executing or forcing the law well are you saying that there's no suggestion or it's it's incorrect to argue that surveillance is physically and forcing or executed all well there is no forcing the law what about this then couldn't you argue that he was effectively investigating a narcotics sale well i really don't know being it's unclear what the facts are in this case because they were denied the opportunity to take the deny a deposition don't the don't they have separate rules for cases under ten thousand well i think that whether snow discovery in a case generally you know discovery in a small famous case where you're put in a position no change in the statements right it's only third person the first person right there so there's no real difference in the affidavit the any given sunday he didn't get any new information it was just that he was on duty and he was on duty as the surveillance officer which as we kno just because a police officer is on duty and doing an act while on duty does not necessarily mean that he's forcing the law so you would compare this maybe to that leak case where the officers work i'm routine patrol well this officer is not on routine patrol but yes your honor i would compare to leak we are the officer is sees something they believe that there is a person who's involved in drugs or has a history of being involved in illegal activity and reverse played a so why right that's correct your honor that was going to whether or not the officer was perhaps engaging in a break and then was leaving his brief period while enjoying a snack or lunch during some crime being committed the interactive tori's to not go into whether or not there was a crime that was being committed just that he was about to and this is important because the inner i've traced it that he's preparing to go you're part of the surveillance team is actually being actively a part of a surveillance team preparing this not actually surveilling and we don't know the details to know what actually is going to occur next or what is actually occurring  accidentally strikes her car so it's hard to determine where what's going on where he's going if they're just surveillance can just be tools or people are making contact with the seat and say the piece actually seen the star know i believe there was arguments that it was insufficient and they they stood on their initial response because there's not more that could be said and miss that's would not submit an affidavit refuting or disputing any of the things that were submitted by the officer or the some cases and a deposition would allow for an ongoing discourse where the questions are kind of led by what the answers are to the questions and allows for interpretation of facts how the officer interprets it and how you can dispute his interpretation of it there is nothing that i'm aware of in the record there is a substantial portion of the record missing transcripts are not in the record under law and presumptions from that are in favor of me prevailing party porter entered all right well the level yes you will take what i was on duty acting within the scope of i do and then if it also says i was on duty as an undercover surveillance officer in a narcotics transaction your first bit correct yes committed that day but it isn't necessary under the law that a crime he could write but don't we have to know what he thought i mean he doesn't even say what he saw he doesn't say anything really he just says he was on surveillance so i identified so there is this target out there there is a target and there is nothing in it that says that they saw him that day or that they were even watching him is there a previous paragraph citing second sentence of the previous paragraph in answer  plaintiff insists on characterizing this merely sitting there when there is nothing in the record indicates he was part of a surveillance team and surveillance as should be should be clear is a team effort in any circumstance in your song in a manner  operation surveillance obligations would you cite for that it would say on a potion to dismiss it you're entitled to immediately i'm not aware of a case of say specifically surveillance there there is a presence in the lease case the court said that would not yes how is this person whose car is damage ector you file a motion to dismiss in any way supposed to be able to counter his statements that i'm i was he doesn't tell us he just says i'm on surveillance and i was about to do a turnaround and our team was doing it your bail so to me that's all conclusions i have no idea what they what they were surveilling were they watching drug transactions were they watching people  street was there a hand to him transaction i mean these are things that leak case point out the difference about all these other cases there's not a single case it was dismissed on the police based on  it's this is the plan was to observe the target in order to ascertain where he was purchasing their product from and to use that information in preparation for a planned undercover it but it doesn't say they did any of it and it doesn't say he saw anything or anyone oh your honor i have to say that was the plan because obviously the surveillance was interrupted by this unfortunate accident my accident here officer smith was performing as part of a team and visuals are falling apart and officer smith heard take over for them they continue surveillance from a certain point where he was where he was stationed and what case would you say shows us that this was so you tell me because you're the one that won them over to fist you tell me how he was executing watch when he was part of the team he was executing or forcing the law by performing surveillance to identify the members that the question is whether when you say you're doing something and you're concluding that you're conducting a surveillance but you don't provide any facts about what you saw or observed that that should a active role in that surveillance whether he had the chance to see things or not he was playing a necessary roles that surveillance and those facts are clear from this from these iraq and from his best to attain reversal never explained why it's approaching one one she never explained why she believes additional information she merely wants to engage in a fishing expedition and that is specifically what i do what is meant by asking specific do it you know we asked for a deposition and it was decided we filed the court's order and that's what and that's what we're dealing with now it's just that we follow the court's order the judge later tonight and we are allowed the misnamed oh i'm not sure that i know what it said how much you were opposed to what was your response to the motion to dismiss iran i believe that with the same response was made to all we matter is in the body of the interactive for it's themselves you can see that they're saying that they're part of surveillance team but then they say they're taking over for a surveillance team under this to six on it it's it's you know whether or not there was a genuine question of material there it's very similar to a summary just to see if you're right in that the court doesn't have to take any conclusions that are not supported by specific  and the evidence would have to be the kind of evidence that was competently presented that trial in other words an officer that would say i was conducting surveillance without more is not the kind of crap that evidence that someone would testify to a crime because he described what he was really doing because what he's saying is i was conducting surveillance but that really doesn't tell us anything so there was no testimony there was nothing in these affidavit case we don't even know even though he did receive a next towel call we don't know whether he responded and said ok i'm going to engage in preparing to take over for the surveillance team we don't know a little details like question is you know what was he doing to you he was he says he was preparing to take over he was not he says he was a part of the surveillance team but he was taking over for another surveillance you just there's a lot of loopholes here there's a lot we don't know what part of the surveillance team he was also there was he a car that was going to be on the periphery with you somebody that was going to support the team in case something happened or was he going to be the person that was watching the target we don't know what role he play in the team we don't we just don't know so that's why i told you it's easier for me to say what it's not and what it is and i can tell you that the cases that we have discussed are cases that it is not mostly really you can try to put the pieces together but there's going to be gaps in the picture and you're not going to be able to see the whole picture and we're not looking to conduct a fishing expedition looking for a limited deposition just designed to ask questions of the sceptically about what protocol was following this in the little who is what squares one's house that we just don't have a clear picture of nothing that would take an egregious amount of time or effort just something so that it is clear that he either is or is not enforcing the law anything further just i would ask the remand for for the proceedings and an opportunity to to dispute the ledge or the claim of qualified immunity thank you very much this morning