next case on the calendar simon the defendants learned at ten thirty that they had the wrong person based on the own testimony the there were two detective investigator both of them testified miss i'm on informed approximately ten that they were looking for her daughter and himself testified that almost  the defendants knew approximately i was the wrong person so one of the arguments made is that though that's true it's inconsistent with your client's testimony as to the basic timeline and they argue that even in the summary judgment context you can't sort of pick and choose and cut and paste together a narrative your client's testimony want to tell people ignore your client's testimony when it's harmful because first of all the plaintive self doesn't have that much experience with it is very likely that she at the time when she testified he was already a couple of years after the arrest is very likely that maybe she mixed up some of the information stolen vehicle about farts underlying the case and that she repeatedly told them i don't know i don't have any information i don't know what you're talking about you probably heard the wrong person so the testimony we found out that she was actually the dia himself as a fight immediately are found out that she was their own person a little girl the police themselves contradicted that testimony the testimony was we found out that she was the person but then the d a turn around and directed us to transport her to his office and we did that and she was there for at least about an hour before she instructed us to take a home august twelfth that the arrest was was was unconstitutional or certainly not reasonable the supreme court  s in a case involving the denial of qualified immunity that you need to and i'm quoting identify a case where an officer acting under similar circumstances were to take a view that longer barty didn't subjectively know that simon was the wrong person until at until the end of august or the day on of august eleventh criminal court the second make a determination whether this individual actually has information as to what you were looking for but the they didn't do that they didn't take up before the criminal court to make that determination it wasn't up to  she's thinking is the phrase being held held i mean essentially that she is seized and to take katherine's question on the second day and through the lens of qualified immunity what don't you have establish that under the circumstances of that second day no reasonable officer would deem her anything but see just and seized from the perspective because the officers once they knew that miss simon was the wrong person they had no basis to be holding her on either prong of the detention of a material witness that's first of all the person has material information about the case itself and secondly uncritically that she would not in fact come to court if served with a subpoena so there really and that's the new york law for the issuance of a material witness warrant and your hon would dollar which is actually a federal material witness case laid out that is the probable cause standard that was required and so it would be this it's the same requirements under new york law and there's really two clearly established legal principles the defendants violated in this case first of all they violated the clear terms of the warrant itself the central terms and that's a person a constitutional violation and they did that by not putting her up in front of the judge at ten am as judge katzman was discussing secondly and apart from the terms of the warrant once they knew she was the wrong person it was clearly established they could not detain and interrogate her without probable cause that's been clear since the dunaway case from the superior it were to agree with you on that second point that's are second framing or violation we don't need to we need to address the first p is clearly established how would you how would you frame the right there your honor the right is the right not to be held in violation of the clear terms of the war itself and the miller case speaks to this directly this is a denial of qualified immunity out of the first circuit and it was a similar warrant said take this person immediately to court and instead they're brought to jail over the course of the weekend and the court says it's just axiomatic you cannot detain somebody on arrest warrant in violation of the terms of that very warrant and so your honor we rethink that's a clear principle there's a number of other cases we cited page fourteen but you're right even if you don't want to say that the violation of the warrant by itself is it is a violation once they knew she was the wrong person they can no longer be relying on this arrest warrant to supply the basis to continue to detain her they know she's somebody else now the district  t are you saying that at bottom that the violation of the terms of the warrant is enough in terms of a rationale for this case and we don't have to go and get into the constitutional arguments there's a written there's a document that says these things are supposed to be done they weren't done why it is at the end of the case that we even have to get into the constitutional issue are that can be the end of the case absolutely that is a constitutional violation and then there's the separate constitutional violation and apart from the warrant that is that once they knew she was the wrong person then they're just it's an investigatory detention and interrogation and the fifth circuit is probable cause even relevant once they know she has she's the wrong person doesn't matter where the let's assume they have probable cause to think that she might have some information could they detain or at that point a fourth amendment matter we don't think that officers can be arresting witnesses without a court order without a warrant it now whether that's true or not doesn't actually matter in this case because they lacked probable cause and that's clear from the record of the district court suggested that maybe there was probable cause that the mother as the mother ms simon was in the cost to think that she might have material information not that right now it's sorry probably cost her walk right and that's the i would all the case out of out of this court it's two things probable cause that she would have material information material to the underlying criminal case and critically probable cause that she would not show up to court if you issued a subpoena and that's really crucial your honor we're talking about arresting and holding and jailing innocent witnesses that's an extraordinary thing and that's exactly why the new york statute and this entire idea of material which is our protective of the with that point on that sort of the first frame that you've set up adalah set this seems to suggest that as long as it's within a few days right there's language that says right before you had it had a hearing within a few days which is the forty eight hour time frame maybe but certainly that's more than eighteen hours you is not arguing here that the short time period that she was held on the warrant before they realize she was the wrong person was itself a constitutional violation that again there's two things one is she was held on this warrant that specifically said she had to be brought to court for this ten am hearing and then they don't do that miller's the case that you cite for that sort of that what it says on the warrants or gets constitutionalized if you if you what's the word what laws do you rely on for that yes your honor miller is a very good example of applying this principle in the qualified immunity context but we cite a number of other cases including the horten case of the supreme court where the court says the violation of the terms of a warrant without more is a constitutional violation but separately on the other constitutional violation getting back to your question about the time period once they knew she was the wrong person it's not that they could hold her for eighteen hours twenty four hours they couldn't hold her for ten minutes then i see that point is that they want to shift they want to shift the frame back and say you should look the question is when you have a valley issue material witness warrant steps constitutional violation have held somebody without bring them before a judge for eighteen hours and and there it's hard to mainframe that way it's hard to know what cases we look to to say it's clearly established without the move that you're making i think to sort of look at the face of the war and say well that tells us precisely when she had brought before it i agree completely your honor that the city is really trying to have it both ways here they're relying on the warrant and yet if if the officers really thought that they were executing this warrant and holding the person who they were actually looking for the daughter then why aren't they putting her up in front of the judge as directed by the warrant for the ten and hearing remember they're all sitting outside the courtroom that's exactly why they are they are they all understood that's precisely what this weren't required and yet they don't put her up and the district courts rationale here seem to be that actually there was some kind of probable cause but there's no basis in the record to support that certainly there's no basis to support the prong that she wouldn't come to court if she were subpoenaed just report doesn't point to anything to support them there is nothing to support and there's also no probable cause to think that she actually was a witness in the underlying criminal case but again the district court sort of offer speculation that's not probable cause so if if if  if what was done on august eleventh was improper then that in your view therefore sweeps in everything on august twelfth in other words if if they knew that if it could be determined that they had the wrong person and the terms of the warrant were not satisfied that is reporting for a hearing i ten a is anything else that comes thereafter after it was determined that all this is suspect is automatically tainted in other words how do you look at august twelfth do you say since august eleventh everything was improper in your view therefore with respect to august twelve it's automatically improper or does it have to be analyzed separately your honor i don't think it needs to be analyzed separately she was still in detention and they still had that have to be analyzed separately well that the city does make this argument that she consented on the second day it's important to note that the district  assumed she did not consent on the second day and that's because her clear testimony was that she didn't that the officers told her you have to come with us but as long as she was in detention yes it's it's the same analysis in fact it's worse at that point what is their basis for holding her a material witness warrant that they knew the day before was for the wrong person and that directed her to be brought to a hearing the day before or a even longer interrogation without any probable cause you know the fifth circuit in the lincoln case said dunaway is clearly established law here that you cannot detain and interrogate a a witness just because you to hear what they have to say that was a five hour interrogation here we're going well past that period into the second day so if anything i think it just makes it worse that she was held on the second day thank you there are no further question  just at the outside just so that i'm clear that you are conceding on simon's version of the facts that defendants violated the fourth amendment and your argument really goes to  whether it was clearly established this act no i believe it's hard for me to know what is simon's version of the facts well that if we say that she says she's detained and picked up at some point or another let's ignore what time it happens she has a conversation with the district attorney's office and she can look into their mind and know what they believe were not are i mean where are you is about qualified immunity and then right my point yes so i mean i asked for the first prong of qualified immunity whether the defendants violated the fourth amendment you're not taking a position  you because it seems like just reading your brief and i may be misunderstanding i hope you will correct me if you're free to correct me it seems that you're focusing on the second problem anderson and i think that there is no suggestion that if we are to accept as true that the that the guise of a material witness warrant no longer captures the detention that custodial interrogation and that there is no consent that then  on basic first principles then of course a custodial interrogation with no probable cause and no material witness warrant that's not this case and it's maybe that no reasonable juror could find even on these facts that's the case but more importantly where are you going is on the qualified immunity problem that not every reasonable officer standing in the shoes of our district attorney would believe based on the facts that were presented that they had the wrong person and so the material witness warrant it was duly issued by analogy the two thousand and eight analogy the best they have is probably cause that's exactly argument you're saying no reasonable officer would have believed that they had the wrong person what i'm saying is a qualified immunity argument so what a what r i understand your concern is that this is summary judgment but on qualified immunity on summary judgment what we do is we take all the facts and inferences in the favor in the light most favorable to ms simon but nonetheless we stand in the shoes of the officer with the objective facts not the subjective beliefs that they have come to so our d n a we conclude that there's a factual question and that there is sufficient evidence to support her assertion that the defendant  knew roughly ten thirty in the morning that they had the wrong person assume those facts then why none the less the officers are entitled to qualified immunity just because a just because one officer in the choices could have concluded as you posit that she was the wrong she was not the person that the warrant she is the person the one with the warrant was gotten for the wrong person another reasonable officer could have just as reasonably concluded based on these facts she lives across the street from the officer the officer who identifies a person who lives across the street with a by her named alexander alexander there's a hotel there are all of these facts taken together which doctrine apply here doesn't apply here well i mean it doesn't it does i mean the point is that there is by analogy to probable cause there is that even assuming one officer knew that they had the wrong person other officers might have reasonably believed otherwise what i'm saying is that for qualified immunity the question isn't what these individual defendants subjectively believed in their minds the question is whether it reasonable officer standing in their shoes with the objective facts before them the fact that a material witness is someone who will often say i'm not who you want i don't want to cooperate with you because that's the fourth amendment can't regulate conduct rather than thoughts the point is that if mr al if mr ashcroft thought that the only reason he wanted our kid was because he's a terrorist but he doesn't have probable cause attained and that's an unconstitutional thought but we don't regulate that what we regulate is there was materiality and impracticability that means on its face a reasonable person standing in mr ashcroft shoes would have thought could have thought that is it in the range of options could have thought if the officers in that is probably officers knew they had the wrong person named in the warrant could they under any circumstance keep that individual in detention and interrogate that person are you asking for the purposes of qualified immunity or as a as a clearly established law in two thousand and eight because i think that's the the difference i think is i know if an officer knows and i guess i take case a police officer once a police officer learns that the warrant was obtained by mistake the person must be released learnt absolutely right why doesn't that apply here once they learn that assuming they did that they had the wrong person why were they not obliged to release or right then and there so what i think as a constitutional matter as a matter of first principles had the officers actually learned that they had the wrong person by some evidence something bad except my my factual it's our area it under our decision in rousseau there absolutely is and what i'm suggesting is that in this case and cases like it when an officer subjectively believes they've learned something that doesn't mean that that officer is not entitled to qualified immunity if another reasonable officer standing in those shoes knowing what he knows could conclude otherwise because this is a conclusion that these detectives can testify to they reached a conclusion she said i'm not the wrong right person and they chose to believe her but material witness warrant and then on top of that the nature of this investigation what about the first argument and that is that the warrant on its face is hearing ten o'clock and it's clear from the warrant that the court has not decided that she is a material witness the hearing is decide whether she is a material witness and she's not brought to court i understand i think that states if anything a complaint about it here insta state procedural law but it's not a constitutional right why is this why is that i mean the first circuit why should we follow the first circuit and miller brit milah versus kennebunk county where it says it is self evident that a seizure conducted pursuant to an arrest warrant must conform to the terms of that warrant it suggests that instead this court should follow its own precedent and watson versus city of new york in one thousand nine hundred six case in which we discuss you discuss the question of whether or not a requirement that someone be arraigned within twenty four hours under state law can be constitutionalized well as we know the outer contours on the constitutional claim or forty eight hours in this court says look absolutely no we can't constitutional as state law claims and think a little early what that would mean that would mean that a state creates a procedural floor to protect a substantive right and then you would constitutionalized that floor creating a new substantive right in the state would create a new procedural rule to protect that substantive right in a feedback loop and that's why the question on qualified immunity is not words have meaning and words do have meaning that put yourself in the position of somebody who is the object of the material arrest warrant and the material arrest warrant says that at ten am you appear before a court now shouldn't later or two days later it can't be that you're kept in a small room and it no it certainly can't be two or three days later it can't be that you're kept in a small room but that said what the fourth amendment demands is reasonable  and the closest analogy that our officers had in two thousand and eight was probably mclaughlin and a twenty four or forty eight hour detention this is less than half of that was considered reasonable when someone didn't even have a warrant so there wasn't even an establishment of probable cause that's for the initial probable cause hearing means now right away judge friendly said friend said that forthwith means tends to ten days i think the point is that forthwith is not i got on types of holding someone in custody well that is a state that is an argument about what the state law requires the new in a box for a gun you can't look in a tiny little pill box that's clear but if it's if a warrant says in two thousand and eight you have to bring a material witness war it has to because we have materiality and impracticability you have to bring the person to the court house the purse the guidance there at best is what's reasonable under the circumstances and in the vacuum of law that existed in two thousand and eight mclaughlin is likely the best analogy i mean even in alkyd in two thousand and ten two years later eight judges on the ninth circuit dissented from rehearing dissented the supreme court couldn't reach consensus on what the right constitutional rubric was with kennedy saying probable cause shouldn't even be it should be reasonable is under that circumstance to expect an officer who believes they have the right person and a reasonable officer in their shoes might have continued to believe that throughout this detention to know exactly what they're meant to do is to expect more it's to say that they have and necessarily clearly established even now i think the justice why do you think it should be on material witness warrant do you think it is i think it's probably reasonable as i think kennedy's concurrence is pretty persuasive in that the idea that probable cause generally now with the benefit of that decision probable cause means probably cause to believe something happened whereas materiality and practicability are more questions about i mean they require a way of something more but in two thousand and eight the highest precedent on that point was probably the bacon case from the night circuit and that case said that straight up it's probable cause to believe materiality impracticability and with that it imported these concepts like the presumption of probable cause that arises from a warrant like the idea that you vitiate a warrant it gave officers some guidance in the sense that they already had a case a set of a body of laws to look to and the reason the report fit in the frustration of forty eight hours might apply as i think tethered to the fact that that probable cause standard might not be nowadays make as much nonsense but that said the supreme court still hasn't decided the issue and i don't think it the consensus has emerged among the circuits about whether it should be one or the other would you agree that a prospective material witness case we have a state standing in the shoes of these officers whether no reasonable official could have believed in two thousand that they had the wrong that they still had the right person given all of these facts i think that makes that person probably in the thought so if every one of these officers testified without contradiction that we detained someone for questioning because they're african american you would say qualified immunity could apply because some reasonable officer might look at a different set of facts here and conclude not unreasonably that there was reasonable suspicion to detain and we all had immunity pis even though it's on contradicted in the record that there's an inappropriate basis for detention yes that's what rand says i mean when clearly says in fact if you read just skin's berg's concurrence in westby recently it says exactly that that look it's not clear to her that that  substitute you know the totality that's exactly what it is though that's what run that's what devon pak is it's if you have a officer with a bad motive an unlawful unconstitutional motive but an objective lee reasonable officer based on the facts here could find that there is probable cause for an arrest or reasonable suspicion for a stop then there is qualified immunity there is probable cause and that's because the courts have decided that this is a better world to live in than the world in which every single time we decide our question based on what's inside the officers head posit the opposite where an officer believes wholeheartedly that they have arrested the right person to get then evidence and an alibi and a confession from somebody else and no reasonable person could possibly believe they have the right person but the officer nonetheless believes it would we believe that that was probable cause and allow that arrest no because the question has to be what an objective lee reasonable officer knowing what this officer knows facts not beliefs coming to it you know without any additional prejudices what an objective person would say it makes it easier for the courts it makes it easier for officers but yeah it's it does come up with the strange position where regardless of what the person's individual motivation is the question is still objectiveness that too is something that every time qualified immunity is decided on a motion to dismiss that's exactly what's happening but we assume for the sake of argument that everything in the complaint is true including the more motives that the officer might have and we nonetheless decide whether a reasonable officer on these facts like actual facts not believes totality of them could have come to that so yes hence or to the question does that  three quick points first of all on this question about the standard being probable cause or reasonable this is beside the point in this case because the officers conduct could survive neither a probable cause analysis nor reasonable in thi watson case that is that has nothing to do with that question as a warrantless arrest and it's just a alleged violation of a state procedural right this is a violation of the clear terms of the warrant itself it's a completely different issue and i think it's telling that counsel isn't able to cite a single case where the court any court says otherwise thirdly it my understanding now is that counsel is conceding that on the version of facts found by the district court supported by this record on the city's summary judgment motion the qualified immunity should have been denied and the only argument now is about is this this idea that maybe even though these three officers subjectively understood that it was the wrong person that some other officer would think differently that is not the law that's not what arends says that's not what al kid says those cases are about motivations not subjective understandings that is a historical fact and i direct the court to the leak case out of the ninth circuit looks at this exact question and rejects this argument on qualified immunity judge b s says no once the officer knows that is the end of the analysis and that was similarly a warrant issued for the wrong person your honor if there are no further questions thank you thank you all for your arguments the court will reserve decision