account of another inmate there are corrections officers whose job it is to prevent forgery by checking disbursement forms and checking the identification of the inmates who submit them to make sure it's the right in me as a result the theory of guilt here was that on seven different days a half dozen correction officers either didn't do their jobs or were somehow fooled by mr elder into believing that he was someone completely different these were therefore critical witnesses and that's why mr elder requested that they be interviewed before the hearing and that they be present at the hearing as witnesses however the hearing officer did not call these witnesses and according to mr elder the assistant who was assigned to help him prepare his defense refused to help and did not locate them from and it may not be clear in the record but when these forms are submitted for signature is there is a signed and given back to and made or is it hall captain checks that stamps it science it is then sent to a business unit for processing at some point there's a separate signature from from that's how it gets to the business unit that's that's correct your honor and is there anything in the record also to establish  who was on duty at what time to review these forms that were submitted well yes your honor the log books and the staffing grid that mr elder submitted on summary judgment identify all of the officers in a block who were assigned to the day shift or the evening shift and specifically identify the hall captains and the hall captains are the individuals who stamp and sign the disbursement forms so in order to determine which individual signed a particular disbursement form the hearing officer merely had to look at the log book determine which to haul captains potentially could have seen the form and then asked each of them is this your signature that's all the hearing officer had to do those records are readily accessible the record suggests they were your honor i mean they were produced in discovery mr elder submitted these records on summary judgment and defendant said nothing about them they didn't even mention them they didn't present any evidence whatsoever in response they didn't present an argument in response to the effect that it was justified that the hearing officer and the assistant failed to consult these records it's important to remember that in  other denial of witness cases this court has made it very clear that it is not the inmates burden to show that the hearing officer or the officer assistant was arbitrary and capricious it's the defendant's obligation to prove the rationality of his or her position and here the defendant's completely failed to discharge that burden of proof when presented with evidence that they should have consulted staffing records in order to identify witnesses they said nothing so clearly they did not establish their entitlement to judgment as a matter of law and were not entitle to summary judgment contrary to what the district court held but in fact mr elder was entitled to summary judgment because the defendants didn't satisfy their burden of proof now on appeal the defendants have argued that oh it's just too burdensome to consult these records but of course because they didn't make that argument below it's waived more importantly and substantively there was no evidence in the record to suggest that it would have been burdensome to consult the records and also when you really think about it that argument is quite remarkable because the whole purpose of having records that document who does what and who is responsible for what is to make it easy to answer questions like this your your theory is in the the seven days that we're looking at you could look at these records and i've looked at them identify who the hell captain is and bring that person to the hearing and this is pretty not very difficult thing to do so it falls squarely within the hearing officer would have had to consult twelve or thirteen hall captains in order to determine which ones had signed the forms and remember the list in kingsley that that the hearing officer was supposed to consult in order captains on those dates certain hall captains worked on multiple days and so you'll see the same name on multiple days the the hearing officer in order to get to the bottom of those four disbursement forms would have had to consult six hole kept inside we have the precise number in but it's i believe it's six and then for the other dates for the other three forms at most there were two hall captains per day that the hearing officer would have had to consult the day and the evening shift hall captain for those dates so when you add six plus six it's twelve there is potentially one more whole captain so thirteen at most it's far fewer than the number of witnesses that the whole captain would have had to consult and kingsley also in areas versus the hearing officer was liable for failing to identify a witness locate a witness who was in fact at another facility and he was identified only by cell number there was no argument that it was too burdensome and the hearing officer was liable and that the he was in fact convicted of if you will in terms of the evidence that was offered a theft of another inmate's property but could you was there any real confusion in the proceedings here about what he was being charged with that was theft of this other inmates property is that really what are the effects of that mismatch it looks more like a typographical error than anything else well your honor he was he was charged with theft with under a rule that says that of state property he was convicted of that that's also in the record of the the sanction the disposition and the sanction it's true that at the hearing it was clear that he was then mr elder was accused of stealing from another inmate but the point is that the charge and the conviction were invalid because the rule simply doesn't cover the conduct that that he was accused of so they just that the mis citation is the basis for your claim that you know it but there was there was in fact a rule that he would could correctly been charged with violating there is indeed a rule that prohibits theft of other inmates personal property but i just want to be clear that's not the only argument for why the evidence was insufficient as your honour's know the fourth department found that the evidence was woefully insufficient and vacated the hearing disposition on background i see my time is up but i'll just briefly finish the thought of the and  reason was that although perhaps there was some evidence that elder filled out the forms there was no evidence in the hearing whatsoever that lawrence hadn't authorized the dispersement there was no there was evidence perhaps of a money transfer but no evidence of actual  any lack of consent and so because may not have been sufficient evidence but i'm having difficulty concluding that there wasn't some evidence in this record your honor respectfully there was no evidence because all that we had was a misbehavior report that said i i received an investigation of possible forgeries against an inmate's account comparing some handwriting i determined it was this culprit that's all the officer testified to at the hearing there was no evidence that lawrence had not authorized th be potentially have some merit but the business office process these forms so i mean i'm sure there may have been there may not have been substantial evidence but why isn't that sufficient to me more deferential standard we're talking about here your honor the fact that the name was misspelled and that according to the officers the handwriting on the dispersement forms looked like mr elder's all that establishes that perhaps there was some evidence that mr elder filled out the forms but that doesn't establish that he was not authorized to fill out the forms that it was in permissible people transfer money to each other all the time inmates can know each other money they may decide to send money to another inmates family member that's not a crime under the offenses charged here unless it's without authorization that's what faffed is that's what forgery is and so if there is no evidence in the hearing record that the purported victim didn't authorize the disbursements or that even complained about the disbursements there is no crime and all know that even if the misbehavior report had said lawrence told me that these dispersants were an authorized which he did not this court clearly held in luna versus pico that  guilty of no presumptively guilty of no off and because the prosecution hasn't showed that it was consented to that he signed someone else's name before and someone else's need i don't know if that's perhaps some other violation of the disciplinary rule but in terms of theft if it's authorized by another inmate then it's not it's not that i mean an essential element of theft is a lack of consent or authorization and so it's it's the state's burden to affirmatively show a lack of consent it's not in your defense unless you're on a set for their questions i'll leave it at that  the various claims involved on appeal first like to address a waiver we did slightly overstate the case in our brief and we said it could be raised at any time what that what it is that waiver on qualified immunity under this is reachable and it's reachable wherever qualified and this court regularly reaches it wherever qualified immunity can be determined as a matter of law and there's no additional facts that need to be gleaned from the record on remand before it reaches it regularly under those circumstances in those circumstances apply here to each and every one of the claims that are raised on appeal if i could i'm going to like to tie that in a little bit to the question about what needed to be done by the hearing officer and relatedly what needed to be done by the inmate assistant with respect to identifying who the officers who countersigned these were i think it's pretty telling as to how apparent it was because the standard from kingsley is that it must be written who the people are has to be readily identifiable not that there are records that can lead you down a path that would make you make it possible to identify the person it's important to note that in care i'm i'm concerned that it was possible to identify these witnesses who were involved with and had knowledge of the forms that were allegedly forged and there was little effort made to identify the people who would have the ball in the according to the schedule have dealt with those forms if the if the hearing officer had gone and pulled those records which no one suggested that he should not be that can't be the standard doesn't know i want you to go look at the staff planning grid or the log book he says i want to i want to be able to confront i want to have these witnesses available at the hearing right up to the standard is whether what the hearing officer did in order to figure out who those witnesses was was reasonable and here he did take efforts if you look at kingsley and the other case that appellant's rely on the hearing officer did nothing hearing officer said you have to tell me who this witness is otherwise i cannot call  hearing officer here went one through each and every one of these forms was unable to determine who signed it why was the assistant bound to take were action that he was kind of clear that if there are staffing reports or schedules that you could identify the people who would have been responsible for it and he did nothing that the of that sort but well i would say is that is that ok i would say two things about that one there is a dispute about whether the system was in fact asked to do that the record shows on page forty three of the record which is the list that mr elder signed on the united system form of what he asked for he did not ask the the inmate assistant to go and speak to any of those officers he asked for them to be present and the inmate assistant you could interpret i'd like them present at the hearing is i better make reasonable take reasonable steps to identify them so they can be present at the hearing the assistant could do such i mean why that wouldn't be reasonable and why good in the circumstances you're looking at legible says it's pretty important to figure out how the steps took place to go back and see what you can find out and if it's readily available from the staffing planning and in this logbook that's reasonable assistance to help and help him identify those witnesses right and i don't think it is readily available from the staffing planning in the logbook if you look at those if you look at those those at those records and particularly with respect to the hall captains it's not clear from those records or anything that follows from it that the procedure actually is that a whole captain is the one who signs off on it not all of them even have a stamp from the whole captain if you look at the stamps themselves they also have a line for an additional signature that should be coming from a hall captain only one of them actually has that signature from a hall captain although all of them have a signature a different signature on a different line that is some time stamped over for the office or the illegible signature of an officer who accept form moreover it's not clear looking at those it's not clear from its face how you would get to the the first person and even from there it's not clear that a reasonable step is to require the inmate assistant who has a short period of time before the hearing commences to identify folks to go from that to pull up staff staff logs and planning grades and then to go from there to to presumably hall captains or someone who is identified to ask them to maybe leave them to get more people simply no analysis of this at all district court's opinion it's heart to infer all of that that you're now arguing as being the it's analysis because we have a single sente taken not whether they succeeded with the steps that they took and the hearing officer here did take reasonable steps he went in tried to get more legible copies of the forms which was in part prompted by comments from mr elder during his hearing and he went to the block and consulted with officers the record would be better if it provided us with more detail as to which officers he consulted with we don't know if you talk to hall captains we don't know if he talked to others but those are reasonable steps and more importantly and this is why i said that i think qualified immunity is actually the clearest road through this case is that it's not clear under kingsley that the steps that the hearing officer took here were not reasonable or appropriate he did make an effort and you know to borrow the phrase from white versus polly you know qualified immunity protects all those but the plainly incompetent and those who knowingly of all violate the law it was not plainly uncommon for the hearing officer here to take the steps that he took particularly where  no one at any point suggests that he should have consulted these other locks not other officers not himself and by the end of the hearing mr elder indicates that he's you know happy with the amount of work that went into it and he says you know you can only do so much fight immunity i'd like to just go back for a minute what is the reason this was raised until you did raise a summary judgment except as to the superintendent is that right that was it first raised as to the other defendants and what was the reason for not i don't know what the trial attorneys reasoning was there i think that there was just oh i think i may just have been an oversight and they rely on nortel for that point and i don't think nortel's a one nortel's not a qualified immunity case but second and i think that's an important distinction qualified immunity is a doctrine made by the courts in order to recognize the public officials need wiggle room in order to do their jobs and that that policy consideration does not change whether it's first raised on appeal or whether it's first raised so i think that it does change the course of litigation the officers actions were right it certainly would be best for the issue to be raised earlier but that doesn't mean that an officer who would otherwise should be entitled to qualified immunity should be held personally liable later just because it's not and i don't think that there's  support the contrary proposition is a question of fact here with regard to and mates access to the disbursement forms himself right there's a question of fact as to whether he asked for them from his inma assistant he was allowed access to them at the hearing the hearing was then adjourned for a week he was not provided copies that he could keep using he was allowed access for the bit here and did just that they were kind of showed to him but he didn't have copies he could keep it study and examined looking for for example some way to identify who had signed the forms right he was not given copies that he could keep and take with him partially because as i understand the regulations that might have actually been put in contraband in his hands but aside from that point he was not he was not given a copy he could keep but he was clearly very familiar with what was in them and the record shows clearly that he was show we want to see exactly what the dates were as well he right off the at the beginning when he's before he's given access to them he says that he doesn't know the dates he doesn't raise that at any later point in the hearing and later in the hearing he makes other arguments about the forms themselves you know he says that why do we only have the top copy of the form that has the stamp on it when it might be easier to read triplicate copy that the stamp wouldn't have followed through on again that there is a he says that but i don't think any reasonable jury could conclude that looking at the hearing transcript itself and i see him out of time tried to be one very brief observation in the event that the court does send some of the claims back and i notice this is not in an issue that comes up in the briefing either way but the state walkley on lawful confinement claim that was dismissed was dismissed under new york correctional twenty four it was not released  pending state law claim under supplemental jurisdiction that claim should not be reinstated even if some part of this case goes back because the basis was not of release of jurisdiction says inmate identification verified a designating a block presumably and then haul captain with a line so the stamp indicates that the whole captain is the one who is verifying the inmates identification those are the people that we need to consult in order to determine whether they know if mr elder or mr lawrence has submitted the form and it's clear from the staffing grid and the logbooks who those hall captains are if defendants want to provide an alternative explanation for what the stand means or who process is the forms the time to do that was before the district court these records have been an issue since mr elder's complaint he said in his complaint that these defendants should have consulted the records he presented them on summary judgment they said that this court often overlooks waiver especially in qualified immunity cases however in this case it's not a mere inadvertent failure to argue qualified immunity the defendant's me the concert choice to assert qualified immunity only as to one of the defendants and they made an argument that was entirely different from the argument that they are now making on appeal so if it's a tactical decision there's really no basis to reach qualified immunity for the first time on appeal moreover in terms of the merits of qualified immunity i think kingsley clearly establishes the right that's at issue here and makes it objectively unreasonable for an officer to fail to consult readily available records which is the term used in kingsley the listen kingsle was not a simple list of witnesses who could all certainly be called it was a list of thirty six potential inmates who might have had relevant testimony it was a step to finding actual witnesses and so is analogous to this case that your hon