morning your honour's may please the court my name is mark rattie i represent the appellant edward the oil checked of doyle should be dismissed from this case because he's entitled to absolute and or qualified immunity i didn't they just record find that detective talk about other aspects of this case he said his testimony before the jury the district court relied on some pretty indictment allegations the complaint it's part of fifty one on the record paragraph sixteen thank you he made phone calls to the n y p d he sent the information packet there's no allegations about what that package contained nothing that says what was in it was false no it also says he went to new york to observe photo and identify plaintiff prior to the arrest none of those allegations are tortious conduct or wrongful conduct at some point he knew that he had mis no do you think mr i don't know was the person who is engaged in cigarette smoke mr rather was part of the conspiracy correct he was not in virginia at the time it happens but he is participating through new york and that's why as the region is not necessar for the element of crime absolutely not if you allege he was there mr detective well that's the allegation the allegation the only false statement that detective doyle legibly made is that the plaintiff was in virginia at the time of the crime and fled the complaint however does not allege that detective doyle made that statement to the virginia prosecutor who decided to indict only that he made that statement to new york authorities caning the warrant that was a function virginia and region it's not an element of a crime it's not necessary to use criminal liability brecht it's not necessary it's also not necessary to extradite both new york and virginia have statutes that allow actually dition of people who did not flee from the right right the governor was told that he was in virginia before the issue the campus right well that's the allegation but there's no allegation that detective doyle told the governor or whose benefit to  inferences in the allegations at this point your honor factual allegations are construed in favor of the nonmoving party but conclusory allegations are to be ignored and here there any false representations to the virginia prosecutor who decided to pursue the indictment in the first place in order to seek either qualify or have some immunity isn't it correct that you have to accept as true everything the plaintiffs say is you do not have to accept as true conclusory allegations that are not supported by facts you have to take his story you have to give every inference in his story  allegations that i mentioned but to defeat absolute immunity there has to be something tortious or wrongful about that conduct participating in an investigation is not wrongful actually it's desirable to have police investigate before they arrest somebody making calls to the n y p d who had no input in whether or not the plaintiff was indicted is not wrongful conduct sending in information packet with no allegations about what that package contains is not wrongful conduct going to new york and surveilling the plant sixteen paragr sixteen correct these are the only allegations of pre indictment activity at the plans of alleges there's nothing wrong feel about them that would undermine absolute immunity there's no allegation some point however is is that detective doyle knew he had misidentified mr hunt of yes anything after that and obviously is tortious well that's the second part of judge carter's reasoning is that the fact that that detective knew that he testified falsely in the grand jury and therefore the indictments in the warrant were or not based on probable cause yet he continued to pursue the arrest and process prosecution that completely ignores rehberg which says that once there is an indictment issued by a grand jury you cannot look behind the indictment to see what the court to consider that there is false testimony that you just agreed with me that on this  theory of the case comes back to detective boyle's grand jury testimony if if we look at this course decision and coggins there's a test about how you can tell whether or not the grand jury testimony supports it or how you can tell whether there's a claim based on grand jury testimony and what we do is we take the grand jury testimony of the equation and we look at the allegations without it and so we do not hear the allegations are prosecutor who decided to indict then a grand jury indicted plaintiff a warrant was issued plaintiff was arrested searched detain prosecute based on that indictment and warrant there any allegations that the detective but it was virginia who was seeking to extradite so it even assuming the allegations are true it's not relevant to the what region you was able to do to pick him having picked up by new york going to the company right there is no there's no allegations that detective boyle made any false representations to the virginia prosecutor or the person from virginia who is seeking extradition so you know any communication made goes if he had been in contact with the prosecutor essentially supported except for now it was a false statement perjured testimony in front of the grand jury would we would we be having this discussion if he had falsely represented to virginia prosecutors after the indictment oh yeah i know that that's good sort of provided the facts that supported whether that align with the false statements ground don't think any any post indictment false representations are really relevant to the analysis of whether there was probable cause at the time of the arrest and prosecution yeah but there's i mean the problem i have with that and i understand there may be a problem with the jurisprudence in my having a problem with that is that he is the one person who knows that the grand jury indictment based on false testimony and he has essentially perpetuating that post indictment and you're sort of we have an least i haven't found a case and sort of confronts the argument and the fruit of the poisonous tree right sort of way whether that actually continues out i mean i think you have to look at because based on what the officers knew at the time of the the arrest at the time that he was indicted a grand jury issued the indictment and the arrest was based on the indictment and the rehberg we cannot look behind the indictment to traffic stop the fellow said he thought it was based on his race they said no we arrested you for a traffic violation and then that you possessed a weapon and they planted the weapon and another officer from an adjoining jurisdiction said they did that there was no weapon when he was arrested and they signed affidavits with regard to the arrest so therefore at the time of his arrest he had a claim for false arrest be that isn't immunized by the later grand jury testimony because they signed affidavit that effect when the arrest precedes the indictment there's clearly the ability to have a false arrest claim arising from perjured affidavits and others but it becomes curious post indictment there's no he was never that i agree that's the that's the distinction that here it was the indictment that led to everything else in the indictments based on the grand jury testimony so everything that followed it should be he should be immune for and the answer to the question i let off again that's based on the warrant and the indictment and even the search if there's a claim based on the search the search was it a search incident to arrest based on the warrant an indictment so i think immunity would attach to that and if immunity if absolute  attach and you know there is this issue about you know whether proceeding knowing that you testified falsely could help state a claim that's not well settled and i think that that would entitle him to qualified immunity at least leaves nable officer i think would know that you can't then the potential defendant in order to arrest him that's what you think that would be generally will generally generally yes but but it's well supreme court says that and i agree but if the supreme court says that you're entitled to absolute immunity for your grand jury testimony that's what you can still an absolute immunity to make you thank you thank you very much