the squad making a p c determination just how does that play out on the ground i would submit this in this particular case that if the court were to find th the fence factors into the problem because analysis of the factors in the statute in seventy five yes yes a thirty seven thirty three essay i think a fair game the concern that we have crates of military factors yes how does a police officer go about applying a multi factor test when making eight and the rest were filing a citation as that's that's one of our concerns but what's worse is that we and you consider that the front of the fence has the words result of the calculus was he should stop a lot sooner i don't i don't go with your honor's analysis of that however at the end of the day i don't think that it creates a genuine issue of material fact that would deprive the squirt of jurisdiction where the ability to find no i  officers to consider the safety before they before they file the trial the concern i have again is when you're going interject this good faith subjective view of tribe or the whole history that decade have to reach the question of whether consideration of an affirmative individual is not familiar with the area and we have the high school between the point of departure from the workplace until the actual stop in this instance the officer observes exactly the same conduct that the flashing lights in the back they can go through the guard mails or whatever actual conditions that are down to present and make that could make a determination whether that was reasonable for is it your alternative position and my understanding from your brief in the issues raised is that alternatively you have suggested it is appropriate who would have been appropriate for officer martini to consider the existence of affirmative defense here is set for worth in the statue of spirit how does that work for a police officer in this specific situation by which i mean how does the officers of value would to process of all the facts and circumstances confronting him and see actually conduct stances and ok and i understand that and i'm wondering if by saying that what you're suggesting is that it's not the formality of the affirmative defense which  affirmative defense or what officer martini ought to consider in his probable cause determination he's is that what you're suggesting yes and it would be consistent with previous all previous holding is if it's in the state such as the op and it would be reasonable for an officer to consider to this he should know of all the circumstances that would include the missouri has stated that he's still in that we should your position that mr can stance because the way the stampeders written the officer knows the statute that he claims has been violated which would encompass set forth so called affirmative defenses and that that it's an affirmative defense is what matters the facts and circumstances that exists at the top which may be supportive of an affirmative defense but may not succeed in proving it an affirmative defense and may actually carry the day it is the facts and circumstances the sas is that matter in terms of the p c determination is it that there is a very mobile under the statu may be an internal inconsistency within the statute will set that aside this isn't a lab group here that we can discuss in terms of how it plays out in process that is in hearing  think what we all need to understand is the well settled law that probable cause is to be determined based upon the police officers recently in this what is reasonable let me read this mally versus br officer may be liable for civil damages for an arrest if no reasonable competent officer would conclude that probable cause exists so on all those hypotheticals whether there's a high school lights parking lots or not the is when the officer as part of his calculus is taking into account safety as is the driver and there is a difference in point of view that creates a dispute and how do you get around that the court should answer that frankly i think that i've not been bilirakis writing this on this movie but i but i would submit that the court in this case has more than sufficient evidence in the record the undisputed facts are there to say that not just officer martini but a reasonable officer in that patrol car that night based upon what they he here the question here is the weather is good if the cert an affirmative defense is its rear i admit but not completely out of the realm of possibility that someone chooses not to assert an affirmative defense maybe there are technical reasons for that certainly maybe someone actually pleads guilty to the traffic  is effectively what this is this the charges based on the section in pennsylvania so that's why i'm trying to figure out whether it is an affirmative defen affirmative defense that we should be requiring a police officer to take into account for probable cause purposes who whether it is facts and circumstances the phrase used so frequently used frequently  run of the mill price haitian of probable cause that would be our position i think it's simpler than what my colleague is stating that you need to have this a prominent defense and by virtue and i did hear from my colleague the explanation of what that a defense means the way i read that is that the good the perception of the driver is going to factor in that is dangerous if you if we adopt that was a danger is if that we're talking in the first instance the officers on what probable cause is and the threshold that they need to do with to file a criminal complaint is now going to create uncertainty in a law that now they must factor in subjected to use because of the criminal defendant that he just arrested of one in the morning what is the uncertainty of good faith i'm not part of mr martini but i think the point that we're trying to get from you is it was circumstance the probable cause affidavit included an assessment about whether there is a reasonable place to stop here the record is clear this individual didn't stop when he was told to stop he passed by residential driveways and intersect the roadway and for him to say that it wasn't safe is insufficient to pierce the protections of all fight immunity