was in applying the the rubric under psychs required to take a look at what the officer put in his police report factoring in those alleged false leads and omissions and determine whether or not there was still at least arguable probable cause for the prosecution in this particular case the district court failed to perform that analysis and that it had hit if it had because of the uniqueness of this case where it's a retail fraud that arrest was memorialized in a police report there's no difference is what i'm saying between is it important there is no cross appeal regarding the granting qualified immunity for or other things that might have implicated whether or not the i'm going back to standard he doesn't appeal that as a false arrest that you need only arguable probable cause and that's also then there's a finding of arguable probable cause here by judge lieberman there's no appeal of that so i think that's that is the rule in years but because there's no cross appeal affidavit for both false arrest and malicious prosecution the court analyzed what was in that that affidavit determine whether or factored in the alleged false hoods and omissions and determine whether or not there was still arguable probable cause because there was the investigator was entitle to qualified immunity was a requirement of actual probable cause your honor mention that raises the bar on qualified immunity and distinguishes it from from the position in psychs that is often relied upon in  prosecution claims sikes did not involve qualified immunity so therefore because there was no probable cause for the the arrest there also was no problem calls for malicious prosecution as your honor pointed out this case is sort of the opposite because there was arguable probable cause for the arrest there is arguable probable cause for the prosecution in this case was there an indictment mr penn i don't believe so your honor i don't have that readily in front of me certainly the only participation that  that officer byrd told had was submitting this believe was the arrest of course and suddenly submitting his police report there wasn't any subsequent investigation he gave it to detective min sue for it on to the prosecutor why was that why would you have an indictment i'm just already what's the effect of the denial of the motion for judgment of acquittal well that is one of the elements in the motions prosecution claim a number of federal malicious prosecution prosecution claim has has four elements that is just one of them that if there is not an acquittal then there cannot be a malicious prosecution claim because the issue of probable cause for clothes but why isn't what's funny to me about this area and that's why it's similar to my  grand jury question because it comes up in states which have grand juries why isn't it quite significant and this is a friendly question just so you're not confused really hard a question for the other side why isn't it quite problematic that the trial judge said i'm not going to grant them i'm going to let this go to which her he was in that suggestive that there was a lot here that would suggest you could find someone beyond a reasonable doubt guilty well it certainly suggestive but it but it's not binding the my reading of malicious prosecution case law is that i don't understand why it's not binding that's my curiosity it's just very strange to me you have a neutral who is deciding whether that jury gets to find beyond a reasonable doubt that this person was guilty that's a high standard and the judge says yes they do get to decide that doesn't that suggest it's got to be probable cause of course it's certainly suggested your honor and that would certainly be an issue if th matter were to go to trial however it is have never said its outcome dispositive so no we don't think in the grand jury setting they kind of have and that that strikes me as a pretty good analogy not to know the words there's cases outside michigan which say if you go to a jury grand jury and the grand jury says there's probable cause for this indictment so they have the indictment that usually blows out malicious prosecution claims barring reliance on you know fraudulent evidence at the grand jury well i think that i guess you understand why i think they're similar i do your honor and not to argue against myself but i think the reason in this case you want to may not be determinative is because there is an allegation that officer told falsified certain things in the court said that there was sufficient there was evidence sufficient that he was either deliberate or or reckless with that false just remind me i should know this but that false falsity or potential well i don't know if it was alleged is being a falsity but it would certainly that the the distinction between for example what what kathleen simon testified a trial in versus what was in her attributed to her in the police report certainly those differences report and it alicia silly potentially and everything else even even though there will be probable cause to prosecute they're not a malicious prosecution claim or deliberate intentional misrepresentation and no your honor there's not that is but that's that's kind of what they're arguing they're kind of argued ok even if there's probable cause to be held responsible for malicious had over the prosecution and whether or not there was probable cause is a separate a separate element of a malicious prosecution claim just as it is for false arrest by analogy if if a police officer arrests his ex wife for no other reason than he's upset or that's a false arrest unless she's got a warrant out for her arrest or he's unaware if there's been there's independent probable cause irrespective of the officers motive all right that that's important there's no claim there's no for them in a violation or right and then added on top of that the qualified immunity element of it or a rubric that the as long as the there was arguable probable cause whether for the arrest or the prosecution he's  the plaintiff's unlawful prosecution claim finding genuine issues of material fact and by doing so they did not fail to apply the appropriate standard under the unlawful prosecution claim by finding genuine issues of material fact because what the defense is really doing here is they're c ating a denial of qualified immunity the plaintiff's false arrest claim based upon a finding of a reasonable belief in probable cause in the context of real time arrest they are confusing this with a denial of qualified immunity and the unlawful prosecution claim based upon the genuine issues of fact as a direct result of the unreasonable conduct of the defendant in making deliberate and reckless misrepresentations which violated clearly established rights of questions just confuses me about this case and maybe it's a not just gets more form over substance to answer your question but let's just keep it ok unlawful prosecution what's funny about it to me is we have false arrest we have that whole area but the officers the one being sued on this unlawful prosecution claim yes why is that when it isn't doesn't the prosecutor have to make the ultimate choice with this problem cause or is that something i've just got wrong it's not a big question is whether or not the prosecutor decision was influenced by or made or participated in by the conduct a wrongful conduct of the police officer but that's that's  fair if you've got fraud by the officer but if the extent the claim is about the officer not appreciating probably cause that seems no no no ange to me you know ok well if i me may continue and maybe i can answer your questions in that manner and if i don't please stop me and we can address it head on and just to get back to so we're all talking with the same language here malicious prosecution is a state tort and under psychs versus  anderson the court went out of its way to say that there really is no such thing as malicious prosecution under the federal law because malicious prosecution gives the unfair  cause yes yes yes of course of course it isn't the final decision maker of probable cause the prosecutor and ironic that yes but what if it is but what if yes what if he's making a good faith decision on probable cause based on false deliberate and and reckless misrepresentation right let's so that i think must be at the nub of it but let's let's pretend for the sake of argument there was no falsity just a mistake ok so the mistake was thinking there were probably cause and let's adopt your view of the world there was not probable cause to arrest ok let's just say you're right about that and he arrests he then recommends the prosecutor there's probable cause that this guy did this there's no lies just a mistaken assessment of probable cause then i say i don't believe in robber cause the prosecutor looks at this and says the show me everything in the prosecutor says i think you're right let's go forward in that setting i take it the officer could not be found liable because the prosecutor's decision would in no way to because he didn't do anything wrong he would get qualified immunity for simple negligence simple mistake if you will a mistake of a reasonable have to be a mosque you are just the same thing prosecutor does the same thing you can't sue the prosecutor the question is what have the prosecutor rely on if it was a simple forgivable mistake if you will then yes they get qualified immunity that's what's going on here he doesn't he doesn't get qualified immunity because he engaged in objectively on reasonable conduct by making materially false statements upon which the prosecutorial decision was made and we know this st of all part of the problem here all due respect to the defense is it's almost like a rhetorical sleight of hand talking about this arguable probable cause there's no definition in his brief or in any law any case that i have read that even uses that term so the real question is you have qualified immunity and you have actual probable cause so you either get qualified immunity or you have actual probable cause it's not like well it's kind of like probable cause i don't even know what they mean by arguable probable cause there's no case is that even cite this so in the six circuit the question of probable cause is a question of fact for the jury unless simply as a question of law i would still deny qualified immunity because there are unresolved important questions of fact upon which go to the facts malicious malicious those deliberate and reckless material misrepresentations and add back in the omissions that anthony and simon's not only denying that this was didn't see didn't positively identify this gentleman they affirmatively said it wasn't him so when you add those back into the equation if you will what you're really left with is a commonality of an older african american male who is substantially taller wearing substantially different clothes with a normal demeanor as opposed to a substantially shorter african american male who was  taking the evidence in the light most favorable was there any evidence put in to show that mr paine actually went in the city today musta had that with the camera so if that evidence put in yes we have was it yes yes yes and he had a receipt to show that he that i'm just saying that that's not a dispositive fact in this case the video the video was about three seconds and that it got to the positive much you got to positive witnesses you got a surveillance video plus you got the similarity that both people the thief said i work for the police and then your guys that i work for the police are you guys too which is pretty unusual that you would have two people with both claim to be police officers so i mean that's another thing that puts them together the problem and and they relied on that and the mr the defendant officer relied on he said i thought that was a very good term and that  it's a heck of a coincidence well people both say hey i'm a police officer it doesn't happen too often the problem with that is that that really doesn't come into the probable cause analysis not why not why because he he kind of a fluke ok that make it more or less probable that this might be the same guy because he misrepresented that initial encounter in sixty seconds i mean your  many african older african american men may also be a law enforcement i don't i don't know what that means i think it's a matter of confirmation bias i think the officer heard something about law enforcement and everything else was going to be pigeonholed in that to confirm what he already believed ok but the real question becomes whether or not there is a genuine determination for him but he refused to make it well he did he did make it for the unlawful arrest the false arrest claim but then he doesn't want to make it  qualified immunity for objectively an reasonable conduct in falsifying a report upon which a prosecutorial decision is made if it's different serial what if it is material disagree with it if it's immaterial then it's immaterial but it's not a but but the whole idea is this is not immaterial he's an excuse me i think you got the answer there judge a guy do you have any questions and i have one question  trial court granted qualified immunity that doesn't mean that there is probable cause you either have sufficient indicia of probable cause or you don't not understand that i understand that counsel and what i want but i was leading up to is that that emanation that the arrest it's reasonable that it doesn't mean that nothing was wrong and that under those circumstances the opposite acted objective be reasonable and the question then becomes so as you can see from the discussion or engaged in with you that there are there appears to be a carry over once that determination is made because the opposite or at that point handed in its report it didn't even check if it was assigned to the case that went through the prosecutor and what not and there was in effect no way to the degree that there was the officer did something wrong there was actually a procedure was such that he didn't get his hands on the thing again his report carried through to the very end and that status to be the wall you're running up against i understand i understand your point though that the one that's is necessarily to control the other and that's the point because we have a five experiment here what if i never brought a claim for false arrest and simply brok the claim based on an unlawful prosecution then there wouldn't be this  preamble by the district court going going through its analysis on whether or not there was probable cause for the arrest it wouldn't have been relevant it wouldn't have been relevant and nor is it any more relevant because the judge made his decision on false arrest an arrest made in real time now we're talking about something he's putting pen to paper in order to participate  robert for lack of a better term and mr penn but one thing that mr fein did mention he said that there's no where is is arguable probable cause defined it is defined throughout the six circuit law most recently in whether in analyzing that evidence no reasonable officer would believe that a crime was being committed so long as the court can say that a reasonable officer could believe that there was probable cause to prosecute mr patten th told us in title qualified immunity district court erred just accuracy so there was evidence that ten was in the value city well there's subsequently there was a receipt submitted but it is that was not surveillance evidence of that no and what i'm trying to sort out is that was was where he said he was and i was just thinking well there must be surveillance evidence that would give us a timing thing that would really make it clear what would happen in that in this particular point not to get too deep into the facts but when when  you know i saw no reason to go no value city at that point i'm going to indulge him he wants to he wants to create show me his alibi by tape by going over there that's what i would that's what i did and the tricorder dress that in its in its decision regarding the alleged be submitted in the clerk they call the next case