against those three defendants and on the merits as to the remaining defense and finally we're also asking if those are successful that is the reversal of the summary judgment motion at the court's order and nine the amendment  complaint that is filing of the first amended complaint be permitted and we go to trial on that that complaint i know that you've been very active in your questioning this morning so i presume that you have some pointed questions for me i have prepared statements apartment building and goes to his apartment eventually the minutes later the police are in the building looking for the drivers of the vehicle that was involved in the chase yes i go there with your position that what occurred at the behind the metal door you have exhibit thirty nine and the record also which is a photograph taken of the door without the metal security door in place i'm going to make sure that you're aware that that was taken  clapper's version of the events are that he went to the bathroom after he got and put down the milk and the groceries that he had with the receipt in the package and then when he heard his banging on the door context of a helicopter that's sitting right above that reports to these officers that the suspect got into this particular building on the run and a  description i don't know how easy it is to tell the difference between a white hispanic and someone who's not a white hispanic but  i have some problems with looking at this with too close a microscope because all of this other stuff is going on the suspect is breathing heavily  if it's in the building and they're satisfied the description is reasonably close to the description they got way quite can't be to take a look at all of it i think you can your honor but the problem with with with using the term such as the officers came in i was not breathing heavily the question that was asked of him it is definition is after he got back our after he ran for period of time from the point when he was that leader and were going up and this is after the pursuit require a plane to be safe power off distance so it's probably closer to five hundred feet but he concedes at least three hundred feet i would submit to you that if you look down from three hundred feet or if you saw me at the end of a football field and you were looking at me from from a bird's eye view you could see the top of my head i would just point out and i think it's very instructive the case that we're talking about here is probable cause  absent and it has to be the end and the courts are very clear on this it has to be something that would be credible and reasonable for an experienced officer to believe in order to arrest this person there seen only two times over from twenty feet away and only for a few seconds and that was in affirming a judgment in favor of mr grant was thought to be the belmont shores rapist court held that if officers fabricate the purpose of fabricate circumstances to create probable cause there is no qualified immunity which is a common sense of both approach and that particular case immunity for that and he could have then clear very simply he had just come back from the market according to both he and the woman that was in the apartment there was no in the in the sac were at the scene the officers reportedly told mr clacker that it wasn't their policy to go back and check on it he said the security guard can vouch for me the person that i bought it from can vouch for me mr clapper is a person who was  from chicago and his wife had moved here they just had a brand new they did he didn't drive he didn't have a california driver's license he's employed as a dishwasher by the hard rock cafe they lost everything as a result of this and the reasonable for work for an officer from three hundred feet up just say only i can positively identify i think you read the grand case you're going to find that when you look up why the touchstones that are set for think grant it's not even close but you know if i know that you do a great deal of flying i just freeman coming here from washington magic yourself on short final coming into washington national and that and the plane is the three hundred feet you look down for four seconds can you morning it seems to me the grant is a very very strong case for point i'd like to reserve the balance of my time if i may you may do so good morning your honour's and the field on behalf of defendants in a tele i think i'd like to start with the grant case i was also looking at that case and i think grant is distinguishable from the fact that in this case because in grant think tim slash witnesses were making an id but you didn't have the additional factor of the close proximity in time and place it wasn't just mr clapper was identified by the helicopter pilot argue no quick few from up above he was found less than three minutes after the suspects fled into the building and it's undisputed that this is the building the suspects were in they went in and nobody was seen coming out so i think that of well i will say we did what we know and what the police knew was that the registered owner of the car has an address in the same building that mr clapper lived in and i think plaintiff has made that argument somewhat i don't think it's been the primary focus but his his read on that evidence was that a reasonable view or interpretation of that evidence was that the registered owner of the car was in fact the driver i would just argue that it was equally reasonable for the officers to assume that mr clapper and mr duran were friends they were friends and neighbors and that when they brought mr clapper out and he met the general description he was the one with the given the high profile case that this is and some of the dubious aspects that they're very very much aware of why didn't they follow up or at least why did they wait forty follow up for forty one days we know that the case wasn't dismissed for forty one i was there to share with you that that bothers a judge to see somebody who was innocent helpful forty one days under circumstances  could have been avoided and on that point you know your honor i would say it bothers me too but i would say we have an undeveloped record because that wasn't the focus of this litigation that was the focus of plaintiff's belated attempt to amend his complaint and allege that fourth amendment malicious prosecution due process failure to disclose evidence to the prosecutor claiming that that the court in allowed because it was so late in the game so we don't really we don't really know what my understanding of the judge's order was that he accepted plain us version of the facts the plaintiff in fact had his security screen door open as he testified to that it was not wide open as the officers claimed and found that even on the  matching the description the description was a male hispanic white shirt this just happens to be a male but for whether he looked hispanic or not he certainly wasn't wearing a white shirt for was wearing a light colored your honor mr clapper himself testified when asked what he was wearing that night he described it interchangeably as an off white shirt a light gray shirt it was a light colored shirt it wasn't like he was wearing a dark  honor i think you would have less factors leaning one less factor leaning in support of the officers being reasonable in believing that he nach the general description broadcast down and i suppose it's always very easy  maybe you decide the probable cause issue and move on to the second prong of qualified immunity where these officers clearly are no nests and i would say they were not i think that this is false and to a great enough area where under cormier they had a right to they did not make it a lot more awful visual entry into his apartment under united states is versus opinion on the general description coupled with the close proximity in time and place were sufficient for them to and breathing heavily i think the court accepted all of those things and said all of those facts and said even under your version mr clapper when you opened your interior door you did so voluntarily it was consensual it wasn't under our undervalued authority and once you opened your interior what door you placed yourself in plain view and the officers were reasonable in their belief that you matched the description that was broadcast down whether or not what the officers could possibly see i'd like to address that your honor the court has concerns about it because i know that clapper mr clapper says that he presented substantial evidence that the officers couldn't possibly have seen into his apartment at the security screen door was closed and i'd like to talk about that i think everybody agrees i think plaintiff himself conceded that if the apartment was well let you can see through one of those security page three sixty five and one of his undisputed facts is the apartment was well what he says it and in support of that statement here he relies on the testimony of officer ramirez who testif testimony that he had no idea who was knocking at his door he repeatedly said that so he has to keep going to the door to to peer out those were his words i couldn't tell who it was you could see figures in dark shirts but he didn't know who it was and he was looking out door and i thought to myself who could it be so i went to the door and i looked out and i still couldn't see so i looked a little harder that was his testimony apartment that's correct if you think you have any it's the law it's your position the law doesn't impose upon them any obligation whatsoever well i think the laws to investigate before they i think the law quite clear that they didn't have any obligation to investigate his alibi once probable cause was established in terms of mr duran being the registered owner of the car i mean i think it's arguable whether that of the manager doesn't have a key and they knock and no one answers and they it's not like they did absolutely nothing then they made an attempt but they believed that mr clapper was the driver california license and i believe that he did not have a california driver's license i don't know if he had a california id and i don't know if he had an identification with the d m v and i don't know the answer to that i mean i think well actually i do think that they did confirm his identity because i think there was evidence in the record and plaintiff argued that at some point they determined according to some records d m v records something that he was white and and declaration saying that after he opened the door one of the officers announced a police officer and was that's time the police officer sent police officer can you open the door he then unlock the door second found that looking at the booking far graph the he could tell that that mr clapper looked at spanish and therefore that was enough for qualified immunity that they could have made a mistake i would invite your attention to the declaration of kent rocks which you'll for them and her apartment what she had told the los angeles police dispatcher and she made the nine eleven call part of why we are we so strenuously seek to amend the complaint to go after these people on the malicious