may please the court my name is mary catherine kaufman and i represent three former new orleans police department employees who have yet to receive a proper and a visual ised analysis of whether they are entitled to qualified immunity this is a case  arising from the investigation and prosecution of plaintiff darren hill for rape robbery and kidnapping that occurred in one thousand nine hundred two and new orleans plaintiffs allege that mr hill's due process rights were violated because e was withheld and a false identification by the rape victim was procured by a suggestive line up detective carter the lead detective is not a party and this appeal the three defendants and this appeal include who was detective carter supervisor who had discussions with her and signed off on her reports detective grasset a sex crimes to talk to who may have accompanied detective carter throughout her investigation and criminologist swag spac who was asked to test the rape victim's underwear conducted preliminary testing and issued a report during the last appeal this court held that the district court failed to end of it julie analyze whether each defendant was entitle t pair and it's our position that leaving aside the factual disputes found by the district court these defendants are entitled to qualified immunity said tell us what if you were writing our opinion what would the last paragraph read the creedal paragraph what would it look like i think that's the question being asked what are you asking for we're asking that you reverse the district court's finding work and and we further ask that the court rule end of it really as to each defendant specifically identifying which claims are being missed and which remain for trial are asking that we reverse and remain and for more findings now we're asking that you reverse and grant qualified immunity to reverse and render a judgment in favor of your your client that is correct that's what you're asking for is correct that's kind of important because people get into the middle but the end is kind of what matters in this one asking you've got to tell us what you want in the end we may or may not give it to you but we want to know what it s we believe that these three defendants are entitled to qualified immunity as a matter of law for numerous reasons learn grosser on remained the district court found that there was a fact dispute facts that could support a finding that he was there with carter when the unduly suggestive identification happened so since whether he was there or not is a fact we can't review under our jurisdiction why doesn't that mean he that defendant goes to trial well because your honor the district court did not make that finding as to a fourteenth amendment claim it only made that finding as to a conspiracy claim and it's our position that the plaintiffs waived the conspiracy claim that you're going to because of and you've been here today because of a statement made in the heat of this oral argument argument like this which you've seen that that's somehow a concession yes your honor this case started out i'd like to point out with even though in that in that suppose a concession the lawyer said it was  fourteenth amendment claim and conspiracy just derivative liability for a map but you think i mean it's rather astonishing to me that you think that amounts to a binding concession what authority would can you compare it to that would say a passing comment like that made an oral argument the does say it's the fourteenth amendment is what's at issue with amounts to a waiver of the conspiracy call and i have i have cited two claims regarding judicial admission martina's versus bally's louisiana ang  where up statement was made on a deposition and i also have one them on montana overseas or in county texas case where our counsel made a judicial admission in closing argument but even if you put that aside it's our position that the conspiracy claim must be dismissed pursuant to the entry corporate conspiracy doctrine and that claim bars it's already that below we did not your honor but this court can address it now sue a sponsor and under that doctrine a single legal are the acts of the municipality and this court has applied that doctrine and civil rights conspiracy cases under both sections one nine hundred eighty three and one nine hundred eighty five precedent a very was direct participation the wrongdoing as opposed to simple knowledge of the wrongdoing in other words mr or officer gas or grass or was there for the suggestive allegedly suggestive presentation  sergeant a beer was a participant in working with carter so it wasn't simply well everybody's in a conspiracy because everybody kind of knows everybody and his evolve with everybody news director to supply in working through the things that were wrong and putting a pot of sidewalk a spec great but just looking at a bear ingress or is that the same kind of thing that was being looked at in these other cases seems a little different to me well it's our position that the dish court did not find that  actually there during the lineup all the district court found was quote that accompanied carter throughout the investigation and quote and quote sergeant aber was active and discussing with carter upon accompanying you i mean  to me a conspiracy can bring in people that didn't actually do the wrong but if you're there during that i liken it a little bit to these excessive force cases if officer x is beating up on a prisoner or an officer why is standing right there then the obvious or why can't just say well i'm not the want to beat him up because you can't just stand there while somebody beats up on a prisoner so why isn't that the right analysis here because this court has held that mere presence at the crime scene or even close associations with conspirators standing alone and that's when you're a drug dealer here these officers have each have an independent duty to these defendants it's not like a if i'm just standing there and somebody else is dealing drugs i don't as just an ordinary citizen put aside i'm not a judge at this in this hypo i'm just standing there is an ordinary citizen i don't have any obligation or duty to anybody but these officers do they can't just say i don't have a duty because this is so and so's case  there while they violate all their civil rights and that's ok that is in our case law well there's nothing to indicate that aggressive was there and knew that that was a suggestive lineup or that it would be withheld from the prosecution gresson ever can't be held liable for doing their they must have conspired to violate mr hill's due process rights here even if the allegations against carter are true which we dispute none of the facts found by the district court or in the record support the legal conclusion that  intended for carter to withhold brady evidence or falsify evidence for instance there is no evidence by the district court or on the record establishing that press that are a bear had any idea as to what was or was not handed over to the prosecution simply being privy to one hundred s or it's not based on disclosure of the prosecution it's just based on being part of an unduly suggestive lineup which violates due process and then the to disclose that yes but i'd also like to point out that the lineup itself we don't have the actual photographs that were shown to the rape victim in one thousand nine hundred two the photographs that were shown to her was subject to the motion to suppress hearing where the criminal court judge looked at the photographs and denied the motion to suppress identify private opinion already say that there's a fact issue and whether the lineup was a constitutional violation that added to the jury yes they were stuck with that in the only question is whether aggressor was there when it happened which the district court said there's evidence to believe he was when it's our position that to enter corporate conspiracy doctrine would bar the claim and that the facts found by the district court are immaterial to the actual conspiracy claim i'd like to move on and discuss whether mr hill had any right to receive brady material prior to his adjudication procedure and one nine hundred ninety nine while criminal defendant is typically entitled to brady material when he goes to trial here mr hill either did not have a trial or he waived his brady right through stipulations agreed to by his attorney what is not in dispute is that mr hill did not receive a typical trial mr hill was arrested and one thousand nine hundred two but he was not adjudicated until nine hundred ninety nine a transcript was provided i've read it it's i'll give you it's a brief trial i'll give you that but the judge treats he calls it a trial he makes a ruling at the end so what basis is there for now saying it was some sort of  agreed resolution or non trial well regardless of what you call it mr hill waived his right to receive brady material he agreed there is stipulations that the only evidence that would be introduced was the evidence from the competency hearings and the evidence from the pretrial hearing the suppression hearing so by doing that he waived his right to brady material authority says that i mean the you he had the brady material you could have said i was in the guy who did this get me out of here well the plaintiffs haven't made that allegation and that allegation isn't plaid they only made that just now our case is about the fact that the police have disclosed everything mr hill one of been in the system for twenty years we've cited the case actually plan of side of the case u s versus robert san that holds that three stipulations plaintiffs can waive their right to brady material plaintiffs have never identified any legal authority establishing that mr hill had a brady right under this context and if this court were to hold that it would be creating new law even if this court found that mr hill had a brady right under that context that right was not as often as stipulations and it looks to me what happened in this case was what happens in federal court you can have stipulated bench trials where we're going to agree on some of these things it's a firearm ok we'll agree it came from massachusetts so there was interstate commerce we agree that this guy has a prior felony so that's we're just going to dispute this one fact stipulations happen in every trial to varying degrees and it seems to me your view your argument is that because some things were stipulated there's no brady right that's correct and getting brady material would not have affected the procedure because mr hill agreed that the case would be decided on evidence that had already been introduced he gave up the right to introduce additional evidence fisheries if you lation i'm just the city of new orleans is saying there's no duty to disclose exculpatory material when there are stipulations as part of the trial that that's not what we're saying good because otherwise we'd never getting cases try if this court w to find that mr hill had a brady right in the context of his adjudication clarify because your exchange with judge cost is less meal that confused about what your position is he first said if there's stipulations then you wave brady and you said yes and then he said so any stipulation ways brady and you said no so which is it i mean it seems to me if you stipulate that the gun traveled interstate commerce you can't later challenge other one evidence that it traveled in interstate commerce but you could still challenge evidence that was suppressed that would show you weren't there and they have an alibi witness that says you weren't there at the location where you supposedly possessed the gun right right ok it's our position that mr hall waived his right to brady material and that right was not clearly established that there's no case law establishing that mr hill had a brady right under his procedure in one nine hundred ninety nine and there's no case that says that now one of that is in the case in the first appeal if you're saying it's not to establish now it certainly established a few years ago in the first appeal yet we remained on carter that that defense would be equally available to carter right yes so how do you reconcile what you're saying with the first opinion which is law the case argument about this the fact there was no brady right clearly established at a stipulated trial of this nature that was equally available corner i thought you did argue in the first appeal that there was no real trial which brady applies so how can we undo that now we also have to i mean it would apply to carter as well there shouldn't be a trial against carter according to what you're saying and that that is our position we believe that all of the defense that these three defendants are entitled to qualified immunity because there was no brady right that was clearly as you know and carter is to even though we've already said carter needs to go to trial i'm not arguing on behalf of carter i'm just arguing on behalf of these but if we issue that opinion i'm sure in the district court you say judge look at this opinion you know the same applies to karr i mean it would be a waste to go to trial that we would i mean i think everyone acknowledges that but this court has never made that assessment of whether mr hill had that right at that time or whether it was and i think we have your argument thank you and say time for  carter which is scored is already found is sufficient to go to trial and there's no qualified immunity and the proof against aggressors a bear and why use that for against carter there are three specific incidents that i think a relevant here the first is this is a crime that involves two victims the female victim was brutally raped her boyfriend was also robbed and was on the scene and the two potential witnesses who could identify it turns out wrongfully identify the client downhill the act the scene of the crime investigation carter and the evidence this is one of the bases for the finding against carter and the evidence indicates it implicates a bear as well interviewed the victim she could not provide an identification or describe because of this the extent of her injuries meanwhile the boyfriend could give a very detailed description which it turns out female victim they switch those facts they say they attribute the detailed identification and ability to identify to the female victim and write out the male victim second incident and that's something that there's evidence that there was present for and he also signs off on those reports after reviewing them so there's evidence he had knowledge of what happened and he signed off on the false report the second thing is in a suggestive identification procedure with the female victim again this court has found that there is e changes asking how is it that on remain in the district court this dispatcher talking about got narrowed down for aggressor even though the court said he could have been there when this happened got narrowed down to a conspiracy theory as opposed to a direct and i think the case about bystander liability and there's all kinds of labels that get put on this stuff but how did it get narrowed down just to conspiracy i mean honestly i think if you look at the procedural history of this case i think the district court judge did an admirable job with an overwhelming amount of briefing this was six weeks before the scheduled trial which was supposed to begin in february of this year in addition to the narrow issue the district court was supposed to deal with which was simply whether any of these additional defendants were directly involved in the same conduct that this the district court and this court had already found was sufficient to go to trial the defendants raised this whole new issue related gaited this whole issue about the whether there had been a trial at all they also file extensive briefing that you know ignored the fact that anything had happened before there was just this so much activity i think this was sort of a shorthand way you know that they would look stupid as my guesses would look to the district court is the easiest narrowest way to get right and which makes sense because there are specific antitrust objectives where in that context it doesn't make sense to say that you can't have a conspiracy among one one organization whereas what this would be much more like i would say the criminal context where this court just held in in a case actually the defendant cited that you could not extend the intro corporate conspiracy doctrine to the criminal context because it doesn't further the objectives that actually you want to hold people accountable if they are together violating criminal laws even if they're part of the same organization i think the same thing would apply to police officers who are together violating constitutional rights if i can go back to the third incident which i think is important is the identification suppressed identification procedure with the male victim and this is this is the another thing that was the basis of the fifth circuit's opinion saying that carter could go to trial claims against carter could go to trial and that finding is that there was an identification procedure the male victim identified someone else and that procedure was suppressed it was hidden now the critical point here is that all of the defendants say i had nothing to do with that you know this never happened it wasn't me but the this court has already found a jury could find that it happened based on you know the victims testimony that it happened he can't remember who it was who was present but he said was more than one detective at least i'm one male detective so the question is who is it who participated in that and their specific evidence that indicates if it wasn't carter who she says it wasn't carter if the jury believed that they could believe it was gresson and a bare breast it's the one who left his card with a male victim when he was with was told to call back and schedule this identification procedure a bears the one who said specifically to carter make sure you have an identification procedure with both victims and he signs off on the report with no mention of what happened so i think as the district court found there there is a whole wealth of factual issues that really can only be sorted out by the let's talk about the third defendant walk us back if i'm saying that right i don't quite understand your theory on his lied or understand you're saying he performed the microscopic task and that wasn't included in his report the fact that he'd perform that but how do you tie that in with with trying to frame here or some other other unlawful activity so i agree that he's less involved than the other the other two defendants are directly involved in the investigation waguespack is off to the side that he know hillary even been  being looked at or that any any suspects had been of i don't know of evidence that he specifically was involved in the investigation or knew the progress of the investigation that the basic the basic facts against waguespack and this is whether what the district court found are you could find that he there's two main tests that are done to that were typically done to confirm the presence of semen or sperm on items an investigation which is then necessary to conduct any further testing  to include or exclude and what we can find happened is that he actually conducted a test which showed that there was one present and he lied about it on his report and he said actually no there's not there's nothing present here and as a result of that misrepresentation on his report that fabrication of evidence which was then passed on that prevented mr hill from getting testing which would have ok let me ask you and i think this is important pak so this is a nine hundred ninety two that suppressing not the results that show hill is and isn't the guy i would understand that but simply suppressing the fact that there are semen nothing more in ninety two that that's enough to violate the constitutional rights of knew he didn't he it's harder to show that he actually knew that that what he was suppressing was exculpatory because it would need to be subjected to further testing there's an argument that he but are you fabricating evidence when you say fabricated i'm having trouble with how this is fabricating to say a microscopic test wasn't done or there wasn't semen on the sun to work it well he's not saying a microscopic test isn't done he's repairs giving materially misleading or materially false report and actually this is exactly what this court looked at in brown v miller and if you look at the specifics that this court found was a fabrication of evidence it's a materially misleading results on a scientific report they say that's fabrication of evidence and i think also you know this is what the district court found i think that is a finding of fact one it's our one thing i want to go back to quickly you were asking about judge cost of findings of fact with respect to conspiracy versus other claims i think what whether you consider them with respect to the conspiracy claims or any other claims any findings of fact made by the district court i think are binding on this court in terms of the jurisdiction to review so that the facts that dresses involve the facts that  i guess i'm i'm still a little confused i thought the district court said that the disputed fact issue is whether or not he actually did perform a microscopic test where you say the district court found that he somehow knew there was semen present but but lied about that live with the district court says is that he's that his conduct was vile i mean the supreme court since one thousand nine hundred two has really made it clear year in and year out that there needs to be a no high degree of generality but a particular sort of notice to the officers most of this is come up in excessive force but they haven't limited it to that so and notice it two thousand and eight doesn't help you nine hundred ninety two so taking the best for you version of the facts and realize there's no best facts when a client is imprisoned falsely for so long i get that but legally taking the best facts for you what evidence what case would you cite as to that was hundred two that would have put us back on notice that his conduct was wrongful taking the facts in the best light for your case so i would actually i would still go back to brown v miller because the underlying conduct in that case i don't remember the exact year but i believe it was from the eighty's and they said there was no qualified immunity that that was something fabrication of evidence has been clearly established to be wrong you know going back to back showing that this is fabrication i mean to me this is a little bit different from the kind of stuff but i have not i mean this is a kind of a weird version of fabrication i'll just say that as far as i'm concerned for what that's worth and so i'm just saying that i don't think the two thousand and eight case can put him on notice of this kind of this is if that's your best case as your best case if you have anything else that you want to cite as to did you want us to specifically focus on the notice to walk us back in ninety two then please do i mean i would say that i think the distinction is this is really a fact question i think it's the question is is what he's reporting false is this a a fabrication of evidence and if you look at and i found exactly what it is the district court said th under the law the case anything found established by this court in the prior panel decision there is very little to look at the only a done them i would say is to the extent that the defendants argue that any portion of the district court's determination and find under that considering the fact in the light most favorable to plaintive whether there's sufficient facts to go to a jury of many that will mark my question wasn't on the genuineness of the factual dispute because i agree we don't have jurisdiction my questions are materiality it could be that he announces there's no semen on his i know where when there is and that that even if true isn't a sufficient violation or sufficiently clearly established in one thousand nine hundred two to deny him qualified immunity that's all my question directed because i want to be sure that's clear to you so you can respond to that that assuming the evidence is as best it can be for your case is that material because was it clearly established in hundred two that the conduct alleged which is saying there is no semen when there is or saying that there was no microscopic test done when there was that that's enough to be a violation of constitutional rights of hill a person unknown to august parker didn't even know there was a suspect that's the question right and i believe yes and i think that it's that the entire point of doing the forensic testing is so that he can either be used to include or exclude i think it's the obvious testing but it's not that there wasn't any print it was other kinds of sarah logical testing it's not that there wasn't testing that could have but it was very broad i mean it was this kind of stuff likely you're in a blood type in disguise be so that excludes you that was the thompson case that ultimately went to the u s supreme court where they suppressed that it was a different blood type but it wasn't this kind of refined analysis where we can tell it's hill or it's woodbury back in ninety two and so that's why again in this very generic kind of thing that he's doing on a police report when there's not a suspect not aware of a suspect it's not at all clear what is and isn't exculpatory and inculpatory is that enough again taking the facts completely in every possible way in your but that's that the that the question is that he's performed these tests i mean there's no question later they did when they went back in two thousand and twelve and they did the testing there's abundant semen and sperm on this this is what they did the testing on they did the d n a that exonerated then i have pretty advanced i mean this has been happening actually in dallas county where i office there's been quite a few exonerations based on d n a testing because they preserve the evidence as they preserve this evidence they didn't throw their underwear away it was there and so then when technology caught up to the evidence that it led to a number of exonerations and so they kept the heat throw the underwear wade and pretend it wasn't there i mean the evidence is still there and therefore was able to finally way late in the game exculpate your client that that's true it would have been much worse if he had actually destroyed it but i think that the law is what prevented his being never prevented him from testing the underwear self the underwear was there i think it's reasonable that you don't expect that the government officers are lying about the state of the analysis that they've done on the evidence to the extent of saying that they looked at it and there's no semen present thank you we have your argument your honour's the district court single factual finding as to wagga spac is immaterial to both a fabrication as well as the brady claim in order to establish a fabrication claim plaintiff would have needed to show that wagon packed created false evidence and that the state later used that evidence to obtain a conviction if we look at the district court's actual factual finding it found only that waguespack may have withheld the result of a microscopic test not that he intentionally falsified any of the results of his report further it's undisputed that wagon packs report was never used in mr hill's criminal proceedings ok but she's saying that the withholding is itself a fabrication and that's when we got down this whole path of the clearly established so be test result is not material exculpatory evidence rather it's only potentially exculpatory evidence because it merely shows you that sex with a male occurred you need to do further testing either blood type testing or exculpatory evidence which requires a showing of bad faith under the arizona versus youngblood case here the district court did not make a finding that waguespack acted in bad faith nor is there anything in the record to support that what we look at because intent is always hard to prove if this gets misplaced somehow i could say i mean i misplaced this read brief somebody else could say you intentionally destroyed it we just know it's gone i last had it and now it's gone how do we prove what was in my heart when it went missing or even that it was me but i was in my custody and now it's missing what evidence is there ever going to be and does that affect this whole genuineness of factual dispute i'd also like to point out that the plaintiffs have cited numerous facts that were not part of the district court's findings in fact plaintiffs made thirty two factual assertions that are based soley on their statement of contested facts not the district court remand that defendants objected strenuously to the evidence offered in support of these factual assertions and these objections have never been ruled on by the district court you don't want to remain ending for another round of fact findings in eviden rulings do you know we do not i would then there done that i agree but i would like to point out worst that we need to look at what the distro district court actually found not the assertions asserted by plaintiffs counsel plans coun that we can affirm for any ground supported by the record so if the record would support that there is disputed facts we can affirm on that ground even if the district court coulda woulda shoulda said it a little better yes that's dismiss we have no jurisdiction it's our position that this court does have jurisdiction it we have no jurisdiction if there's any support for a fact issue and you've been arguing that there was and to you as a matter of law you should have gotten summary judgment that's correct but you're appealing as a nine eleven judge yes and all we can do is dismiss it sort this out once we figure out what we're going to roll we'll figure out what to call it how is that thank you and i'm sure that we will be guided by judge released much greater knowledge of how this is done thank you you thank