good morning scott corps member ms pay hush at the moment that detective ashworth placed sharon pay us in handcuffs she knew the following she being protective ashworth she knew from across be the t s a to substitute t s a that crosby had little interaction with each other than what she'd observed she knew in this is all information from crosby the only person with firsthand information afterwards knew that his passion had not hit e h screamed at her cursed at her raised her voice at all expressed anger or ever left or unintended in the classroom in fact she knew from his crosby that pay hush had worked with her many h throughout the day that is admitted by the town and ashworth she also knew in this is admit it found that page nine  one of the joint appendix she also knew that that crosby never saw e h cry look physically upset or it she even says never thought she was in danger all she told ashworth and the other members of the police department was that she thought quote that she thought it was inappropriate what sharon had been doing the let me be quite clear on this the new york law and in danger in the welfare of a child is unconscionably vague it is disgusting league the result of it is that a teacher might not be given the protection that we believe police should have for behavior in here is a case of qualified immunity because we don't want the police to be made liable winder doing something bad i think it is isn't it the case that this arrest or under this very vague law was acting not having probable cause but acting in a way that was not that while reasonable that a policeman couldn't think that the while i can agree that the in danger and statute is as you described it judge calibrate but the clearly clearly established law from this circuit since one thousand nine hundred ninety four with this cursed court decided all of vera and two thousand and two when it decided loria was that no reasonable officer could believe that probable cause existed to arrest without failing to investigate further particularly where the existence of probable cause was close and i don't think it was close time was not of the essence it clearly was not of the essence and where the results of said investigation would confirm the absence of probable cause that's the clearly established law chief her when questioned said of course to pay of course detective ashura should spoken with pina the t a a who was in the room on march twenty eighth who was in the classroom on april second when detective ashworth appeared so that's the relevant clearly establish law and when one thinks of qualified immunity it applies most aptly when the officer has to make a quick decision when they're out on the street in their being when they're being confronted with confusing information make no mistake ashworth knew that that's undisputed also so when you when you obviously detective ashwood had to conduct an investigation she did not i mean she just basically took what crosby said and said ok that's enough matter in terms of the of an officer but he has the assistant district attorney that said it was ok two things that's a disputed fact your honor what was discussed first under reeves the supreme court's decision  reverse the jury doesn't have to accept ash words what ashworth claims i think equally important first the detectives in say probable cause it said it appeared to fit the criteria that's different than saying it fit the criteria it appeared to fit jury doesn't have to accept that fact we didn't they never identified the a da we never had a chance to put pose in a da ashworth notes her handwritten notes not her supplemental report after the fact her handwritten notes don't reflect a conversation with an eighty eight so we don't know and it was what was the nature of the dispute then you said that there was a disputed fact right whether a da told her told that worth that it appeared to fit the criteria what did you put in to dispute that but exactly what i said there was there's no notes of a conversation contemporaneous notes there's a find what for obvious reasons so it's one thing to say that she spoke within a d n a what we also what what we also put in to refute judge lo air is that  ashworth claim pina we don't know what else we don't know she told her about how she wasn't crying and how she worked with her throughout the day you know if she just told her what was in that statement she took from crosby because that was  substance of her investigation what it crosby teller and then she spoke with brian hutchinson the therapist the speech therapist is there any is there any for example genuine tissue with respect to  whether the detective ashworth what what what she knew regarding how your client treated each while she was separated from the class well i think that works in our favor i'm not sure quite what i want to know again we think we were entitled to determination that probable cause was lacking or about what she knew regarding the physical set up there is a cardboard dividers and that he has  no idea what the cardboard said is because it's also admitted undisputed that after she speaks with crosby they don't go back to the coaches and say show me what happened they don't go back to the classroom municipality but it seems to me vet that is anything but clear there are several cases where pony and and  because we do vs if in a nine hundred eighty three situation because that's different that the whole level of liabilities different that's a different thing but we don't really know several states do give it we don't prejudice so it is question of state law which seems to me quite don't clear despite our very clear statement about it can be worked out by the state yes to all of those  judges the only the only statement you made just now that i take issue with is that it's clear it is a one off sentence in an issue that was not even raised i went back and read the cas briefs well that we'll find out from now but i just it's not it's not in our briefs are that i can remember that but i went back and read the cast briefing meet the it was an interlocutory appeal brought by the city i  perhaps unfortunate statement in a case called soon and then in a concurring opinion tapir it where we have the hill something and there has not been anything since then in this state to undercut it we are bound by that but i'm not sure of it that makes sense in a situation where there isn't time for the state to say we don't really agree with it so  it's we the easiest thing to do would be either to certify which we would prefer or to dismiss for lack of fred's for lack of subject matter jurisdiction it's me that we that we do jurors no no i'm sorry the court should not have exercised supplemental jurisdiction over the state location out of reach that issue that's what i meant to say the easiest thing to do is to find no qualified immunity then it all goes back and really if one thinks about th after everything is said and done all you have also another what's not able to what's not to continue or do you want what's also not disputed is that ashworth knew they may dispute this but i think the record is clear that the the allegation that pay hush left e h sitting in a dirty diaper all day and the specific was to let her eat lunch still sitting in a dirty diaper that's not the case they have admitted she used the bathroom e h and they know that when crosby tells the officers that pay hush didn't you know that she still sitting in a dirty diaper an hour before she heard it was dry and officer can't just except when time is not of the essence cannot just accept the say so when doing  of legwork would make it crystal clear the probable cause was lacking you would need states versus fisher makes clear probable cause cannot rest on even strong reason to suspect and that ties into the endangered statute so the horn can't be speculative it's got to be likely how are you saying that in florida we held we embraced what the circuit  has embraced and cool that is that even when probable cause established if time is not of the essence a there is a duty so the officers under a duty to continue to investigate are you saying that yes because they that case gloria mori i'm sorry cited bevvy a from the seventh circuit which created that which which was the most commonly studied your contention is that is the that is our law the second circuit law absolutely there i'm not on mindful of the once probable cause exists you don't have to investigate further and the fundamental flaw in magistrate judge smith's reasoning is that she thought all this information all this other evidence about the screaming i treated her kindly and so forth came from pay as during the interrogation it didn't it came from crosby so it's not of course an investigating detective doesn't have to believe the say so of the suspect but that's not the case here i'm well over thank you very much and i i think i still have two minutes for  this is a qualified immunity case and qualified immunity was found by the district court on the larger will probable cause aspect i submit that there is no clearly established law as a second form of administering qualified hersh treated e e h when she was separated and how she was separated i mean that there are the conflicts all over the place you've got the sworn statements from less than tino and file the first persons whom detective ashworth spoke with and they suggest that they were under the impression that the hush put a e h in a in a corner stuck her in a corner and forgot about  or punished her by in essence by refusing to let her engage in various activities and then you've got crosby sworn statement that she wrote that room with only each was kept in the room with only push when the other students went to the gym that she was working suggests that she was working one on one that once given the detective gives the time that seems to be at at variance from what everybody says about when lunch was given it's a totally different picture you know what point can we say that there presented to ms paid during the interview and i submit that probable cause to arrest was established or at least arguably established through the statement of ms crosby it was an established only after the interview with existed before that interview don't we have any number of cases that talk about teachers in the classroom and what is ok for teachers to do that is in situations were very or suits against teachers we've said that teachers have a certain amount of does room and discretion in those cases are very or envy officer should know about them so that this context is a little bit different from people and must protect of teachers in classrooms so that in that situation where we have attention doesn't that require more time that is if it's something urgent of course but  time is important in a context where you are also protecting the i don't want to call it qualified immunity but almost the head of the board of the teacher your honor i think as you  mentioned earlier the statute that she was charged with is vague and i think it any reasonable police officer or reason a police officers could disagree whether or not the conduct of his pay hirsch constituted endangering the welfare of a child  given the totality the circumstances and we can't examine one aspect and isolation will bring something about if it was  context that they miss of the statute which might allow it but might known and the context of the teacher and the time doesn't matter is it sufficiently clear that where time doesn't matter in that context like this a reasonable officer would know enough to do something else i don't think it's clearly established that she must have waited or further develop their investigation before second circuit decision that like the circus for example imposes a form of a duty in the duty is to me the too strong a word on an investing officer to conduct more of an investigation if time is not of the essence i agree your honor there there is no duty that the the inventor the investigator continue the investigation and i think loria is quite distinguishable from the facts here loria the court found that there was no probable cause at all because the officer never asked the putative victim of the alleged crime if she believed that this other driver of a car intentionally collided with hers or if the owner of the vehicle was even present in the car at the time this is separate far good could you address my question about the municipal liability do you have do you object to us certifying or you object to us or saying that  these circumstances have dismissed with prejudice the claim against the municipality i do object i believe it's sufficiently clear in new york state that once there is no underlying but you have a court of appeals case it says that i mean what you have is a restatement of agency saying there is liability some state court cases that go one way and some state court cases it go via other way how can you the municipality itself that's why i don't buy the argument that that opposing counsel makes above ask it because mondale is a different thing i'm asking whether new york says that when somebody has been when the agent is not liable because of qualified immunity not because of probable cause it's a very different thing but just because it's receives qualified immunity shielding the government they didn't say it shields the actor it's still the action which is far different and therefore once the action is shielded the actor is obviously shielded but the intention behind that line of cases from the court of appeals down is to protect the municipal entities in the state of new york why should the municipality be protected when via reason we don't go against the the agent couldn't know enough if there were probable cause that's reaction but that's a very different situation in any case is it clear enough that we ought simply to save it new york not give new york a chance i don't think there's any reason to certify i think it's quite clear that the difference between the actor and the action did didn't have probable cause but that's not what we're talking about let's say the restatement of agencies quickly when you're saying we are not holding this person because he sharon paid did nothing more than work one on one with the e h throughout the day giving her and virtually undivided attention what also is a significant point which i should read before is who is responsible for taking care of the toilet he needs the need for further investigation when time is not of the essence you can't ignore facts that are before you that would cast doubt on probable cause that seems like a fairly unremarkable proposition your honor there are no new york court of appeals cases standing for the proposition of if there's immunity individual immunity then the municipality is off the hook already as we talk about in our reply brief that deals with the state's waiver of its sovereign immunity when officers correctional officers have a quasi judicial immunity the case that they cite has to do with governmental immunity for in that context negligent hiring there the whole idea of qualified immunity under state law you don't even find it in until this court created said you don't even find it's really a remarkable proposition if there are no further questions thank you very much thank you both your arguments in this challeng