robert burns of the national bar i'm here on behalf of my client detective charles pierce of the central tennessee police department never served two minutes rebuttal in my argument i'm here today because i submit that the case that we tried last about a year ago raises important issues involving probable calls an arrest warrants and i submit that this case also begs two questions to be answered one when is enough enough in terms of information to establish probable cause as it relates to an officer or a law enforcement officer who finds himself in the position that detective pierce did in this case now with the verdict hanging over him what else does an officer in detective pierce's position need to do to protect himself from civil liability in a case of this nature i want to start off by saying that this case does not involve the actions of a brand new police officer detective pierce that over two decades of experience the record was clear that what he did with respect to the investigation and the issuance of the warrant concerning mr dodd is what he has done many times before in addition i want to point out the detective pierce did not go looking for this situation the situation came to him this wasn't a scenario where he ran into the simmons family members on the court square in central and decided or suggest to mr chandler that he needed to prosecute or to seek an arrest warrant it was the contrary you know my appeal in this case turns largely on the record and i want to talk about some of the high points of we think are in the record proof that came in that is uncontested before you today to begin with detective pierce didn't know anything about the mcdonald incident until he went to work two days later he didn't really know anything about the details of the mcdonald's incident until he was called to the courthouse to take the statements and to interview the simmons family members we know from the record that earlier that same day monday october twenty four twenty eleven the simmons family members on the direction and suggestion of one of the responding officers danny roberts went to the courthouse spoke with people in the  and started the process of seeking ex parte orders of protection they filled this information app under penalty of perjury the court clerk staff reviewed it saw no issue with it thought that the information was accurate and reliable that was submitted to a local general sessions judge who did the same thing and that resulted in the orders of protection being issued there was proof in the record that someone in the clerk's office suggested to the simmons family members that they then seek an arrest warrant and told them to go downstairs in the jail that's what they did that's where detective pierce comes into this situation detective pierce went up in response to a call he was one of only two officers that were working that day because his fellow officer simmons could not take the call for obvious reasons he responded when he got there he spent some time with pamela simmons with mr chandler with the two other family members he asked them why they were there they explained to him what had occurred what they wanted to do that they had orders of protection ex parte granted but he then said that if you want to see a charge against mr dodd or do anything else related to the events that occurred at mcdonald's i'm going to need to take statements from you and he gave them two forms just like this asked them to fill it out they did that in his presence he read them he reviewed them they signed these forms under penalty of perjury the information seemed generally consistent with what they had  went along this story did he know that the two officers who had gone to the scene and found no reason to you know file any charges that happened the same day because immediately after he met with them in these statements were produced he then went to speak with officer roberts and officer witherspoon because the simmons family members identified for him who the officers were that showed up at mcdonald's he talked to both roberts and witherspoon roberts made some indication that he did not think that a crime had occurred but we submit that the circumstances have changed now because the statements that come in and the victims to the crime the aggravated assault  instep mcdonald's now wanted to pursue charges because there had been no documentation done on the day that robertson witherspoon went to mcdonald's we have the now somewhat infamous this this statement has been hot made him when it existed but the proof we ses uncontested that roberts produced this statement hammered it out in his own hand the same day that pierce asked him to do it this statement he reviewed piers he compared it to the two witness statements we submit the fear of this statement from roberts is not exculpatory but because of the questions that detective pierce had as to exactly what happened whether there was a crime and if there was an assault crime what the type of the crime was principally because detective pierce testified that he had a question in his mind because no one had indicated that mr dodd when he was in the confrontation with the simmons family members having the gun on his side in his holster he did not bring it out like this that is not disputed in the record but that was part of the basis perhaps the principal basis as to why detective pierce at questions and being a cautious officer not immediately taking this information and seeking a warrant he went to the best resource that we say that he had available and that of force was the local district attorney or the assistant district attorney  i called as a witness she really should testify that she remembered remembered the event remembered her interaction with detective pier she kind of chuckled at trial because she said that she was dressed up that day it was a court day three members sitting down with detective pierce he went over with her the information that he had at that point in time they discussed what this may be there have been issues raised in this case about whether this statement existed as i've pointed out testified that she couldn't remember exactly whether she had this in her hand but she was aware of the information that roberts and witherspoon had and was principally aware that roberts and witherspoon decided not to do anything that day and that they had questions as to whether or not there was a crime were that they said that that there was not a crime but part and parcel of the information that piers provided to her included that in on or with in the next stage and that we had these orders of protection that had now been issued and we had the two witness statements she said in her capacity is the prosecutor who would have handled this charge and did handle the charge for a limited period of time she told detective pearson i think that there's probable cause under these circumstances for an aggravated assault charge now i don't have the time unfortunately to go through the many points that we elicited or solicited from her a trial in our brief that's on pages thirty six and thirty nine through forty five of the leading of the leading brief that we followed but one portion of her testimony that i think is relevant that i want to repeat is she said quote i would not have a greed or asked him to or okayed or asked him to do an aggravated assault warrant if i didn't think that there was no question at trial that kate yeager said probable calls existed i told piers that we talked about it more so when i think even more compelling in light of the subsequent events that later took place the t b i investigation and it should be noted that that  one that was involved in the involved in the initiation of the t b i investigation but she testified at trial that even despite knowing what she later learned in terms of what came out of the t investigation her opinion on the existence of probable cause as it existed during the week of october twenty fourth twenty eleven did not change so here we are with detective pierce this case could not get dismissed on summary judgment we go to trial and despite the proof that we say we put into the record on the issue of probable cause we have a jury that returned a verdict against detective pierce only against detective in the amount of seventy five thousand dollars which is approximately seventy five times the amount of out of pocket expenses that mr dodd through counsel prove we've also raised issues in this case over the nature of the damage testimony and proof that was presented there are numerous examples of testimony provided by mr dodd and his wife about his medical condition is emotional condition there is no expert medical proof called to substantiate that there was no proof no witness called from his former employer to substantiate that the four or five months after he lost his job for five months after these events occurred he lost his job at the city of franklin and that there was a calls of connection to that and finally with due respect to counsel we have argued that a highly inflammatory closing argument likely influenced the jury especially considering the amount of damages that were awarded on what we say is frankly a scarcity of proof to support that the issue in this case is whether or not based upon the record before you if there is any evidence that shows that my client detect intentionally deliberately recklessly knowingly somehow withheld suppressed concealed or altered evidence that was material to the determination of probable cause and respectfully well the jury originally he thought that there were disputed issues of fact so we denied my motion for summary judgment and candidly judge i think what happened at trial is after the proof was closed we got into a debate about some language or some wording that i used to my closing argument which is i recall then resulted in a direction or ruling from judge change where a instructed the jury to completely disregard the testimony of both  agent harmon from the t b i and he told the jury that they only could consider the four squares of the of the warrant itself and they should not take into consideration any other testimony we have argued that that was prejudicial i couldn't undo that bill or unring that bell and i couldn't bring either of those two witnesses back now i think i'm going to try to touch briefly on what i anticipate mr god's counsel will point out again they have spent a lot of time and a lot of emotional energy if you will on the law and when it existed who did it whether peers had it whether peers had this information and talked to you about it to suggest were to try to argue that this did not exist would force you to conclude that not only pierce but yeager an attorney who has no no dog in any of this and then roberts and self all perjured themselves at the civil rights for all that didn't happen it has been shown repeatedly through testimony back and docket entry eighty dash two in which this issue again was raised and he said that i wrote this report and i obtained a liberty to offer superiors on the same day october twenty fourth twenty eleven they have three issues as to whether or not the information in the roberts report is exculpatory or not respectfully i think we must be reading two different reports because this is not exculpatory information there is information in this report i've highlighted it here for the cour reference i know that you have requested these exhibits we've pointed out the sentences in our reply brief and we we put this in this information is consistent with what was said before i submit i see that i'm out of time i apologize but i see that  the verdict in this case was respectfully a travesty is to my client there is nothing that was unprofessionally or in appropriately done to support  hundred three case this case started back on november ninth two thousand and eleven when he was in open court room in a public place and was arrested for aggravated assault he was put in jail that day and booked his wife care acting chief carol couldn't find an incident report and he testified that he instructed officer roberts to make the report sharp difference in our facts well  further in this record they did testify contrary to your theory there's a credibility issue with when the report exists yes credibility are we saying are you are we saying the same thing i mean i'm asking they me a direct answer on that it does require us to find that those three individuals perjured themselves in saying that the report existed when when they testified that it did and you are telling us that it did not exist and therefore they committed perjury one telling you that like judge haynes instructed the jury yeager's informal sit down meeting was really not an investigation and it whether she had a written report or an oral representation doesn't matter what we're looking there at is what went on the arrest warrant i guess you didn't hear my question i did hear your question and your question is did she perjure herself she roberts and piers roberts rob testified to the contrary of what you're what you tell us are the facts as you understand them and so they cut they can trip contradict what you say here today their testimony contradicts the existence of the report in when it came into existence is they testified to what they say say what they say it was it the existence of the report is not what the it's not a critical fact that the case turns on in this case the jury determined probable there was no probable cause for the arrest and they put themselves in the prudent person's standard and they say officer pearce had available facts and they concluded there was no probable cause for judg judge chains has a similar legal question for qualified immunity he puts himself in in three roles and looks back he puts himself in the role of the objective of the search and he and he says does the objective officer have the ability to know that there is a constitutional issue and that a constitutional issue is violated and then he puts himself in a in the seat of a reasonable juror back to the station officer where the spoon and officer robert said there is no problem here there was merely arguing no one was threatened this matter was handled that was their and you call it a reckless omission of exculpatory evidence so this court would have to agree with you that it was excluded that there's something exculpatory in that statement not in the written statement but in their oral statements because a reasonable officer who who had other things available would have gone out and search them out after that after hearing the responding officer what is your best case from this  circuit as that an officer has to do additional investigation when he has the kind of statements that this officer had in front from the complainants all the best cases probably united states supreme court case but the court said no one reliable source is not enough for probable cause because we look at the prudent man standard in the prudent man standard if there are other readily available  prudent officer must consider that in that case officer haynes had pushed away one of the this is that the semen said tell it to the judge i don't want to hear it well he had a perfectly good explanation and in this case officer pierce has essentially pushed away the responding officers who were there at the scene who interviewed who did their job who didn't think there was enough to merit field notes or an incident report i and her coworkers at a sprint office come to work in and there are armed men who come in and rob the place that sergeant anderson comes in and sorted anderson basically as this was an inside job two men mourn involved and and he watches the video and he fails to tell that he saw two or men in so he excluded excluded evidence and about key things on a video seems a bit different that it all it does it does seem to be that different that the constitutional now us is is we can't push away readily ascertainable things and the two responding officers and the two responding officers in this case gave officer pierce notice that a prudent man needs to go further and so piers took the affidavit the statement of one accuser basically in filled out and an affidavit for reso took the limited information ignored the responding officers pushed them aside the judge chain said turned a blind eye and in turning a blind eye a reasonable jury could conclude that it was not probable cause but in that he's got a third part of his qualified immunity analysis he needs to put himself in the role of a reasonable magistrate in the role of the reasonable magistrate he has to determine is this excluded material excluded or permission material and he concludes that the responding officers statements in the police station were included in the in the warrant then probably then but for that exclusion probable cause would not exist so he uses a but for test from from that the role of the reasonable magistrate it concludes as a matter of law that there is no qualified immunity in this case certainly certainly trial she did yes you're right and she testified that she saw the statements where these officers concluded that they didn't bring any charges as a result of the mcdonald in donald's incident she had an reasonable jury to conclude that there was probable no probable cause and that the fourth i'm in the rights of the pelleted bottle that what we really have here is a situation in which one officer thought that two other officers just misjudged the situation that there were there were there were two responding officers rather spoon and robbers and both testified at trial both testified that they told officer pierce there was no crime here there was verbal arguing that this this was that this was not an aggravated assault they were very clear in the information they gave him that they testify either of that there was no gun in the holster they testified when they arrived at the saying that the officer witherspoon testified that he checked to see if mr dodd had a carry permit did and that his gun was mr dodd told him his gun was secure in the console of his truck the whole time and and he didn't ask to look at the gun but he noticed the on beyond that but it clearly says it clearly does not check the gun blog that a reasonable prudent officer should have said this person says a gun this court order says no gun i should look a little further  reasonable prudent officer the standard is that is really reckless malicious you know it's a very strict standard qualified immunity standard right well and the juries and the juries in is the judge's piece of this and judge pains in this case concluded that a reasonable juror a reasonable juror could find of reckless turning a blind eye was his very word which is the words that are used in several cases he cites it but he said a reasonable juror can conclude that officer peers turned a blind eye to the responding officers and went for known limited information and  and that is the reckless piece and then he has to decide materiality of it and he did those things and for those reasons i'd asked the court police of opposition of the lower court and thank you for your  time on the bottle and your on a couple points in the bottle for clarification there were a couple of exports a orders of protection that were issued on the one and i think you have this among the exhibit that he didn't do that he wanted to find out what information the officers who responded to the scene had he wanted to find out if there was a written report and he found out there was and to document it properly and to investigate this further now that he had these other witness statements he asked roberts to put the report together and we're trying to hide something why does he do that in addition if he's trying to hide something or cover something up or deliberately ignore something why does he go to the da and ask her advice after  spoke with roberts and after he got the roberts report again as a jumping off point he could have easily then gone to the magistrate and sought the warrant but he didn't do that he did that because he was a cautious officer he didn't want to over charge under charge he thought that he had something any one of clarification as to what it what it was the standard here is a high standard and it's designed that way to protect officers in this position and to protect the process this case get tried through the prism of guilt beyond a reasonable doubt i think the jury respectfully of the judge changes assistants got confused on exactly what the standard was the standard was whether or not there was probable cause respectfully if this verdict is it sends a terrible message to law enforcement across tennessee and in this circuit because we have an officer who did an investigation had questions and then is told by the da to go get a warrant to buy their your summary judgment motion before trial based on qualified immunity was of course denied yes and it was not for clarification judge it was not denied it was not heard it was it was the appeal of the iraq a tory appeal was objected to by a motion to dismiss mr god heard the court granted that motion to dismiss we went back to trial we went back to the district court so it was not heard on the merits here purpose the whole concept of qualified immunity is now out the window because you weren't spared going to trial correct so now the trial is there and the jury is given the issue of probable cause and at the end of the trial after you say that i'm not i'm not very clear as to what the wall in the sixth circuit is on that very point we researched that point evilly i take the position that we preserve qualified immunity as an argument for a directed verdict purposes rule fifty purposes that trial and we have course raised that again in the post i would still say that he is entitle to it i would say that there were the factual issues if you will the judge change span to exist prior to crawl which denied my motion for summary judgment were then resolved and with the proof that came in based upon the record i argued ok judge now these questions have been answered we know what it is still is a matter of detective peer should be granted judgment as a matter of law and qualified immunity well that's a sort of a slippery concept and thinking it for example an excessive force case if a motion for qualified immunity was denied because the judge found there in the student questions of facts and then the jury gets the case and they find that excessive force was used do you get a second bite at the apple on the thing for and to say that there wasn't i mean that the jury's verdict well well it is slippery i agree with you and i have seen some cases that i've studied outside the sixth circuit where specifically a procedure is used  are presented to the jury the jury then answers those questions because they're geared towards those factual factual issues and questions and then depending upon what those answers all are defendant would then move in and ask again the quality immunity be candidly we didn't do that here in this case this case got very very messy at the end of your motion for judgment as a matter of law forget for a moment about the fact that you didn't actually use the words qualified immunity and that but it was broader than the issue of qualified immunity i would agree with that because it was brought to the extent that now that we have this record i say that no reasonable could have said no there isn't probable calls and judge acting district judge acting as a thirteenth address should have seen that taken that back in the world as a matter of law on behalf of detective peers that that that i recognize that i'd prefer to be up here arguing a summary judgment denials opposed to trying to convince you to reverse a verdict but with that in mind i still submit that the record that's been presented before you gives you employer to do to reverse this verdict i have been submitted to the jury at trial based upon what mr dodd put into the record i would emphasize again and repeat and encourage you to read closely the testimony of my witnesses in particular  established i think beyond any type of doubt the probable cause existed there wasn't anything emitted there certainly wasn't anything material that was limited that would have made any difference to the determination and again the sets up  quandary because i have an officer who's done this investigation didn't turn a blind eye to anything or below anything off and he goes and seeks advice from the da and i realise that's that's not the get  jail free card legally but he's entitled to rely on that voice yet mr dobbs argument would be well he should've ignored what the d a told him because pierce knows better than the d a who's going to prosecute this and pierce on his own should have gone out and done a dish additional investigation which would have turned up what i mean that that is the quandary that the rulings at the trial court level in this verdict have created and again i submit that there enough proof in this record for you to take begin it you know i acknowledge that the more the less granted step of reversing the jury's verdict thank you thank you