the next case is resign over says remsen byrd has miss rossano appeared apparently not accordingly will proceed to the third case merit versus r pretty thank you judge of the court of appeals good morning my name is tom girard and i'm arguing this morning on behalf of the defendants your honors i submit that the critical issue in this appeal is whether the police can prepare a second photo away when the police realize that there's a photograph in the first or a that was outdated and did not resemble the person depicted because that's what happened in our case our case involves an assault that occurred a new year's eve party that the police found out about the following morning some eight hours later and when they went to to talk to the students mostly it's mostly a college student party in light of all that happened that late afternoon i guess it was why is plaintiff was identified with one hundred percent certainty by an eye witness to the assault and the eyewitness then signed a sworn statement saying that this is the person who committed the assault so you don't need anything from the interview of the plaintiff that happened thereafter and you don't get much from the interview anyway all you really get that one no but let's stick with the you're right what you're saying is that if the array is ok then the thing else really matters there was there was sufficient there was no violation here his client's right that's exactly right the photo array resulted in a one hundred percent identification of the plaintiff as the assailant followed sworn statement combined with another statement of someone who knew the plaintiff and placed him at the being at the time of the event and you put that together that's at minimum arguable probable cause and so you don't need anything else when you go to the if you want to apply the corrected affidavits rule and take everything related to that interview with the plaintiff out of the affidavit all you're taking out was a statement that the plane of said i was so drunk i was some parts of the night i don't remember that's not really it's kind of neutral really but what you get in terms of probable cause is there is an eyewitness who saw the argument though is that the photo array was suggestive because mr marris photograph was in both arranged and the you know whoever's looking at the second our aim might have had a suggestion already implanted because of the first memory i understand that's the argument i'm showing you appendix two ninety three this is what the  plaintiff looked like when he arrived at college in september of two thousand and nine and this is what the plaintiff appendix two ninety four looked like the day after this event when he's halfway through his senior year of college  well it's even one beyond that because i'm here in a civil suit with a police officer who's been charged with individual liability for making a decision to show that second photo array once he meets this man and realizes it doesn't look anything like the photograph the university gave us so it's not just the constitutional issue it's was the case law so clearly established in our circuit such that every reasonable police officer would know if i get a current photograph or consider that issue no the does the district court erred in not doing a proper qualified immunity analysis the district court it's why it was incumbent upon the district court when faced with the scenario of of qualified immunity to look at the second circuit case law i've provided that case law and pages thirty eight to forty one of my briefing and steps young we held that a suspect picture in a second or a after witness fails to identify him in a first r is not automatically right suggestive so that's why i thought that what you were asking us to find was that when we look at the facts and circumstances it's not  suggestive because if if if there's a question as to whether it could have been suggestive then you have the fact i don't think you know i look at it differently i say that i am asking you to find it's not suggestive as a matter of law because you can do that but even if you find that it's debatable then i'm in qualified immunity territory then the police officer makes the judgment to put to it to show the second array eight because if it if the question i officer that what he's doing is is violative of the constitution but nevertheless you know what what is it that you would you think would allow us to find that even if we think it's in jest of a reasonable officer wouldn't have thought so well there's case law that begins on page thirty nine of my brief their second circuit cases the united states versus thai second showing a photograph or radio or robbery victim in which the defendant's black and white photograph from a prior a had been substituted with the defendant's uncropped color photograph was not unduly suggestive even though the victim didn't pick him in the first array there's like three or four more cases holdings is a matter of law yes these are decisions with a set of the court of appeal so if we have a conscientious police officer who wants to do his best to follow the constitution and he reads these decisions he's not going to think that it is beyond constitutional debate if i create a second photo a right so your argument is that if we don't find that violation then there is no fifth amendment violation either because the questions were to the extent he was questioned  never the less malicious prosecution here well delicious prosecution begins once the arrest is made and what happened in terms of the timeline this is that is that also go out because the probable yes it absolutely would it absolutely would because there was probable cause to initiate this it's telling that the three policeman police officers prepared the arrays and showed them they were granted summary judgment and that was in appealed there was nothing defective about that a process in if you're a detective who says whoa whoa whoa i just met this guy and he looks like this i need we need to do a different a ray and then other police put a fair rate to gather they've all been granted summary judgment how was this man personally liable claim as a standalone claim it is it bears emphasis this is an interview that was voluntary the plaintiff asked for to get his mom on the phone they arranged for with the police he was told when he walked in you can get up and walk out anytime you do not have to talk to us and it lasted about an hour and a half he was in handcuffs there was no physical harm to him the and more importantly the tactics used are approved of other facts i mean th lawyer and his version is that they acted the police responded with hostility even though they said yes you can talk to a lawyer but they suggested that it would be a terrible idea to my why don't those facts raise an issue  fact as to whether this was voluntary or whether he felt he could leave we can accept everything we said as true for this hearing we don't have issues a factor this is the plaintiff's version of the event and we accept it but the issue is is the second circuit all of those things couldn't a reasonable jury find that he did not free feel free to leave say maybe the jury could but maybe the jury couldn't but our issue is qualified immunity even if there's a constitutional violation would every reasonable police officer know if they did this exactly the way we did it that you were violating the constitution and if you look at my cases on page twenty six twenty seven twenty eight there is second circuit cases that say a confession is voluntary even though one defense detective makes reference to the electric chair and another engaged in chicanery by asserting he already had a strong case by telling the defendant his fingerprints matched the fingerprints left in the apartment police are it's been approved all the time where they say you are allowed to lie and exaggerate a bit they are under the constitution they are allowed to lie and exaggerate a bit but every it's not so one sided constitutionally that every person  that this is this would be a constitutional violation to do the things they did i have the tankleff versus saying koski case i have united states versus by all second circuit united states versus ruggles detailed in my brief this type of conduct is approved in the second circuit all the time and that's why we would ask for judgment for our officers in reversing the district court and i'll save the rest for a bottle thank you thank you pleased to court my name is andrew bowman i represent john barrow to find qualified immunity in this case you must disregard the cornering and isolation of john mayer in the parking lot of fairfield university with four armed officers one of whom said don't let him use his cell phone and transported him to the public safety office after telling a lawyer that they would meet at the fairfield police department and that john didn't need a lawyer that he was in a target to attorney heller nevertheless they intercepted him at fairfield university in the interrogation they told him the judges and prosecutors would view him as a cold heartless dude who hit this kid over the head with a bottle and said catch me if you can we understand what happened in the plane and the defendant is like don't qualified immunity you except  but i think the argument we've heard now is that unless we were to find the photo spreads suggestive that there is no in permissible use of your client's statements because we would just take them out of the warrant and find probable cause even in their absence what's your response to that my client gave them the names of four  witnesses who he was with that night when they showed yes when they showed casmir check the initial photo array he identified this fellow back at who wasn't at the party with seventy percent certainty they then used maris picture again in the second array suggesting to him that the guy in the first array should have been the person who chose in the first place i don't see is a matter of law under the facts in this case that one could find that that was constitutionally permissible well and understand that our precedent does allow a second photo spread to be created and i thought the argument was basically your client's pictures in the two spreads are so different that they would not have channelled the viewer's attention to mr marit second photograph is that is it do you want to respond to that afterwards how he understood the argument that's a jury question the jury has to determine who either that photo was so similar that it could be that the first motions so that so courts do make them and it's not apparent to me why the second photograph leads a viewer to your client because when a witness is shown an  and it includes a picture of a person and they pick person b and then subsequently nobody from the first or a except person a is in the second to read it's suggestive i'm not saying it's a matter of are in concepcion and other cases following it that's the problem for you you see i could see where you might have an argument if they had taken the same picture of your client and put it in the second spread but that's not what they did and so you have to clear the hurdle of our precedent that says it's not automatically precluded to show a second spread with the person's photograph and it isn't the issue whether some procedure creates a substantial risk of irreparable misidentification hounslow suggested the question is whether a reasonable police officer would have known that showing the spread violated the constitution but under the facts of this case these officers knew that there was a very substantial likelihood that merril was the wrong guy he gave them even assuming the photo reins were suggestive even assuming they thought he might be the wrong guy there's still the qualifying immunity inquiry which would would every reasonable police officer have known that this would violate clearly established law i think under the definitions which the district court took into account in welsh it first is rio and escalera versus attested to to what we're talking about right here the court found that it was a jury question the judge the court felt that it could not decide that there was no genuine issue of material fact with respect to the identification procedure hard pressed your argument a moment ago that the warrant affidavit somehow misled the issuing magistra my recollection of the affidavit is that it's remarkably detail and recounting the police officers actions including recounting persons who made other identifications exculpated your client i didn't think there was any assertion that anything was falsely represented or that there were any material o missions well they didn't they didn't include the fs scenarios that they gave to mr mehra with respect to him being a sociopath had being viewed as a sociopath remorseless having an evil mindset coercive nature of the interrogation council saying take your client state now well he's also saying your client statement is that not that inculpatory but we'll put that aside he's saying take your client statement out it's still probable cause is far as the law is concerned i think that you cannot say that there is either probable cause or arguable probable cause because our claim is that these officers put in a very important part of the interview something they posited to mr mare and that was that he could have been so drunk that he didn't remember what happened that evening and he could have fractured this young man's skull perhaps i was not clear our precedent is that you take out be impermissible state so if we take out that he ever opened his mouth to the police it would still be identifications and that would be enough for probable cause wouldn't it yes yes that is that is true what i'm saying is that you can't apply the the latitude of arguable probable cause to two police officers who conducted themselves in such a dishonest way and such a coercive in such an unconstitutional way and that as our client i mean if you're if your honor is saying that as a matter of asked i don't mean to i don't mean to do that here and you have my apology but what i am saying is that you're doing it as a matter of law that is a matter of law just because use of failure to identify someone in the initial array if there is an identification in the second using we assume all the facts in the plaintiff's favor then it becomes a question of law well it also becomes very difficult when you have somebody who is absolutely innocent and that the identification was a mis identification and that's what happened in this case it was absolutely innocent but he was absolutely wrong behaving  by way of rebuttal once the court reaches the point where we ask counsel it come at it's not apparent to the core why the second photo array is suggestive and i agree one hundred percent with that observation that gets us qualified immunity that means that reasonable police officers could debate the constitutionality of whether or not the second photo array was suggestive it's not apparent that that is a suggestive photo array are you saying  that one photo or a second one in this case would be over yes of course of course because then that with or with there would be no challenge then to the one hundred percent photo identification as opposing that was all kinds of evidence of the person's mind if the person says i'm one hundred percent sure that's the one you can say well maybe he's only ninety percent sure something like that but this is a positive identification and photo identification alone are probable cause as many second circuit precedent for that no matter what the other yes and then why are our officer was very fair is as judge reggie pointed out it was a very long affidavit put in the good the bad and the ugly you know the first identity the first photo where the second photo all of the statements of the brother in the friends that said he wasn't there at th time as well as what there was a friend of mr the plaintiff who said he was there at the time shirtless jumping around acting crazy so it was all there for a prosecutor who said probable cause and a judge said probable cause that's got to be at least arguable probable cause a couple other points this is an objective standard so for counsel to say that the motivations of the detectives were insidious that that's improper white versus poly the supreme court case latest one emphasizes to the lower courts how it's critical to do the qualified immunity analysis look to the case law precedents discuss the precedents and expand determine why clearly established or not clearly established that simply wasn't done here and other than that i will i will rely on briefs and we are asking for a reversal of the district court and to enter judgment in favor of the defendants thank you very much thank you will reserve