and gentlemen our first case for this morning will be william hurt and others against matthew wise mr whitehead are you going to be the first whether the defendants the appellant's violated clearly established right i don't know quite how you can say that you know you you said some things like that in your opinion but the district court's opinion which is a lengthy opinion goes through the arguable probable cause analysis it is hard for me to see what she didn't identify as a relevant legal issue and yes your honor she did spend time on that as well so are you going to focus on the fifth amendment coersion claim or are you going to focus on the fourth amendment false arrest crime because you know it's good the details will vary depending on what you're talking  sure it does still come down to an r p m william hurt's confession on his fifth amendment on his fourth amendment claim because it is is it a confession was not coerced than it did provide probable cause to arrest a confession might be reliable or it might not be reliable so if if you stood there and i said you information and you know you're just standing here in the courtroom i'm not coercing you know said reliability point the confession did have aspects of it that matched the physical or the physical evidence in this case i couldn't see much i thought to the evidence that was  to william and aside from trivia that doesn't really tell you anything about whether there was a murder or not or whether he was connected with any murder  you can tell me what you think your best evidence is but i've got to say there's an uphill battle in the best evidence on that the confession was reliable was that two things really the folding of the baseball cap and the front right pocket why is that it's ok i knew you were going to say so this man was william's ineffective uncle you know we can not worry about biology here first of all you know i can tell you which pocket my husband normally puts his wallet in too because he's a person i know and i see him do that a lot and so you said to me which pocket did he put his wallet  i would be able to tell you which one women don't normally have pockets so just counteracts but so you know sort of baseball and actually in the concession itself he's not even consistent about whether it was folded so i don't know how knowing where a relative's baseball cap is lodged tells you that he's in any way connected with the death of that person and i agree with your hypothetical but if william had said something like i know that the pot the baseball cap was in that pocket because that's where he always keeps it or i saw him put there previously i agree with your i want to see need to say though that he just he tells them he's guessing i mean the course the other thing is that he had a fifty fifty chance you know and he he most people are right handed it'll be in the right pocket and i submit to you that he actually had twenty five percent chance front left front right back right back back left  he didn't get some he stated that verbal e what pocket front right and then when the officer said ok i'll show me how you did it and they specifically asked how the the baseball cap was put into the pocket not generically or how you see it before and he got up and he showed folded and put it into the front right pocket so in your view if the only evidence against william was the baseball cap do you think that would have been probable cause to arrest him no your honor all right so you really do need something else yes and i think that's something else is the manner in which william demonstrated that the victim was strangled in this case and how else would you strangle somebody without using your thumbs and that's that's a great point and that was asked that was discussed in the deposition as well in the officer said well you can put the neck in the forearm a choke hold behind them and that would be another all another way of doing that and that was w not described by william demonstrate bit by bit by this time william has been said the fact that mr goh licky was in fact strangle that the hyoid bone was broken  which you know i certainly accept that the bone is broken and it's often your medical examiner says that's very often a sign of foul play the question is why is it william it i so i think you have to take everything that they have he was i have looked at it you know they said they've seen the following information to i'm properties missing from marcus there's a physical confrontation they feed marcus was wearing the baseball and we think that the confession was valid and should be upheld and therefore would lay the foundation for problem could destroy that i need to ask you about your stiction in the scope of our jurisdiction and one way to get that out that is the only a few kinds of issues that we can consider here i look at your statement of issues in your opening brief it's two full pages long most of which seem to me quite clearly beyond the scope of our jurisdiction  and ask us to reweigh facts and factual findings of the district court against the summary judgment record what would you say are your best two or three abstract issues of reliability of the confession and what the defendants understood about the reliability of the confession if i get into the merits not about whether it might have been coerced and i don't see how we can answer that question about reliability without diving you incompletely to the granular detail of the summary judgement evidence which the supreme court told us in johnson not to do well you know keep directing back to the confession it is what matters an essential and it was video but you can't evaluate its reliability without looking at the entire clip skin you know i agree with that but the entire case the fatality of circumstances that led up to that there are no genuine issues  material fact on on the reliability components what was said in the interrogation versus what happened what the officers knew at the time of the interrogation and so for qualified arguable probable cause this court can look at  evansville right yes and that was which direction from where the body was found it was upstream from where the body was found upstream start down this ridge down yes that yes miles downstream yes right  doesn't that alone suggest there's a serious issue of reliability about this i that is a problem back and we don't deny that but it's you have to look at the totality of circumstances as a whole and not just one fact that's my problem and that's my problem with the scope of our jurisdiction and and i submit that what these officers knew is they had one bad fact and what and that is for the prosecutor to to argue the case that they were just posed to investigate what they find they had more than one bad fact that a lot of bad facts mystical look he didn't even own a debit card much less use it and not much else have somebody else use it at the kangaroo  late at night they couldn't possibly have had evidence of that and that didn't some doesn't exist and or at least you have to extend you have to take as established that there is no evidence the kangaroo that there's no debit card that all of these facts that you would like us to take your way are in fact not facts that we can do that with which is judge hamilton's point and that when i say my read time but i usually find out that that's all right i'm going to make sure your it's not just the arrest it's also the prosecution the question here has to do with people who are deprived of their liberty for a time correct yes and those deprivation liberty go on for example long after this problem with convenience store has surfaced right yes so that goes into the most is prosecution claim and on that plane and also the false arrest claim particularly after city of joliet and and i submit that the case law says that it's at the point of arrest which the facts known to the officer at that time not the lead agency to desean we learned this was in evansville crime so i think we are situated differently than the e p d to some extent for example the malicious prosecution claim is not against us we did not have arrest authority we did not have a rest however we simply didn't preliminary investigation and then they asked us to come back to participate in the interrogations and we did so so they certainly did so i mean i watched the interrogation absolutely that they are they're pretty brutal watched the tape and it's very disturbing to see the fact after fact after fact fed it dump going to focus on william and then we have the other interrogation on william we have him breaking down in tears we have him you know just out the guy jones among other people the issue to me your honour's is is there a clearly established  all that tells our officers that fact feeding for example is improper and we submit that there is not well because you know there's well there may not be an abstract holding to that effect the overall question has a lot more to do with reliability than their course of the species purposes and i don't know how a police officer thinks or a confession is reliable when the officer has provided all the information and i would agree with that i think we cited in our briefs the information that they did not cite in that they filled in several things such as the ball cap the demonstrations at the end if you watch it the officers did not tell him how to demonstrate or where to put his hands william puts his hands on his throat first any that i mean who knows whether that's what happened what happened right i mean there's you could be guessing they have set him the fact that marcus was strangled well and that and so you tell me you know somebody was strangled h to disagree throughout the interrogation and this worked noted that was significant evidence that his will was not overcome because if you're still on coercion you're not answering the question the judge hamilton is asking which is three liability question and as i said to mr whitehead i get something can be reliable enco worst something could be reliable and not to worst and anyway you want to switch it around there are two different problems in our big problem here is based on the way they conducted this interrogation you know and i found actually the expert report from mr dries and very helpful in this respect  just sort of pulling out of the records all of the information that was fed to him and so i'm not worried about whether they let him use the restroom i'm not worried about whether his parents were sitting out there that all goes to the coercive nature now they did violate the reid technique but that's not my problem really it's a crime to question is is this a reliable confession on which you know and did they make it in and did did they know that they were creating an unreliable confession yes i don't know what a reasonable person you know it's at the arguable probable cause level have any reason to think this was ok and i think it was hard you know probable probable cause is such a low standard but it's not a nonexistent standard absolutely right and so when when you have an eighteen year old this is an adult these aren't even a confirmed yesterday you know i mean if you want to go there the supreme court has also pointed out that the age of eighteen one's frontal cortex is not fully developed it's not until twenty five or twenty six and the supreme court itself that's recognized that so we're not making this up out of thin air that i understand i was not very impressionable and he's also very vulnerable as a foster child confession don't cede one hundred percent of the relevant facts and whether a baseball cap is in a pocket or not or whether a fairly obvious way of strangling somebody has happened isn't i mean aware of any case that said we may not like what was done we may not look at this and say oh that's a perfect interrogation but there's no clearly established law that says what our officers did was unconstitutional aleman doesn't and that's the only case they side is aleman and a involved miranda violations totally different well so in fact i shouldn't hear let me go back to the jurisdictional problem though you want to focus this on techniques ok but i understood the district judges analysis in the plaintiff's case to be much more focused on reliability of results ok given the overall context of the case i don't know how we decide that on your like you tory appeal here unreliable at least as i understand what the district judge was saying and of the defendants knew that or should have known that right now if that's the factual or a river if that's the factual premise that you're willing to live with on this appeal and i think you have to for us to have jurisdiction over to these questions then it's pretty hard to see why going forward with the rest and prosecutions with based on an unreliable confession and very little else is not contrary to clearly established law and again we were the kentucky state police we didn't make arrest decisions so i have to make that point on behalf of my clients we are a little bit different and i think all we do is we look at what did we do in the interrogation and the false iet days which weren't so long ago in the seventh circuit you would have been making a great argument because we said the fourth amendment applies up to the moment that maybe you're presented to a magistrate or something and then we move over to due process and we didn't have any concept of continuing arrest and all the rest of it you probably know the law but the supreme court told us that we were wrong and meant well density of joliet and that there was this notion of a continuing arrest and if the whole problem was that there was no probable cause or i'll add here because it's in the unity case no arguable probable cause then the fourth amendment still applied and your clients were and over on page twenty nine of her opinion she says defendants also invoke qualified immunity and she says when the constitutionality of the action depends on the existence of probable cause the officer must have had quote arguable probable cause for qualified immunity to attach she cites relevant cases and she's very careful to say those officers that reasonably but mistakenly believe they have probable cause are still protected but and that was our frustration she cited the law and they didn't apply to follow it while she did she did if you take the plaintiff's facts if your facts turn out to be right i mean this this decision if we do have jurisdiction and to the extent we have jurisdiction over this deal is interlocutory i mean a jury will resolve i think it's no different than carrillo i think it's no different than gail i think it's no different then many of the other cases this court has decided we are not here to argue facts i think we have to argue abstract issues of law and we were very careful in citing our facts to to wallow in what was undisputed or what they said i'm not sure mr bell was you're the person to address or mr whitehead about this but at least one of the real issues purposes but then i'd be curious about the media's thoughts as well i had understood and i think we said in the armstrong against daley case that what the due process clause is of both amendments deal with  our deprivations of liberty not convictions right and if we've got if if this kind of fabricated evidence that we have to assume for these purposes and unreliable confessions we have to assume are used to deprive somebody of liberty i'm not sure why the absence of a conviction makes any difference and i also think that's an issue that's relevant qualified immunity but i'm  they tend to model it when you separate them out separate claims separate proofs separate standards the jurisdictional problems become readily apparent and the fact that we have clearly stated it we have clearly provided proof on unfold claims  and i would agree i think there are several i think both the fourth amendment in the fifth amendment present abstract issues law what do you think they are i think with regards to the fourth amendment there's no doubt there's no dispute about the constitutional principle being clearly established you're not allowed to rely on evidence you know to be false so that parts solid and there's no jurisdiction to dispute the facts will findings of the court that the court found that the defendants like article probable cause are videotape and so they say scott against harris you know it's a video tape just watch the tape precisely and that gets us to the only legal issue that i see under the fourth amendment and that is the defendant's suggest that you should reevaluate the videos and look at that look at the videos to decide i they're mistaken there's no jurisdiction for that there's nothing in scott that suggests that you should that you should look at the videos and while i stand by the  the i think they're heartbreaking and they support the claims and they support with the district court's findings were i think the law is clear that when the district court finds that the video supports the nonmoving this position there is no jurisdiction for this court to evaluate the videos and decide whether or not it agrees with that evaluation so the problem and scott was hit the video i'm just saying scott maybe because the video simply resolved underlying facts like did somebody run a red light or they bump up on to the curb or or whatever we don't have facts like that it was twofold and scott there was one problem that yes it was objective facts did they were there pedestrians pleasant president did they run a red light as opposed to you know was william having a peg kind of attack but the second problem is scott is if you go look at the lower decisions they didn't use the video at all they credited the plane of self serving evidence of i didn't run red lights or there weren't pedestrians or whatever his and they don't adjudicate the big nor the video all together and scott says no you can't do that you can't have a video that directly conquered contradicts the self serving claims of the nonmoving and not use that to to to make a fair finding here and so your point is videotape is dealing with and in essence split second decisions to use a particular form of force in the course of the trips or it's it's it's those seconds when the officer if i recall correctly decided to bump the courier was tracing in what information any hint here we're dealing with the whole mosaic of evidence that the police had collected from two states in going into those interrogations to evaluate their reliability and that seems to be as fine grained a factual question as one who is likely to find absolutely absolutely it's a far more nuanced subjective evaluation and it's a factual evaluation just the only legal issue i think that that that is available there is where the defendants on notice that their tactics were unconstitutional that's the qualifier that you know that's the million dollars it was serious question because you can't leave police officers flying off they're not having any idea  implicates me as well as a friend i'm i don't think my friend has any complaint he can't suppress evidence that the police derive from their that winds up implicating you know the only for fifth amendment purposes right correct it's a rule that becomes or a liability issue exactly and i would it seems to me that with you or several clients that's really the problem supposed to coercion because if you're talking about tactics non about only verbal tactics and i'm talking about physical coercion here during the verbal tactics the case law doesn't provide very clear gave us and i would i beg to differ and i'd like to make my pitch for it if i may i think you get there i first of all i agree with you that we don't need to go to tactics i think that you have none reliability is one way there and a solid way there but in the interest in you know keeping it clear and and also answering the question if you do decide to go the tactic route i think you get there very clearly as well i think first of all you have you know very clear law that you can't use threats against a suspect family to force a confession that soren berger and you have a very clear threats to each of their family being made in a particularly vulnerable family being a blended family that it was you have you know william being told being told by defendant jones this is the way it's going to happen there's one two three four five of you all of us going to jail for murder unless you want to talk and give us her your side and help  i don't know the answer to that i guess does the fact that the defendants are suspects are related change the rules yes i believe so i believe soren berger says threats to the suspects family or children even if implicit certainly may render confessions involuntary for purposes of due process threats of justified prosecution the whole family justified prosecution i do you get the parents justified how do you mean how as how how is threatening to to arrest her parents for murder  justified threat under any members or what you think you should just aren't one two three four five he spells it out your entire family is going to jail william his total number you know he's threatened in a way that he'll never see  family again that you know they play on this you know your adopted family and they talk to william and specifically about his foster family getting kicked out of your foster family and everything else i mean and that's threats to the parents that's direct violation in my mind of soren berger i don't see you know i don't see home we'll see alright the second way that you get there is that you can't and this is a is reached and i mean it seems to me in hindsight you know a psychologist could perhaps watch the video but the officers have to operate in real time it's if you get this off your chest today i guarantee you can walk out of here a lot better otherwise you're doing than you're doing right now you're hurting right now i can tell you're hurting the way you're feeling your chest right now you're hurting bad it's burning man it's burning hard your head hurting your chest asserted come on man breathe let the burn go away get off the bird tell me something you'll feel the hurt the pain that you felt just a while ago and ain't nothing to what you're going to bear here in a little while you'll go through some pain and burn you'll go through so heavy on your chest ain't going to be able to stand it you're going to keep feeling the pain because i can keep turning the pain and i keep turning it on i keep turning it on or i can relieve it from you and william says i'm having a hard time breathing detective jones says you're having a hard time breathing you're having a hard time sitting there you're hurting you're hurting you're feeling like you're on fire you know we want to hear you know what we want to hear and if you want to keep on hurting yourself hurting your family if you keep giving us these run around of stories to say that they don't know that they're pushing this kid over the edge there's certainly a fact issue here about whether or not they know that they've pushed this kid to the point where he cannot breathe defendants say the videos aren't so bad a jury myself the court certainly could find that william is gasping he is audibly breathing he is crying he is struggling the law out makes it clear that even with verbal methods there are a number of cases that talk about you know verbal tactics being enough you've got rutledge we nerve blackburn's neckcloth illness and they're on notice that you know you don't have to physically choke the guy in order for him to be  pushed over past the point of rational choice ok let me see if we can wrap up some loose ends here because we've been way off of saying on the fourth amendment and the fifth amendment claims you also put in a substantive due process shocks the conscience claimed i really wasn't sure what that added and i wasn't sure how it's consistent with the general rule that if a more specific part of the constitution governs a claim you don't just default over to substantive due process also so it doesn't add anything i think you know we plead a number of claims and and you never you were allowed to plead so regardless absolutely clear as a matter of laws that that substantive due process whatever it does cover doesn't cover a situation like this where you've got theories under the fourth amendment in the fifth amendment that you've argued very strongly that they've responded to and seemed to be the right match for this situation by city worker not me ending up to a jury those are certainly i agree our strongest claims and the only ones frankly they intended to argue this morning i was going to find could so find as well i don't want to lose track of the question and to ended the you ended up with before the father to me about the deprivation of liberty about whether absent a conviction you could violation and absolutely assume you're asking about whether deirdre has a claim despite not being convicted and i think it's torn burger that gives us that that that absolutely you can have a constitutional violation you can you know her damages are the time period in which she was incarcerated and when she suffered you don't need conviction for her injuries claims what are andrea's claims she had a i don't recall how long she was incarcerated for she does not have a fifth amendment claim she has a fourth amendment genuine issues of material fact regarding the confession that she made no analysis of what qualified immunity my apply in this case i mean i can't find that in the opinion but perhaps you could direct me to i would agree that the judge i think the judge spelled out the law of qualified immunity i think the judge made ultimate findings i would agree that the judge could have explained the analysis of how you got from a to b a little better and i would posit this was a really small issue in the summary judgment briefs it was it was it felt like an afterthought in the summary judgment briefings and well i want to hear them right it is what i mean that's that's the d it's a solid decision and i'll stand by it i think it says everything that it needs to say and i think it makes the findings that we need in order to support it could have spelled it out better sure but it's a solid decision jurisdiction and she discussed maxwell and i mean she discusses the qualified immunity cases she sets out the analysis of arguable probable cause or not she's clearly thinking about it and she makes the appropriate findings and  that's sufficient any other legal issues you think are presented here no i believe there's no jurisdiction for the rest of what they've had to say i did want to dress your point your honor i think you're referring to the argument that while there may be a clearly established right protecting individuals from police officers manufacturing evidence there is no such right against ever get a police reports that were not used to trial and no conviction resulted that that's related in this prosecution claim and that's one of the things of this court failed to do it separately analyze whether each report actually caused any deprivation of rights and instead just held that as a matter of law she couldn't say that it  and it can hurt people later when the officer doesn't control its use but it resulted in an impossibility for instance on the william r ball and jason pageant their report was created nine months after the  and months after dieter was ever released yet the judge still determined that that somehow caused a deprivation of rights against de trop and so that the analysis that has performed in the only evidence to make him may have been is my thought police to the only evidence that we have on  that nexus between did it cause a deprivation of rights is the prosecutor said this was a confession case the reports had no material effect on his decision to go to trial and so because that that that prong of did it cause a due process violation because the first prong is did it cause a constitutional violation and you have to go to the analysis of each prong of them with his prosecution claim you think causation is always available as an issue in a qualified immunity to it so i don't think it always but in this case the court did say as a matter of the wall i cannot find and use double negative i cannot find that the reports did not cause any deprivation of rights i see my time is up and you're ok thank you very much those say that what they're criticizing in this case was improper or unconstitutional leading questions repeating questions mere verbal threats good cop bad stuff false evidence poised backfeeding they promises of  admonitions to tell the truth the family threat the reason they talked about the families because four of them were involved ok there were three of them plus another foster kid in the vein the there's no case in twenty eleven in june of excuse me june twenty twelve that said that that was him promise a bill in the circuit that is a there was no clearly established law period i mean that to me that's a game that game over there was no clearly established law that's an abstract issue of law that's appropriate for this court to decide there's no case that said what these officers did on this we may not like it we may not think it's advisable but the cases say even if the officers are insistent or whatever those are typical interrogation tactics the cop type of thing that goes on play stations all day every