officer key to that determination is whether the misrepresented facts are material to do or cause the plaintiff's alleged constitutional injury why isn't there already causation question which is a factual question which is not something that was intended to be appealed by allowing  from a denial of qualified immunity relooking at this officers conduct which is which is even further removed then are typically looking out where the officers actually that the direct tortfeasor he's the one who made the arrest he's the one that used the force in this case were we're talking about somebody that's even further removed from that conduct there's no question if you assume the claim is true the facts that he did something that was clearly unconstitutional i'm not point i disagree your hon run back in and slam the door but simply turned around and walked back in even accepting the plainest version of the facts by misrepresenting these facts to sergeant ricky this should officer was that the simply walked back in and closed the door and be whether these not misrepresentations were material to the partitas this belief that they were exigent circumstances and on this point i think there's absolutely from the plainest facts this sounds a lot like the collins case where there was quote no evidence and there was insufficient causal link and then in that case we said well  those points you might win in the end but it's not appropriate for an interlocutory appeals to going back to judge white's and initial inquiry how would you distinguish this from we've basically said that's not the kind of case that comes up here for interlocutory review i mean we don't have jurisdiction over that because it just seems to me that you you phrase it as materiality but the bottom line it seems to me to be causation is what you're disputing am i wrong about that i think i'm disputing both i think i'm disputing whether the misrepresentations were material enough in case i am not your honor it's the supreme court which held really kind of a sea change in the law there materiality goes to the jury tell my commanding officer i saw him kilpatrick slam the door versus closed the door i saw him run back inside versus walk back inside should i be able to proceed this is the kind of misrepresentation of facts that's going to cause  question of whether we went out and then saw the police and ran or whether the sun are down so i guess it's on the garbage can and come back but what about the information conveyed that this was a barricade or a h information that rises to that level where the other officer interpreted as being that state of affairs is a far cry from just a question of did you walk or sauntered back to the house  response to that your honor is that officers the kara never said anything about there being a barricaded hostage students hostage situation i think would be completely different situation if he had told his sergeant i saw him holding a gun to someone's head i was getting nine one one calls that people were inspired trapped but there was nothing that cigar us to add to ricky to us that would have led a reasonable person to believe that there was a barricaded hostage situation he simply reported i saw suspects description come out the back door and then go back inside that's what he reported to his sergeant from that his sergeant on his own steam to draw the conclusion that this might be a very chaotic hostage situation but we're looking at on an issue of law and it's very clear from both of the pleadings on both sides all the things that both sides that we have telephones also can see that there is no issue of law here if an officer is to lie in providing evidence of probable cause it's clearly illegal and unconstitutional as your honest already pointed out the issues that remain are issues the fact of whether or not individual officers were believable whether or not they the if there is no evidence of causation right i believe it would not be appeal because the issue of law would still be clear  think our general argument is that we cannot find anything that would show that the judge's order was turning on an issue of law versus issue of fact she said that it but again and again she didn't i think of forty two or forty three page up to causation actual or legal causation and i think this is the perfect case for her and then you know lock tory appeal on qualified immunity these two officers are going to have to go to trial on their conduct what was their conduct accepting the truth of plaintiff's allegations that they misrepresented in a very immaterial way what happened on that back porch and so they're going to be potentially held liable in their individual capacity for their commanding officers decision to make a warrantless entry into this house when there was nothing that they said that would have led there started to believe that there were barricaded suspects in the house this is something he came up with on his own there is a low level officers their boss decided to do something not based on what they said based on what he thought and i think this is a perfect case for these officers should not be faced with the burden of trial and draw from what i said that there must be a very creative hostage in the house or there was likely one i don't think so i just don't think there's any evidence there and i think that's a legal issue that must be determined on