please the court your honors this person you know the name is greg sams represent charlie jean louis in this case the finding of summary judgment against charlie lilly should be reversed in this case because the trial court refused to take the facts in the light most favorable to the nonmoving party miss lilly and the police cannot hide behind the shield of a warrant when they intentionally provided false statements and intentionally omitted material evidence in order to obtain that warrant now before we talk about warren in this case and probable cause i'd like to take a brief moment to talk about some of the facts that the trial court did not take in light police a month before they applied for this warrant that the way she answered questions subsequent to her rape could be taken into account by dissociation due to the history of trauma that's the only evidence we have in the record of what those inconsistent statements could mean they didn't seek another source another expert another doctor but that was in the record the trial court refused to take that as a sign of dissociation from trump and instead took their assertion that that meant she fabricated the right but isn't the issue whether the police could reasonably take that into account and the other things into account in finding probable cause  this is not the issue is not whether she did it or not the issue is whether the police had probable cause is that right well to a degree it's correct to a degree but what to what degree is that not correct well the elements that they have to show for probable calls for a violation of k r s five nineteen zero four zero which is revolved the reporting of the incident are twofold they have to show probable cause that a rape did not occur and that she alleged that it did they provided no evidence at all that the right didn't occur what they provided was evidence of what they thought were inconsistent statements that bore on her credibility they didn't provide any evidence that a rape did not occur so if she if if there's evidence that she said things that were inconsistent with a rape occurring why isn't that evidence that a rape didn't occur because of exactly what dr hall said because on july twenty fifth two thousand you get into what he said i'm i'm curious if there's five pieces of evidence that say that comp crime was committed and a couple of pieces of evidence that say it wasn't committed that isn't that enough for probably cause even if the even if the evidence of says it wasn't committed is as some weight can be read i think i think that you're right it needs to be weighed and i think you're correct the problem is they didn't have any evidence that it wasn't committed they're saying they had some inconsistent statements maybe we need to talk a little bit about the inconsistent statements that they allege in order to find out how they could reasonably evidence that it was committed is the testimony or the allegations of the victim and there are all kinds of ways in which it looks like she wasn't telling the truth lies and the evidence that it wasn't committed i'm loosing the connection if that were the case i'm with you but she had an engine let's increase that i mean there's all these things which undercut her or her story and make it look like it wasn't the case well let's talk about those she there first point is that she didn't move she looked like she could've got out of these that's assuming that they would she could have gotten out before she called nine one more evidence that she could have gotten out before she called which the court did not these things or lose i mean maybe that's not true or maybe she thought she needed to stay in them for some reason but  of these restraints means she fabricated the rape however the trial that means that the police could reasonably believe that she had recreated the rape when you look at the totality of the circumstances here for probable cause of what they could reasonably believe i asked the court to take into account a few other things they have physical evidence before them that is evidence corroborating her story that there was a rape and the police agree that the physical evidence is the most important she's got marks on her neck she's got a on her head and she's got marks on her legs consistent with her story and they don't even deny that they've got physical evidence where they took a rape kit and they put in the warrant that they had done the full investigation knowing that that was still pending subsequently they called p s p and said stop testing the semen because we don't want to know who it is but keep testing your blood because we want to know if she's got any substance in her system that we could use against her they intentionally hid potential  evidence on mr libby and you can't do that i mean none of the case law says you can do that when they rode out this happen occasionally for a warrant they knew they had that visible evidence they intentionally omitted that material evidence for the trier of fact in order to obtain the judge they sought the advice of a physician the psychiatry is about these inconsistent state and wanted to know what they meant ok so that's the first thing that they they hear they also hear the fact that they had a rape kit physical evidence that been sent to the k s p and were garbed and instead of telling the court that that was pending they said they had done a full investigation it was complete and based on their investigation they knew she had barricaded the right they didn't even have that evidence back in because he had told him that they had had relations sexual relations that morning and she never produced it and apparently asked her about it a couple of times and it didn't appear to clar meant they asked her their story is that she was uncooperative in obtaining a semen sample from her boyfriend what really happened that what they agree is that on the day of they asked her where her boyfriend was and she said he was out of town which he was then they said she never followed back up with us and they called bet uncooperative when they asked for same and sample right they if you can't produce it that day you can produce it the next day it's my understanding they asked where her boyfriend was intending to get a semen sample i'm not sure they told her we need a semen sample from your boyfriend can you help us get it ok well we'll look at the record so and i would disagree with the assertion that the k is that th k s p lab testing was suspended because they were trying to get a semen sample from her boyfriend the k is the lab testing went on they did find the presence of semen and once they were told this captain gil inquired they told k s p lab to discontinue any further testing on the semen but please continue testing her blood and we have ample evidence that in the record when we when we deposed j s p lab  they came in and told they said that's exactly why we discontinued testing is because the officers in this case told us not to i want to go back to the to the beginning because because it seems to me that the issue that that we're confronting here is whether or not the officers had probable cause for the arrest and charge that that's what brings us here correct and aren't we to look at as they did the taliban have the facts and circumstances not one action not one piece of evidence but the range of things that went into their calculus of determining whether or not they believe that this had occurred and whether or not that belief was reasonable and rational in the circumstances and it was not just it was just the failure to cooperate with respect of the thing and fans will but they looked at other physical evidence around the room  the looseness of the tie the inconsistency regarding the the door lock or whatever when the officers came in the condition of the bathroom the pole the towels and whether there was any any  evidence of struggle they looked at a whole range of things and those things went into that calculus and so is an hour where a really whether or not the investigatory techniques and results were were reasonable to support probably cause determination i agree wholeheartedly if the problem is that they mischaracterize these statements as inconsistent and let's talk about the back door for example they play one before you let me ask you are they required for a  to be perfect in their in their procedure and then alice they most certainly are not the problem is we have police officers who start this investigation believing that over ninety percent of women who say they were raped are lying that's on page sixty seven of captain deposition he starts his analysis going in not trying to figure out what happened and what with a great he starts his investigation trying to figure out how can i show that this woman is line and he does that with the back door is a perfect example they say will both of the doors are locked that's inconsistent no it's not the back door is locked from the inside do you agree that somebody could lock that and leave why why would a rapist lock the door behind him going out why why would he do that i don't understand any of the of rapists your honor i don't know i don't know why he hit her with a blender when he when she was in the shower the shower the shower testimony is not inconsistent either i say well that's what i tell you what i don't understand how did she know it was a glass blender if he hit her from behind and she was knocked out before she and then ended up on the bed how did she know that was a picture from a from a blender i don't i guess you assume that my problem is that the trial court wants her statements to be perfect and is assuming that any inconsistency is because of fabrication not because of trauma from the event in the light most favorable to the party that's how the trial court has to resolve that and they say that a towel is folded so that means she could have been hit that is consistent with her testimony her statement is i was in the shower they hit me in the head i grabbed the shower curtain she didn't say there was blood all over the walls that everything was disheveled the water that they said that with that with no water found around the walls they found a little water at the shower head but that was that they fill water on the shower head they found shower water on the floor they said they didn't find any water on the walls i don't they didn't provide any evidence that enough time had elapsed where that wouldn't be reasonable i don't understand why they're saying that's inconsistent there's water on the floor down the share of her and that's all she said that there wasn't a scuffle she got hit in the head and she pulled the shower curtain and then they come in and they say well that how perfect right in order to believe that's inconsistent you have to believe that somebody can't get hit in the kid and there's still be a well folded fifth between the physical characteristics of the first small person of the man you know a larger person this is exactly what i'm talking about that's not going inconsistent at all she didn't say a small person in a larger person what she said was a person of small stature that there were only a few inches taller than me later on she said i think he was about eight they want to take that is inconsistent or crime is five foot four that's absolutely consistent he's a few inches taller than her and he's of small the trial court correctly concluded that detective clair and lieutenant bill clinton were entitled to qualified immunity because there was probable cause to support these arrest we believe that that decision should be affirmed for three reasons first of all there was probable cause to support ms louise arrest and so as a matter of law mr lee section one thousand nine hundred three claim fails in addition to that the district court did not get to this issue they address the issue soley on the basis of qualified immunity and probable cause but this was an arrest pursuant to a warrant and plaintiff has not appellant has not made a showing under frank's vs tell delaware that she can attack that warrant finally qualified immunity is also appropriate because appellant has not shown that detective clay or lieutenant gilpin violated the clearly established law they've not making any showing under his it's the same as the first argument is and i think they tie in together judge there that there is a factual aspect as to whether the officers could have reasonably mistakenly concluded that probable cause existed our position is that probable cause existed as a matter of law and we don't need to get there but that's what the district court found well if we find that there was probable cause the district court was correct on that basis we don't get to qualified immunity do we i think that qualified immunity plays into it in terms of if you if you affirm what the district court did exactly it would be on the basis of qualified immunity because what the district court said was that there is that the officers had enough basis in the record to reasonably even if mistakenly conclude that problem existed i think that that analysis can be informed by the state of the law if there were cases in the circuit that showed that probable cause in this case could not reasonably exist that might that might work for appellants but they haven't made that showing so i think that they kind of they work together that's not the base the how if you lost on the first issue we might have to get qualified immunity it's hard for me to see how if you win on the first issue when you talk about if you conclude that problem maybe you should just talk about the first issue we believe that probable cause did exist to arrest miss lilly for filing a false report in violation of care s five one nine zero four zero there are as as the panel has already indicated it wasn't only one thing there's not there's not one critical fact that supports the probable cause analysis here there's a multitude of facts in total the district court pointed out five different sets of facts that undermined miss lily story of an alleged rape but can you can you get to probable cause plea discounting every argument or every asserted piece of evidence that might support her story because counsel for what the police did what they came up with a preconceived notion that x percentage of all you know alleged rapes the victim for lying and so they proceeded to operate on that preconceived notion and thereby discount of stripping out everything that might have supported evidence rape i understand your question judge and i will say that officers cannot discount evidence that exculpates a criminal suspect with that said probable cause does not require t eliminate all possibilities of innocence that's not the standard and the evidence here is not that the officers discounted exculpatory evidence but they had sufficient in kabul tory evidence to file this false arrest charg person that swore the warrant and signed off on it was detective kimberly clay or she was supervised by lieutenant gilpin and he had some part in the investigation in terms of collecting physical evidence and he did talk to a few witnesses but he never was the one who interviewed miss lilly he did not have any any discussions with the prosecutor he had nothing to do with the exchange of information with the prosecutor never talked to the judge so there's that in addition what detect what lieutenant given actually said was that in his experience as an investigating officer he had found that many of the women who alleged rape ended up or canting their stories so he wasn't simply assuming they were liars they in fact told him based on his experience that their stories were not true and that's what they saw inconsistency between the physical layout of the apartment inconsistency as in ms louis own story it was glaring so right away yes they did have doubts about the veracity of their story but they continued to investigate for over a mean i don't know if it's cavalier but miss lilly in talking to dr clay or within hours after the alleged rape said that she that the attacker did not want her to move or giggle and she quickly corrected herself because she realized no one would ever be giggling in a situation like that in addition in another comment like that was that detective clearly gentlemanly for evidentiary purposes asked the it asked miss lilly if the attacker had a jack elated during the ra lee said he did not have a happy ending a slang term that's usually used in a comical context but would not ordinarily be one that you'd expect to hear in an interview for a legit rape victim in those those factors did weigh in on it but i think that the the most important incredible critical aspects were the physical condition of the partment that it just did not corroborate miss lily story and also you know one thing that mr sims never even mentioned was that ms lily not only was her statement inconsistent not only was it contradicted by the physical layout of the apartment miss lily wasn't even forthright with the officers about what her name was a week before this alleged rape occurred miss lilly had applied for and obtained a name change she was leslie would she change her name to charlie sheen lily and yet on july ninth when she made that phone call she told dispatch my name is leslie wood when the officers arrive she said my name is leslie wood she went by the name leslie wood and you can see this in detective kimberly claire's investigation report she went by the name leslie would until august third a month later and she never mentioned that her name had changed in  the mere fact that she was not even upright but forthright with the officers about a name certainly indicates an intent to mislead or confuse or fabricate this alleged rape i would like to point out some of the specifics as to the physical  layout of the apartment just to clarify some of the things that have been said mr sims in response to a question and five is that there was water on the floor of the tub i want to remind the court that advised detective clear on officers that she had run the shower for about five minutes five to seven minutes she says it ran for a few minutes then she was in there for two minutes that's a lot of water you would expect more than a small amount of water to be found in the tub despite that no no water is found on the walls no water is found in the shower head and there was evidence that the officers investigated that thoroughly lieutenant gilpin testified that he took toilet tissue around the bathroom to see if there was any water that he could find but he did he also didn't find it on the the walls and that's inconsistent with miss louise story that she was attacked violently and in the shower and dragged from from the shower and yet no water existed there was also the towels folded neatly of the tub none of the items were disturbed there's to clarify that i'd also like to point out mr simms has made an argument that the court has not taken all the facts in the light most favorable to i would posit that there really is no dispute effect here and the reason is that there is no dispute of fact as to what happened and what miss lilly told the officers we've got video recordings of the forced entry into the apartment  the of the state of the apartment we've got photographs we've got audio recordings of miss louise interview you know all the court needs to do is look at those different interviews look at what she told dispatch look at what she told the tech to clear and look at those photographs to see the inconsistency you don't have to construe it one way or the other it's obvious and that is why there is no dispute of fact here and summary judgment was appropriate if i have no further questions from the court thank you counsel rebuttal coun i would ask the court please i concur please look back over those statements and over that video when they first came in to the apartment if you haven't seen that video yet it is hang it's it is it is something out of a horror film and in the way she screams it is legitimate the context where he said that over ninety percent of rape allegations were false come from the question ok estimate for me how many times you've dealt with someone who's fabricated an allegation of rape or sexual assault in your tenure with the police department answer i would say ninety over ninety nine have been over ninety percent of the rape allegations we've been able to prove are faults question and if that's the end of it and that could be true even though nice not prejudiced i mean he knows how many he's investigated maybe he's just had a run of false allegations is i think there's a serious mental health issue when you say that over ninety percent of women who say they were raped are liars that is that shocks the conscience to me and that's who we're dealing in years of the people that he's still because that's what he was he says he says ninety percent of the rape allegations have been they've been able to prove our faults which indicates his mentality we try to prove that they're false we've been able to prove their faults you know they indicate that goldman's not on the warrant that is not accurate captain gilpin told player to get the warrant and in addition he is mentioned specifically in the war and they refer to his report as a basis to get that word so i would ask the court to review that  you know we've got a situation where the police did not provide evidence in this application for a warrant what they provided was argument speculation based on their doubt of what she said no evidence they ignored the evidence and they had the evidence the evidence the physical markings the evidence is the fact that she's done this rape kit and they chose to had that when they did an application for war that is unacceptable is unacceptable and at the very least in the facts most favorable to the nonmoving party gets us past summary judgment it's an issue for a jury and we would ask for that opportunity tha