morning honors may please the court welcome to the first day of manson honor to be in front of you all this court should reverse the twelve be six ruling on the motion by the district court because the district court improperly made inferences against the plaintiff is this court well knows and if ball and twamley the standard is plausibility and it's the court is required to take the plaintiff's best case and this particular instance the court grabbed on to qualified immunity and found favorable inferences for the defendants and violated well established precedent that the court is not to make credibility determinations the court is not to look into the facts beyond well pled reasonably in france to the facts that the plaintiff has asserted  essentially an evaluation of the affidavit in support of the search warrant it isn't at the heart of your case here in essence yes but more than that it's also an assessment of our complaint our complaint has factual environments that established that there were ongoing circumstances the on the affidavit that suggests that it was obtained with recklessness with disregard for pertinent information the most important thing judge tom and that they left out was the fact that the investigation started with an individual named donald mosley that individual led them to believe that he had stolen these citrus trailers and then brought them to my client's  that needs to be drawn in favor of the plaintiffs is that mr mosley specifically said that while i stole the trailers they had no idea that i'd stolen them i brought them there the most he ever brought in one day was two trailers and the that is a point that when you're looking at what he said yes because it's plausible that he was telling the truth plausible to the point that as we pointed out in the record that they were relying on him if you look at believe it's page one of seven his plea agreement says he has to tell the truth in accordance with the statements one of those statements is what he relied on your career in his affidavit he we said recently  pious versus movie case that so long as it's reasonable to conclude from the body of evidence as a whole that a crime was committed the presence of some conflicting evidence or possible defense will not vitiate a finding of probable cause so the fact that there is contrary possibly contrary evidence from this witness does not mean that there still wasn't was an arguable probable cause in this case right and no because in addition to the probable cause issue of weighing the evidence which one of our issues is that he shouldn't have done the weighing of the evidence meaning just as era if you look at weight which we cited we do not weigh conflicting evidence or make credibility determinations when judge wilson says well isn't he allowed to just say i can disregard that that's a credibility determination and it's a substantial one because if they did not know which the codefendant said they did not know then the whole case is for not because it's the enter and knowledge is the fundamental of any crime these strict statutes about well if you're a secondary metal recycler you should have gotten these papers we pled that this detective had particularized knowledge he had knowledge about these statutes he'd actually trained in may he should of given the gate keeping circuit court judge the information necessary to tell him you should go do more because we don't have enough he did not even attend a fight the roles of my clients so particularly another problem with the district court's analysis says he wants them all together for example take mr richmond he was the scale operator also all he did was weigh these trailers there's no statements about his management role there's no statements about his knowledge of these statutes and they gave free enter views another inference that can be favorably john to the plaintiff that plaintiffs that they're not hiding anything they ha pictures of these trailers they have paperwork related to the trailers when they didn't administrate of inspection they let them come in they made statements and then that there just has to be arguable probable cause in the af the blending of the qualified immunity analysis coupled with the ecb all twamley standards you have to take the plaintiff's best case at twelve b six we should be allowed to do discovery in this case because there are numerous factors going to the recklessness issue he left out mostly he did not say your honor you point out that they're below market value there's nothing in these affidavits to say where he came up with the market value then as the defendants argu their brief well this was a profiteering the problem with that analysis is he doesn't say what they purchased them for and he doesn't say what level they were coming in to the salvage yard so there's a lot of missing details that one can just assume to support qualified immunity but what it what it what is your best case to suggest that the officer had to include in his affidavit all of these details that you're talking about because he charged for three different crimes he charged the failure to have the documents he charged grand theft and he charged the organized dealing stolen property there's not a single a firm it in these aff suggest these people colluded it has to be organized there's the pattern is that they had volume but that's not a pattern when you have to have knowledge and people have to connect what they don't think would you do with the fact that all the trailers were caught up so that there  been some birds could not be traced back to the original trailer well that's an assumption against the plaintiffs that should not be made we also pled in paragraph fact that that everything was was scrapped in a way that that  would frustrate any effort to establish title to these vehicles your honor that's an important point if you look at paragraph i think thirty six or thirty seven of our complaint clearly says these were missing tires they were dilapidated pieces of equipment they present law addresses derelict vehicles as well you got to do paperwork on those two don't you yes but there are also issues within florida law that we should be able to get into in discovery that were not part of the affidavit about operability but i'm not sure your answer my question i mean as i read this affidavit and the environment essentially the theory here was that this scrap yard was operating like a chop shop had had we've been dealing with automobiles and the fact that thirty seven trailers were delivered that no paperwork was completed and that they were all immediately cut up into pieces to prevent any efforts down the road to trace them back is certainly strong evidence to support that there was arguable probable cause here isn't it no because they are a scrap yard so for example when you look at the a finds it incriminating that they call them trailers while they are trailers if i had an inoperable motor vehicle and brought it in i would call it a car but just your clients refer to them as true as when the detective interviewed correct because they are trailers but if you look at the status of the property they look like trailers but that doesn't mean they're functional and operable and in fact they we pled that they weren't so when you take income back to does that make them derelict and therefore subject to that portion of the statute requiring that the paperwork be completed before they are destroyed two things on that assuming that you're right that they had to do the paperwork ok the statute that they cite says at the beginning of the statute knowingly so if they were just ignorant page operators of this complex scheme then he needs evidence of their knowledge this is not a strict liability statute where if you don't have the paperwork you're just guilty of committing and often you have to knowingly there's nothing in the affidavit your honor showing that they knowingly tried to circumvent these laws in fact when they make a statement you knowledge in that they don't have any additional paperwork it just shows that they didn't know so a reasonable inference that's that's actually fairly easy judge because while i missed it when i brief the case if you read the affidavits the one paragraph because they're all the same affidavit ok the one paragraph that's different for is actually placed in adelina macaulay's and that is another factor that could go in our favor it's in the wrong affidavit i'm not sure it's in my question if he pled guilty it doesn't that defeat his claim of malicious prosecution no because it's something they plead guilty to i'm sorry what did he plead guilty to it was a misdemeanor of transfer there's not a single felony conviction out of this is a misdemeanor involving transferring one of the trailers without a title so they don't even scrap it so it's a completely different issue it's a trailer that remain intact that he turned around and sold and supposedly should have had a motor vehicle title you mentioned that there are three different crimes that the plaintiffs were charged with is that correct  three except for him who had four yes and if we find that there was arguable probable cause for each plaintiff to support one crime do we need to does there need to be arguable probable cause with respect to all of the crimes i think that's a very difficult issue for the plaintiffs and i would answer no i think that if you find arguable probable cause for any of the crimes that they charged then i think that you would have to say that there is qualified immunity thank you i would just from judge was there a below the thrust of the appellant's argument as shown in their brief is that there was some relevant information that was left out of the affidavit and that is not sufficient to defeat arguable problem but if it was intentionally left out of the affidavit if it was intentional and they knew it was exposed to tory such as a lab report that we've that was in the  kelly case where an officer was aware that there was an excuse to tori lab report and intentionally left that out then that would defeat probable cause but we don't know that because we didn't get past that his deposition could be taken and we could learn later that he intentionally left out the relevant information from the affidavit and that possible it's possible but it wasn't pled if it was pled in this complaint that the officer fabricated evidence or intentionally misled them we would be here on and it would be a different situation but what if they would if they were recklessly disregarded even that's not good enough anymore aeonic not played in the complaint not clearly but i don't like taking the allegations of the complaint as true which we're required to do and i'll be six no i'm i'm saying he even assuming that was pled that's not enough under the law under this court's decision and in the kelly case and also more recently that carter v gore a case this court ruled that recklessness statements are too close to negligent misstatements and it's too hazy the distinction between the two and so that won't defeat qualified immunity anymore so even if he had pled that i don't think it would save him i think what you're left with to defeat arguable probable cause is either a affidavit that is completely completely conclusory meaning that you know john doe committed the crime of theft with no supporting facts which is not here or somewhat completely conclus was reprimanded the major said how could she be charged with obstruction of justice for trying to get in our own driveway so those are the types of things that are completely conclusory but what happened to the other citrus hauling i would only say that judge was there observe that that's quite a large percentage almost half of the stolen trailers going to the same place what do we do with mr moseley's statement that  none of these plaintiffs into these were stolen well two things your honor first as judges there observed doesn't necessarily have to be a gospel you don't have to agree with it but secondly to me i read that statement as not being exculpatory at all i mean the fact that mr mosley said that he took them there and they bought him will for the one charge of improperly buying property without getting the proper paperwork done that proves part of the crime it's not of skill to tory at all let me tell you what troubles me without discovery how calm can we be sure that these are really heckles scrap metal well i guess is not that that we're trying to look at we're trying to look at the affidavit and the affidavits not going to change to discovery and the other thing i'd like to stress your honor is that if you look at that affidavit in also that the additional submission that the pellets provided of the mr mosley statement those things do show at least arguable probable of qualified immunity is worth the paper it's printed on it has to be decided early and i've said in those cases in there that for qualified immunity to work it's  process not just an immunity to damages we use we usually decide that at the summary judgment stage that only i understand from but will point out that the cases out of the circuit do say it should be decided as early as possible and there's plenty of precedent it's done on a on a motion to dismiss twelve b six and this case since while we're doing is examining the affidavit your honor that's that's not going to change  mosley's statement even taking out is true that all i do is bring him in and they buy him what it like all the changes it would change if there's relevant information that was left out of the affidavit and it was left out of the affidavit intentionally by the office we don't we don't we don't know that because it wasn't pled they didn't plead a fabrication they if if they had pled in their complaint that this officer knew of  evidence didn't put it in there or if they put in there that this this officer perjured himself would be a very different situation then you would be in kelly versus curtis type  information put in there i have to look at the complaint again but they pled that there was a material facts that were recklessly left out with that the enough no it would not not under carter v gore and the kelly case before it reckless misstatements are too close to negligent misstatements and the line is too hazy this court has held to defeat qualified immunity if i look at the affidavit what went in the tells me that cali or richmond knew that the trailers were stolen because i can't find anything in the affidavit that reflects where he says they knew these were stolen trailers well they don't have to prove that they were stolen trailers all he has to do is prove that these vehicles were purchased without appropriate paperwork being done now you're correct as far as the charge for a grand theft and it in fact they were purchased as trailers and not a scrap metal right all you have to prove under the statutory crime for  improper purchasing is that they didn't provide evidence of title or evidence of salvage or as judge thomas pointed out the other certificate to understand that but if they thought they were purchasing scrap metal then they didn't need all that right if if they thought that they were purchasing scrap metal i know i think there still has to be some type of work for that your honor to purchase scrap metal i believe so and you know i'll point out this that your honor specific intent is not something that the officer is required to prove and i'll point the court towards this court's decision in rhodes of the collar because this is one of the things that that appellant was talking about how could how did they know that he knew they knowingly did this well that's not something the officer is required to prove he's not required to prove in his affidavit for arguable probable cause the intention of the mao factor he knew that a large percentage of trailers were going through this place he knew all of those trailers did not have any of the statutory paperwork that was required he heard the statements from all of the defendants say that referred to them as trailers he saw photographs of the trailers and made a determination that these were not scraps as they were referred to and you you know your honor the other thing the affidavit signed off by a state attorney and arrest warrant issued by a state judge all of these things point to at least arguable probable cause in this case your honor  state attorney there obviously felt she had a good enough case to take mrs mccullough to trial she lost but she felt that it was a good enough case to take it to trial and so obviously you honor the officer doesn't have to prove the case in his affidavit that's that's for the state attorney to decide if they want to prosecute this case went to defense they decided not to prosecute but that's not for the officer to decide and it is for the jury to so i think i've discussed everything that i'd like to discuss your honor but if you have any further questions about this i would also like to point out that the argument that judges are made improper inferences i think that was addressed but judge lizzi era was doing what he was supposed to do which was decide whether the officer could have reasonably believed there was probable cause there but he wasn't making any type of ventures inference as to the allegations of the complaint he was looking as he should have at the affidavit itself counsel i do have one minor question in regard to the actual affidavit in support of the application for the arrest warrants one of them is labeled composite exhibit a and the other one has a c f thirteen zero five nine six nine number in the lower right hand corner there in the upper right hand corner of those two exhibits are those the initials of the assistant state's attorney yes you'd approve the and how do we know that on a twelve b six i don't you know  my question is we don't know yeah i think that unfortunately is not something you can take from the four corners of the complaint ok thank you thank you m your honour's in page sixty seven of the hundred fifteen page appendix at the bottom there's the vignette between mr mosley and the detective who's interviewing him and the detective challenges mr mosley and says i've looked at the records and they're very incomplete and he says honestly he's got to know what's going on here talking about the t n n personnel and  mosley says yes or in terms of i hear what you're saying then says but when i look at the records and i look at how they were taken there's forty seven dozen red flags flying ok so what what's his involvement here pocket however the recklessness becomes apparent from that very act because they started that entire investigation and rely on him to bring these charges but then they disregard the exculpatory content that's the recklessness where he admitted that from the gate keeping function of the judge who would have wanted to know your star witness you're going to put him under oath as a exculpating them from all criminal santer  arguable probable cause can be that the it it if the office or intentionally left information out of the affidavit or recklessly disregarded truthful information or recklessly disregarded information to take the affidavit but mr drone says well that wasn't pled in your complaint i'll have a complaint in front of me now did you plead that in the complaint or not  judge let me just find it please one of the counts that we played in the one nine hundred eighty three paragraph forty seven doesn't say exactly that way but it says that looking at the case law says that based on the facts and circumstances within defended check to generate his knowledge assuming he a reasonably trustworthy information would not cause a prudent person to believe under the circumstances shown that the plaintiff in this case mr mccauley had committed or was committing and often it's we go back into the facts we know for example we pled in paragraph thirty six with respect to mr richman we said that mr richman and mr powell had all of their charges mr powell we don't represent but he was the person who received the property despite a complete lack of evidence that mr richmond made management decisions interacted with the trailer thieves or in any way colluded to commit criminal acts detectives included him as a defendant judge that is a very specific fact it may not say the word reckless but that's what i was coming back to earlier you think that's enough it is because the reason it is because these are readily available facts you have to establish the basics there is no role of benefit cation there's no distinctions they use the same affidavit for all of them so i read your complaint it says that the detective should not have concluded that there was arguable probable cause but i don't see anything that says he intentionally or recklessly left anything out well what i would say about that is this your honors if we left that out then we are in a conundrum because as an officer of the court for me to just throw it into a complaint if i don't know it just so i can get to the next step that's not what it ball in trolley come up tumbly contemplate they contemplate that i'll plead what i know you'll take the case and a light most favorable to my very best case but my guess would be a plausible inference from facts that are alleged in the complaint and i don't see the facts efficient to support that plausible inference based on the language of your employ the language of the complaint specifically shows the specialized knowledge to that's another key factor of detective jones he's not just a patrol deputy he was training people about this so he knows what he needs to show and if he doesn't put it in the affidavit a person  reasonable stature knowledge and training should have put these details this is not your theory now negligent investigation no it's the it's not a negligent investigation theory he left these facts out when he knew he should have put them in there you can reasonably infer that from the way we played the complaint we've pled knowledge about special training we've pled that it caused significant injury and we played the outcome i mean i know that the outcome doesn't drive the analysis but judge wilson is right that the reality is we should be entitled to discovery qualified immunity never goes away even after a jury could find liability for these defendants so it's not like at the twelve the six stage that they're being deprived of any fundamental right my clients however are being deprived of their fundamental right to have their best case taken implausible inferences drawn the reason why this court just  we go back to recent decisions just on april twenty fourth sears v roberts this court reversed because it's summary judgment the court sat there and disregarded the affidavits of the plaintiff and minutes straight one of the sitting judges said i doubt it was actually that long but i'm sure it felt that long but taking the plaintiff at their best case we're going to believe that that's what happened at this stage and the court in  published opinion reversed the district court to grant at summary judgment we're not even at summary judgment we're at the basic pleading stage and we could always amend our complaint as we come into more knowledge it's hard to attack an individual and just call them reckless there's serious omissions that a person with his training and knowledge should not have allowed to happen and under frank's we delaware we have the conundrum that when he left out mostly frank says it will extract the offending information while we can extract an admission we have to get it in front of the gate keeping judge because of the judge had seen that the person they're relying for their investigation on had actually said they didn't do it then that is recklessness on its face