the court also explains that this standard applies in the probable cause context because probable cause turns on the probabilities and partick shalit particular factual contexts and can't be reduced to a need set of legal rules is consistent with the drum beat of cases from the supreme court in recent years on qualified immunity emphasizing over and over again that the clearly established promise fires a case very very closely on the clients who are stuck here with the holding that there was because if there's any question about whether there was probable cause or this panel were to doubt the conclusion of the prior panel that would just illustrate further that it was not clearly established because the clearly established standard requires obviousness under and and and then isn't all the other recent supreme court cases and so to the extent that there's any question that any reasonable judge any reasonable officer could possibly have thought that there was probable cause here we don't have the clearly established bar well the question is is that reasonable well i mean first i would ask how is this case different from kennedy versus the l a police department where the defendant was holding the former roommates property and there was a no i mean there's no basis to believe that she intended to permanently deprive her of her property and that seems to me you know pretty clear i would argue that in kennedy there was no credibility issue for the officers to resolve both the roommate but both of the roommates agreed that that's what was going on and so you fence they brought it back after the police got involved in the question is what was their intent at the time that they took the mattress they told the nurse they were taking it because they had rented it so how was that have permission to take it so we're taking it and one story is they do not have permission to take it so in that scenario they are lying about having permission the officers are entitled to believe that was b says that an innocent explanation does not vitiate probable cause or have any kind of automatic effect that's why i am having difficulty refers to me the law of the case is that there was lacking there was no probable cause i'm not sure i would have reached that result in my view that that's where we are so to me i'm more interested in how we determine whether the lack of probable cause in that situation is clearly established and i know alan says if it's civil you don't have probable cause but i'm not sure where distinguishes civil from criminal in this context if you have a rental car and you keep it beyond the time you know maybe that's certainly a rental dispute and shoots you know two days maybe a becomes criminal i mean i don't know where to draw that line and i don't know where the cases draw the line and i'm with you there i don't think that there is a bright line and i think the bell case that we discussed in the briefing about renting an apartment and not paying the rent on it being theft under california law i think further blurs the distinction the fact that there's a contract somewhere in the background does not automatically mean there's not going to be any criminal probable cause anywhere no matter what happens in the case so alan alan is overbroad in that statement and i'm just not quite sure why we're here again this doesn't seem to be a case of gigantic but going back to judge judge gruber's point even if we treated the prior determination as law in the case of the case and again i'm not sure that's correct in light of the clarification about the probable cause standard but even if we're going to treat it as law the case the fact that a finding that there was probable cause cannot possibly revokable mean that it was clearly established otherwise there would be no reason for the nd prong of qualified immunity to question is is it within the realm of a reasonable mistake was the for a different opinion here the fact that judge day i thought that there was probable cause that the magistrate judge initially thought that there was probable cause that you've questioned whether you would reach the same result this is a blurry case and the case law is that where there is a unique s circumstances that's an important indication that the law is not clearly established that's in white versus poly this is a strange set of facts people don't usually through a three thousand dollars mattress in the back of their car and drive away instead of waiting a few minutes  to try to resolve a situation that the police were entitled to believe that plaintiffs did not have a good faith belief in their right to take their mattress and once one starts taking matches without permission we don't know what they're going to do with it whether they're going to continue to that natural for that which is a kind of quintessentially contractual civil kind of dispute that can bleed over into criminal if they're taking property which is not theirs and the fact that the line may be fuzzy as to when leaves over into criminal would again be an indication so here's my lease here's my rental agreement why does that somehow not negate any possible criminal intent i want to make sure to answer i also i'm trying to save a couple  minutes for a bottle so i will do my best here but to answer your prior question about once they brought it back doesn't that mean no faffed the question was when they drove off with that mattress what were they intending to do so the fact that they brought it back can change what their in in the moment when they took it would be my answer and again the fact that there's a lease in the bag a contact in the background cannot inexorably mean there's no case that says an extraordinary means that there can't be criminal intent even on the fact was the we have to have a case that obviously resolves whether the circumstances with the particular officer confronted constituted probable cause and a case that squarely governed the specific facts of this case i would submit that kennedy and i don't take on the appearance of extortion that is a quote from a case in which both graber and a case called paying which both of you sat on the panel and you recognize that there is this line this in this case there's a rental agreement that you have permission under that agreement to have may have troops at the location where when i was at the rehab facility and let's say they actually intend to steal it and just keep it forever and not take it to their mother's house but you know go off and sell what i don't understand how the fact of having initially agreement means that you can't look beyond that to see what happens afterwards the fact that you have rented something doesn't mean you can't also steal it the law doesn't make clear that want to be wh it is a civil dispute that that can amount to probable cause it would be a different situation if perhaps they did not present that agreement to the officer but the fact that it is an agreement but the agreement something that the location for it was where it actually was before they put it in the truck i guess what troubles me about this whole area is that renting something or having a contract dispute does seems to me not to preclude also probable cause for some criminal intent with respect to the subject matter of the contract that might be true in theory under the facts of this case it pretty clear that when he shows him the contract officer has no reasonable basis to deny that it exists that that there that the obligations are governed by that contract now say he had rented it right but i can't help shoot only so officer should even be getting into trying to interpret the contract as judge lefkow no but you can't you can't both rely on of them then walk away from it it seems to me you either have to say well the fact that he showed him the contract we because it proved that they couldn't have the intent to take it but then you're saying oh well now the police should actually read it they should actually read it and they would be on notice at that point that it is a civil suit that is what the law of the circuit says and i would like to point out that that's just not that it can't possibly be stolen or there can't be probable cause to believe that it is being stalled notwithstanding their agreement i would not go quite that far but i would say that under the the facts of this case where he was presented a contract and there's no there are no others coming out of patients of say domestic a domestic violence which is what she found dispositive you know paying without any further facts of those nature of that nature that brings suppose there's a situation if you come up in theory but that is not the situation in this case well i'm sorry but i think to me the strongest argument on on your opponents side is that there has been a dispute in the judiciary disagreement in the judiciary about whether there was probable cause so why do you make of that argument and certainly i do not want to hurt anybody's feelings but i will point out that we do have  majority opinion becomes the that's the ruling so as and as i said i don't want to hurt anybody's feelings or or say but but sometimes judges get it wrong ok and th the majority opinion is the court and especially with regard to the published cases so allan stevens kennedy these cases are longstanding law in this court since there   don't see how it's any it could be any clearer that the law is clearly established at least on that point the only real question is whether under the circumstances of this case the specific facts of this case if the officers involved realize that were they on notice that it was a civil dispute now i would argue that they clearly were because they were shown the contract you cannot get any clear than than that they know that the contract is there when they see it they've been physically presented with it in addition to being informed about it and and you know on the other facts that they encounter in the course of this investigation yes they would be on notice that it was a dispute under the law of this circuit between a civil dispute and a criminal dispute is the find by statute and it's been there a long time if it's if the penalty for a violation of law for example is jail time that would make it a crim damages it would be it would in other words it's a contract action and it's specifically defined by statute under california law so it's so in other words we don't need to get into this philosophical discussion about what's the difference with civil and criminal because st of all  but that because the dispute was between the restaurant manager and her husband does that make any difference in your case i would argue that no it does not make a difference here because you  food i'd say the facts are more compelling in this case in terms of not being evidence of specific intent now there are other facts there is the fact that daniel returned with the mattress there are the facts that both raymond and daniel nine specifically disputed the the allegations that y zinger had made but as the district court found correctly in my opinion the even assuming that that the officers could resolve a credibility dispute the favor of in favor of wising and all that changed when they were presented with the contract itself when in terms of the credibility disappears police have to do that all the time someone you know says that guy evidence there are numerous cases that state that repeatedly especially when they're physically presented with as in this case as in for example also the henderson case in thomas reese dillard officers are not allowed  and i try to make five very quick points the st one judge lefkow alluded to the fact that several judges have come out differently on this case and it may be the judges have get it wrong sometimes the police officers are also entitled to get it wrong sometimes that's the point of qualified immunity and if a judge could get it wrong so could a police officer secondly that the idea that again because there's a lease in the background there can never be criminal intent i would say that was the where there was a claim of permission to be on the property  and yet there was probable cause to arrest negates that as does bell where there was an apartment lease and still that number three alluded there was an allusion to the statement in stephen's that it's clearly established that criminal disputes do not g rise to fast that's the kind of broad generalization that the supreme court says we can't rely on anymore and qualified immunity cases we're looking at the facts the facts of stevens are very different you could ask the question about joyce in the al case i think that absolutely matters here here we have raymond both taking the mattress away being part of the same plan so joyce may not have had the right criminal intent because she was not involved in the dispute here they were both active in taking the steps that gave rise to probable and i ask you just one question as i i thought at one point this dispute was whether or not they could have this mattress or whether there was going to be another mattress delivered to the house i mean over  house but the plaintiffs here were claiming we had permission to take this mattress there there's the credibility dispute they're saying we already have permission and once they're lying about having permission arguably i could find that they were lying about having permission the police could question what they were going to do with the mattress once they got it and if there's another mattress been delivered to their house now they have two mattresses there's a question about about what what's going to happen i see that you're struggling with that but i would also say that super care owns these it may not want people to transport it who don't know how to transport it properly it may have you know rehab facility grade mattresses and home mattresses that we don't know but they own the property they are entitled to decide which of their property they want to keep for