standing at the kiosk in the electronics are now the video shows that he and i know what i've seen the video and asked me was he doing what i'm supposed to be working they were all on the clock and it was he standing the whole time he's looking at mr harwood that's not true you know the whole time he's either flipping through the binder or glancing over and that means what well what the video shows is mr martin what does it mean she wasn't factual record versus legal inferences from the factual you know what what was presented below was undisputed facts showing what each officer had but the court took inferences from those without any any sort of dispute for the uncontroverted record and basically in we thinking i don't know how to properly put this of the merchandise he also took statement of mr hartwell the video show that hartwell handed something to robinson as three of them were leaving it appears that he's handing something when part of our argument is that the discourse analysis on the problem calls for on the false arrest is that the court didn't look at everything to get did look at the whole understand your argument are you arguing because it are you arguing that the video alone is enough for probable cause or that the video in combination with the heartland state needs to video in combination with the statement ok what is your itself could be suspicious and could allow the officer to look into it further which they did in questioning so we believe that this report basically treated it like a trivial piece of information that should be credited in a way however the west because westby decision so is that you have to look at everything you can't attorney did not call the officers who were there who were they are they were subpoenaed they were there they were present ready to testify they had the video the prosecutor didn't even show the video during the preliminary hearing and that and the magistrate judge as i understand sadly you haven't given me enough if you have more give it to me and the prosecutor is like no return directly in the end the officers cannot do anything about who is going to call them as a witness or not they could what is your understanding of what happened  r understanding is the prosecutor just dropped the ball mean the officers had no control over the prosecutor city has no control over the prosecutor it's a county elected process they couldn't do anything still don't know why the prosecutor did not call the investigating dispute it seemed would be whether the officer lied on an act not whether it exists and the reliance is a subjective statement that's who's to an objective statement he he was aware in a lot of on that statement and make no you can't say relied upon because the district court said he didn't realize but that gets you're doing the same thing we criticized during the last year it's not what the officer relied years of experience with the videos and they have the state by state there's no dispute that statement was already in existence about eleven o'clock in the morning in the same goes for peterson what the state was taken on the th at the latest they didn't get involved until months later and didn't arrest miller didn't seek to arrest miss robinson until november one and twel videos themselves he reviewed the case file looked at the horrible statement and sat and also spoke with prosecuting attorneys for an all county didn't call them at the preliminary and determined that it would be don't know how that statement could or could not corroborate what was shown on video the fact that the only thing that in that statement that could be corroborated or not received is that they were supposed to it was supposed to not  bring mister that would have been up to the prosecutor in bringing the witnesses he thought would be necessary to establish probable cause that because our well what in the midst of it all in terms good morning judge it's it's a it's a pleasure to be back here i was here a few years ago on the same case and from the same panel back here similar issue although some of the issues that we dealt with before been dispensed with my position is simple there st off the video is maybe an immutable record but it's it still raises questions of fact that have to be interpreted and that's one of the jobs finders for example you can just look at the video you have to know something about rights job or you might want to know something about what his job mr robinson my client's job was at the time that he was doing his about it the st person who looked at that video knew something very much about what wal mart associates job was wrote down made a clear record couldn't be clear that greg was distracted from noticing the activity by dr bates and that was basis for the belief that dr davis the other employee there was complicit in the crime now he's testified it in conflicting ways well he testified differently at his deposition but in two thousand and fifteen in this case but he made it clear in his initial notes that greg robinson was distracted when he was asked by the human resources director at walmart because greg had filed a human rights complaint about the incident to set forth his to review the video again sort of four and this time it was even clear because the st time said dr davis struck the other so shit the nd time for the human resources director at wal mart he said dr davis distracted greg robinson from noticing the activity now there is clearly i think if st person the person whose job it is to review walmart security videos says i believe this man was distracted by this other man and that's the only reason for ever suspecting that dr davis was complicit in the crime then there's clearly got to be a question of fact it may be an immutable record i basically is and i look for cases to that address this and i couldn't find one that was squarely on point and i wish i had been able to but i don't think i mean there's a seems to be a tendency to believe that because we can all look at the video that and it it doesn't change from one viewing to the next that it's that what's seen on the air or what it shows there's no fact questions raised but i believe that there are fact russians raised in the video itself concerning the implication of that would be that we can't but you don't have ending that india by itself does not give rise to probable cause correct that's my that's the reason for bringing that up now the district court i think found thinks that the video does not sit well found that the video doesn't support a cause and i think because we've about real quick about handing whether gerard whether greg robinson was handed something by hartwell i i was at every deposition in this case three officers testified reviewed it up to who reviewed the video before they testified allegedly or viewed the video even before that and nobody ever mentioned it doesn't it i don't see it i've never seen it i don't and you see it near the end i  if you saw what i least what i'm referring to in the tape i looked at it several times but and i looked at a recently for this argument and they all did lead together which is fairly strange if they're each doing d independent jo reasons i'm bringing this up then is because it's it's clearly clear in the video and watching the video that that there are questions i think raised even though it's immutable this is an example of one and as an example of how debatable it is that three people with a very strong motive to come forward with every inch of evidence that they had that video showed every argument or interpretation that they had that the video supported what they did because they're being sued for it none of those three people mentioned that none of those three people saw that so to bring it up and they were they had lots of time it wasn't just in the moment this is preparing for a deposition where your personal finances are at stake there are doing the very same thing we criticize and in the district judge did the same thing and said he didn't rely on this this officer didn't see that the question is whether a reasonable officer looking at this would have found probable cause which is not a certainty it's not a conviction it's a question where the reasoning person would conclude that  has been committed and i think in the argument you're making is that the officers didn't say anything about it but that isn't the test the test is what did the evidence the undisputed evidence a long time ago when they arrested greg robinson but that even when they were preparing for their depositions this is nothing to do obviously arrest because it's just an illustration of how debatable something that may be on the video is how much a question of fact can't say whether it includes people who needed to be the wanted to be there they're never raising support in fact it's not i think so i think it's hard for me to say it's not there because i don't see anything that even resembles being there so i it to me it's like maybe i'm missing the whole thing that i think you can see all right so then with respect to the heart of statement and i want to focus on this for a little bit because so st off the district judge said it contradict it that was his basis that was one of his bases for not going to the heart of video statement i think so i'm just going to lay this out there i don't think that that that peterson and morier saw the statement i'm not sure that that matters and i'm and i'm and i'm ok with that but but i don't think that they saw the statement but and i don't know that they watched the video there's lots of contradictory evidence to suggest there's think the more critical focus will be what miller knew well if we stick with miller that clears up some issues because there's no question he saw the video there's no question that he was aware of the statement he took the statement he alleged he took the statement so so miller there is to me and it's plain as day that there's no question but that miller knew that the statement he's known all along the statement just isn't isn't true and there are statements in it that make it plain that hartwell statement he says they talked me into doing it again under the agreement i would give them an i pad i pod each miller never asked did you give them a night miller never asked additional patients the question is why isn't that statement is there any evidence to suggest that park well statement is untrue yes what in fact that all seven i pods were accounted for it makes it suggests it's not true the fact that hartwell gave a detailed description of every place in all seven there were you could take a it was eight items and there's been some great shots were returned seven were richer there were eight items one of those the deposition testimony you know all higginbotham who says that one of the items that that goes into the eight is a set of your butts the seven i pods were all recovered well were all accounted for six of them  recovered and returns of wal mart the th was the one that the drug dealer the jeremy to to a drug dealer the drug dealer gave one to his daughter and he was going to give it back but it's not there's no record of that ever having accounted for but six were actually recovered five from pawnshops one from one from a drug dealer from a marijuana dealer and the other one that the drug dealer when that t that those two from the drug dealer the drug dealer said i gave the other ones my daughter she's school i'll get it for you and give it back there's no record that that ever happened but we can at least presume that the drug dealer had to say that seven of seven i  if there's any basis for corroboration what is your state your statement is fuzzy under the agreement i was supposed to give them to it well did you did you have such an agreement did you did you give them to them y arrested him in part because miller testified repeatedly that he had seen her statement after he had already take all three warrants so why are you saying there's no factual dispute as to whether miller had knowledge  going from from from i'm just over the time i'm with the record my belief is that the deposition in the deposition of of officer miller he st testified that he didn't have the statement and he later state when at the time that he he later testified no wait i i probably did and so they're the st now now there's no question that he didn't have the stick he testified very clearly that he didn't have the statement or rely on the statement at the time that he made the determination to seek the warrant for greg robinson but and i think as a fact question about whether he had it at the time that he sought the warrant for greg robinson but there's there's no question that he he testified very clearly that he didn't have it when he made the determination that i'm going to seek a warrant and seek the arrest of greater on his business record that records to the hour minute and nd of a conversation which miller says i have a statement from heart and i'm now going to restaurant saying very clearly heart the st testimony by by officer miller was that i didn't have it subsequent testimony and evidence suggests that perhaps he did have it he very what i what i thought was in my recollection was that the time stamp wasn't that important what was important was that was that nobody made it important except that it it's a two and a guy recording conversations as they are that detective miller did have at least access to knowledge and the heart will statement at the time he made the arrest but it's pretty clear that the district court nevertheless found a disputed question of fact on that point what are we supposed to do in this posture on interlocutory review do we have jurisdiction to reverse the district court's act finding or is that not something we can  ok and then i think i know that that from from my perspective even if even if the hardwell statement was present at the time it is clear from the circumstances part that officer miller declared his intent clearly declared his intent to arrest craig robinson prior to taking that statement everything about it everything he reported about what happened with those i pods suggest that hartnell was talking freely giving everything up about everybody and that he described exactly what happened with those and they recovered the model where they accounted for all of them nobody asked any follow up questions about anything to clarify this confusing ambiguous statement under the agreement i was supposed to give them did you give them what was the agreement there's no evidence that greg blocked any cameras i don't know that greg knew where the cameras were to block don't know than anybody knew where the cameras got cameras all over walmart and i don't think they're that conspicuous but there was no evidence that he engaged in any walk in the venue cameras you can see jeremy hart was actions perfectly clear on the entire video the statement itself raises more questions than answers and it suggests very strongly that this is a statement requested to support a preconceived idea and that nobody followed through with with anything there's no question that hartwell would have given that statement there's no question that the actions of officer miller p did leave there after after taking that statement and after arresting greg robinson we're i'm done with this i'm not doing it he didn't show up at this preliminary hearing the st time he didn't return higginbotham's calls a nd time and that was it the statement is this is just what it is what it obviously extent anywhere except in a and perhaps in a court of law it is obviously a fabricated statement made for the convenience of somebody who had some motive to do something that they should have been doing and it doesn't make sense no questions were asked about it no follow up questions were asked about it a well it would be either miller or hart well but but it's not fabricated in the sense that art bell gave this statement but it's fabricated in the sense that there is no you can say well may have been mistaken but he gave statements not a fabricated story was asked to give the statement and he gave a statement and that is what happened there's just no question about that in the real world there's no question miller laughed with a determination to restaurants and he got all the information from well about what he'd done with the  hartwell volunteered everything that he'd done everything that happened he didn't put any of that in his record notes and then at the end of it he gives this little statement that is they it's confusing it doesn't commit him to anything and nobody followed up on any after the state immaterial what do what what the court needs to look at is what a reasonable officer having all the information the officers possess pods number two you know park well that the only question at issue is whether davis and robinson were complicit in the question then is it then you don't have to prove that is it probable cause sufficient to say that then the evidence shows that these john were together in simultaneous time they were functioning in a manner that was somewhat scrooge and that hartwell then said he was going to give robinson one of the opcodes who was last question is a reasonable officer having that information kenny pick him up and have put into his defense and he seemed to be missing all of those points you keep focusing on what the whether there's a conviction can rest on the video or whatever i don't know what your standard is but it seems to me we're talking about the common sense notion that some officer believe re that's putting their states and their lives at stake somebody says even if they were found innocent in the quit it doesn't mean the officers acted on reasonably they're entitled in a case of doubt to some protection  and i'm still i just i know you may not know the answer to this question but i will say to me it looks like the prosecutor thought he didn't really trust the horrible statement and he didn't think the video was that it is because he didn't show any when the  i cannot speak to the prosecutor did not call officers who were there ready you know and it's i guess i just want to give you a chance i understand you don't know what happened but i have a real concern as it just looks to me like nobody on the ground thought there was probable