this morning this court is being asked to decide whether the defendant was risky a municipal police officer should be exposed to personal liability in the form of potentially significant monetary damages think i think the point is so your honors at the court was stressing that wow those facts must be exacted there must also be due consideration for what the defendant knew at the time and how reasonable officer would of reacted to that set of f correct and in this particular case even if we can see that there was a constitutional violation which we do not because i think the record clearly establishes that there was probable cause but the fact remains is that what about this what about our case in green and you know i don't know whether green's right but green is very much on point here and you know the way it seems green reads is that it says hey if a jury could find for the plaintiff having looked at something like this and i actually think when i look at the video you know i guess a jury could find against your client isn't that the green question finding of probable cause based on you know one of the factors failing the field sobriety test but those cases seem to all include an additional factor whether it's the smell of a strong odor of  toxicants you know blood shot eyes smell of marijuana you know some indicia of drinking in the vehicle and none of that was present here so   the windows down on that cigarette but i'm not clear that the video shows that he failed a sobriety test he says he's got remarkable balance as far as i'm over the median he drove it over a curb but the evidence is he took it over the media which in this case is divided like a bull over ok where this particular road is and he drove a semi the tests that were down him a stablished that a reasonable officer could find probable cause or they didn't because if they find if they show that they didn't who cares what happened before right so i don't understand why you focused on that i would have thought it's about the t no no no the question was what's the evidence of probable cause and you decided to focus on what happened before the test which you can do it i just understand the point you're making indicates that that the  test well that was like the eight or nine test but he put him through this and the tests that he's using are sanctioned by the but how many tests do you have to pass before somebody finally and then after the test see goes rummaging around in the in the cab saying i know it's in here somewhere i'm going to find it whatever it is as i said if you want if you want to accept i will accept for the purposes of is that you i'm not exposed to liability from your negligence well but here's the point where you have to grapple with and that is the problem of whether there are disputes the fact that need to go back for somebody other than us to decide that's where we are it's got to be and it's in order to get past that hurdle on appeal you need to convince us that there are undisputed facts either arresting this man based on what he found and he immediately said you know i've not seen one i need to see that to make this a clear case that we're not arguing that we wouldn't be here if there was a clear case what he had and of beams of exculpatory or maybe you should have a little more confidence in your client i mean if you've got a good argument in that in that way and you give it to a jury and they find him they find in his favor community is if you some care should we not have sent these officers for training this gentleman was certified in truck recognition you know eleven years he was sent for training should this should he be concerned about not holding you know this isn't a question now but excuse me excuse me this isn't a question of us trying to oppress the police it's a question of who makes determinations of fact that's that's where we are here and it's not it's not that wasn't am i remembering the case kirk i thought that was a case about the kind of level of generality at which you decide the what the clearly established right is that's not this case is not a case about whether the rights clearly established we all know the task probably because  looking at facts at the time that is as i said there is a probable cause stated there are two different state would you agree that put green to the side for the second would you agree that under u s supreme court law the test is you look at something and we all know the clearly establish law this is not a case of a clearly established law but the question of qualified immunity cases could a reasonable officer have found probable cause to arrest this person so that the test we apply here is where reasonable officer looked at the e of could a reasonable officer find probable cause on these facts and if you if so if so if so then the officer wins no i would say that if so how could you agree to the it when you've got a video i mean i'll just cut right to the chase or here's what i thought the precise i kind of was inclined to think you were right on the breeze but i watched the video and i watched the last part of the video he almost falls over he's driving a semi i'm thinking my god if this guy he lets this guy go he runs into some s u v with a family of five because he really is intoxicated you've got a serious problem he almost falls over in the video look at what was going on at the time and again if you look at the going at the time he was a thing but the temperature at the time and that was not know over by the wind was that he was knocked over by the wind well if you look at the type of test he was using one thing great performer even though even the district judge said on the record that he had problems executing some of these tests in his own determination as to whether or not the officer is entitled to qualified immunity that's the legal terminations move that we have to cross that hurdle before you ever get to the jury and that's the question now why under these facts is there probable cause here ok if you look at the video and everything else jury asked was this probable cause second question is distinct could a reasonable officer any reasonable officer not this one could a hypothetical officer on these facts find probable cause and i think that's and again you're agreeing that that's that's the fair question qualified immunity question right the person qualified immunity is one is there the constitutional violation and again right and i would have said the way this works is if we say a reasonable officer hypothetically could find probable cause your case over that that question doesn't go to the jury i i don't i don't agree with i but your u s supreme court case i think determination hinges upon these factors he gets to that can't he smells nothing he sees nothing and all of a sudden my client is conducting field sobriety tests because he clipped occur and so i come from brooklyn new york that happens probably a thousand morning does any of that matter if a reasonable officer could find that he failed the last test any of the stuff matter what he saw when he was the truck drivers driving what he saw when he first talked to him what he saw when he conducted the first seven test just any of that matter if a reasonable officer could look at the last test and verified by the video and the audio we have we have a serious problem as to whether officer was used he should have taken that into account and i think i'm not saying does he have to be a major deal at a restaurant and ask the guy if he wants a coat and come out and do these tests no troubling because even to situations where people get railroaded and that's even a bigger problem when i would like to put the words as a weapon or questions on that front i'd like to just be supplemental authority these two standards somewhat conflict a little bit but it's an important distinction because miller the satellite is a case out of the circuit and green the the panels in those cases considered post arrest ev impaired right that's the only way you'd have a nine hundred three case right you're not going to have a lawsuit if the later tests showed on paragraph so all we're talking about are cases like this one where the officer stops someone they do the tasks and they arrest and they think th probable cause and later it turns the wrong person is not impaired i'm just trying to figure out in which case it doesn't go to a jury just seems like and that may not be a function of your argument maybe that's a function of green i'm just trying to figure out how this is going to work because it would just seem to me what you said would probably be enough for every one of these dui cases to go to a jury want to turns out the officers were wrong and that's a lot of cases you can you usually when you decide after a dui arrest to not charge them not indict them if you find out they're not impaired that can happen a lot of ways usually it's going to breathalyzer or other taps my point is i don't care how it happens the point is the police make the decision correctly to their credit we should not and i because this person was not impaired i would disagree ok what's this we're on the same page so far on the facts of yes on the fact what he does at the time yeah and so i'm just trying to figure out there are lots of dui arrests and there's a material number of dui arrests where they don't charge because they decide the person wasn't impaired and i'm just saying your argument and again it's maybe grain that's responsible for this w the number you're going to have that match the facts of this case are going to be very very what what weight should we should be given to the corroborating oppa service probably cost to terminate i would say very little way and i'll tell you why because simply because officers come on scene and they look at something number one these officers not all of them were there at the time but that number two that you have the time of the actions that resulted in  and the start and some of them were not even there for the beginning and for the first few tests that were conducted i think the all four officers were there at the time of the last each d n a test and they were there for the second walk and turn test so the first issue is at least in this case is that not much work to be could be given to those of the officers because they weren't even there they were there at the time most of the says were conducted and as to the second test i think the video speaks for itself in terms of what a jury could in mean arguably that's what green require so i don't that's what i'm struggling with i think what is actually i think the green does not survive application supreme court precedent that doesn't help that doesn't help you much or us much because we're supposed to follow our precedents right but officers motions for summary judgment and the facts are viewed the light most favorable to the public because this case concerns the defense of plywood to qualified immunity however the court considers only the facts that were normal to the defendant officers individual here for fourth amendment protections and the interest of society the interest in the government to protect the sisters in this case from intoxicated and what we have here is as you pointed out dog and charlie comes around and he doesn't alert and i say all right well let's try alex doesn't work and finally they got a dog that alerts that doesn't seem right does it have to do with th well that's what we'll try to do all right yes yes all right thank you to both of you for your helpful briefs and oral arguments and for answer our questions really appreciate it the case will be submitted in the clerk may call the next case