acted beyond the scope of his normal duties and giving of getting to an individual that ran to the back of his car he was still acting under color of law because he announced that he was an officer i'm a cop this is under control and similarly  officer macpherson in our case announced when he made his initial contact with family come dispatchers i'm an officer of the law and we need assistance here he continued to act under color of law when i was arrives and by repeatedly told the officers that making that decision of the spot we were going to with the officers were doing at the time they they took her into custody right in this weather the question is do we looking at looking at how they how they were operating at that time what information they had they determined th there's no real factual dispute the court's quite capable of making that determination as well that's correct your honor and it's miss porter's position that at the scene she indicated that she started off from a curious and hold up a shiny object and that was the initial discussion regarding off from a church and while you're still in the cab of this truck making any sort of a move that she did comment on and she was being interrogated by these officers and was under no obligation to respond truthfully to them and she did she that are making the decision to arrest are doing so with an understanding of what the elements of the cause of action are and other words they have to determine that the elements are sufficiently indicated to be met a fraction of the events are taking place at the time and that is when you apply the elements of the statute of false reporting there's no even under the facts that are submitted are reviewed by the district court there is no indication that happening at the time you know it's our position that it's probable cause simply didn't exist under the facts that mr porter is presenting to to the district court and the discord indicated in the stand and the representation of the facts of the time of the  well the evidence in the record is that and in two thousand and one miss porter provided a copy of her parenting plan with the incorporated protection order and it to the auburn police department they were supposed to receive that when the acknowledge constructive knowledge of the existence of the protection order and the fact that it has not expired and has not been amended isn't judas of the officers of the deciding of the city of auburn when they receive actual notice they have possession of the protection order they know  understand the question well if you're only gay shit is that the op a serious were motivated by membership of your client in the class of in quotes women under the umbrella of safety provided by court protection i'm asking you what evidence is there that supports your client's claim that these officers conduct was said to be motivated to try to injure people who were part of that in quotes class i understand so well again i would be there to tell you the circumstances their knowledge of the existence of the protection order their intentional their obvious intentional decision to disregard the existence of her membership in the class and if  the protection order and their willfulness and determining that they could violate her constitutional protections under the fourth amendment by seizing her and searching her in violation of her by her own actions disregarded her membership in that class and actually actually actively works against her by disregarding the disregarding the protection order and ultimately arresting incarcerating her and we wouldn't you know agree obviously that this is a personal vendetta by off from experience and he was motivated in our opinion by his anger or whatever his emotional feelings were towards mr porter and orchestrating this event whether it was planned before whether it just happened that it's for the moment on august eighth two thousand and two but this city of auburn they claim that they checked the computer to see whether there was a protection order copy of texas city that the city's an organization made up of a lot of people are you suggesting that everything at least officer out on the beat as a copy of all the protection orders that made the issued by a local court against members of the police department in the that there is a principle agency relationship and that constructive knowledge of existence the protection order i mean what what else can a citizen do what else can a single mother do if she hands she seems a protection order from a court of law and it's the process may or may not have worked so that the city of over may or may not have had hacked copy the protection order she physically hands a copy of the checks in order to a representative of the city of auburn a sergeant in the police force t violated that day in august of two thousand and two it is important to remember a couple of things the reason we're here in federal court today is because of this arrest in august of two thousand and two not because of any other disagreement the great macpherson dorothy porter may have not because of any other complaints that dorothy porter may have brought to the auburn police department over the past two decades with regard to child support or other matters the only reason the federal court is involved is because she was arrested in august of two thousand and two and so the questions they arrived and it's undisputed that it was great macpherson who called nine one one it was not dorothy porter it's also undisputed that when they first spoke with dorothy porter she was the first one they had contact with she agrees she never mentioned anything macpherson pointing a gun at or pointing something shiny at her she didn't say anything about he has he has frightened me because he pointed something at me what she said was you need to arrest that man you need to rest and right now because i people are on the police department not to comment though your police officers generally the council small that people in the police department are pretty much aware of all of the protective orders that are filed with the fleet the firm absolutely not your honor there's that's not only contrary to  and he said absolutely not he also i also asked him is it reasonable for officers in this field to check their computer system specifically the whilst it systems check to determine whether a valid and for civil order exists at the time they are out in the field he said absolutely that's where the officers check i have no problem with the actions they took and they would and the officers are entitled to rely on that computer system unless they find an order in the computer system they have no other way of knowing whether an actual line of forcible protective order pointed a gun at her she immediately told them and there were lots of witnesses to this but there are lots of witnesses so they asked her who the witnesses were not only did she suggest there were lots but that she specified that there was one she indicated would was her son who was inside th child was eleven years old denied seeing anything as did confused as to why he would ask him that he also asked around to see if there are any other witnesses who had seen someone pull a weapon in the middle of this parking lot and no one had seen that he macpherson is violent and they want to check in on the computer and that didn't seem to match up so they had a number of additional factors in addition to the way the facts played out in addition to the way that she reported the crime including considering the fact that she says he pointed a gun or she didn't call nine one one her actions didn't seem to corroborate or be consistent with this so the information with the officers to reasonably believe that there was probable cause to believe that at me that it could be false and that it could cause inconvenience or alarm to the public and in fact i want out as morse testified in his deposition not only was she  well that day on august eighth of two thousand and two dorothy porter was also charged with domestic violence harassment the prosecutor prosecutor marto filed that charge against her will the municipal court judge after a full a claim of malicious prosecution based on the charge of domestic violence harassment in this case which the jury the jury decided that greg macpherson had not committed the  the offense of malicious prosecution in essence determining a probable cause also existed for the charge of domestic violence harassment that's significant in this case for a couple of reasons  crime that they think has been committed because it's an objective standard we just look at whether probable cause existed for a crime because again the end result is the same as probable cause existed to arrest someone for their fourth amendment rights against and reasonable seizure cannot be violated i does that does result every claim that the plaintiff has against my clients the city of auburn supervision and retention i would suggest that a finding of probable cause does eliminate that claim but for slightly different reasons again going back to the elements of negligent retention and negligent supervision plaintiff's suggests that under state law support properly or events that occurred over a decade earlier a couple of reasons that that case for that claim could not go forward first the as an employer can only be liable or inaction can only exist for negligent supervision if the employee commits a wrongful act and has to be around full act that the employer knew or should have known they were likely to commit and asked also been committed in the while they're doing their job and furthering the interests of the employer there also it also has to be supported by proximate cause i e that the employers decision to not terminate the employee has to be the reason that for example in this case greg macpherson happened to call nine one one on august of two thousand and two or happened in encounter dorothy porter here because the jury has already ruled that greg macpherson did not act unlawfully and did not act and possibly we don't have even the first element that an employee of the city of auburn acted  acting like a cop in connection with ms porter's arrest i think that the facts show that that he wasn't that that he did have greater knowledge of the system and i think that as judge recognized below he may have had greater credibility with the responding officers with the prosecutor because he was a police officer and he was familiar with them but i don't have it and they were familiar with him but i don't think he crossed that line where he started acting like a cop at the scene as the police are the corrections officer in anderson versus warner did i think it's important to know that that once he called nine one one he said that he reported that m that ms porter had made a threatening gesture and that he was going to go into the department of licensing and the responding officers could contact him there at that point he waited for them to come by and see  him there were certainly things that he could have done if he wanted to step into that will the police officer he could have begun to investigate himself he could have had communication with miss porter for example he could have even told her don't leave  call the police or i'm ordering you to stay put while there is one till the responding officers come but instead he didn't he just went into the department of licensing and wait when officer adam contacted him what he did was similar to what he did when he called nine one one dispatch which is he actually told her what had happened gave her some background as to the relationship that might be helpful to officer adams and at this point he even said i'm not asking that she's be arrested i just want the doc the incident redock to document it in case there's problems with her down the line the next officer morse came and interviewed him pertain to his level of seniority yes and the reason the reason he said he did that was because he thought that he would get better service and that is if the dispatcher recognized him as an off duty officer they would process the call  ok but the interesting thing in this situation is he actually did not get that better service possibly because it was a new dispatcher she went through all the twenty questions with him regardless and then actually gave the call a low the car or in a fanny pack honest honest west there was a dispute yes let me ask you another thing is it didn't read the record correctly when i noted that he went back to the police department  with a prosecution that the police department was doing i mean typically the police officers could bring a witness back to the police department to have their statement prepared there but he was making is the police officer that you know he was actually it was if he was still on his day off the sidewalk in front of it now counsel as to emphasize the fact that the court of the district court relied upon statements by these children that said they didn't see anything but as the expert witness for ms porter chief employer come said absence of evidence is not evidence of absence now did the children of position to see anything so that the fact there were no witnesses to what took place shouldn't really come into the officer's decision making process and whether or not probable cause existed hadn't had a relationship with and since the early ninety's since one thousand nine hundred two and this was two thousand or so i've been ten years to get on officer morse after macpherson had several weapons as he testified black weapon and then the silver weapon as well in an ongoing relationship in the sense that they had well they did have a child together but their relationship existed out of sending checks she would receive checks they really didn't like each other and they didn't see each other event the case is just stunning there was not an issue of him officer who had a couple of years of law school under spell stated that there was no probable cause for domestic violence harassment obstetrician was adamant that he wanted to worth a quarter spend the night in jail this was retribution for him and the way he solicited that the way he made sure that happened was he called the prosecutor acting as an officer on authority with a three month prosecutor and said you know this is what we need to do we need to charger but if you mean which office are you saying and some was will said there was no probable cause two different charges than the one we're talking about as well that's correct but the charge that we're on the charge that ultimately the false reporting charge also is contradicted by the facts of the scene and no reasonable person no reasonable officer knowing all the facts and circumstances the fact that he had a silver gun and the fact that there were no witnesses to what actually happened besides the two opposing parties would have found that there was this reasonable basis to charge her with false order and my time is up