detective this course should reverse because detective trained kane a is entitled to qualified immunity mohamed was the witness with the best view of the robbers face and when he called the police and said i just saw the robber on t v and his name is maxine the costa that established at least arguable probable cause to believe the mexico costa was the robber and nothing that happened after that suggested so heavily that he wasn't that a reasonable detective could no longer rely on that initial the identification even the plaintiff and the district court conceded that the initial idea was likely sufficient for probable cause why wasn't it eroded by the things that happened after i mean the photo array you showed him the witness the same photograph and one of his colleagues who worked in the store identified somebody else with eighty percent certainty why didn't those things road the probable cause or probable cause that was initially created and also you know it's a little hard to tell from the video but  and decided to go to a jury it should definitely not go to a jury but what you do look at all the circumstance you look at all of the evidence available to the tech detective and you say quote a reasonable officer think that this person committed this crime and even more  debatable exactly yes is it even debatable exactly so as far as the for a st of all that photo array didn't even need to be done this is not as a situation where they're still looking for a suspect and they're asking a witness to identify a suspect the the witness had already identified the suspect by name so under those circumstances a confirmatory id is what they were doing and they and in fact in new york you can do that with one photo and here the officer did a photo ray just to be safe and now it does seem that the officer used the same photo that the witness had seen on the news it's not clear that the officer knew which it is pathetic thirty three witnesses one says that's the guy the other based on the right the other to say that person is not here based on the far right is a probable cause there's at least arguable probable cause especially where the witness who says it's him is the one who everyone agrees had the best view of the robbers face because you can even see in the video he had his shirt pulled up to here when he was dealing with the witness witnesses for the most part he dropped it when he was pushing mohammad to the back of the store and then you see he opens the door and he pushed him i think down some stairs so given that mohammad was the witness best place to identify the perpetrator it reasonable officer could certainly give more weight to his id as far as the fact that the other one of the other witnesses chose the filler i think we can be reasonably confident that the filler didn't do it that would be a huge coincidence i don't know what that is that's still under cut the initial  i think i think the other one is actually perhaps undercuts it but identifying someone that everyone knows didn't do it all you can infer from that is that this person's memory at this point is not reliable merely been about the differences were different way you can read the record and come to the conclusion that this is an incompetent officer or that he's purposely trying to set up next to costa maxie to costa was not on anyone's radar as a suspect in this robbery until mohamed called the police and said i know who did maxie to costa this is not there's just simply no evidence that the officer was trying to set him up or out to get him and even where there is evidence that someone might be lying this court has ruled that the officers a witness might be lying there is this court has a firm qualified immunity where the officer couldn't be sure right there is some evidence suggesting that the person did it and others suggesting that maybe this person witnesses shortly after the robbery they had also seen the news and after the detective talked to mohamed he contacted the other witnesses and said did you see the news and they said that they too thought they had seen the news and they too thought th identify yes eight months later one of them picked a filler and the other didn't identify anybody and one picked the filler sent out eighty percent sure exactly so i think a reasonable officer from that evidence could conclude st that mohamed had the best  view nd that the other two witnesses initial statement that they thought maxie because there could be the murder or the written robber sorry could be the robber that had more weight than their statement eight months later when their memory would have faded more that there was there any evidence on the record about whether the a da knew before the grand jury hearing that about these the failure of the other two witnesses to identify mr de costa well what but here we have a grand jury indicts so all of that is what we've been talking about so far as whether there is probable cause independent of the presumption that arises from the grand jury indictment you still have the grand jury indictment which t isn't the detective completely exonerated that's his that's the prosecution by the prosecutor based on the same information the only time the detective becomes wobble under those circumstances correct me if i'm wrong is if i had to take the withholds but what we do have in this record is that page three hundred and fifty six dollars there is a police report that was that we got from the d a that has a fax line at the top that you can see the police fax that to the a about a month and a half before the grand jury indictment and it's it's only we only have a couple of those pages in this record because we didn't put it all before the district court because we weren't aware they were going to have to be talking about this but it shows that fifty six dollars pages of police records no reason to believe that any evidence was withheld but even if there were a gap here in the record this court held in savina no that a gap in the record is not sufficient to overcome the presumption established by the indictment the video the plaintiff for at this other murder charge for a week and a half observed him extensively and i don't believe that he's the person in the video but you know detective did not have the opportunity to observe him for a week and a half extensively before and and as the district court itself recognized that the video is not totally clear in fact the district court said on the record at the hearing you can't tell anything about the robber from this video it's extremely green that's why i mean it's striking th withheld the video and here's what judge and here's what judge weinstein wrote and the sequence of events is procedurally is very important in his opinion dated january th two thousand and eighteen this is in the motion i believe is the motion for reconsideration dismissal was apparently based on a videotape in the possession of the police which shown a person other than plaintiff as the robber the letter provides this is the memo the letter provides additional support for the court's conclusion of an injustice if this civil case were not allowed to proceed to trial it particularly bolsters this court's original conclusion that quote a civil jury could find that detective trained keen it did not make a complete and full statement of facts either to the grand jury or to the do what is the what is the evidence as to when the video was transmitted to the d a s office there is all we know is that in by i believe it's august which the indictment i believe was in may and in august we know the d a had it because there's a voluntary disclosure form which lists photographs and i d s and what is the st reference to a video  march this seems to be a march reference to the video it's in a d d five there's reference to a video but it's one thing for a drink that actually supports a fine a reasonable inference a trend as it and he knows it's important but it doesn't necessarily follow that he transcribed it too and if i can just go through the correct there is well no no let me let me do it there's no document that says i did not give it to the da but here's a reasonable inference you know district attorneys like us flip federal prosecutors follow the law one would think that before preparing to present a very serious case armed robbery to the grand jury one would look at all relevant evidence and we know as judge corney pointed out when he takes the time to view the video he says it's not him but only only with the benefits of so here he was the issue he says that but he also there's a caveat to that based on  seeing the guy for days on end as a result of this trial i can determine that it's not him yes he does it i can't so that's what you know that's what gives me pause it may look and we're speculating of course but it may be that he gets a video is never seen the guy when he's presented the case of the grand jury who have no idea if it's him or not that that's that's an inference the jury can find as well i mean we are talking about s judgment here and a couple of other things just the procedural posture of the case is important because it makes much in the reply brief well this was never presented here is the judge's decision on january th two thousand and eighteen and a motion saying i've watched the video this is this supports my conclusion procedurally what happened original motions for summary judgment on behalf of the city and detective shapiro ok city correctly says you got the wrong got and it but the decision all talks the decision and it's in the join a pace of talks about drinking a trunk hannah drinking it they move for reconsideration i'm so the judge denies summary judgment moves for reconsideration january th two thousand and eighteen the you water which i just read from appears then day file another motion for summary judgment which appears de cost a put in the same memo put in the same dismissal mammal put in the transcript of proceedings so they're all in notice about that so it was not fully presented as well or as much as hit was here hopeful you agree well but it wasn't presented as much before judge weinstein but this court can affirm for any base is fines that supported by the record and so when and when train kena right oh no no no no we didn't have the chance to argue that's not essentially correct i just want to say that this court canned if you chooses find sport in the record to affirm based upon the fact that there was no doubt transmission of the video and it was presented cup of other i don't remember specific finding that says what he says is this as i just read he supports it supports the conclusion that the video was never present that's in his opinion but as far as yeah i mean that two things one is judge walker you asked is there a difference between summary judgment and fifty a fifty big call fight immunity qualified immunity strict standard but there's no difference there i mean as far back as i remember far as argue will probably cause as long as i can remember when you have material evidence that is exculpatory and you failed to present that to the district attorney that negates to you know get to develop evidence on summary judgment before summary judgment as to whether or not there's what happened in this video moment before the court we with regard to a question to track you know what did you do the video in something or something to that effect could i interject that the document we were just looking at together shows that they and the complaint follow up informational report was transmitted to the prosecuting attorney and refers to still photos generated from video surveillance refers to video surveillance there's no i don't see how a jury would be able to recently infer that this the video was hidden somehow from the prosecutor by detective specifically refers to the video but of course maybe you're making a different argument that we're regardless he was then required to for that video physically office and what's not the record and i have no reason to doubt work after that that is the precincts but we don't know where that went through now i have no doubt i'm not questioning this fellow as far as her representation but it's that's not and all it is is facts the d d pfizer what information the police turned over to the da and so that means that there's no qualified immunity and this goes to a jury and this court reversed and said no a gap in the record is a problem for the plaintiffs because it is the plaintiff's burden to rebut the presumption so just saying well the record doesn't show exactly the date that the that the video was turned over that is not enough especially when you hear have not only the facts but mohamed also mentioned the video in his grand jury testimony so if the prosecutor  really was not aware that there was this video out there he certainly could've said hold on let's pause this i'm going to go find out about this video also it is undisputed that the d n a had the video at least by august two thousand eight and he didn't dismiss the robbery charge for four years so there's just no reason to believe that there was something so clear about this video at that point it was only after he sat next to the plaintive for a week or a week and a half that he could really say you know i don't think that's the guy from the video  guy that can be and the detective can still be entitled to qualified immunity our system presupposes that sometimes they'll get the wrong guy right that they don't need one hundred percent certainty to arrest him pro seems to have found a some form of the liberal misrepresentation deliberate omission to go back to the earlier case some half truth findings but what are we why is not a genuine dispute of material fact even in the context of a qualified immunity issue well it's because it's completely wrong as a matter of law that any detective could possibly have a duty to solicit to provide unsolicited information to a grand jury here is very clear that detect a trend here to answer every question honestly that he was asked the judge did not ever suggest otherwise he just said that the detectives should have also told them other things and that is as a matter of law so you're saying that there is no per se requirement that a detective in this case for extensively the plaintiff's doesn't even defend the district courts are honing in on that point so that is very clearly we have to you ascribe legal error as opposed to factual it is a legal areas thank you very much thank you