motions this case is about an eighteen year old about the mentally disabled mentally retarded man whose constitutional right to liberty was deprived by the city of milwaukee and six of its detectives who are acting under the color of state law the facts of this case begin on february third of two thousand and thirteen there was a shooting outside of a club downtown milwaukee there resulted in the death of the man by the name of jordan crawl nine days had passed more police department was investigating the case and by this time they had no witnesses that identified any gillis the shooter they had a witness stating that the shooter matched to their script they had witness reports that someone other than any guilt was a suspected shooter they had no evidence putting a gun or any weapon in the hands of any killed they had no video of showing any guilt of committing any crime the only evidence that they had was that a surveillance video of a nearby gas station show that eddie gill was in the vicinity at the request of the walker police department had a guild voluntarily produced himself to understand the was incompetent to stand trial he functioned at the borderline mentally retarded range he had a psych avail that revealed mild to moderate mental retardation he was diagnosed by psychiatrists at the morkie county mental health complex with mental retardation and a warning that his i q of seventy was an overestimation of his formal reasoning inability to articulate he had difficulty with memory he had difficulty with verbal articulation he had a l frustration tolerance with that backdrop we now go back to the future and bring us to feb twelfth two thousand and thirteen when a guild voluntarily produced himself to morkie police department adding to the facts known the walker police department in two thousand and seven when eddie gill produced himself in two thousand and thirteen his mother paul and spoke with detective peterson one of the detectives on the case and warned them inform them that her son was cognitive honor his requests he was not allowed to make any phone calls during the interrogation any deal professed his innocence one hundred forty two times and he told the detectives that he had comprehension leading questions feeding information to eddie gill that he didn't otherwise know when he could always ice in your view which of these things violates the constitution the it is a two right we have the ruling the reason you lost was a finding of qualified immunity right and the supreme court's question is has a right been made concrete so that any reasonable officer would understand it oh i get worried when a lawyer has a list of things that happened but doesn't cite a decision that clearly establishes that each of these things violates the constitution so this is your chance sure on monday the supreme court summarily reversed a court of appeals that had stated the right at a high level of generality and said it has to be made concrete so let's take your list what cases stablishe that seemed development violates the constitution there there is no single case that i can cite to this quelle then then you have got a problem because the supreme court says if you can't then they defend it gets qualified  the supreme court has said is that we must take a look at the totality of the circumstance no it's rejected that is an immunity standard that that's just the trap of stating things at a high level of generality and waving your hands and ignoring the need for some comparable precedent that's what got the court of appeals reversed so merrily two days ago are there cases that you're relying on that make this right concrete so that a reasonable officer would know that what he was doing was wrong that's what the supreme court wants the issue with that and i and i am not familiar with that was released two days ago and if given the opportunity i would certainly welcome to issue a supplemental brief on that but with regard to a specific case what we have to do and i understand where the defendant gets qualified immunity so that's why i'm asking where is this right made concrete the first case that i can cite where the right is made concrete is in the when we look at the  claim under that there is no conceivable brady claim here because there was no trial but and this court has held that unless the defendant not only goes to trial but is convicted there is no brady claim that's just established what case should i read it concretely establishes that say team development or take anything else on your list violates the constitution the the united states supreme court has long held that coheres of interior geisha tech yes and that stance stating a right at a high level of generality which the supreme court tells us does not overcome immunity defense that's why i'm asking right this is your opportunity tell me where it's made concrete i'll go read it and you know i'm not against your claim i just need to apply the law the supreme court tells us we have to apply i appreciate that and i wish that right but there is no such case but what case what with the case law does a stab alicia's that coheres of interrogation that produces a false confession can violate a constitutional right and in order to this detective used the theme development and enabled minded man with that violate a constitutional right no but if i were to say this case involves several interrogation techniques weeks that were used on a developmentally disabled man that resulted in a coheres confession that is a violation of his fifth amendment constitutional right that's also a violation of his fourteenth amendment constitutional right we're past the days when the state can bring in a person into an interrogation room subject him to hours on end of interrogation only to get a confession the state is charged with the obligation of producing its own evidence if we were to look for an individual case i think we would end up finding ourselves running into an also something that's known by the want of the police department we also know that with regard to the brady claimant to come back the judge easterbrook to your question earlier about that the evidence was not used at trial in the kairos case that i had cited earlier this court said it doesn't have to be used at trial what this court says you would have any response to the holding against brody holds that there cannot be any brady claim unless there was a criminal trial and the defendant was found guilty that's the whole in cairo this clear you on you know i play i understand that but it is the most recent controlling precedent from this court i believe that the two thousand and sixteen case of hywel is more recent than that where this court stated and that's from two thousand and sixteen and that is the case that we are relying on to support our i don't want to lose sight of the fact that we are at the pleadings phase of this case and that dismissal on the pleadings is disfavored because it has allowed the parties the opportunity to more fully develop their case since it hasn't allowed the parties the opportunity for perhaps to get the for excuse me for haps to develop the facts that are necessary judge easterbrook to answer your questions with respect to the claim and that's the fourteenth amendment is the only thing applicable to the states some of the substantive requirements of other amendments are applied through the due process clause of the fourteenth inescapably a fourteenth amendment case the this is a fifth amendment case as applied to the states through the fourteenth amendment and it also is an independent fourteenth amendment claim as well with respect to the fifth amendment claim as applied to the states or the fourteenth amendment the district court ruled that the confession was never introduced at trial however this court stated that in sonor berger in two thousand and six that earlier courtroom uses of coheres testimony including pretrial proceedings provide a basis for the one nine hundred eighty three claim arising from the fifth amendment with respect to the fourteenth amendment claim that has to do with whether the conduct that was used by the police is the police is conscience shocking i again come back to the fact that we are at the pleadings phase of this case and that discovery has not taken place additional facts as to the concha shocking elements of the police conduct will be developed however we've already given has pleaded enough facts to get beyond the pleading phase because he has stated the claim upon which relief can be granted under the fourteenth amendment along with the false arrest claim the brady claims and the various other nine hundred eighty three claims that require an underlying constitutional deprivation and i perhaps smoothly into the other points i wanted to make today mr martin raised the issue that theme development for example one of the purported misdeeds of the detectives in this case would not be a violation of a normal thinking person's rights if that normal thinking person had been arrested but that it was a violation of any geos rights to use that kind of of technique in questioning him th interrogations lengthy periods of time questioning him questioning him over several days of time whether it's using some leading questions or intense questions or continuing to question him even when he says look i'm innocent those kinds of things are not and we've cited all of the cases here indicating that those kinds of things are not themselves deemed to be a violation of the fifth  but the point is every part of this claim is nothing more than a claim that any guilt was intellectually deficient and therefore because of that any kind of serious discerning correctly concluded that there is no case that says that there is no case that would end there's no case that would give to release more often in this situation notice that the kind of questioning that they conducted here when they asked him some question first thing and stopped the first day when he said i want to talk to a lawyer and they stopped on the first day and they were they feel came away and on the in the way of taking him back to his jail cell apparently he says to detective graham but you know i want to take a lie detector test and that's when there was unfortunately a confusing exchange between them about kenya take a lie detector they did stop questioning him that day and only when he said to them i want to take the lie detector test did they come back after a night's sleep and do the lie detector test and then after that two other detectives question him that day and then after another night's sleep come back and attack and the detective on the third day questioned him again until there is a confession the point is that with these circumstances with breaks with bricks for sleep with breaks for food with breaks for drink without any threats without any violence without any and continuing to question him even after he says a number of times i'm innocent and suggestion that well perhaps if you cooperate if there may be some unions in this situation the just good training will certainly take that into account the court will take that into account in all likelihood all of those things are the circumstances that are pled factually in the complaint that and this is not an average complaint it's got dozens of paragraphs of facts in addition to that it's got footnotes ideations through to the record in the trial court some of which were submitted on some ridge and the motion would not have believed that they were conducting were unconstitutionally course of investigation all this came down to is intellectual deficiency and what is clear is that  false arrest claim with properly dismissed because as the district court pointed out even the circuit court said there was probable cause for mr gill the rest and with that comes in and ended the false arrest even if there were subsequent charges of homicide more serious charge of on the side after the arrest because there was no intervening release of mr mr  importing from the u s supreme court dickerson versus the united states the supreme court stated in implementing this bedrock constitutional value or focuses on whether the defendants will was over born by the circumstances surrounding the giving of the confession an inquiry that quote takes into consideration the totality of the surrounding circumstances both the characteristics of the accused in the details of the interrogation in order to qualify for quality in excuse me in order to trigger qualified immunity the first thing that this court must do is take the allegations in the light most favorable to the plaintiff and ask whether those amount violation of the plaintiff's rights we've met that burden at the pleading please by showing the fatality of the circumstances involving a developmentally disabled mentally retarded man who was the defendants in this case state that the complaint is not the usual complaint and that it is a very detailed complaint and it is a very detailed complaint the reason why the complaint was so detailed or so that we could to serve vive a motion for dismissal on the pleadings to move this case into discovery to provide even more details there are over eight thousand pages of documents of this case and bowls and there is no way we can provide all of those documents or even reference all of those documents and the pleadings phase but at a minimum have we stated that eighty gill's constitutional rights were violated at a minimum at the pleadings phase we have done that and this case should proceed into discovery just one question this morning can you make much of a factual distinction i know there's a pleading distinction between this in the carrol case participated fully in the interrogation in this case any guilt professed his innocence more than one hundred forty times and sobbed during the interrogation in cairo a plaintive testified that he was treated well by the police in this case when mr gill was left alone he was crying and kept saying under stress i didn't do this i didn't do this in cairo he was detained for a few days in gill excuse me in this case mr gill was detained for three hundred eighty five days in cairo there was other evidence against him including the victim identification in this case the only thing the walky police department had was a coheres confession and perhaps the single most