i'm not going to belabor the facts here officers burka it was the only individual defendant in the case was was asked to assist the fugitive apprehension team in executing an arrest warrant boils down to two things they may argue that he protested his innocence to officers burka and secondly that officers had had access to these photographs and should have compared them but there is no record evidence to that effect and we we feel that in the record at this point what's in the record is way no deposition in the record is there transcript there's the transcript of the arraignment and i'm sorry the examination at which the issue was arisen had the issue arose and the prosecutor dismissed the charges because this other individual  act of could search whether an injury results and the an intentional tort claims of false arrest and false imprisonment there was a recent michigan case roe vs ainsley there's no malicious intent shown here so that that count should be dismissed as well  we don't believe that under the circumstances of this case it would have been clearly established that the the fourteen days was was a constitutional violation because the  the the issue of of the of mr seals not being the person named in the warrant according to the record didn't didn't come up until the or just prior to the preliminary examination which was on february first and they had the prosecutor i believe had spoken with a witness who indicated that this was not the individual and it's right in the preliminary exam transcript the case was dismissed and he was released  at day so under under that circumstance no we do not believe that well wasn't that under under the law a lot that time that that under those circumstances was it clearly sta the record of this of this motion there's no evidence but he protesters innocence to anyone really but particularly as tribes there's a burka there isn't any but but i would say i don't think there's any evidence that he in this so so far as we know from the record  i would say that the cases the cases talk about various lengths of time ok but but but but what i would somewhat misrepresented i don't believe it turns on whether or not mr seales protested his innocence the first important distinction here that would be highly relevant to particularly th with respect to his continued confinement so i mean it if it doesn't turn on that that's pretty important as to the continued detainment in malicious prosecution i agree but i believe that the constitutional violation started well before that well list i mean the way i look at this is i think you can compartmentalize pretty easily and interact you must compartment analyze the record correctly into the basis for the initial rarest and the client a for continued confinement and it it's very important to the of continued confinement whether the officers do you are head reason to know that mr steele's claim that he was innocent well i mean the district court's finding doesn't make it so perhaps you could tell us where if anywhere that evidence is in the record and saying it in your brief  not make it in saying it in your complaint does not make it in the record evidence is something like an affidavit a deposition and those kinds of things that form the evidentiary basis for the summary judgment me but they talked about what he wasn't that the occasion on which he was released well the how the basis for the continued confab cly would be that he protested his innocence from the get go an one or two other things would have had a duty to check this out further rather than continue to allow him to languish in the jail so you don't think there's any released there's a transcript about how he indicates i believe that he told them that he was not there though he says in that transcript that he told them i can't remember exactly what  believe that they talked about how he said that he was not the right person he was not mr brodrick signer but did he tell the judicial officer that day that he was not the right person or did he detail his history told the officer on the day of the arrested he was not the right person is that what you're saying i don't believe that he said that that your client even testified to blame they're saying he did he did reason the way they discovered in bed he was not the right person is that the victim at the preliminary exam indicated that this was not the perpetrator and this is how all of this came light is that right that's correct that's correct so this is sounds like it's possible and perhaps probable that nobody knew he was their own person on to the blue in their examination is that right well there was the case against the wayne county that was dismissed because of the very point that there was nothing while he was incarcerated or he was telling people he was the wrong person but officers was not involved in that process he was involved in the arrest of mr seals and said nat you originally told us that your client testified at the preliminary examination that he told officers at the while the world would you have made it part of the record i was not involved and i don't know why that didn't become part of the record but going that's the whole foundation for that client i agree but in this case i think it goes well beyond that because here they had a warrant for somebody other than mr seals so from the very beginning there was no probable cause to arrest  the the person who was actually the person being stopped was using an alias that was virtually identical to your clients that in apparently the geography made sense to that this place of work was in within where the the actual criminal operate right but what i'm saying is that there is the case law is that they basically valid warrant for one person does not give probable cause to arrest a different person well that's what will have to grapple with this court this circuit has not yet reached that but  probable cause to go and arrest another person so there was no probable cause to arrest marvin seals the district court page nine footnote four correctly found that the defendant had not so he clearly had a in establishing a right to be free from arrest without probable cause that that i mean when you get to analyzing the qualified immunity issue with respect to red whether he was actually the person doesn't seem to be the operative that it probably to are on the  and that's what i was going to go into next based on his reliance on an apparently male of warrant you look at whether the arrest was reasonable here office there because i didn't do anything to  see that the person he was arresting matched the person named in the warrant plenty there's no evidence in the record that to defend that mr seals protested but i mean how is the officer supposed to be on any kind of notice that he hasn't arrested the right person by checking the birthday by check by seeing that the names don't match the birth date doesn't match officer had si birthday he entered it into the system that was part of the record and he had a different birth date for seals he did not check his identification he did not chat would probably go again into the l would not go to the initial radius because you don't know what officers have to make and read the reasonable thing for them is to get it done and to get the person t believe they are rightfully arresting quickly into custody said that there aren't any it's the that could pose harm to anybody i mean perhaps if the officer did that and done that in a later time but then again you very quickly get into questions of whose duty it is to do that and what it well i don't believe any reasonable officer could have believed that not attempting to even identify the person you're arresting  would be lawful i mean i don't see how that there could ever be so it sounds to me a lot of the mistake may have been earlier because they knew where mr seals award they went he didn't do anything to see that the person he was arresting mad head he simply checked the driver's license the address the birth dates were different he did none of that and in this court even in gray versus   e o hoga county sheriff's department said that you have to use a degree of a reasonable officer in that position with what you have at your disposal at the time here there was nothing nothing that officers or  arrest him it would be the same thing bringing the warrant for mr roderick signer and arresting one of you or one of me without attempting to identify us check the birth date see if it matched check the license see if the addresses match there was nothing done and therefore there was no reasonable reasonable miss at all and he's not entitled to qualified immunity on that on that basis baker i believe that fourteen days would qualify but i do not have a case on point your honor we  range there i do have a read if you have those cases together we have a  amounted to gross negligence based on his failure to verify that he had the right person the failure to identify mr seals and with the non matching in full and we believe that then also should be a because the district court said that they didn't properly raise it and they didn't claim that they were immune from those two claims so the district court didn't reach that so that should not be disturbed on appeal the district court mentioned that that was not examination the prosecutor says your honor we have an issue regarding the identification mr orlando faris who was the victim in this case has indicated to me this morning that this is not the rhetoric signer that fired shots at him back on april thirteenth two thousand and ten apparently the defendant used this young man's name and based on that we have insufficient evidence to go forward this morning the victim the victim told the prosecutor that that morning and  that's and that's in the record so also is arguing here today or in his brief also is that the negligence or the the lack of care on the day of the so here so address that if you would please that failure to verify anything that this the alias didn't match this gentleman officers a burqa to had had no reason to believe that this was anyone other than than the person the information had already been developed he was merely assisting in the execution of the war t and he had there's no evidence that he had any access to the photos the photos are undated they don't indicate anything about him you know immunity we know protects all but the plainly incompetent guardian hears that was plainly incompetent to not check a license or birth date or something like that under the circumstances i wouldn't concede that there's plainly incompetent but but qualified immunity applies nonetheless well i'm now that despite your opposing counsel's representation the deposition of mr seales is in the record on summary judgment motion do you  disagree with risp with respect to whether it contains the assertion that mr seals told officers at the time they arrested him that he was not the right person if i remember the deposition correctly i don't think there was any specific claim that he said that he told officers a bearcat but he wasn't the