indicates that if there is if they just record has not right has denied qualified immunity on the basis of tribal issues of fact then we lack appellate jurisdiction over that now there seems to be a difference in the fact that the district court identified as being material are not material to the qualified to the legal question of whether the agent was entitled qualified immunity here  how the district court fundamentally aaron was in failing to properly apply the qualified a new m unity test that was set forth by the supreme court intact and under the cat's case the first question is the counselor actually four different elements that indicate knowledge that the warrant didn't ascribe to the person arrested number one was the knowledge that free agent him that the brother had appropriated his date of birth a social security number and his name secondly the physical description on the wanted poster by the f b i he was described as six feet one hundred sixty pounds or one hundred eighty pounds on the ward he was six foot one two hundred in fact mr julian was six three and two hundred seventy pounds height in weight first of all but the difference in the florida warrant and the description of the suspects out there in the difference in the f b i warrants for robbery was about the same difference you know it's not that much  discrepancies in height and weight in official documents for the same person and there are a number of course that i've held that said differences such insults are not enough to invalidate a facially valid  officer assumed the fact that the officer knew this was the wrong person why doesn't that fall outside the protection of qualified immunity we have to judge when you look at the qualified immunity you have to set aside subjective belief understand that but doesn't seems to me that the phrase knowingly violate the law establishes perhaps a category that's different from those we might otherwise who might otherwise be entitled to protection  evidence here other than conclusory allegations because mine is even after discovery in response to agent gregory's motion judgment only were able to come forward with conclusory allegations that he knew that  under this court's decision in our minorities versus and three quarters of the three of the appellate seventy percent of the argument is improper the facts assuming that there was a proper finding of factual dispute by the district court may not be real argued in a summary judgment fashion or even as counsel has done as though she were arguing to the fact finder o the jury in the case let's keep who was fully familiar with the record found in her well reasoned opinion on pages two thirty eight to thirty nine and through forty of the excerpt of court's record that the issue of agent gregory's knowledge that he was arresting the wrong person was an issue of fact that there were disputed facts on both sides we are entitled in arguing the case to have the facts if they wish to assume any factual basis upon which to argue i assume completely in the light most favorable to the plaintiff now if i could just refer court record pages eighty four through eighty nine show that agent gregory had knowledge in his file from multiple sources that the fugitive brother had used the name of birth social security number and other identifying data of christopher lee it further showed that he used other family members names and affidavit sworn affidavit is evidence of the conversation that agent gregory had with him in the cell in which gregory's that night i can give you some amorphous help maybe in your florida case even though i'm a federal agent might not talk to tone now you know when you were talking to me on the phone don't you want to get out of here tonight tell me where your brother is how it is true he did not say i am knowingly invest in you in order to coerce you to give me information but a reasonable inference from the statements made by great very clearly show that he give rise to the entrance and for purposes of this appeal must be assumed that he knew he was arresting the wrong person and in fact the argument that has been made both in the brief and here that quote this is a case of mistaken identity absolutely disingenuous and inappropriate under the case law and under the facts of this case if it were a bona fide mistake of fact there's no question that as a defense of that agent gregory should be out of the case even if he made a negligent mistake a fact is out of the case but we said and the evidence proffered before the trial court clearly showed that there was substantial evidence to support our position that agent gregory knew the that agent gregory procured plaintiff's arrest with the knowledge that point it was not the person sought in the warrant so that he could pressure plaintiff into providing information on the whereabouts of his future brother that he is still nonetheless entitle to qualified immunity some way to my mind to ask the question to put the question that way which is the only way under the case law and the rulings of the district court that this court has  question whatsoever to say if it agent knowingly arrest someone he knows to be the wrong person for the purpose of coercing him into giving information and to punish that person for proceeding just respects to the age issue completely out of context and they would have every fourth amendment is you turn on object of facts but there's a difference isis submit to the court between some subjective intent issue of knowledge which is central in every fourth amendment case what did the agent know and knowledge is something that is an objective fact i think it was holmes that said the state of the a man's mind is  much fact is the state of his digestion and so the knowledge of this agent is critical in any fourth amendment analysis and then the issue is what did he know for instance i think what has to come out of the equation is what to do and hand now the words that he intended to punish that's not part of the equation that we consider in from another part of calculus on qualified immunity but i think that when the point you make is an interesting one that i don't i'm not sure that we have sir is whether or not a suit is the subjective belief or knowledge that there that you've got the wrong guy can form a part of objective factors well i think there's always a call for unity conflicts where you're talking about qualified immunity is an objective standard of reasonable officer but the substantive and underlying law sometimes involves intent issues or knowledge issues how do you get knowledge not intended and what i was trying to say is that in the fourth amendment context the knowledge that an officer is not something that we shy away from we look directly at it and he knew he was arresting the wrong person that is in no way violent of any qualified immunity principle for instance and in the fourth amendment context we often inquire into the officers knowledge of state of mind you can't do a french v analysis without asking did the officer know that he was saying something that was false or act with reckless disregard the truth of also he was putting something in a warrant because if he if you didn't it and i would put that qualified to give any inquiry in this formulation what a reasonable officer who knows he has the asking the wrong person objectively believe that that is not in violation of the law was substantial evidence enough to make a factual dispute and we believe the law says if an agent you know using a rest in the wrong person no reasonable agent knowing he's arresting the wrong person can't conceive that that is