good morning your honors me please the court scott karen on behalf of the appellant's and defendants in this case before i begin i just want to express my thanks to the court for changing the oral argument today so i could send a family function yesterday much appreciate thank you i want to start by addressing the issue that i think should be dispositive of all three claims of immunity that we've raised on appeal and that is the question of whether the sheriff or his personnel knew or should have known that the point of was entitled to release that of course is the standard under the fourteenth amendment it's relevant to share of bach is qualified immunity claim it's also very similar to the standards under state law immunity and that we've urged for quite a judicial immunity in this there is any muni available to the sheriff you're talking an individual capacity right yes that's correct the question as as far as qualified immunity is concerned obviously it's only in his individual capacity for a state law immunity is concerned  believe that that applies both to the individual and to the official capacity claims and to the entities as well and we urge that chua's that it's possible to quiet educational immunity could apply to the entities although it recognized that's not our strongest point so i'm not going to push that too far we don't believe that the complaint satisfies the standard of knew or should have known the complaint alleges five discrepancies between the plaintiff's description and the description of the warrant subject the pla had a different middle name different c i number different ellie may number height and weight so five discrepancies but of those five three of those discrepancies are not relevant the analysis because those discrepancies were not apparent on the face of the warrant that's that's my understanding is and i am i really want clarification from mr garcia's lawyer on this is that he is he has his response to that is likely to be well that's the problem in other words that it should have been there should have been more specification on the warrant right and that's an issue that was addressed in the district court and it was we brought a motion for anything to do with what goes on the what the warrants are issued by the court and my understanding is that the courts rely on information that's provided to them by the district attorney's office identifying information and that the courts don't really look at criminal history information that sort of thing but the sheriff's department doesn't play a role and in other words there's no communication between the sheriff's department and the court when the court is entering into permission on a warrant we therefore take the warrant as it actually exists right right  that a warrant that has the same name of someone they've gotten detention right i would i would suggest well first of all if the only match is on name and none of the other descriptors match the individual that they have in custody i would suggest that that would that would be a different scenario than what we have here it would be would not be a reasonable match you've got a name  question now yes there is in fact the sheriff's department has a policy that actually goes above and beyond the constitutional standard the sheriff's department policy is anytime someone complains sheriff's department says i'm not the subject of this warrant that i'm being detained on sheriff's department policy is to anytime someone complains to investigate and to determine whether or not that person is in fact the subject of the warrant and that's and that's a policy that goes above and beyond the constitutional standard because under the fourteenth amendment an investigation is not necessarily called for anytime someone complains that he's not the subject of the warrant the constitutional standard is if he complains that he's not the subject of the warrant but he reasonably matches the warrant the new purse i agree your honor that is a material difference and i would suggest that and wait well i would suggest that of the two discrepancies that were apparent on the warrant which is height and weight i would i would i would agree with your honor that the difference in height was a material case has stood for the proposition and we cited a lot of these cases in our briefs for the proposition that where there are many matches many similar between the suspect description and the warrant description and one of the ticket a birthday and there know i'm not sure that there would be more mario garcia's with the same date of birth as there would be you know santiago rivera's with the same date of birth in rivera this court held that there was no duty time but there were some in that instance there was that's not at all the same thing i mean there's just no chance i mean and that this could be the same guy well there certainly is and a recent no chance of that it could be the same guy well i think that the difference in height could be attribute d first of all to a typographical error five zero one versus five one zero could be attributable to a typo graphical error and also the case law stands for the proposition that in the face of many similarities one material difference which is what we have here one material difference does not transform the identical radically dispositive one i mean people have used different names and they gain weight but they don't grow a foot well people don't people also don't change races and there are cases like johnson v miller again a number of cases where significant discrepancies in weight in height we had one case from last year gantt versus county of los angeles where there was a seven inch difference in height and also a one hundred forty pound difference in weight so to material numbers and how much c i numbers matter and how dispositive they are in identifying somebody all this court said in a read the baka that because there were so many so many similarities between the plaintiff's description and the description on the warrant despite that difference i number there was no duty to respond to his complaint of mistaken identity and again case after case after case from this circuit from other circuits the first fifth sixth seventh eleventh circuits holding that even material differences such as race extreme differences in height differences and they invaded both the one material difference one not transformed a reasonable arrest into an unreasonable or less talking here as i understand it about the arrest is that right we're talking about the detention that's correct that's correct appeals from either grant of a motion to dismiss and i think in a couple of cases the qualified immunity appeal from a denial of a motion to dismiss i don't think it would matter because there's really no dispute as we stand here now about the facts in the complaint we accept us no no we're arguing that he didn't have the qualified immunity that is what you're willing to accept that he's responsible for whatever happened here well the allegation it was could be right or could be wrong but you're not arguing that he  particular as opposed to someone further down the line is response we have to accept the allegations of the complaint as true in the complaint includes allegations stating that he was responsible for not necessarily responsible for the detention but or knew about the detention but that he was responsible for policies that led to a constitutional violation and so we accept his allegations is true so that that issue would i think be more appropriate for a motion for summary judgment but the issue of whether or not the plaintiff experienced a fourteenth amendment violation i think can be decided here at the pleading stage and i again would point to all these cases that we've cited holding that one material difference does not transform reasonable arrest into an unreasonable arrest and i don't think the distinction just cool there's one difference like the major difference here invoke a need for some heightened  under the procedures and make more inquiry than they did under the sheriff's department procedures no only because the scriptures don't matter with respect to the sheriff's department's procedures if someone says i'm the wrong guy i'm not the right guy you have the wrong person they're supposed to conduct an investigation regardless of what's on the warrant i want to we don't have any information here because of the stage of the case as to whether they challenging qualified immunity saying there's no constitutional violation that there was no duty to investigate under the fourteenth amendment if i could reserve my remaining two minutes for a of his name's on the one birth date matches male hispanic seven inch difference in height in that case and depending upon what piece of information you're looking at anywhere from a twenty pound ventura had a due process stated a due process by aleisha against the sheriff's department based on the fact that he complained he was not the correct person there was the seven inch difference in height and again depending upon which piece of documentation you look at anywhere from a twenty pound to one hundred twenty pound difference in weight that's sufficient and that's ghent i'll submit a ru e twenty six letter finding really it was not a qualified annuity ruling in that case the due process claim had been thrown out by the trial court on summary judgment and this court vacated so as i say size matters now this easiest thing for someone unfamiliar with the system to focus on in this case is the obvious difference in height the nine inches as well as the forty pound difference in weight very much like the fairly case which is also have to be for my cases assume to have a lot of these  joe fairly john fairly twins same birthdate same race same ethnicity sixty six pound difference in weight due process violation in any held liable have to have procedures in place this complaint alleges that from the face of the warrant there were material discrepancies between what the warrant says and the body you had in front of you if you want to go a little bit further and this is where you have to look at the complaint allegations and keep in mind the people who are in the system to jail the jailers law enforcement they know a few things that the rest of us don't know for example they look at this warrant the face of it and they know that the subject besides the difference in physical descriptors has a felony conviction for the possession for sale you know that from the charges the parade violation and they also know he was in the county jail and they also know as alleged in the complaint that he had a few buttons on the keyboard you will have a criminal history for my client mario alberto garcia and he's never been convicted of a felony he's got to do you why in van nuys some years ago when that little is if they believe that he is that person otherwise i understand there's a height problem but if they are otherwise believe he is that person then why would they be going to find out what if they had pushed the button for that person they would have come up with a felony conviction well i start from a little different from this from you they don't really care if he's a person or not that's what the complaint allegation is but if they thought he was in fact the true subject then you're absolutely correct they wouldn't do anything then what they did here they just process the paperwork and buck up but if there was something the chiro that should have triggered some further inquiry the s t could have within what a minute all this information is part and parcel of their information system it's right there in the system they bring in my client they're using the same system the same system the courts use since the same system they use to are they don't have to do that well i understand he is he is standing on top of a lot of someone internally contradictory and some just say they don't need to do it my response i'll take repairer because is the last i would say best case form on this point with my case to anyway santiago rivera by the way born july twenty fifth that's why his name santiago patron saint of spain st james male hispanic born on that day is going to be santiago santiago rivera first last name matched birthdate match and then the height and weight with very close one inch ten pounds judge a stand one said there is nothing in the official documentation here that suggests that this was the wrong person but if there's some material discrepancy then they have a duty to do something more what distinguishes my case here from riviera is the same factor that does that also allow mr bin tour and they get case to prevail which is you had a material difference now the other factor material difference being the height well i think both the height is a material difference for the reasons already noted and are more than one because your opponent talked about a material miss you had you actually had at the height you had the weight loss and again this is the specialized knowledge of the people running the system what they know from looking at the face of the warran the bad guy they want they know has a felony conviction and they know they have an in doubt that the bod they have in front of them is the guy and is warned look at this war and say well we have to do is see if this guy in front of us has  felony conviction that this warrant says he has had a couple of keys pops up on the screen this guy we have in front of us purchasing a prince has no selling conviction at all any time so that's how they resolve it if they your use their information system but i know they don't get to that point unless they have some reason to check that's what rivera says you have to have a reason to check for very didn't have a reason to ch factors showed a reason to check and you look at the ease with which their systems can give them the answer that's another factor and again this is legit the complaint that basically it's very very easy to figure this out is just that the sheriff's department as the complaint alleges somebody brings in a body that says it's the subject of a warrant and the sheriff's department says we booked them we don't care we just book and we rely on what the outside agency says we ignore the differences that there as we know the problem with common names particular when it comes to hispanics and sometimes it's mistakes but in cases like this where you have the opportunity to make sure that you've got the right body in the jail it's just a matter of using your are allegations are you must use your existing system to deal with something where you've got an obvious material discrepancy or two on the face of the warmth is an officer have an obligation if it's common name to do something more than if it's an uncommon well if that's all you have on a warrant is a common name  let's say it's part of you you've pointed out here perhaps that in addition to what you've discussed there was a common name i think i think if an officer had somebody in the field had my client in the field and discrepancy on on the height he doesn't have access to resources usually in the field that they do at the station i think at that point maybe the officer's best to take him to the station call the station and run run the tour takes a minute they can do that too i don't have and this case doesn't continue we have a problem with the arresting officers i know there are limitations to what arresting officers in the field can do in here you've got someone at the county jail and again i know this is the complaint state this case just a summary judgment we'll have the evidence to show that the county jail at the name warrant does not have the middle name of the county systems had the middle name in it but the warrant only had mario garcia the sheriff's department had the institutional knowledge that the fingerprints did match ok that's alleged in the complaint and i say institutional because again we know that the bad guy garcia had been in the sheriff's department before and therefore had been fingerprinted and they had his record and it's available on the systems  this is how they indexed all the records the index records my fingerprints you can't rely names and the proxy for fingerprints in these computer systems is yang number so the argument that  munich's the laws not say clearly established we did many go back to fairly that's the case that says you have to have procedures in place to deal with instances where you have reasons to think that maybe you got the wrong guy and that's been the law since i think two thousand and two and then of course there's leave the city as i say rivera doesn't help i'm here because of the material discrepancies and you go to  you don't get immunity under state law false imprisonment so that those claims i think are easily disposed of but you don't have any doubt that in terms of the jurisdictional question that issue and  before us well i say the only appeal is proper properly before the court is the baka qualify in any appeal well because these are the entity cannot appeal a denial of summ cannot appeal i know but we don't follow state law or procedures but a court where in order to appeal collateral order doctrine theory which is the argument here it has to be a matter of some significant importance and i would say that because the state itself doesn't consider these kinds of rulings to be subject to immediate appeal that's a factor for this court to look and say well the state doesn't think it's important enough the case on this all the time no i've not i've not seen and i mean this issue of the entity appealing collateral orders talking about the entity  involves one material difference between the warrant subject and the word description between the suspect in custody and the warrant description gant involved to material discrepancies and one image to material discovered c has a seven inch differen height it one hundred forty pound difference in weight and also a difference in address and i would agree that the address is not as material but one hundred forty pound difference in weight is significant a seven inch difference in height is significant you  material discussions these whereas here you only have one in the case law says one is not enough i mean it seems to me that weight either is or isn't i mean this was a significant amount of weight difference he could have gained the weight that psychotic and gain the weight i would submit that it is less likely that someone that the gant court did not decide that those material that those two material differences were sufficient to to trigger a duty to investigate under the fourteenth amendment the decisions in gant were based on different issues summary judgment was reversed as to the county on the ground of whether or not he complained enough to the county of san bernardino on the nel i also think we can take some some lessons from the rivera court regarding what is necessary to establish fourteenth would be satisfied those are extreme extreme cases in which there was absolutely no reason for law enforcement to believe that the suspect in custody was the warrant subject so i think we can take something from that and with that i will