demographically more likely to be improperly detained more likely to be wrongfully arrested or more likely to be falsely imprisoned and jailed this case side shines a bright light on how that happens unconstitutional policing practices and why it continues misapplication of a qualified immunity doctrine as justice thomas complained two thousand and seventeen and ziggler versus abbassi q i principles  misapplied of fide immunity in this case it instead of viewing the lie viewing the factional light most favorable to mr bell the nonmoving party it found fat it no did fax or it considered it found that bell could have been breathing normally after running a seven minute mile in the summer where contrary to a more reasonable inference it noted that he was of similar height weight and body type when the similarities far outweigh the similarities of sweet detail in our brief and it considered that in the summer he shed layers of clothing in order to justify that the vast discrepancy between what between his appearance as you will see and in the a den them to the brief the white on his shorts are as as a dream only noticeable as just one example compared to one of them on the next page these are pages i think twenty six and twenty seven the suspect a screenshot from the video desk three weeks later and he noticed you could tell the difference in the socks hi the difference in the dreads but what is is easily noticeable watching it two or three times in the officers claim they watched at least twice that is that that white stripe that big huge white thing is not available you can see the kid running and you can be in while while the video is somewhat green a that white stripe is it's absolutely not there and that photograph of bell that's in the event it was taken by the police when they had him stand outside the police car while he's while he's there and and and that's just one of the many discrepancies that applied in this case the height five dollars versus six of three counts of what you're describing those far indicates the police were mistaken certainly and they even admitted as much by eventually recommending that charges be dismissed order which indicates in this case that there's something beyond the level of mistake for which qualified immunity would apply to something greater than that that it wouldn't protect against a mistake must be and just to believe reasonable and judge politan wrote  johnson versus mccarver back in november that what is objective billy reasonable is what there is a fair probability of was are fair probability he did this and the problem in this district court is that it is that the the district court did this bad words if it looked at these facts in a noted or a considered and found justification for all the mistakes that were made like shedding clothes in order to to account for the difference in the coloration of the shorts that that while the kid is running a seven minute mile he's not only taking his shoes off and putting a shoes back on he's also shedding clothes which were which were never never found so the question does was it objectively reasonable to make all of these contrary assumptions was that when you look at this at this record was there a fair probability that you got the right guy and it's clear it's they didn't they got the wrong guy and though and if you if you look if if the district court had looked at the facts and made the reasonable inferences he would have been breathing heavily if he'd run a seven minute mile in the summer those kinds of facts and reasonable inferences there would not have been a probable cause for the arrest am the state in this case the police do not argue in this case the probable cause standard of a prudent  officer standard for probable cause or prudent is but it is at doing to prevent of oil ball harm here there are all kinds of flags going off to prevent avoidable harm and so if the if the trial court had made factual findings based on the record not these considerations that were used to justify after the fact in the stay then they would have said this mistake led to an arrest without probable cause because a prudent officer seeking to avoid harm would not have made all of these the fourteen mistakes the that we that we did and the supreme this is violation of the supreme court's warning and tolan that you have to be careful not to import into your fact findings a context that is different here they are here the district court imported into its fa been found the other way to add to the chief judge smith's question you just cited a supreme supreme court case but i want to give you another one which is still versus california which basically says that you know when there's a reason almost stake as in your restaurant party that doesn't mean it's not a valid arrest now slightly different situation but what do you make of that both in terms of your argument judge space question and then also the clearly established right point europe so  probability measure of what that means this is in this case the that there was clearly a harm they got the wrong guy and if you tried to justify getting the wrong guy you're doing it backwards instead if you're if you're finding the facts and then applying the probable cause now what was it clearly established it was it's been clearly established you can't arrest the wrong guy the defendants don't really contest that that  with tory evidence available at the time that would support probable cause if there is also exculpatory evidence reasonable reasonably at hand you must consider it you can't just walk away from it here we had two eyewitnesses who could have identified that they had the wrong guy the descriptions didn't fit physical conditions didn't fit it was not an emergent situation the bell was held there in the police car for ever again well that's contested ok week knowledge that they did at least twice we don't know where they looked at for your few seconds or how much they looked at but it looking at that's not if you look at it and you don't consider what you're saying if you don't consider those white stripes on the short you don't ask the kids sitting right there in handcuffs or the calling party who's right around the corner who had done the fight and who have all said in their declarations if they'd only asked me i would have told them they have the wrong guy all that was reasonably at hand an officer vs woman who was acting who is who is objective really reasonable it seems he's the one who stopped with mister bell and said and radio to the arresting officer are you sure he took the shoes off he's not he's breathing pretty normally and questioning whether or not and telling mr bell it's in the transcript yeah yeah you're going to be out of here really fancy the zalman looking at the evidence  saw the mismatch acted objective only reasonable button but money and made this snap eyewitness show up identification in about six seconds from thirty feet away through the windshield of his car and you know this the whether this eyewitness identification by munyon was inherently fallible from the beginning let me ask you this so we i think there's no question there's some shoddy police work areas but the problem i'm still having with your argument is you you cited the previous case about not ignoring exculpatory evidence the supreme court has been very clear that you need more specificity that we don't look at qualified immunity based on abstract principles of law and my problem is i can't find a single case in your brief commissioners said you don't have to find a case that's right on point that fair notice is sufficient even in the absence of a case on on on point here and certainly there's fair notice about the fallibility of eye and eighty nine of them i know my time's running out on the front not going to leave much for rebuttal but that the city of canton case the supreme court wrote about the commissioners in the chief no to a moral certainty that there will be occasions on which i witness identification will play a role in whether or not there is probable cause for arrest thus the need to train officers in the constitutional limitations of probable cause and the role that the reliability of eye witness udev occasion plays and whether or not there is probable cause for an arrest can be so obvious that to ignore it would be deliberately and different to constitutional rights so what happened after the arrest scene when it went to court was their county attorney involved at that point there were and i've judged that they're a probable cause hearing but yeah how come this wasn't straightened out at that point no it was when it went for hearing date that was postponed and the court in the so was twice postponed to a hearing day thirty three wellstone or so that ever why was it postponed twice you know i'm not sure i don't know crime because i think it's extremely important and relevant immediately the guiding principle here is qualified immunity and not probable cause within forty eight hours of mr bell's arrest there was a probable cause hearing before a neutral magistrate a neutral magistrate found that the officers judgment was in fact based on probable cause that undisputed fact under the qualified immunity standard how did that happen i mean why i couldn't get straightened out at that point so the man doesn't have to stay in custody for twenty one dollars days was in there a county attorney and a judge who couldn't straighten this out yes your honor there absolutely was a county attorney there and mr bell's counsel was there as well by aware that where these pictures was the issue raised about identity i don't know if the stills were here i think the issue about identity certainly was raised and what you had was quite a bit of it look there's a lot of factors here that pointed this supported officer suspect you'll watch the video and i encourage you to watch the video it's exhibit to the motion for summary judgment pull up the suspect turns looks at the car takes off running officer money and chases him he's the one dollar who gives the radio dispatch description when mr bell was detained and it was a few minutes later that officer munyon came and identified mr ballard this was not a quick two minute process they detained mr ball they went back and watched the video multiple times both at the and nine that was watched eight times on the record there is no evidence to the contrary what do you make of the arguments of the opposing counsel that the judge was finding facts in comparing the descriptions in the distinction between predicate facts and a summary judgment stage rocket facts are that nonmoving summary judgment stated benefit of disputed predicate facts once the facts are on the table and here a lot of the fast come from video or from the officers own testimony there is not the this is a pretty clean record once you have those facts in place and i'll give you a couple examples of this there's no doubt that the suspect was described as five times when officer money was chasing him is a question of law and when deciding that question of law officers are given wide latitude to make factual to factual inference is on the scene of the crime and so here officer money and he was not ignoring these facts you recognize that he described t dollars and mr bell described himself as sixty three months who could see implications of the difference in the dress particularly the shorts which were fairly dramatically different in terms of color yes in the socks i would pictures here i just thought i'd try to find which one you tube video is in the nd he never and i point this out your honor judge smith because look when you look at this picture and when you look at the video what was your point i'm sorry what was your point about  three individuals here and if you look at the video it's the individual the far left who is the suspect you know and he is about to take off running when you look at this picture and we look at the video the color of the suspect shorts is not clear and yet on summary judgment the district court gave the plaintiff the benefit of the fact finding and assumed that the suspect shorts were different than the arrestee shorts other words if you look at this picture this might be a disputed fact if there were a trial down the road as to what color the suspect shorts are from this video but the district assuming you can see this in the district court's opinion he assumed that the shorts and the socks were different but then when we come back to the reasonableness inquiry that forms the foundation for probable cause training and this court said officers can make inferences based on their experience and training in hand of the city of overland based on their experience in training the officers so we've seen suspects clothing in the middle of a foot chase like this so they can't be identified and in fact one of the yzerman and again i would i would emphasize that the officer of ignoring these questions they're asking these questions or discussing these questions on dispatch and on the record and at the end of the day they conclude look this suspect was extremely fast expected the suspect to be north of where they had lost track of the suspect in the right location and and so i think that when you look at the totality of the facts here that's one of them but there are a lot of other factors and the officers considered all of those factors what was the close changing scenario that they had in mind that he had another pair of shorts on under the shorts yes your honor that's i thought he might have been wearing double shorts and just in case he was chased right  suspects change clothing during the course of a foot chase has occurred in this case they specifically said they've seen guys in wearing two pairs of shorts in case they're chasing and they take one yes and you can see there's an officer money and affidavit shoes i like to point out to point to a couple other relevant battle points supporting officer money in his judgment and the court's later probable cause finding forty eight hours later one is discussion of officer running with the other two juveniles at the scene officer money and testified and you can see this you can see him talking with the other juveniles at the scene of the crime he says you know look you know we got him and the other juvenile says yeah we saw you pull up  and the officer again takes efforts from this the other juveniles we have they have the right suspect and so all of these facts i think could add up to probable cause and that's what the magistrate found out forty decided forty eight hours later the question in this case i think is a very different one when police officers have probable cause to arrest a suspect and i definitely had probable cause to arrest a suspect the right standard even for the validity of the arrest is whether there is a reasonable mistake when they identify someone else instead and that's the california california case from the u s supreme court and even in that context of the of a valid warrant courts give officers significantly away in their identification so in total what about the efforts after the arrest even if you if you have probable cause when she say you think you got the right guy what is the standard for evaluation of what the officers do subsequently to verify that indeed they have the right person that is just so reasonable investigation looking at photos talking to the other wristy talking to people at the s could create doubt as to whether or not the suspect has been detained and there might actually be somebody out there who needs to be found right or are i think your question goes to the  d claim below which is the substantive due process claim alleging unconstitutional detention and there i think the right standard is intentional or reckless failure to investigate that's a very high bar here and i don't think st of all the officers are not decides well wait a minute we should write we should back up right here on our so there is a forty eight hour hearing and then there's another later hearing in front of the judge where that's not investigation that's right there as probable cause question detective a t v speaks with mr bell determines based on the video so there really wasn't no additional investigation subsequent to a wrist i said it depends what you mean by investigation there certainly the d n a question it will invent asking the witnesses that the scene was this the person who was with you being the other eye witness apparently someone who made a call do you recognize this individual in those kind of inquiries all right let me address both of those st the record shows that officer money and did speak with the other juveniles on the scene and that conversation is in the record it's on it's on video well i've known person was there wasn't really a conversation there was just kind of an interpretation of the other juveniles  action and you're on a specific exchanges off for money and says you know we got him right the suspect and one of the juvenile says yeah i seen you when you pulled up and quote there is a there is a conversation between officer mine and the other juveniles about this very were that doesn't seem to be a specific identification of the person they said they got right i agree that it is not a specific identification at the time officer money and took it as want i think there is a misunderstanding between him and  all these issues about shoes and changing clothes and everything or addressed in my brief i want to make one point counsel has said about the the primary reliance was upon the predicate fact of money and eyewitness identification that's the crux of this case that everything flows after after that but watch that tape as his car's coming up you can hear it go into gear in three seconds from thirty feet away he makes a cross race identification of a suspect that he had not been within forty feet of when he was chasing who was looking over his shoulder who had pulled the gun under the stress of that money and testify in his deposition he was focusing on the gun as he was trained to do he wasn't getting a good location distance time cross race stress of a gun all of those for forty years have been the hallmark eyewitness fallibility that this court warns jurors about in his criminal instructions and it's and they still don't even mention it i invite them to mention they didn't even mention that now in this oral argument they've defaulted that the