matter as you know this is an interlocutory appeal from a district court decision to nine qualified immunity to the defendant officers and that decision the court quickly did that there was a genuine this the u s to either officer gonzales have two separate herbal orders to disperse that decision was incorrect and mindful of the procedural posture of this case that the court must accept plaintiff's furnishings of the facts is true that does not mean that the court is required to accept assertions th speculative or otherwise i'm supported by the record when somebody says i have not earned that is evidence of whether you smoke and they say i have not heard because you did not speak your client say we did speak now how much evidence is it that you have known her for some strange circumstances where evidence is so minimally related there's so much evidence that the people you are representing spoke that we can save it there but john scullin seem to think that in honor with all due respect you have to keep in mind the record here is a whole officer gonzales testified that when he turned on to the train in place he made two separate orders to disperse of a lot of speaker but i preferred to have to start an order number one in the br immunity the relevant question the officers perception not perception so while there may be an issue in terms of criminal liability we're talking about here is qualified immunity what that means is you have to look at what the officer perceived and again he turned on the victoria place dispersal order number one and at that point the party began to disperse  that but what you're saying your honor is that if you believe that statement my point is that there is no evidence contra hurting the fact that the officer made the statement that he made two separate dispersal orders the evidence that plaintiff is pointing to is that they didn't hear it to say that you can't believe the officer statement is making a credibility determination that's not permissible on summary judgment if he wanted to create an issue fact he could have submitted an affidavit from his client indicating i didn't hear it because that's what he testified to during his deposition but also that it wasn't sad and that sort of evidence is that currently before the court what you have is the officer gonzales leap nd you saying that he has to posit that it wasn't said the only way to challenge whether it was made at all is to say i heard i didn't hear anything and that's what they a deuced other witnesses they all saying they didn't hear anything and that's when i think judge calibrates he is is driving at is that there that is sufficient to raise the question as to whether in fact a dispersal order was given but again you have to look at the officers perception he he perceived seventy other people he said that he gave such an instruction but when you have undisputed evidence then it's not a question for the jury did the point is that i didn't hear this is not a dispute that that is evidence that it may not have been heard that isn't evidence that it failure of them to make an argument in some abuse other than if you might just stated the principle at the start of your argument that in order to get qualified immunity you have to accept as true everything except to say i did me or will be up to a jury to decide if he is believable or the police officers more believable i understand what you're saying but you're talking about plaintiff perception that's not relevant to a qualified immunity probably cause existed either was one objective lee reasonable for the officer who believed the probable cause existed or offices of reasonable competence could disagree on whether the probable cause test was met now the problem here is no reasonable officer could believe that if the statement was made up it was reasonable for him to rely on him or his colleague to rely on him that wouldn't work so it really comes down to the factual question which i know the court was inquiring reacted by stepping back towards the vehicle and asking what are you doing i didn't do anything doesn't that suggest that in the moment the officer believed that he had actually given a warning intent to substantiate the notion that he believed a warning had been given so we've been debating whether the record what the record says about that but that when he asks are you hard of hearing that certainly suggest strongly