allegations that his constitutional rights were violated specifically there are three points of error that i'd like to point out to the court briefly address the first is just your core committed error by not analyzing whether mr cunningham confession that he sexually abused by not granting qualified immunity to the detective or the officer that was involved because none of mr cunningham's victims having his daughters ever leave canted or reversed or said that they were somehow compelled to give false evidence that their father had sexually abused them essentially what's going on here at lax and like a confession first mr cunningham was provided every protection afforded under our constitution and under the law for at the time that he came in  but once once he does come to the one actually least far he's afforded every specific protection under miranda the opposing side relies heavily on the case of cooper vs dubnyk which was decided out of the circuit the time to show the sanctity of the miranda rights were protected the officer stopped just continued any further questioning or interrogation of mr cunningham at which point mr cunningham wanted to reinitiate contact there was no request for an attorney if confession was freely and voluntarily given at that point he was placed under arrest after he read his find each page of his confession which outlines in graphic detail the allegations that he had confessed to regarding his daughter at that point we get to the superior court of the trial court level where the protections under criminal rule three point five suppression hearing were put in place and were fully analyzed by the trial  court judge and it's important for this court to understand that the trial court as a criminal case observe the mood and demeanor of mr cunningham on two separate occasions that came when he testified to move to suppress his confession that he sexually abused daughters and also at the time that he pleaded guilty stating twenty three times that he fully understood the ramifications of pleading guilty and admitted in open court to the same judge that he had sexually abused his daughter hundred twenty three separate occasions the court made a determination after observing his mood and demeanor that he understood everything that was going on that he understood his rights and he had a master's degree highly educated man there was no question that he made that knowing and intelligent waiver of his rights and that under the circumstances the length and time of the interview in the way the interview was conducted which led to his confession was not coercion and is not violating his rights fabricated or false evidence that led to mr cunningham either pleading pleading guilty that he sexually abused his daughters let me ask you a question if i may about my jurisdiction we have jurisdiction on  at this point you are we addressed that in our reply memorandum just court has jurisdiction because the lower court's order did not set forth the reasoning or the rationale why it tonight qualified immunity which is the fundamental right that this officer has that the evidence she married was false evidence or coerced evidence and that's because none of the four daughters have recanted and the one daughter jessica states unequivocal in her deposition that none of the evidence that she gave was false or un pleading guilty twenty three times to sexually abusing his daughters qualified immunity should have been granted and the officer should be dismissed hours or my time t can look at his briefing and his is challenging part it seems there is legal questions as to whether certain conduct is clearly either violates the constitution or if it does that it was judgment would be appropriate in this case to stretch nielsen noted in his order that is the subject of the appeal today there are genuine issues of material fact as to all mr cunningham's claims now we have alleged for violations of constitutional rights i believe the record would support additional constitutional violations but these four are the most clear the first is whether or not mr cumming have a constitutional right not to be compelled his actions and there's more than enough evidence in this case for the jury to make that inference i'd like to look at three specifics that demonstrate officer present that faith in this case point that might be negligence but that by itself does not violate the constitution but what does violate the constitution is when the officer deliberately does not make a record in order to obscure the evidence that's favorable to the   in this case and then concluded that there are genuine issues of material fact as to all of the constitutional claims against officer harassed this court does not have jurisdiction to review that finding at this point here we are be whether or not that statement that officer caressed took from mr cunningham whether that was coerced or not and now look at all the facts and circumstances and they'll make that determination but as to whether officer present title qualified immunity that's a legal issue not a factual issue for the jury so you're saying you wouldn't get a jury verdict on qualified immunity i don't believe there are unfortunately has to go through the record on of the noble basis and look at all the evidence once again to determine if qualified immunity apply the reason why it's not a factual question that's being reviewed by this court because mr cunning ham's confession the evidence that was put in regarding that confession was not analyzed by the district court as to whether his actions by if the constitution or whether his actions were reasonable when he contacted that person law not to grant qualified immunity based on the interaction of the cac impressed with mr cunningham as just dispersion pointed out after this gentleman pleaded guilty twenty three times give the same judge and i emphasize to this court the exact same fro you're correct your honor nevertheless you can't just say my will was over born without some evidence consistent with the case law that's happened that's true of the very circuits in this country that sure that his will was over born and that was analyze trial court that trial court judge saw the mood and demeanor of this point if i responded you mean the state of the state criminal trial court at the suppression hearing to determine exactly what should be determined your honor respectfully to cooper versus dubnyk which is perhaps one of the most egregious cases that show how an officer over bore the will of someone in that case it was designed planned with the officers to violate someone's constitutional rights it was an officer coming out after six hours i believe of interrogation and stating to fellow officers that they knew that that person was innocent but the person was sobbing and crying and going through all of these sort of things and the ninth circuit absolutely trounced on the officers violation of of the six percent policies of miranda but even after that certain qualified immunity issues were granted by the court and on  appeal on the exact same issue whether it was a question of law there was a split decision that three of the justices felt that even that type of a grievous activity which we don't have anywhere near close in this case the officer should have been granted qualified immunity