good morning your honor is calvin house for school police officer daniel east in this case officer east gave a recorded statement to some l a p d detective and in that statement he said that he he he was viewing a video of the murder he said he had a hard time i deme the person on the video he said the full head of hair is throwing me off a little bit he said unless he shaved then he did have more hair last week and he said the guy that i was thinking of is a lot smaller in stature though but then without any prompting from the detectives as to the name of the individual he said it's art tobias later prepared a written statement that he submitted to the detectives in which he said i watched the video several times and stated that i was fairly sure that the suspect in the video was our tobias student or in the middle school and say that the video made the person look slightly larger slightly taller and thicker the person in the video had a distinct walk and stature which is similar to that of our tobias so the question is whether any discrepancy there may be between those two accounts is sufficient to hold officer east liable for a constitutional violations and there are four that appear to be the root of the plaintiff's case for use one is fabrication of evidence that requires proof that he made a knowingly false statement not just a inaccurate or careless statement and the district court made a fine and concluded on summary judgment that there was a triable issue of fact as to his motivation that's a classic merits question how do we have jurisdiction to review that question on a qualified immunity appeal well i think the case can be decided without deciding what his motivation was because the question is is there a difference but what there are two questions one is is there a difference between those two statements that would make it amount to a deliberate fabrication and there is case law that says if it's just a discrepancy or it's a minor inconsistency that's not the jury to decide whether there's discrepancies between the two statements no i don't think it is because there are legal standards as to what constitutes a discrepancy so and also prisons are you appealing to naive qualified immunity or you pilling to the straight determination that she made has your brief barely even mention qualified immunity before the which she ruled was on the substantive questions each of these four causes of action if that there were questions of fact that not as to whether or not there is qualified immunity well qualified immunity is mentioned in her decision it's also raised in our answer and on a interlocutory appeal from the denial of summary judgment the  about qualified immunity we except with respect to the issue of say or to intervene which we didn't raise below but we did mention in our brief we are not saying the law is not clearly established but that doesn't preclude us from prosecuting an appeal on unlocking three bases because the courts including the supreme court of said you were free to raise on appeal either whether there was a violation at all or you're arguing that there's a question of fact as to this is not a question of fact as to where you are as to the four claims that i just said whether or not there was a while it was a deliberate right was it deliberate fabrication was it a malicious prosecution was their fate intervened and was there is beers and so our claim on appeal is taking the facts from the evidence and not the arguments or the claims in the were issues of fact as to whether or not there was a violation by the series to well it's one of the problems with it just because decision is i don't think she makes it clear when we get to faults of occasion she says there are questions about that he says players disputes when officer is dropped off his and they grow statements we don't dispute that here will take the plaintiff's account of that and whether officer east written statement was influenced by his conversation with detective cortinas that was that yes they did say that but there's no evidence other than the deposition testimony and the statement itself and that's all before the court and there's nothing in that then we let me ask you because i'm struggling with reading this decision to so i mean when i mean is that something you're arguing for i hadn't put that down in writing but we would certainly think it would be useful for judge fisher to explain exactly what claims she believes can be pursued against off the reason and  a basis for deciding that there was whose issue of fact because once we get past the fabrication part there's really no specific reference to officer east at all so right you have has to take an interlocutory appeal on qualified immunity and not the merits as the the johnson case that you so i says how do we how is this just not the merits and with well not even within the umbrella of qualified immunity the way you're you're presenting this is do you get it in that box so it would not use st the qualified immunity analysis says two pieces one is was there a  deprivation of qualified immunity because it's clearly established that those facts violated the law no not our facts we're saying the law is the deliberate fabrication is clearly established a the nonmoving party and say there's no clear evidence of deliberation that there are deliberate fabrication best we don't know she said the jury has to decide that anyway so you're you're  spencer be splitting your time fifteen minutes fifteen minutes so why i think we need to ask you to sit down because you've gone over all over did you given fifteen minutes ok yet you've got twelve minutes would respectfully request to reserve a minute for about the issue from the detective defendants is not whether there's a question of fact but whether two questions of law are clearly established rather than look at whether the officers conduct crossed a line the question  confirming that a right must be clearly established such that there is no reasonable doubt and that every reasonable officer must be understand that their conduct you're wrong in this matter we have two issues turn to the  st is deter geisha the suspect during a videotaped deposition or skin videotaped interrogation made the statement could i have an attorney because that's not me that statement was not ever defined in any case law is clearly unequivocal we don't have those exact words but is the requirement can't be that the the literal five words have to be in a prior case it's a question could i have an attorney that sounds like a request for attorney and then it isn't just ignored the answer is but ok no don't worry you'll have the opportunity and then it goes on so not only  is the question clearly asked could i have an attorney the answer that's given is no why isn't that clearly established that you can do that you know there is a litany of cases that have addressed this post the state and court level state and federal court level there's a statement if you look at the full transcript or watch the video of surprise telling him we're here to get your statement you can give the statement and he continues on with you have a chance to give your statement t officer when they were at asked could i have an attorney because that's not me i understand that that was a request  law and she hand versus san francisco and your honor just by way of reference questions such as do i need a lawyer what time will i see my lawyer maybe i ought to see an attorney counsel so are you saying that there's no difference between can and could that what distinguishes this is a because that's not meat because it follows otherwise we can substitute could for can you are i'm saying that the question that has to be answered is a little different that is this clearly established such that every single reasonable officer who looks at this knows that unequivocally that they are crossing the line this is the standard that was promulgated by the supreme court over the last year when it is overturned the generalisations and said it must be clearly established the trial court specifically said these facts present a close question because there appears to be no case law could is not precisely the same as can could make it my answer is that if we are debating the definition of could and can then it's not reasonable for every reasonable officer to understand it's not clearly defined and that each of those can have different meanings and i can go and cite to a half dozen published cases that way on the definition how this should be interpreted novice or deserves clearer the supreme court has said that it must be clearly defined this is not that situation if a criminal trial judge cannot define it and doesn't please clearly define and the district trial judge says it's not clearly defined there is no case law and the set of circumstances has not been clearly defined then the issue is not clearly defined and other published cases it's the overall interrogation that can potentially become coercive which can lead to the confession being thrown out in a can lead to civil rights case the problem is that there is no clearly established case law that says these specific actions combined crosses the line instead work into the supreme court's comments in the proxy cases i know it when i see it will tell you if you cross the line when we judge you after the fact but we're not going to tell you what conduct is appropriate until after you've already done all right thank you counsel applying it firmly established this court's review was constrained to the facts the district court found when denying summary judgment from top to bottom the defendants dispute those facts and the inference is that should be drawn from them this court therefore lacks jurisdiction case say that it doesn't fit the qualified immunity pass that supreme court has laid out recently that there wasn't enough notice or wasn't clearly established as being directly challenge when we have jurisdiction to at least decide whether that challenge to the clearly established chander it is viable you could have pathetically your honor but the problem here with the detectives position is that they dispute the findings of fact that were made by the district court and they dispute the record that exists here so for example the district court made a number of findings with respect to what took place during the interrogation including that tobias has invoked his right to counsel and including that for example other things that he was repeatedly pressured and told that if he didn't confess the judge would give him more time then vote in their statement which my friend made a few moments ago that there was nothing wrong with the interrogation that tobias made a passing comment about an attorney those statements dispute directly the findings that the district court made and so this court's precedents hold that despite the fact that when somebody comes to the court of appeals in an interlock  manner and says we're we're we're bringing a legal argument to you there and but this court must scrutinize that it is to determine whether or not they're paying lip service to that and in this instance from top to bottom it is true that the detectives are as well as  mr east disputing the facts and that that in fact that one point the detectives concede that there are reasonable differences and disputes here about the interpretation of what took place during the interrogation and so at the point where they have to concede that there disputes about how to interpret the interrogation and that they refuse they take a position that is contrary to the findings of the district court then they have deprive themselves of of jurisdiction and i can go through a number of ways that the detectives in their briefs make findings that are let me just have you one question the district court resolved all of the issues of qualified i mean a lot of issues there's a lot of different challenges you've raised and all of them are resolved in two of those paragraphs with the end of the order why should we just vacate this whole thing and say you know this is not how you do a qualified immunity analysis and let's see this more claim by claim and understand what exactly the ruling is or your honor here i think that the court can look at the context of the district court's decision overall which did discuss the a political law and which did discuss the the context of the case because the issue is that the rights are not being addressed at the high enough level of or at too high a level of generality here the district court acknowledged that the  s need to be defined within the context of this particular case discussed extensively what the case law was that was providing the issue so i don't think that this court needs to this is not a decision for example in their policy where it's unclear what the decision was the court defined the law and describe the rights in some detail so i do think that there is clarity here with respect to what whether or not this district court was doing the right thing and then in particular  your honor noted the tech to raise this issue about the invocation now keeping in mind that there's a broader course confession claim of which this invocation issue is only one subcomponent putting that aside for a moment the district court did spend a lot of time at the motion to dismiss phase discussing the issue that was raised by by the detectives here the detectives didn't appeal the deny the denial of the motion to dismiss had day where we would have a complaint would have a very short record that would have certainly teed up a legal issue before the court but as far as this court is concerned if there's a concern that the district court didn't give adequate consideration to the issues concerning qualified immunity they were extensively briefed numerous times before the district court and the court's decision at the end of its link the summary judgment opinion reflects the proper standard which is in the context of this case because we agree that the level of generality cannot be and if i can return to the jurisdictional issue as it relates to the detectives the there are a number of issues that they did dispute despite the fact this interrogation took place on video for example describe they say that this was largely on remarkable in that there was no courson that's directly contrary to the district court's finding that a reasonable jury could find that to bias his will was overcome in addition  shocked me when i side which is they have taken liberties with interpret ing how what happened here that are not only contrary to what the district court found that tobias did invoke his right to counsel but also construe facts completely against tobias so for example the detectives here want to claim that when detective parade told a thirteen year old no after he asked for counsel he wasn't saying no you can't have an attorney he was saying no you get to make your statement construe the facts in the light most favorable to mr tobias and then with those facts in mind decide whether the clearly established standard is met so i think that this that this is me this course decisions in prior cases provide that that it's not this court i'm to sort of reopen the idea of what are the facts and do do a whole big summary judgment day through the record and all of those things and george against morris which we cited is of the same is in the same vein it's not for this court to i think take an additional step to reward somebody for not following not conceding the facts found by the district court s this is a con situation in which a remain would be appropriate or necessary to get clarification on this issue for one detective that judge fisher found that detective east  reasonable jury could find that he can be liable under the theory of conspiracy which would actually make him liable for the rest of us the evidence of an agreement with the evidence so st this court doesn't have jurisdiction to the evidence that the district court found concerning the agreement that goes beyond the scope of this court's in there like a tory review under johnson against jones assuming for example the court we're going to rigzin the evidence  there is ample evidence of an agreement here the court has a transcript which was recorded of the meeting with detectives initially and i think that there's language in that meeting that a reasonable jury and taking inferences in our favor could absolutely illustrate an agreement for example the detectives tell officer east look we've got to show this video to somebody else and if they don't pick him out we're go have trouble quote proving what you just saw and if we're then we're going to try to rope the mother into it and if that doesn't work somebody is going to have to frickin pay and that's exactly what happened they went they took them to the police station they took a thirteen year old's mother they brought her n they questioned her they didn't allow and then when she refused to identify tobias from the video because it wasn't him in the video they made tobias play so he had she initially identify him she did not the district court did not find that and so that's another reason that the detectives position exceeds this court's jurisdiction and because they want to challenge those facts nd the record here is that it was when detective archie yaga showed  freeze frame he didn't show or the video of course that she said that's not him at one point detective r t r t august says isn't that your son she said that you're telling me that by the end of the things she said says what you said the beginning that's not him that's not my son so that that is just another problem with their position here so with respect to detective yes i do think that there is ample evidence but going to that evidence rewinding that is not the purpose of an inter y review in this particular case and so for that reason we do believe that it's for those reasons we do believe it's appropriate in this context to dismiss both appeals for want of jurisdiction because of the arguments that have been made here and this is something that the court has looked at again and again and more recently and it's faster decision i do want to address the statement that detective excuse me mr east council made with respect to this issue of jurisdiction again detective excuse me officer east's challenge presented to this court is that the evidence that the district court relied on with respect to officer used was not enough and that is fundamentally and quintessentially a sufficiency of the evidence type of of an argument and the court here said in footnote two on page two it considered only the admissible evidence the record in this case is voluminous and of course the district court did mention of places in which officer east is indeed the individual arguments that would apply to him for example his cause ation argument i was specifically raised in the address but detective excuse me what east is trying to do on this piece appeal is obtain jurisdiction by raising a forfeited argument with respect to the failure to intervene and this court's launch human against right is clear that he cannot obtain this court's jurisdiction on the by raising an issue that was forfeited and not raised below so we do not believe that this is an instance or a situation in which this court can exercise jurisdiction however just assuming for the sake of argument the court were to entertain jurisdiction and in light of the review there's two things i want to point out st is that the facts found by the district court are still the ones that control the disposition so it's not the case that if the court exercises jurisdiction you're on some free ranging thing like you would be in the normal summary judgment if there were a grant of summary judgment appeal or in a post trial case where you're looking through the whole record the district court rulings and findings still apply and those findings we believe make it it's abundantly clear that any request for qualified immunity should fail any route and that the claims fell on their merit so this is not an instance where everything that the detectives did was an approved tactic so for example the district court found that tobias invoked his right his right to an attorney all questioning must should have ceased that's edwards against arizona that's henry against kernan this court's decision ditto bias was given a number of false promises promises of leniency  and this is one of the oldest things that that officers on are a reasonable officer would be on notice that if they offer a promise of leniency that that can over bear someone's will so that's brum versus united states an eight hundred and ninety seven decision this said similar things and williams against woodford in two thousand and four if you want to look at other aspects of the interrogation for example they repeatedly threatened a thirteen year old that if he didn't confess he would be seen as a cold blooded killer the judge would give him more time for failing to confess and then he quote needed to tell them what happened this court by contrast held in one thousand nine hundred and four that there are no circumstances in which law enforcement officers may suggest that a suspects exercise of the right to remain silent can result in harsher treatment by the court so there are prohibited tactics here and those are just some some of the at the at the top level and each one of those independently is sufficient to deny qualified plaintiffs version of facts and only need to determine whether there is a dispute of law whether a question walk system we have addressed that both us to the interrogation and the implication neither is will settled and establish law we heard comments about the interrogation and if there is allegedly improper or illegal tactics employed the problem is that in the trial court's order in plaintiff's opposition and implants brief here there is no specific references to a specific question a specific action in fact there is generalisations in the trial court order where the trial court simply said there's interrogation tactics that could be courses that could be