n to rent a car the contract says on its face that he either needs to bring that back to the appleton location by the sixteenth of august or he may keep it longer and return it elsewhere but he will need to pay more money in fact he returned the car to hertz in belgrade montana less than thirty days after the rental so i can shorten this afternoon ishall investigation was made by another officer based on a complaint from hert took over the investigation and concluded on soul i guess i need to tell you i'm got a problem in this case about what it is you're complaining about normally cases of this kind or claims as our last one was for false arrest but short of this never arrested your client he made a report to the prosecutor and the prosecutor then initiated a criminal prosecution so this sounds like a claim in the nature of malicious prosecution but there is a big problem there is no federal claim for malicious prosecution it's wholly a state law client i think it is a claim for false arrest shuttered because specifically there are seve number of cases that say when you effectively cause the arrest me the fact that you didn't personally file the charges or affect the rest in the defense has said well he didn't arrest him someone else did the rest of you mean she came after the criminal prosecutor is not the tool police officers but i was curious prosecutor you know a subset of cases where the police report a claim like yours a claim by hertz corporation that his car has been stolen the officer reports this claim to the prosecutor the the argument you are making is that shortness omitted facts favorable to the defense from his report to the prosecutor that's true prosecutor then files a charge arrest and prosecution fall have we established that that creates a fourth amendment claim for false arrest against the officer you don't  any cases to that effect but as i say it sounds like a malicious prosecution here and there isn't any federal malicious prosecution doctrine if state law allows malicious prosecution suits which wisconsin does the defendant was convicted and the theory was not a fourth amendment claim but a fifth amendment claim that material exculpatory evidence had been withheld in the criminal prosecution itself that doesn't help you because we have held that that theory does not apply unless the defendant is actually convicted your client has not been convicted that's certainly true your honor for writing so jones doesn't get you to first base it's a fifth amendment theory not a fourth amendment theory and has been expressly held in applicable in situations like this let me cite then bevy of aces persons who call which we say did not brief you know that case involves probable cause a probable cause to arrest and the lack thereof the and that in that case which i think is remarkably similar to our own the court concluded that the officer knowing the elements had to know the elements crime which included as nine forty three twenty one he does that you have to knowingly violated the terms of the contract the terms of this contract clearly allowed lever to do what he did and knowing that knowing the terms of the contract and knowing that ni forty three twenty one he requires in knowing and intentional violation we don't believe there was probable cause either initially and then secondly and probably more significantly there is the incident where leve at seven months after this initial charge was filed leave or reaches out to the police department nothing has happened in the meantime he sends the mixed up tory evidence sends it to the da the da specifically directs officer shortest to look into this he says this is what we're being told he gives them the names of three exculpatory witnesses with phone numbers including the phone number of the hertz belgrade operation where this was  knew that the car had been returned to belgrade within thirty days despite that despite being directed specifically by the district attorney to pursue these expulsion tory witnesses he failed to do so he didn't talk to a single one of them cla have made one call but it meets that he made no contact with any of them and then despite the fact that the da had said that he was concerned with this he wanted this looked into he then goes back to the d a and says the claims in the letter are not factual when in fact he hasn't pursued the significant claims from the exculpatory witnesses it seems to me that this case really is grounded and on the doctrine of material and that's a different line of case law and is basically grounded in the idea underlying the franks decision that if material exculpatory evidence is intentionally or recklessly withheld from a warrant there can be in my ability or the the warrant can be quassia can be civil liability is that really the line of cases that we're in and that you're trying to litigate this under if that's probably fair judges what we have is a situation where there is the concerns about investigation and all missionary really deal with whether it's reasonable to do that what is reasonable for a police officer under those circumstances and the things that are look whether or not that's the general probable cause analysis right it seems to me that  probable cause here to issue this arrest warrant if we're looking at what's in the reports but the question is what's not in the reports and what's not in the reports is that the car was located at the hertz rental lot in montana and so was returned within the meaning of the contract and that negates probable cause  the standard analysis for an omission case under the fourth amendment is whether the information that was omitted intentionally or recklessly would have negated probable cause and it seems to me that's the argument that you're making here that if that information was known to the to the prosecutor and to the issuing magistra that there never would have been an arrest warrant or a charge in this case i think that's correct judge specifically one of the d a instructed him to do this said i'm concerned about this i think we need to see if there are other another version of the story before he was going to have this man arrested and hadn't been arrested at that point the opportunity existed for death for officer shortest to short circuit the whole process and the courts have said that you can't you once you have z was material to the probable cause determination would indicate in fact negate it and i thought it we we believe it is material for a couple reasons one based on the specific language of the agreement he was entitled to do exactly what he did which was return the car to her in belgrade within thirty days actually within sixty two he did that secondly well there's you know there's ambiguity in the contract about that right and with all respect which i don't believe it is ambiguous but if it is then certainly since one of the elements of the crime is that it must be done knowingly if there is any ambiguity then certainly that would require further investigation to determine the some how did this knowingly his letter clearly says he did not that he the opinions of two and twenty five thousand dollars you know he spent eighty two days in prison in two days and was extradited from montana back to wisconsin yes because it's somewhere along the line you might say well  did he say that was ever received given that those names of people at the earth's he other than i don't know when these names were given when say shortest didn't call them well anybody gets captured and put in prison does he say did you call at all he reached out to the police himself sent the d a should say the district attorney sent them the names with phone numbers and said contact these people from hertz they will tell you that what i did was perfectly ok the d a went to sergeant short information in a police report that seeks a charge and the issuance of an arrest warrant in a qualified immunity claim as an associate a qualified immunity claim  and it turns on the question of the materiality of the omitted information but if i might offer one more thing on that judge after short this was specifically questions about whether he knew what he was doing with materials of the decision when he was a directed to contact the witness that he said he did know that he knew it was relevant to the d a s decision but he also testified that he knew as of september tenth that the car had been recovered from the hurt slot in montana not just recovered undamaged on the side of the road somewhere by the montana state police that's correct he did know that he knew those chime the usual warrant was issued he also knew it well obviously during the entire seven months that intervene excuse me what happened there was there had been an extensive evidentiary hearing where there had been rigorous cross examination of the office or other witnesses had been called had been extensive cross examination the court felt that under those circumstances it had been fully and fairly litigated and that i think distinguishes it from our case where no witnesses were called there was no opportunity for cross examination in the whitley case which we cite in our brief that case i think is closer in there they held this there was no judge griese box decision it took me a second reading he doesn't cite any case law judge agrees box scoured the record he found that the officers acted with probable cause and you take judge griese box decision and you look at similar cases where this is all been addressed before the grandma notes case from maybe a decade or two decades ago involved rather than a hertz rental a jewel osco store and rather that there was probable cause which for precludes the false arrest claim in this case there's no material exculpatory evidence one culture gets back up here asking where's the beef there's tory evidence in this case officer shortest received a report through the national database and through his office staff that the car had been located in montana and he took that along with the initial officers a report officer drew who had acted upon a theft complaint from hertz rental during normal business hours i see a choice he omitted the fact that  and he apparently knew it in september on september tenth when he picked up the investigation he made it the fact that the car had been recovered at hertz lot in montana well i think there are signs that not material i think that there are some close analysis confusion based on the arguments being presented i think he was aware that it was recovered in montana he was never aware that it was properly returned yet he too heard it in his deposition that he was aware that it had been returned hertz in montana i believe he actually testified that he was aware that the vehicle was recovered not returned at page thirty six of his that's what he admitted to correct not that had been properly returned in the complaining witness is in this case from the heard appleton said this was not in the banks the legal question about what constitutes a sufficient return under that contract and whether the contract had expired those are those are legal issues that are subject to some debate in this litigation but in terms of the materiality  of the omission you don't think it would be important to the prosecutor and the warrant issuing magistrate to know whether the car had been  found at a hurt snow kishen the prosecutor and two state criminal judges do not believe that that was material they were fully aware that mr lever was opining or alleging that the car was properly returned they had credible witnesses from hertz appleton saying the car was not properly returned back to appleton that there was no authority to take this car out of state and there's no evidence whatsoever other than mr leavers speculation that the car was the awfully returned tract is certainly susceptible to that interpretation it may be susceptible to different interpretations but that doesn't mean that the police officer  exposed to damages because he misinterpreted the contract now came that that's that's the main point here correct so it's really a qualified immunity argument that could render reasonably interpreted the contract relied on what he was being told by the hertz appleton folks that's correct your honor and again the prosecutor two separate criminal judges and judge agrees bach have all rejected that interpretation by mr lieber so it was not unreasonable for sergeant shortest to interpret the contract the way i did it if you're going too far in saying that they validated  hertz's interpretation of the contract and i'm not sure that they did that and the case was dismissed it was never litigated to any kind of a final conclusion but the point would be that even if sergeant shortest was mistaken he would still be entitled to qualified immunity for that reasonable mistake of interpretation and some of the cases that i mentioned before particularly gramma's graham and alice and the others all indicate that when an officer has received information from a person normally the victim or the eyewitness who seems to be reasonable and in telling the truth that the officers have probable cause and we had that here from the get go sergeant sorry deputy dru's who initially liability and in this case we have the supplemental investigation by shortest where he did go back to speak to the hertz manager along with the west bend mutual corporate security official any confirmed with both of those in fact he met with the hertz manager a second time he confirmed with both of those individuals that they believe the car was stolen that was appleton that was the appleton people and he after doing that he went back and he informed the prosecutor who he had spoken to now mr leaver believes that sergeant shorter should have gone and spoken to other people well that's what he was in fact instructed to do by th he didn't do it and he didn't contact all the witnesses so lever of suggested that he talked to for instance stacy melor any who was one of the adjusters who handled the initial and that the contract requires him to bring it back into appleton right at the prosecutors telling him to follow up on the witnesses that the defendant in the case had identified which some of those witnesses had already been had a ready been spoken to such as stacy mle or anything and he did talk to the hurt i don't know who else he's supposed to talk to called the one eight hundred national hertz number but he's being told by hertz local that it's a perch local issue may that he's being told by the prosecutor to interview the witnesses said sure mr leaver had identified but he was presumably the prosecutor considered that information material i don't know if we know that because the prosecutors deposition has never been taken in this case and so we don't know what the prosecutor thought that's something that needs to remember there was a delay in six months in issuing the charge that i don't know i eight months and i don't know the answer to that because he's asking for a charge and warrant issue in september right your client excuse me your client was asking for an arrest warrant and a charge as of september tenth two thousand and ten correct and that doesn't happen until march two thousand and eleven correct and there's nothing in the record that indicates what had transpired in those eight months in between there were there was silence until mr leaver wrote his letter to the prosecutor trying to explain his position the prosecutor hands it over to sergeant shortest at which time sergeant shorter says reflected in the supplemental report made contact again with the kurds manager and the west bank corporate security officer in sergeant shorts as reported specifically says that he asked whether in that supplemental investigation whether these individuals knew that the vehicle had to be returned to the hertz dealership an apple ten and they stated that that was their understanding that it had to come back to apple can't sergeant shorter stand reported not only did he hand the supplemental investigation report back to the prosecutor but he talked to the prosecutor there's no evidence that the prosecutor thought that his in first supplemental investigation was shorter that he should have conducted additional steps and i don't think he would have had to under some of the case law that we pointed out before the prosecutor made his own independent decisions to move forward with the charges and just because you ultimately dropped the charges later on doesn't mean wesnoth he's not suing for malicious prosecution wrestling for false arrest based on that erroneous omission of material information from the application police report which is essentially an application for an arrest warrant now the prosecutor could have withdrawn the warrant after the supplemental investigation was conducted but did not you know in the plaintiff was ultimately arrested and extradited from montana spent eighty two days and searched through so i think the claim is is for the harm from the arrest not harm from the continued prosecution which went on for about six or eight months after he was brought back that's true as judge grease box found sergeant shortest had probable cause and the prosecutors had all the information including whatever alleged  information bieber claims was out there and the prosecution continued and continued after the pullin ery bitterly he's not he's not suing for that harm he's suing for the harm from the amass the eighty two days he spent in the montana jail on the arrest warrant  that was issued well i did live without this material information the briefing and underline proceedings focused on whether there was probable cause for the rest and i don't know if  how else to interpret what has transpired over the last year in this litigation but the claim before judge agrees bach in the summary judgment briefing before a judge agrees bach all involved whether or not there was probable cause for this arrest and judge priest bach wrote a very reasonable logical decision that found that all of the the witnesses that were spoken to and the information that was collected there was more than enough for probable cause like keep coming back to this issue  part of your argument was totally wrong and george didn't know it and half with that kind of the settlement not because it's not justifiably  's there must be an awful lot of information discovered that maybe we don't know about it and i don't know if we know about it either all we know and hurt is not involved in this litigation i don't even know  no i don't even know if there was litigation against hearts but yes we do know when it's assumed yes it's in the order there is a reflection in this record that there was a settlement with hertz for that amount of money whether it was pretty soon after suit we don't this claim against hertz for two hundred twenty five thousand dollars libor filed this action against sergeant shorter correct all right well let's see quinn that is the sequence all i'm indicating is i don't know whether there was any litigation against her it's all we know it was the fact that there was a settlement whether it was a breach to without litigation i don't know but i don't know if it would make a difference of hertz was wrong all of these cases that i point out for saying officer can rely on information from a witness as long as they appear to be reasonable like these hurts managers and the like telling these officers that this is a stolen car if they turned out to be incorrect then mr lever has had his remedy he has collected two hundred twenty five thousand dollars from hertz and there should be no civil rights remedy against the police officers for acting reasonably based on the information that they had  and again judge breeze block i think has written it's taken the time to go through the record has interpreted the case with inferences favorable to plaintiff and his file and is of under the record that the officers here sergeant shortest acted with probable cause and that the prosecution would have continued irrespective of all whatever mr leve might be throwing out at sergeant short in this litigation or before this court today and i think that his decision is well buttressed by a number of the cases that i mentioned earlier particularly graham and else and for these reasons but the court concluded was that there was an opportunity to ask questions to determine things that that opportunity wasn't taken and therefore there was not probable cause and that there was other evidence that would have shown that arrest was not necessary i think that's exactly the case here but we have the ins the except tory witnesses and frankly the argument about them is just disingenuous what shortish does is go back to people he's already talked as we know it was from hertz appleton are going to say this guy committed a crime he doesn't speak with a single one of the three witnesses that brian lever addenda fide and that the d a specifically instructed him to speak with he says there's no admissible evidence ryan lever says in his letter what they'd say he has testified to what they would have said that he took the car back was told he