article three standing to bring this action under two independent bases either of which standing alone is sufficient to establish standing at this early pleading stage when satisfying the injury in fact article three standing the equal protection of the laws under the us constitution phrase per se but at paragraph twenty two dollars of the amended complaint for instance a one hundred and ninety seven dollars we asserted in addition if mr kerns carries out his duties under the green light law in conflict with inviolate and in violation of federal immigration law he faces the credible threat of federal prosecution moreover if you were to look at page three or one of the record during oral arguments i specifically raised the problem with the of office in those words i made the argument that because kearns was going to be forced under the green light law to certify that he would not share any immigration related information about applicants with hard for me to imagine that the federal government the county clerk for complying with state law so could you just give us your best shot at that well under pacific capital bank versus connecticut your honor in that case analogous to this case the plaintive challenge of the statute which is read literally punished conduct that federal law allowed connecticut had never enforced that statute against anyone yet this court found article three standing satisfied because the banks interpretation of the statute was quote unquote reasonable enough and under that interpretation the bank may legitimately fear that it will face an for  recklessly disregard knowledge of an alien's presence this court has construed that statute to include two elements of the crime one element not i'm not i'm not sure what you mean when you say disregard knowledge i mean i i'm not sure what you're arguing there while your honor i'm arguing i'm pointing out that there's a reckless disregard standard involved with the statute of how does how does he know if someone presents well st of all i'm not sure that he's even at the counter but lets someone presents information at a counter how does he know that this person isn't on documented a complaint page two hundred dollars of the record he has asserted that it is not unusual for driver's license applicants without being asked to provide kearns and his staff with information or records regarding their immigration status this is because the applicants are uncertain about the type of driver's license or learner's permit for which they are eligible or about the type of records they must provide to obtain a driver's license or permit therefore it's not unusual well your honor and respectfully submit that that's not relevant to the standing issue because whether or not they're required to the allegation has been made that they do and it is can be it's a reasonable inference to believe that they if you could flesh it out a bit well st of all the court below i believe erroneous lead dismissed that allegation is conclusory second of all  the historically when people come to the driver's license desk they may not they're not going to necessarily know the specifics of the greenlight law or that what they do or do not have to bring with them they're more apt just to come in as members of the public uninformed by the law to ask questions is this what you need is that what you need doesn't matter whether i'm our client is in jeopardy because he's come out in a legislative scheme that is set up both to provide material benefits uncritically give three days notice to anybody about whom the the federal immigration agent of the state that's his power what could he do in his individual capacity but the two men jeopardy be outside what the greenlight law contemplated and then he would become shal be exposed to them individually even if not exposed as an individual because he'd be acting outside of any basis court to reverse the district court's decision and order and judgment all before you sit down i have one question would you agree to the commissioner of the d m v commissioner as opposed to your client who is the custodian of these prohibition against mandating that he destroy that he maintain records if he's being told to destroy the records as soon as he's finished with authentic hating them the records of the of the applicants so in one sense alternately the records may eventually be forwarded up while they may not be actually under this statute the statute changes things from how they would have been statute mandates communities your honor it communicates with the staff on a regular basis the staff who do work the intake counter but in a county as large as the county of erie which is a border county with a lot of drivers license applicants and learners perm destroying records or directing them not to share information that they might happen to learn about immigration status then he is implicated in violating the anti harboring statute and that is because plaintiff failed to carry his burden to show a credible threat of criminal prosecution for harboring and that if so for several reasons st the conduct that's required by plaintiff of the end does not come within the anti harboring statu the face of the statute criminalizes the physical concealing harboring shielding a person not the nondisclosure information and specifically the statute says conceal harbor or shield from the sting and concealment no your honor st of all as we pointed out in our response freeze that is a new allegation that plaintiff has made only for the st time on appeal but that there is nothing in the statute that implicates any sort of destruction of documents these are d m v documents and such it is very clear that d m v should be maintaining the copies of them except they're only supposed to take the humans and verify the foreign proofs for authentication and as we pointed out the way that that's done is similar to how the t s a does it at airports they have authenticating devices that really only work on the original documents so the  the way that the statute is being administered doesn't implicate any making of any copies of any proof documents at all and so it doesn't require any destruction and again that they're not  proof of identity and identity so a foreign passport a foreign consular document a foreign driver's license and you also need to provide either you need to provide either social security number rise to any knowledge or act knowledge or reckless disregard of a person's lawful status and that is because there are categories of lawfully present persons who are in eligible for a social security number  who could use these groups for example foreign students without work authorisations or spouses of nonimmigrant visa holders and the act doesn't limit these types of proofs for use only by undocumented persons so again being presented by presented with these types the proof really would not give rise to actual knowledge and certainly not reckless disregard which are really the highest levels of mental state for criminal statute and again here  turning back to the the current the language of the statute there is issuing a driver's license and not reporting that person does not harbor or shield that person because it doesn't reduce the likelihood of that person's protection by authority as compared to the status quo in the absence of the act these are persons who are ready here in the united states in many cases been here for years or decades undetected so issuing those persons licenses and not affirmatively reporting them to the federal government doesn't substantially help them remain in the us any more than renting that person an apartment or selling that person's food and again this is a criminal statute it really needs to be interpreted in a way that gives clear notice to ordinary people or what is prohibited and that extraordinarily broad construction that plaintiff has argued for here would be covering the non the mere non reporting of immigration status by ordinary citizens for failing to report the neighbors their customers or students and we're simply not aware of any such contract being prosecuted in the many decades that this statute has been on the books could i could i just cry could i could i ask you to turn my question directed to kirby about observation precludes him being treated as a person subject to liability whether your argument about the office actually goes farther than you took it do you have a position that i don't  take any action on the issue driver's licenses and registrations only comes from being an agent of the government and that may well be the reason why as as  point out and judge should be noted earlier as well there that's maybe why there have been no prosecutions or even threatened prosecutions for this type of conduct on the part of government officials for any even licensing and non disclosure seams and that prohibit the disclosure personal information of undocumented driver's license applicants and these laws have been on the books for many years including a number of years under don't implicate bring jeff in they can expose them to criminal liability for harboring either as a district court correctly noted and consider them separately because those provisions are very functionally and temporally distinct from the licensing  conda clean it has no role in implementing the nondisclosure negating provisions those provisions apply when there is a request for information that is made to d m v that meet current any point and is not connected at all to the licensing application process and five makes very clear that plaintiff's only has authority to act as the agent d m v commissioner only for licensing and registration functions not to process information requests or to issue notices that if there if there's a request it comes in to the d m v not to county clerk that's correct and longstanding d m v policy has always been that county clerks and even field offices are not authorized to accept or respond to information requests from rd parties and again the and these preexisting policies are already prohibited any employer agents to even access the  prosecution and we that's what was briefed below was never argued below it was mentioned in passing to say that's not the argument i'm making in his opening brief and so we certainly couldn't have waved a response or objection to it if anything he's waived that argument here and so if i could just wrap up here the strange interpretation that plaintiff has offered which is extraordinarily broad of a criminal statute coupled with the fact that he's an identified defendants made no reply to it in their a pelleas brief under the norton case that we cite in our reply brief the defendants have waived the preservation argument and the oath of office argument stands and a stand alone as a basis to find standing under that basis and as i pointed out at oral argument he is required to certify something that requires him to dilate federal law as to the question of whether or not he can be exposed to criminal liability merely because he's also a state of or it can't be because he's a state official we're not aware of any case that  holds the state official can that be criminally charged under a criminal statute if he violates criminal law that we're not aware that that there's any immunity the argument about the method with the machine  not raised in the record by the defense by the defendants regarding the suppose a verification by machine destruction of documents we did raise it because we complained about the fact that the  yes even were this court not to agree on the with the credible threat of prosecution the oath of office  is an independent sole basis on which article three standing can be supported under richardson it was waived by the defendants by not responding in their reply brief earn their pelleas brief and we respectfully ask this court to reverse the decision in order and judgment below reinstate the amended complaint and remit in this case so that it may proceed on its merits to the