please the court and janet share and i represent the defendants detective bond detective wilbur and detective schrader we're here on an interlocutory appeal on the qualified immunity ruling the district court ruled against the qualified immunity plaintiff is bringing claims for false arrest as well as malicious prosecution and it issue is the question of whether there was probable cause or arguable probable cause  to affect the rest on plaintiff who later turned out not to be the actual robber in question so would you start out with the issue probable cause is i read this record what you have are two  people one pharmacy who initially say the guy who came to fill a prescription looks like the robber but when they're confronted with a photo array neither of them can pick him out correct well there were eight photographs and they narrowed it down to narrow it down to two do you have probable cause at that point to arrest i think you do but you don't need probably do must you do somebody says here's two photographs it's not more probable than not that there that one was the robber i think you have to look at the fact that they observed this person first of all they saw the robbery to begin with those two people meters and i can remember the other guy's name were they witnessed the first robbery and then they saw him come in in person to the pharmacy on the same date as the last robbery and so they saw him in person and identified him at eighty percent and ninety percent and you know the face and then when shows because i gorst the photo of mr horse in the balco except your representation that they both said it's one of these two that's fifty fifty that's not probable cause as well if that's not all there was either so l were treated from they've retreated from the initial statement at that point i mean the percent sure this is the robber and they've now said well when you show me somebody who looks like him i'm fifty all i can do is fifty seized the prescription correct they did and the prescription shows that it was prescribed on the day of one of the other robberies it showed that the prescription was written on that date correct number date lines of good providers name is on it correct does anybody ever call the provider and find out whether or not mr horsman was with the provider and today that robbery the provider was not contacted prior to the arrest but there was nothing to indicate that that prescription was going to provide an alibi well except he's got a prescription on the day of one of the robberies he was arrested for for the very thing that he robbed that is to me people who are on oxy cotto and who abuse oxy co don't get it in many different ways and this this is just one of the initiated the fact that there was a prescription and he was later said that he went to the before they arrested him but the interview that you have in this record but he didn't volunteer the alibi but then you go on the record which after arrest was a one that is in the record but they have the wife is the one who came up with the alibi and it was only three or four pastor yes no yes i think i don't believe that you think it's ok for the officer to say after she's narrative down to six isn't the one you is miss the one you kept looking at in the beginning so we're here on do novo review and as we put on our brief we do not believe that the record supports the record has to be taken in the light most favorable and taking the record in the light most favorable to that there's simply no factual support for the fact that the officer said that doesn't doesn't miss plympton say that in her deposition she does not say that she said that before she made the identification she she does say that he said it right yes she so you're argument is that she doesn't say that he says she said it before she made the identification you think the record support is the only way we can read this record is that she identified mr horsman first and then the officer said good because that's the person you kept looking at before that the whole circumstance of the way you know you know basically ask a very precise question you think that's the only way this record can be read i do think that's i don't think you can make the inference that the district court made that this was set ahead of time what did she say this all occurred after which she did not just she never took back her identification she never said anything like what the plaintiff represents and what the district court found occurred during that interview what do we do with the district court finding where here i do novo review with the magistrate judge who who heard the evidence in this case or looked at the evidence made a factual finding that it occurred before hand you saying that finding is not supported by the record at all i think the finding is not supported but it doesn't need to be again pulling back what you're looking out for qualified immunity is not probable cause not that's one of the elements did you have probable cause was there arguable probable cause and the question is not whether the officers needed to have certainty that this person did it that even clear and convincing evidence or even a preponderance of the evidence as this court student garca their only needs to be a fair probability that there's a person was the one who was the perpetrator or what but i'm go i want to go back because now you've shifted to a broader question just focusing now on this second photo array in front of miss plex let's assume that the magistrate judges finding is correct if the officer ok you may well be right you may win on the whole record with respect to that second photo array if the magistrate judge's findings are correct wasn't that photo array clearly improper i still don't think so i don't think it's ok for an officer to say now you've narrowed it down to six is this the one you were looking at before but i don't think that's what it says well i says this is what you said just a minute it seems to me that i'm trying to follow very carefully here initially laughter could not pick the person from the floor re the only time laskar could pick the photo from the ray is after the officer said that photo looked like the one you've been talking about and even then she said well i'm only seventy percent sure and then however i did not see all of his features but that nose she appeared  police can't get her to do anything until they point to the person and then she doesn't say it's really it it's only seventy percent and i'm not really sure anyway because i couldn't see all of features respectfully that is not what the records show that's what police did not point to it she said that's the guy that's him and the record reflects that she said she saw the nose a she could record is different from the different cords set it out we have the witnesses who actually were robbed the first time around who observed plaintiff when he came in with the prescription who said that's the guy and took it on themselves to call nine one one saying ninety and eighty percent looking at the whole person not just a face you know eight faces that are remarkably similar to what the plaintiff looks like ok have allowed you to answer your question my name is just american i represent out of horsemen defendants argument in this appeal is a court is pointed out hinges on a critical issue they claim that the magistrate in the district court judge made an unreasonable factual importance in concluding that the identification made by sherry plaster was but let's assume that that the district judge did a terrific job on this and that his finding defines a factor are fine when they're qualified immunity under this circumstance what case tells me that this combination of facts graham first city of long beach grant versus city of long beach well does it really involve i mean what we have here are two people who originally say i think that's you believe the robber probable cause isn't a very high standard i don't think they met it here but why should the police officers have known that it was clear there was no probable cause what this court held what the with the police officers were required to be arrested mr horsman at that point now really they need some information to determine the reliability of those statements when we're talking about what case what cases that well i think all of the cases that talk about identifications an identification procedures going all the way back to united states versus wade in one thousand nine hundred sixty seven say that when you're dealing with a witness identification you need to have some information about reliability and if they had done that what the deposition particularly  brandy mears shows is that miss meers only viewed the suspect for a second and wasn't she that she was not a witness to the robbery she didn't even know that the store had been robbed until the next day when she was shown video surveillance and realized that she had greeted this person as he walked in the door hello welcome the rite aid and when i asked him deposition when you looking where you were researching your memory were you thinking about what you saw the guy walking in those oral or were you thinking about what you saw on the video the next day she said the you know that was him can't they can't arrest him without more is that your is there some case that says that i don't have a case of my fingertips that on on that point but the thing that worries me is fall following up with judge hurwitz questions i was looking for the quick case said police officers have to examine the basis of the eye witnesses knowledge before making the arrest i couldn't find the case so what do i use well i think if you look in if i don't have a case then it isn't clearly established if we if we need a case that lays out each of those principles before something is clearly established that officers are never going to be liable for their conduct  is meant and it is a matter of that it's a matter of they officers have to be on notice about what they have to do if they're not on notice about what they have to do then they get immunity and i can find something about making an arrest on a subject on a suggestive photo person lineup procedure because you pointed it out grand is pretty hard but if i look at police officers did not examine the basis of the eyewitnesses knowledge which is another of your arguments i said what's the good case for that and i didn't find it in your brief and that's why i'm asking you now well i think grant stands for that same proposition when we get to the second step when we look at the reliability  place where we can even challenge what happened on the id that's placekicker nothing happened on that as relates to domingo nothing happens on that as a relates to mears not very good but nothing happened on that as relates to them so how do i go with that could they ever rested with just domingo mears and clapham i think that the court is asking a question about something that didn't happen that the police did not attempt to make an arrest of adam horseman on the evening of june thirtieth so your view is that if they even if they could have the subsequent events dissipated probable correct your honor what case what case helps me beginning but then they conducted a photo array with mirrors and domingo and it was inconclusive right so so that that point they didn't have probable cause in my case my question is what case tells me that subsequent events can dissipate probable cause those two cases were lopez and there's another case we cited in the briefing to the district court about that and we are making that argument primarily in the context of pointing out to the court that the subsequent interview if found to be exculpatory the search of the home found to be exculpatory was arrested before the interview was already was and so even if even if they hadn't interviewed him you'd still have a false arrest claim would you not i'm if i'm having difficulty putting the search of the home in the interview into the into the analysis of your case because the arrest occurred before that maybe some of the imprisonment occurred after it but the arrest occurred before it and it did and if the arrest was done on probable cause then nothing that the interview the inconclusive interview and a search of the home really don't don't knock it down do you think it could it could create an obligation of the police of the police to learn after making that now i'm back to judge this question so i'm trying to find out what case tells me that i got to keep investigating george curry honestly let me follow up with a concern they have probable cause looks to you the circumstances correct yes so as a result that doesn't really lend itself to precise metric or a standard and you're relying upon the grantees which was a very i think simple case relative to ours because pharmacy so they had their size him up look at him you have that you have in addition this similarity in clothing the wearing the the dark clothes wearing black and white shoes being about the the same beard you have that being provided by a number of different people then you have the ability to compare video and granted it may not be crystal clear but still it's something  for the then you have an additional perhaps even motive that well it turns out that this individual the plaintiff was also using oxy cotton and so to that extent we have a of wider universe of different facts that the police will lie upon at that juncture doesn't it take it outside of the bewick of grand doesn't it take it outside of that situation where they no longer match up no at the end of the day the police and you know people on the street still have to apply the principles that the court hands down in cases to the facts on the ground and grant we had a serial rapist or multiple rapes and multiple witnesses i think there was actually two identifications that the court found were unduly suggestive the police were relying on making the rest and they had a canine that had tracked the scent of the perpetrator to the building where  mr grant lived and under those facts the court said you don't even have arguable probable cause qualified immunity does not attach and so stacking up a bunch of facts you can always do it in any arrest situation but traction that that does that move the ball forward for the defendants it would help their case if they had made an arrest that night if this was an immediate situation so lopez says it can dissipate because you look at the facts that are known at t back and say well i could have arrested him before that that's right and that's what the district court sided merryman for that principle that you know maybe there was probable cause back here but at this point you have you have a recantation you have all sorts of moving parts a reason why officer would have investigated further and that's the situation we have here i see i'm out of time thank you you thank i'll give you a minute we took you over thank you the u s supreme court has repeatedly ruled that qualified immunity should be granted where there is no existing precedent placing the officers on notice of what they did what are you that is distinguishable on the facts on this case because it's not they didn't have the ninety and eighty percent reliability that the first two witnesses first identified says perhaps there's probable cause at that point but then subsequent events should have had a reasonable police officer to know that these witnesses didn't really have ninety percent reliability so there were many other circumstances here and that was a much simpler case as i believe as you had pointed out here we had to to the judges who this is a magistrate and then a are a very experienced article three judge who looked at this and they both said they struggled on this record on the question about whether there was probable cause or ar probable cause i mean that alone places this decisions outside the supreme court's rule that there has to be beyond debate whether there was a constitutional violation in this circumstance at worst it was debatable these district judge and a magistrate debated it we're here debating it if it's a close question i think the u s supreme court decisions including the white versus poly in the one we recently provided from january d c versus west be  required to apply qualified immunity because it is not beyond debate that there was probable cause or arguable probable cause to arrest thank you for those cases submitted