at the outset i believe that we do not believe that the apple e's demonstrated their initial burden of demonstrating entitle me to summary judgment but even if so we believe that the record below clearly established the existence of a genuine dispute a material fact and that they were not entitled to judgment as a matter of law with respect my argument try to bifurcate on between the issues relative to officer bartley verse and then conclude with the arguments relative to superintendent  the issues with respect to also bartley i think arise from a misunderstanding or mis characterization below as to what the legal claim was against him this is a simple fourth amendment claim and goes to the question of whether or not there was probable cause to seize in the parlance of the fourth amendment as so following his initial rest by an officer home or with peers township police department but what is your claim as to what he failed to do was it because he failed to administer the oath to the arresting officer or because he failed to make a separate probable cause determination when he was brought in what i don't the issue in terms of the oath setting forth any facts by which probable cause should be fine i don't believe and i don't believe in terms of making this independent determination of the simple question of why that is did he was there probable cause at the time of the seizure by bar that would be against the rest of the fourth amendment applies against all state actors and that's why i think part of the problem is yes they admit resting also has to have probable cause to arrest and the prior panel of this court determined that there was a genuine does fact as to whether or not the initial resting officer had probable cause if there is a riddle resting officer had probable cause i would believe bartley would be fine because it would have existed probable cause to arrest him are you arguing that there are conducted by bartley operating under color of state law when he took physical custody and control over a cell but if that person was already seized and already in custody already arrested he continues the seizure it's a continuation of  seizure but the question is that kind of original seizure had probable cause and i think partly is see what's your best case authority to support what i gather is your position that bartley had an independent obligation to assess probable cause your i don't again i want to clarify i think the part of the language isn't that he had to actually assess it the question is whether or not there existed a problem how would he know if he didn't assess it well i think i think one day he basically inherit collect i mean i kind of go to the collective knowledge doctrine where you have multiple officers involved each having some facts none independently being probable cause but the courts have said the collective knowledge of officers can be used to establish probable cause so the individual in the collective knowledge doctrine the individual officer does not necessarily have to possess probable cause but other officers involved in the investigation and the process taken as a collective together can establish probable cause to be let's go at this from another angle what is it specifically that you say that officer bartley should have done in order to make sure that there was probable cause i believe that if bartlett also bartley had the the complaint slash affidavit that had some in it other than a legal conclusion if you look at the complaint that he found it was simply a parroting of the state statute for aggravated arson but if they had some facts there which a reasonable observer might say yeah there's a fish that's constitutes aggravated arson and it was and that affidavit was executed under oath not simply witnessing but under oath and i think we could have it in theory if you think about the resting officer could lack probable cause but if he presents certain facts to bartley and say yeah those facts do rise to probable cause even if it's false even if it's misleading then the initial officer i think can still be held liable but then bartley would be in a position to say i had sufficient facts to say there was probable cause when i see used because it doesn't dispute i when he was turned over custody to and at his deposition the question was simply what facts did you possess when you took custody he knew the officer at arrested him and here he is that's all the facts he had he had no affidavit and then even develop subsequently i could say doesn't at that very  to refuse to process someone in when an officer presents them as a consequence of i'm going to arrest in order to comply with the constitution i say yes the that he's more than employed he was more than a clerk he was actually in a sense a correctional officer taking physical custody and control he was not simply processing paperwork that's to me that's more the clerk aspect if you mean to tell us that that if detention center the second officer had an obligation to find out that there were probably also if that second officer took him in there was the probable cause lacking that probably also we also be liable if there was collective  the resting elephants are present evidence and facts to that second officer rises to the level even if it's false then i think that second officer does have qualified immunity the first officer may not ok so can you point to any case in any court where applies to all state officers not just won't force meltzer's ok jumping ahead a little bit if there isn't any case law out there that says that a booking officer or in this case an officer in a juvenile detention facility who process is a youngster in and if there is any case law other that says that there is an obligation to ensure that probable cause was there for the arrest why wouldn't we i think you know that is she was not raised to brief the lower serve biloba but i think the issue is question i would argue that the premise that the fourth amendment applies to all government actors is clearly established the fourth amendment when it rises to the level of a first panel actually declared they may try to make that argument previously in the previous panel said she made no such finding and so any officer who brought your client from the detention center to the to the judge  just is guilty of the fourth amendment also in theory yes because they don't they don't make that determination they don't make the drug but in fact that the judge the judge did order him continued detained which even though she never made a probable cause finding except that then justifies the continued detention following that here she ordered him detained for seven days never making a problem make the problem correctly didn't but the court order protects you know again when you talk about the acting to bring him to court which i think you would then get into a question of potential of judicial immunities bring him to court pursuant to a court order to appear that there was a court order before we brought it over there it was just it is the process by which they've scheduled a hearing a probable cause hearing corso when the facilities office are simply holding that individual until they could go to court and have this issue educated or determine he was holding him he was seizing him in the parlance of the fourth amendment either the part fourth amendment applies to all government actors or it does not that's the issue with respect to partly i do would like to move on briefly if i can with my remaining time to just talk a little bit on del grande in terms of the negligent supervision and the eleventh amendment i think the eleventh amendment issue out there they try to bootstrap a detention center into the concept of a common pleas court case i think we really set forth that you know they clearly meant that the state is not financially liable which the score does indicate in the supreme court's indicates the first and most significant factor but of the other factors we go to you know we point out that the attorney general of the state of ohio said with respect to common pleas court not that the tensions are but with respect to common pleas court it's not clear whether or not accomplis court judge is or is not a state actor and you know the judge the juvenile court judge equated what was occurring at the juvenile detention center is being akin to a county jail she didn't create what the state does she basically ignore the alternative of or a claimed wrong against a third party in the supreme court who has said or as a function word indicating an alternative between different or unlike things they want to treat whether or not the before the negligent supervision whether or not the underlying employee is personally liable as the same as whether or not the employee committed a claimed wrong they have to be something different like things see my time is up oh thank you can tha i please the court my name is frank scaled down and i represent thomas still ground and officer bartley our theory of the case centers around that and intake officer is not constitutionally required to conduct a second probable cause determination when another officer has already arrested already sees the person being brought in officer bartlett cannot be liable for doing so without a constitutional violation in this case all of the plaintiff's claims kind of fall in order there is no constitutional violation by barly again bartley was not the one who arrested arrested self and there was no law there's no law that i'm aware of and it's not surprising because it's kind of a unique kind of a somewhat broad argument that would support the plaintiffs contention that every one after the initial officer who doesn't do an independent probable cause determination could be held liable for a seizure claim again you agree with what the counsel that at the time bartlett took possession that are required to do to process some he's he's not out on the street seizing anybody he's really otherwise the argument i guess would go that the next person that you travel him down to would be in the same type of situation  just doesn't i mean with that it just doesn't make sense to me how the how that would play out in apparently the courts there is you mention is there any court supporting that there really is a man going to such a unique kind of such a broad that the only case that i was able to lay hands on was a district court case in the northern district buster versus cleveland two thousand and ten west law thirty three zero two six one and that's in the  briefing but there apparently that same argument was made and disregarded as a matter of law well they were your client bart they had an obligation to put the first officer under oath and he didn't do that right that's correct and that was their read the affidavit so called affidavit that would have provided probable cause i believe the officers you know that the complaint was pretty it was pretty sparse but the information that's out about attempted arson burning in the company documents and the information that partly received i believe did have some information about that he was burning some sort of wood  made the statement that he didn't care if something caught on fire in the house so i think that there probably was maybe not specifically in that complaint because if it was pretty i think there was enough to establish probable had a gun is out and i think it's enough in this case with the statements made by officer homer as well generally i appreciate your question and that you know as this is a sure blanket conclusion restatement enough and i'm not sure how the courts have come out on the level of specificity needed in the criminal complaint but it seems to me that that the s l had already been seized in this in the circumstance by the officer i don't know how i mean i know that officer barly would turn him away based on the statements and the initial seizure by officer homer i just can't get my mind around how that would play out with regard to because the claim against supervisor doug grant is an official established here so that claim goes by the wayside additional way the final claim is the state law negligent supervision claim and that claim to fails because there's no there's been no demonstration of a legal violation a legally cognize of a claim here and therefore there can be no negligent supervision claim and i know that the plaintiff is making an argument that while it can be there it can be a claim wrong under ohio law and i don't think that's that's a correct statement over ohio law you need a legally cognized will claim to underline a negligent supervision claim and i think that the case of struck first is price now which is featured prominently in our briefing expressly holds that without a legally viable claim you cannot maintain a negligent supervision claim unless the court has any additional questions i mean that is our basic theory of the case and i think that the court the questions are are are right on point with at least the way that we're viewing the case there's no other questions are you mean to you we also have made the alternative argument we're saying there's no our primary position in this case there's no constitutional violation there's no legally cognize bill claim we've also made the argument in the alternative  eleventh amendment munity and we've also made the argument on behalf of bartley of quasi judicial immunity based on the fact that he was operating under an order of the view of the juvenil thank you very much for your time i appreciate you counsel rebuttal to address first with respect to judge don's question when he denies that there was a seizure or occurring case law is clear there is three types of interactions between individuals and governments and encounter terry stop or seizure it's got a phone one of those three he basically disclaimed any of those three saying the constitution does not even apply to bartley as a state actor  with respect to the affidavit judge seidlin the affidavit simply parroted the state statute said nothing about broadsided by fire cause of substantial risk of harm to others that's all this affidavit complaint that was on sworn that set forth no well that would be better but i don't know where that's retired i haven't got ever got a few speeding tickets they usually say it was by radar and how was all assessed and determined so i think those type of situations do put some meat on the bones here there was absolutely no meat on the bones in terms of this complaint affidavit with respect to the negligent supervision claim yet again it's i think it's important reckon it's not that which is a state law claim is not based upon the alleged constitutional violation but is based upon the underlying claim  false arrest or false imprisonment against bartley again it goes to probable cause but may not and so the betting and by the courts questioning there may be a distinction between the one thousand nine hundred three claim and the state will claim  i would agree there has to be a legally cognizable claim in or took place was struck and that legally cognos claim is false arrest false imprisonment the straught case the underlying claim against the employee was alienation of affection which the state of and i'm not looking at a state like claim now i'm looking at the your claim that there was a constitutional violation and for which the grandee is is responsible wouldn't you have to show something more than someone under the supervision screwed up to correct i think there's got to be demonstration of wanton and willful misconduct that's already been addressed by the previous panel that's the case in the previous appeal that they didn't find that he had in wanton misconduct because the court court in that decision the judge carefully said you know a jury could therefore find that by failing to train barley about a specific detention requirement don't grant exercise no care with regard to supervising his staff or disregard the risk of illegally detaining juveniles and it talked about in that sense of what your willful conduct that there was enough evidence in the record to pre that as an issue of fact to go back to trial that's all the case based on the previous in that del grande took one final thing i'll just point out if there is an eleventh amendment issue in terms of the state law claims the remedy is dismissal without prejudice is not a prejudice a determination