right the united states court of appeals for the th circuit is now in session well maybe we should let everybody say a word or two to make sure we are receiving good morning your honors good and servant who is entitle to the robust protection that qualified immunity offers mr gengel asked the th circuit to st the district court's decision and random summary judgment for two reasons st on the judicial deception claim i noticed did not make a substantial showing that he purposefully or recklessly misled the court it was objective only reasonable given the existing law at the time for mr gengel not to detect any material information omitted or misstated in the affidavit seconds even if the search warrant lacked probable cause on that basis mr gengel has qualified immunity because there was no clearly establish decision telling him the affidavit was insufficient as a matter of law to overcome mr gengel is qualified immunity on judicial deception plaintiff's must make a substantial showing that mr gengel acted with deliberate or reckless disregard for the truth playing this ad and then for court incorrectly assume that the mere presence of statements that could be characterized as a jury element statement or the application there is a step paragraph that begins in this case a thirty seven year old male created a false account posing as a juvenile and it goes on what evidence was there that the person who created the account was a thirty seven year old male that was detective court in addition to respond to judge kristen's comment the other i think sort of corroborating piece of evidence was the in addition to the three month lag between the creation of the account and the use of that account at the crime was the correspondence of correlation between the name on the sky mccown john robin six and the g mail account the other leave again in the case pointed to other perpetrator as were not were not credible for other reasons and there was more of that name and id a photograph date of birth was created in a chat room designed for teens to try to get contact with a teenage chance i've heard you not say anything about me supporting this statement in the in this search warrant affidavit there's that i agree there's a support for the statement that you know somebody a person create a false between mr finkelstein and the other facts in this case and that's that's an e mail account that could have been stolen by any that's right that is the link in the case and the question is whether or not it was clearly established that the time  janklow reviewed the affidavit that an unverified e mail address that but wong to a suspect could provide sufficient fair probability and probable cause to search the owner of that e mail address or evidence of the crime there was no clearly existing precedent at the time and told him that that was insufficient and there was no clearly existing legal precedent that i'm that would have told mr jenks that the affidavit had to include information about the difference between verified and valid email addresses significantly mr gengel testified in the state court proceedings that to him the difference between validated and verified was not materially significant probable cause i hope that you and your families are all such safe and healthy during these difficult times our time is limited so i want to focus on two main points st that detective judge he is entitled to judgment no clearly established precedent that included sufficiently specific facts that your hunch he would be on notice that his actions violated the constitution beyond debate with regard to the judicial deception claim your drop court issued its opinion stated quote given his lack of training and his reliance on review by other officials with experience he did not act intentionally or with reckless to disregard for the tru that's what the trial judge said in ruling in wright's favor there's no evidence in the record that your hunch he had any more training than ryan on the issue of internet issues there was some evidence that he had s ome courses on interviewing victims and witnesses in sex crimes but there was no evidence that he had more training on the issues of the internet issues furthermore with regard  it's important to note that not one of these experienced law enforcement officials who were involved in reviewing the ryan hutchie affidavit brought up the issue of verification when it came to spike registration which is  valid meant same thing as verification and he was wrong about that judge he was wrong also d he bade a state where he did not realize that somebody could possibly use a stolen email and deception as a matter of law and each one of those defendants rinat chachi should be treated the same way with regard to analyzing the judicial deception thing the last point with regard to the judicial deception claim and it's a most ironic when of them all is that the language that the ford is relying on do you hold judge key in the case on the traditional deception claim is the language that was drafted by ryan not that was ultimately in the ryan affidavit was taken straight straight from the skype website so what ryan was trying to do was trying to be more transparent and not mislead the court as to use the precise language that skype had in terms of how to register for a skype account so d using that language from the internet was there was no intent on either of the parties to deceive ryan or surprising it's what link the defendant to all of the the other actually you know factually accurate information and i think the drug courts found it was it was one e mail that anybody could have stolen it so could you speak to that why wouldn't why couldn't a jury decide that that was reckless to rely on one e mail that could have been stolen please well that may not reflect the meaning not obvious or the stanford part immunity because my client doesn't have to show in unity judicial deception before them  make it up and they were trying to hide why just in a random information why not try to coordinate the username that you're going to freak out with with the email fake email address that you can get your email address in the username or something that that person who creates the count is going to have to go back and remember and log back in to use it count so as we showed in a declaration or networks in the record next person this they often use combinations of their real names so they can remember the fake account it was created three year three months prior to the incident the underlying incident and it was a crime but there's this idea that if somebody wanted to just make up the point is not the judge district court that was a random name or number with an actual e mail it's just that it was stolen i mean that's the point right and so the fact was the rest of it life is not remarkable it so i guess there's a goal and there's no proof it was stolen it traces back to a thirty seven year old male who's a software engineer has the ability to use a proxy server it doesn't trace back to an eighty five year old grandma who would know proxy jumped up  there is it is mr finkelstein now but i don't seem to be active we can we can hear you but it's very fuzzy well i'm not being left out of position i'd something is not correct is better whether the facts you have considered in the light most favorable to the plaintiffs trial no violation of a constitutional right when the right violation of a right that is clearly established so dependent that it couldn't be traced by the police because he was using a proxy that it was likely that the suspect was using a proxy server however there's no actual evidence other than his beliefs that in fact use and have been assuming that a proxy server was used someone sophisticated enough to use a proxy server would not just volunteer his own identifying them address especially someone such as to satisfy a probable cause because it seems to me there's a real dearth of cases that would support that even if you're correct that all the cause was lacking where is the law that would have told these officers acknowledged that the plan is a valid email address when by website means only means that the e mail address is only valid inform it doesn't mean of verified e mail address how is it you know i guess i just said ok if i can cut to the chase what i want to make sure that i understand that i can turn you over to judge breath i understand your answer to be that your view of the law is in there on the judicial stat deception claim is that it's a one step test not two steps and the question is that summary judgment whether reasonable jurors whether the evidence is such that reasonable jurors could decide that the defendants were reckless full stop that's my understanding of your view of the law is that your understanding now you say what they acted on reckless disregard o i want to get out of that presses way i just want to make sure i understood your position thank you yes you were you were you were about to begin talking about deputy district attorney jangles testimony and the question i have is in what sense does that testimony give rise to a traditional deception claim he may have been wrong about the law and whether this was probably cause but in what sense is there a deception of the court when he had and hear a certain understanding of certain words which i think we both agree have it technical meaning to them and it turns out you're different people have different views of what those words meant but yes you may have been wrong and maybe this affidavit was not supported by probable cause but that he in what sense does is truthful testimony lead to the conclusion that he was and seeding or one state charge who it meant a certain thing he meant he believed that was deficient for creating probable cause maybe he was wrong as a matter of law maybe his legal reasoning was flawed but in what sense was this so we take this and say well that was question i have in the which is do you have to show that the defendants intended to deceive or his recklessness what did the district court find about whether or not recklessness was established here or could be  said through a judge who may not have his technical understanding of what a valid email address means but he's making no effort to clarify that there is no confusion it doesn't mean i verified e mail address for example if i can it was crucial to get the want to buy the state tried to have the judge concluded this email address somehow different from every single other piece of information provided by the suspect he had a picture of a sixteen year newman thank you your honor there was no reason in what count the standard of care probability that evidence of a crime will be located in the place to be searched there was no reason that jangle had to just trust the john roberts email address providing a fair probability unlike the picture and date of birth and teenage male in a teen chat room or an cause i can obviously probable khans there was a fair probability on the face of the warrant that evidence would be found at the location to be searched and for that reason mr gengel is protected by the false we don't have that in this case that there is no facts that the plaintiff can point out or that the court is pointing out that false statements for me do you think that's the what about the statement page i believe it