we may proceed thank you your honor me please the court my name is theresa nelson and i am counsel for the appellant joanne schneider and larry schneider we have several issues to resent to the court today and sort of in the roadmap summary that we are we are alleging that the district court erred by dismiss scene on a told b six motion subject only to the pleadings joanne schneider's claims for the violations her of her constitutional rights in schneider's federal tort claims act claim causes of action against the united states by applying the discretionary function exception to the waiver of sovereign immunity where we will show are we believe that the pleading support that a federal employee failed to it here to establish guidelines and violated joined schneider's constitutional rights against unreasonable searches and seizures and her right to due process in addition we would say that the  district court also made reversible error by drawing certain conclusions with regards to the federal tort claims act in that there was no proximate cause between the actions with the f b i agent had and drawing also inferences based unfair inferences against my clients with regards to the validity of the arrest warrant and basically saying that the f b i agent did not participate in any arrests by ignoring operative facts that this entire operation was pursuant to a joint task force between both the f b i and the city of cincinnati police department the f b i i would agree with to actually address that even further the city of cincinnati actually did not even place handcuffs on my client she was arrested by the westchester police department so in i would point out to the court that we are actually not even we're not pursuing something with regards to the westchester police department because they didn't have any foresight or any information with regard to the basis of that warrant because they were not involved however the f b i agent was intimately involved as well as the city of cincinnati police officer who signed that warrant were intimately involved from day one of this task force and i think the facts of that of the investigation are actually very critical because this is a little bit different than simply just arresting the wrong person we have a situation where we have a joint task force both the f b i and the city of cincinnati working together they implemented the and used a confidential informant who as we have alleged in our complaint was inherently unreliable they provided what is now known as basically false information the basic he gave the f b i in the city of cincinnati information that a woman named joanne who was of a particular age fifty's to sixty's who lived in cincinnati was potentially selling drugs with her daughter by the name of stephanie schneider that was about it then what occurred is there was a what was arranged is a buy that was witnessed by the f b i and the city of cincinnati the agents in the officer that are individually sued in this matter witnessed the by so actually saw the actual well in our in this is all based on the pleadings at this point and i think that that actually also goes to a point of this is we have not been able to factually develop what exactly happened this is based solely on the allegations of the complaint which to be blunt with very frank with this court we did trying to depose the officer at least the city of cincinnati officer in the underlying criminal action before that the matter was dismissed sealed and closed and we were not able to have access chief counsel of the f b i who came in met with myself and my client and was tell providing us certain pieces of information but not the full story because there were certain information that he was either a not aware of or b would not provide us the information we were not able to interview the f b i agent himself either so whether or not the officers could actually see their faces i think is a factual issue but in the complaint it does say that they were they they witness the exchange in addition though there was a situation where the actual joey man who committed this crime that was witnessed by the city of cincinnati and the f b i was interviewed in person by two f b i agents and still somehow my client then got connected with this this crime that is i think as well the operative information is from the beginning to the end this is not something that they could say well we had no idea who the real perpetrator or potential you know alleged criminal was they actually talked to her spoke with her on the phone and saw her in person however that  charges against her and turn the file over to their partner the city of cincinnati again i think cutting off the line between one party and another party in a joint task force i don't think is an appropriate way to evaluate this case you're basically saying well you're all together at the beginning but you're not all together at the end i think one the actions of one a reasonable inference based on the information in the complaint could be drawn that somebody who's involved on day one should was involved on day ten or twenty and when the arrest actually occurred that is the way that the district court erred by saying i would agree with you wholeheartedly that the f b i agent didn't pla handcuffs on my client neither did the city of cincinnati for that matter however their actions from the beginning to the end were the catalyst and every step along the way did lead to her incarceration  well your honor in this particular case the the agent that is individually sued in this case did the interview was a witness to the by as well as connected my client to the crimes that she never committed the officer in this particular case that is sued individual is also the one that signed the warrant to have her arrested so they did in fact have very specific actions and participated in this important to know is a both of these officers the officer in the special agent were involved from at the very beginning and witnessed the drug but i that was arranged and number two i can't represent to this court and neither can the defendants at this point what was or what was contained in transmitted between the f b i and the city of cincinnati that information is not this is all based on the pleadings which i again i think  is shows how premature these motions are and that it is iranians to actually determine these types of issues based on a twelve the six at the pleading stage is more appropriate for summary judgment because wayne all of the facts that you are i see i have about thirty seconds left and what i would say is there is there is basically where we have is that the officers in this question in this case both were provided the special agent in the office are qualified immunity when there it is clear that there is a violation of my client's constitutional rights her right against being an unreasonable search and seizure her right to due process those rights are clearly established and it was unreasonable when this will the scene who was involved with this crime to then unreasonably connect my client who the only association she has with this other woman they have the same first name and live in a basically the same fifteen minutes that our allotted to the defendants in this matter mr powell you so that's it your or thank you very much i'd like to begin with a question that judge complaint is that the f b i had closed its file chosen not to pursue any charges and handed over its case file four months before there was an arrest warrant a complaint or the arrest occurred from the plaintiff's complaint at this point on the motion to dismiss we are addressing solely the plaintiff's allegations we assume that they are true and the question before this court is whether the allegations are sufficient to overcome qualified immunity and to sta plausible claims for state law torts in ohio under the f t c essay and that leads into another point the point about this covering further discovery in this matter qualified immunity the supreme court in this circuit has routinely recognized is an immunity not just from liability it's immunity from suit it should be resolved at the earliest possible opportunity and of plaintiff is not alleged facts that would overcome that qualified immunity she cannot move forward to discover to try to double up facts that she cannot allege the question before this court is whether there are sufficient facts allowed in the complaint to show that there is personal liability for this f b i agent  there are plausible ohio state law tort claims and you can see the factual allegations of the plaintiff for purposes of this qualified immunity issue yes and the district court level we did not challenge any of the factual s there are not the sole the sole area where this is an issue that's on appeal the sole area where the united states presented evidence outside the complaint was worth regard to the claim of the plaintiff's husband larry snyder who still has a pending claim in at you know it is this court has addressed this morning the issue of qualified immunity already and the question is whether there was a constitutional violation of a clearly established right in order to establish she has to show that every reasonable officer would or any reasonable officer would know that what he was doing was unconstitutional here there was a very brief f b i investigation the f b i agent showed a phone you know received information from the informant that stated that stephanie snyder was selling drugs with her mother joy he didn't draw a driver's license search in the city of cincinnati for anyone named joanne snyder found one person who matched that showed the picture to the informant and i ask is this who you are speaking of informant said well that that could be her if she was if she had been doing drugs the next step of the investigation was a controlled purchase and on the control purchase plan of salvation it paragraph twenty four the amended complaint is that the f b i agents were unable to id the participants there's no information that would have been that was provided to the asians through that that herself as joe insider or anyone else at that point the only remaining allegation that the f b i in the complaint is that the f b i closed its file terminated its investigation and chose not to pursue charges warrant had any involvement in the arrest and pursuant to this chords this court's precedent there is just not enough participation here i would note one one precedent that is particularly relevant because it's recent on this issue of participation six circuit after the brief in this matter issued the robertson decision and in that decision the six circuit went so far as to say that the the obvious are that swore the that officer i'm sorry that testified before the grand jury did not participate in the arrest for a false arrest because he was not the arresting officer for a false arrest claim then the definition for participation is very narrow in the circuit closer file for months before there's no i would also note the plaintiff in this circumstance was arrested pursued to officially bowed warning that is a complete defense to this action as long as there is no allegation that any that the officers are lying or misrepresenting material information in seeking war there is no allegation in that regard for that reason also the claims fail similarly there's no allegation of intentional misconduct to judge griffin you raise this is morning that in order to sta constitutional right the false arrest law in this circuit is certainly while developed plaintiff raises due process issues which are a little bit certainly less developed in this area the question of whether showing the  photo id to the informant to say is this the woman that you saw is i think certain and i see my time's about that and so i'll say without delving into that case law it is certainly less than clearly established and  me please the court and counsel my name is jessica powell and i represent the city of cincinnati and officer o'brian your honor this is a case of unfortunate incident it unfortunate things that occurred apart from each other but what we do not give rise to a cause of action and there have been several cases earlier today dealing with qualified immunity and certainly this is a case where qualified immunity is the is the dispositive issue as is the sufficiency of the plaintiff's pleadings and here there aren't allegations sufficient in the complaint to give rise to or to defeat the defense of quality qualified immunity that is properly raised at this point in the case and what the plaintiff is asking this court to do is to draw all a an reasonable inference that officer o'brien improperly relied on false information in securing an arrest warrant for jo schneider and there's no allegations in the complaint that support that and one of the things that counsel for michelle knight or indicated is that i thought i thought i heard her say that  twenty six and twenty seven of the amended complaint and there's nothing in there to connect officer o'brien or to place him in that meeting where he might have potentially gotten more information in might have known more about the identity of  suspect but again he wasn't there so what we have is a officially valid arrest warrant and there's nothing to undermine that and based on that alone  for the claim against the city is is our position there are allegations in the complaint about the city having a custom policy and practice they're not like yours and liable right correct they're not i think the main issue for the city were party before the the main issue as it relates to the city defendants is is the qualified immunity of of officer o'brien and i think it's clear that he acted reasonably in the question becomes if a police officer can't reasonably rely on a file that he receives from the f b i to pursue a facially valid arrest warrant then what is reasonable and  there's not enough here there's nothing to connect any remote possibility that officer o'brien knew when he obtained that search warrant that it was based on false or improper information and so that's what needs to be considered and that wasn't sufficient sufficiently alleged here did he do something no no he went well he witnessed the drug by that occurred in december at which the participants were not apprehended or arrested but beyond that he was not involved in any of the f b i is interviews with the confidential informant was stephanie schneider or with the person who was allegedly joe insider so his involvement was extremely limited  well mr horwitz so i did see that robertson v lewis case in support of the government's case it's also really applicable to the city's defense as well because factually it involves a similar situation in which a county government was working on a joint task force with the way and the plaintiffs involved were arrested based on either faulty information or information from  i who was not trustworthy in that case similar to this one what the court said as it related to the counties reliant the county employees or officers reliance on the f b i agent is that  unless the plaintiff can demonstrate that the that officers at the local level knew or were reckless in not knowing that the information from a was false or incorrect then there is no liability for those individual officers so the plaintiff is the master of her complaint she has not alleged facts sufficient to state a claim either against the city or officer o'brien in address judge griffin i want to address your question which is what the claims against the united states are f t c a claim so they're tort claims with regards to negligent hiring firing assault false arrest those natures those are the similar claims that are brought against the city of cincinnati so for their own independent actions with regards to the city of cincinnati the claims alleged in the complaint are more of the the fact that this officer did know and other investigation nothing he just basically signed an affidavit with no information and did not do any other investigation all those things are alleged in our complaint in the  discretionary function exception to the waiver of sovereign immunity does not apply when constitutional violations are occurring in addition there is this is briefed as well is that if you do not file follow established guidelines which we have also cited which were included as the mandates of the f b i which again this only applies to the united states with regards to verifying your so your c i i with regards to you know following constitutional guidelines those are specific guidelines which we have argued are were not followed when i was discussing the city i did not mean that it was an f t c a claim i'm sorry if i was unclear with that i was saying it was more of unreliable right let me say that is what has been alleged in our complaint because that is the information that was available to us since we were not allowed to you know develop this more and i actually would say one of the cases that was cited by the defendants in this case which was i think it was miller there was actually a recent case is decided that it is an individual which basically somebody was calling into verify who was to get information on a warrant and the person on the phone basically said yes you're good that was found to be in an unlawful city practiced in the one nine hundred eighty three action was allowed to proceed that is cited in our brief the other thing i wanted to address with this court is that we are actually disputing that there is a faction facially valid wore it the warrant was based on information provided by the c i which is unreliable which was they were steered towards one option which was my client the cia's information was nevertheless abbess where it could have been it may have been and none of that was ever followed up upon by anyone by the f b i nor by the city of cincinnati so whether or not the valid enough itself based on the sworn affidavit from officer o'brien was valid has been challenged we have alleged numerous factual allegations in our complaint laying out that no further investigation was done no positive id was done that the my client was hurt her photograph was showed to the c i then the actual perpetrator was interviewed so how is it that it was continued to stay that my client was connected that the information that the basis of this complaint was not or the the warrant was not valid so we have actually said that in arguments that this is not that no probable cause actually existed for this warrant and that actually i know this court has held numerous times recently i believe it was in  hamilton township that you can't ignore or guilt or if you can't say someone is guilty by ignoring all other exculpatory evidence and that malice in the actions of these officers is implied when there's no probable cause and i believe judge clay's actually opined on that in this dissent in harris versus the us i see my time is up to it as the panel have any questions no i think we have them all right thank you thank you in the