james w howard representing derrick when the plaintiff and the appellant on one hundred and eighty three civil rights action mr wynne was a hospital security officer who was maliciously prosecuted for using minimal force to restrain a hostile aggressive and intoxicated patient the district court granted a summary judgment to the defendants despite accurate findings of fact that virtually established the defendant's misconduct and liability appeal addresses for interrelated issues that i have tried to separate so that they can then make a little more sense but they do tend to overlap both in terms of the underlying facts and the law st issue being roughly that the issue of the scope of qualified immunity for a rookie police officer with no investigative training or experience to fabricated evidence to prosecute a serious felony offense with no arguable probable cause for that criminal prosecution nd issues the scope of qualified immunity for that same police officer who deliberately ignored readily available evidence to fabricate probable cause for the criminal prosecution rd issue is the scope of sovereign immunity for police department that permitted facilitated and even promoted this absurdly flawed investigation and finally the scope of a district court discretion to exclude the opinions of a qualified expert witness on police practices depending officially agrees with the district court's analysis of the evidence district court correctly found that a police officer obtained an arrest warrant to prosecute the case based on false information and without arguable probable cause all over the district court still erred in deciding  those franks versus delaware comes from the criminal context and when someone can challenge information that's been obtained through the submission of a false affidavit by a law enforcement official and that case aligns with your argument then the district court ruling that there was no probable cause or arguable probable cause for the aggravated battery charge but how does that case get to the issue of whether or not there was probable cause or arguable probable cause for a simple battery well that is obviously going to be part of my argument and i can go right there in response to your question there and there is a misunderstanding i think by the district court and then an arguable and i'm sorry an understandable misunderstanding as to what that means there is case law that supports the premise that if a police officer arrest someone for a criminal offense and it turns out that they only have probable cause for a different criminal they are still protected by the shield the fall fight immunity they can't be expected to necessarily get that right but that's not the situation that we have here where we have a situation here is where an officer undergoes  investigation of a very serious charge an aggravated by a battery charge a felony with a maximum sentence of twenty years in prison and having gone through that investigation doesn't obviously does not have arguable probable cause based upon the evidence and the court's ruling doesn't have arguable probably cause to support that prosecution and doesn't pursue any other prosecution but post hoc the opposing party rationalizes that and the district court accepted the read that well perhaps there was arguably probable cause for a misdemeanor offense and that can therefore shield the officer qualified immunity but there is a wealth of legal authority on that very issue and i started i'm not sure where it is in the brief but when an officer and i'm quoting from homes village of hoffman estates th circuit case when an officer prepares and finds a criminal complaint he typically will have more of an opportunity to reflect on the nature and ramifications of the accused conduct and he did in making the  is reasonable to the man each charge that a police officer elects to lodge against the accused be supported by probable cause otherwise police officers will be free to attack a variety of baseless charges on to one valid charge with no or are you making a separate argument that the concept of arguable probable cause can not extend to lesser included offenses it can tend not exclude to a lesser do want to court to distinguish between a situation where an officer is making an arrest in a situation where an officer is conducting an investigation and there's a case that is language directly on point of the nd circuit otherwise officers could add unsupported serious charges to cases i have three responses to that st is that there is a there is authority in this circuit that supports my position and i think very clearly supports my position and outside the court to elmore versus establishes this principle that you can't judge you can't justify filling the prosecution based upon a misdemeanor a misdemeanor offense and they're just so graphically different the nd issue of course is that there is a jury issue even if you could find arguable probable cause in this case it would be a jury issue because there is ample evidence before th what what's constitutional provision was violated in this case he did try he did have to turn themselves in he was in custody he was prosecuted as well no no no that's the complaint doesn't say he was taken into custody let's misdemeanor prosecution ever contemplated by anybody this is a post hoc rationalization at the time the case was only prosecuted for aggravated battery when the district attorney's office got it and analyzed they decided that no crime  been committed whatsoever and based upon that they dismissed the case entirely as opposed to even contemplating some kind of misdemeanor prosecution so it i submit to the court that there is no arguable problem calls or even a misdemeanor prosecution and if there arguably was it would certainly be a jury issue i think one of the flaws in the in the opposing argument is that they take the position that the officer does not have to consider defenses to the misdemeanor prosecution that they can somehow rationalize that a misdemeanor could have been prosecuted if they thought about it then that is sufficient to avoid the  order to create the shield of qualified immunity i think the example that i put in the in the brief is this is somewhat absurd but very accurate under the circumstances i gave an example of elderly woman i'm sorry your time your time has run so if you want to keep your full time for rebuttal you can stop now or you can eat into that time your choice i will save it for a bottle ok thank you very much this couch are you on the line to let me work on that give me two seconds please ok thank you hello good morning mrs hi there i'm sorry appears that there had been some sort of technical issue i heard the entire argument and i could hear everyone but i guess you guys couldn't hear me i'm very i'm very sorry about that that's ok you can miss about officer being being a rookie i think what's important to know is that this was a team effort this wasn't a case where she was given a case file and thrown out the door and said good luck she asked for permission which was granted and she worked side by side with a senior investigator they spent a month on the case they were they watched the incident video for many many hours they brought in a lieutenant and together it was a group decision that there was in fact probable cause for aggravated battery because for you or against you well i think it cuts for me in that it is shows that there was more than one officer who was taking a look at the facts and it would be hard to say then that no reasonable officer could find that there was probable cause i mean to spend a lot of time on this case and together decided that it was in fact sufficient for aggravated battery what did they what did they think the videotaped interview if you watch it he explains to them what happened physically as well as describing it and he tells them that he had a shoulder injury before it was quote healing up nicely but after mr wind came down on him with so much force he was going to have to go back to his bone doctor and get it reset in fact two days after the incident he went back to the hospital he brought the discharge papers with him and showed them to officer bain so the argument there about there being an injury is from the victim himself and he in fact had the papers to say that he'd gone back to the hospital to have it looked at and was going to make an appointment with his bone doctor on the friday following the videotaped interview right now but the thing is that the aggravated battery statute doesn't just talk about injury it says that you have to deprive a person of a member of his or her body by rendering a member of his or her body useless or by seriously disfiguring his or her body as a member thereof which they've looked at the appellate courts have looked at black's law dictionary and they've determined that in fact it means an injury and agger it means an impairment it means something that it doesn't work right so to speak  the injury does not have to be visible it doesn't have to be permanent it just has to be something more than a superficial wound in fact at trial the state does not have to present medical testimony about the severity of the injury th testimony of the victim him or herself a sufficient some examples where an aggravated battery conviction has been upheld is a case where there was a severe nice spring and the victim said he suffered pain there's a case where there was a child that had a preexisting about a month old broken collarbone and then he suffered a broken arm both by the same person there was a case with a head injury that required stitches and it resulted in scarring and finally there's another case where there was just the bruising that resulted in some scar tissue the the georgia appellate courts have said all of those rise to the level of an aggravated battery and this case you've got the victim showing and telling the officer you know i was fine and now i'm not fine yes he had an injury before but georgia law doesn't say that just because there's a preexisting injury that if the defendant proximately call injury then it can be aggravated battery that's not the law in georgia and so to say that you can't that there was in fact no arguable probable cause for aggravated battery the district court got it wrong in fact there was arguable probable cause for aggravated battery and i think if for some reason you want to say ok well it didn't rise to the level of a seriously disfiguring how is officer bean supposed to know that because it's not defined in the statute and the case law regarding what injury is sufficient is clear that only a jury can really decide that but given the cases that i just talked about that's sufficient to be an aggravated battery so she didn't fabricate they're when through mr shaw on the bandage while using forth with his forearm on the victim's throat resulting in an injury to his collarbone when you watch the infinite video which is a hospital security camera that's exactly what happened so there is no faults of acacia and there's no fabrication here officer bain did everything that she could be expected to do in terms of working with her or her supervisors went to the a da and then got the warrant sign shot gave three statement he gave a statement the night of the incident he gave a statement a couple of days later where he just met with officer bain at the hospital and said he wanted to go ahead and report the crime and then you also have the videotaped interview of shaul in all three times he says that when said something to him about being a child molester or a sex offender there's also an audiotape interview of the other molester now the security officer said i don't know if it's true or not but that's what mr shaw kept saying so he was consistent in his in his statement that mr wynn was upset with him and didn't like the fact that he was a child molester or a sex offender battery and the idea that in this circuit there the law is clear that in a malicious prosecution case if in fact there is probable cause for any crime then the malicious prosecution claiming fails and the wall is clear and if in fact as as your arms have mentioned if in fact you want to change that law office being can't be if not it would be clearly established to her if suddenly we're going to take these cases and say well they don't really apply to you there are multiple cases where that's been held by this as as late as november of last year  immunity cases telling an officer that as long as you have probable cause for any crime then you will be cloaked with the privilege of a qualified immunity and then you have this outlier case  arrested on ultimately you were found not guilty on then the officer who arrested you may not be entitled to qualified immunity that's my understanding but i don't think what you bo holds is that if there's if i think the misdemeanor felony distinction is not clear in the law when you have these other cases that talk about any crime as long as there probable or arguable probable cause for any crime there's certainly no clear message to be sent to the officers and you've got to make a decision at a probable cause level of whether this is going to be a misdemeanor or felony and if you don't get it right at the probable cause level and you're opening yourself up to nine hundred and eighty three actions that's not the law in the circuit currently the officers don't go through that when they're writing out the affidavit to get a search warrant they're not going through they're trying to figure out do i in fact have probable cause for the crime that i think it's been committed this way you know whether it's a misdemeanor or felony that that's not what's going on because that's not what the law currently requires if in fact  there's a disagreement if there's a disagreement on this on this issue then it is unfair to subject the police officer to potential money damages because he or she may land on the wrong side of the controversy and for that i would  on qualified immunity but also on the lack of evidence for the claims if and for some reason the court determined that there was no qualified immunity in this case there's still very much a lack of evidence regarding malice  malicious prosecution case and in fact there's no evidence of malice in this case and the district court didn't reach that issue having found qualified immunity but we did move for it below and i just want to make sure that  i put that out there speak but i think qualified immunity cloke's officer being in this case because she had arguable probable cause for aggravated battery under those cases that i have that i have cited she has arguable probable cause for simple battery watching the video there's no doubt that there was a harmful touching of mr shaw by  she didn't fabricate any evidence that the law in the circuit requires perjury if in fact to strip her of her qualified immunity you have to show to the point has to show that she perjured herself or that she recklessly omitted important facts when you read the affidavit in case she says exactly what happened whether the injury rises to the level of a serious disfigurement i those matters i stand ready to answer those questions otherwise the district court got it right in terms of granting qualified immunity i think the district court got it wrong that there was not arguable probable cause for aggravated battery there was but even if you find that there was not there is arguable probable cause for the lesser included offenses or if in fact you're going to decide that you can't go that route it's not clearly established so the qualified immunity should remain and the district please the court my back yes you are yes i'll try to speak quickly to touch the points i really need to touch on i want to start by emphasizing that the the appellant is by no means conceding that there is any probable cause for a misdemeanor prosecution there was certainly no misdemeanor prosecution contemplated this time the district attorney's office took a look at the case and didn't think about a misdemeanor prosecution the opposing side didn't think about a prosecution until way they were briefing this issue and they came up with that is a possibility so it was never any contemplation of prosecuting a simple battery on the facts simply did not supported by the district court's analysis there be probable cause to prosecute any security officer for simple battery after use as normal reasonable force to restrain someone and by the by the disregards analysis the justification for the restraint could be ignored just characterize it as an affirmative defense that's not it not a distinction that is made in the law that the investigating officer must consider the circumstances must consider whether the officer is clearly defending himself must consider if he's using minimal force and we not only have that quite visible on the on concept of probable cause is not the same as proof beyond a reasonable doubt and you're suggesting that a police officer has to be the evidence in the light most favorable to the accused to determine whether or not there is probable cause to charge you know what i'm suggesting is that the officer has to conduct a legitimate investigation and that's what the case law supports and all of the evidence and i do mean all of the evidence s finding that there was no simple battery that there was simply a minimal use restraint on an intoxicated difficult aggressive patient that's what all the evidence supports she didn't talk to anybody at the hospital the statements from the other person in the room the other security officer in the room were available to or she decided not to listen to one and not to look at the other instead she was hell bent on prosecuting this case because this was her opportunity to be an investigator she never investigated anything before which kind of brings me to collectively review the evidence before they decided to prove prosecute mr when they basically ratified officer beings inadequate investigation gave her no supervision gave her no training just let her experiment with th investigation because she wanted some experience being an investigator and as a result of that that is well st of all that's one of the bases for the city's liability there was minimal no training no training at all minimal supervision they just let officer being do what she wanted to do and that's what the evidence supports in this case to take a whole light well what what did mr win what did mr wynn say about how this incident took place mr incident i'm sorry mr winz account of this is entirely consistent with everything that i have told you he said that he used minimal force with a difficult patient who came at him to touch him st he had to do something and so he al did was put his weight on him till he stopped and then he got up didn't hurt him at all which is and i do want to emphasize this what you have just heard about mr show reinjuring or being injured that is not true that is not in the evidence  there are no medical records that show this is show any subsequent medical treatment as a result of this there is no statement by mr shaw that this incident in any way exacerbated the injury this is something that the police want to make out mr shaw the recorded statement and he says nothing that could remotely be construed like that and frankly i don't remember i was there being saying anything like that if he did if he said something like that and most have been some private conversation that was recorded everything that on yes and and gran the video itself shows him grabbing the show that did not yes it does and i don't doubt that is his shoulder was sore forgot that he had that was a recent injury occurred in a bike accident and so he had a show and you know i'm not going to tell you that it's impossible to win putting some weight on this person's shoulder to restrain him couldn't  injury they had an injured clavicle got excited thought that she could pursue an aggravated battery based upon that because she was there and she was a part of it and thought she had a case and then discovered that he already had that injury and decided to pursue the claim anyway and unfortunately the evidence doesn't support it but she had already decided being an inexperienced investigator having no training having no supervision she just decided she was going to make a felony case and never came up with any evidence to support the notion that this is an aggravation of a preexisting injury it's something she made up and that's why when she applied for the warrant she didn't mention it she didn't mention the previous injury she acted like this whole injury was caused by mr when when he put his weight on him knowing full well that that was not true and that's how realistically this happened she had just decided this is my opportunity there for so the reason giving me this opportunity to be an investigator let me take advantage of it and prosecute this aggravated battery charge thanks the evidence the evidence in support of well that's all right they're going to let me do it anyway i'm going to do it anyway and as soon as a serious prosecutor looked at the facts of the case and the evidence in the case they threw it out because it had no merit whatsoever i don't i submit that you will not find any evidence in this record that mr shaw claimed that this is an aggravation of a preexisting injury or that she realistically believe this is an preexisting injury she was pretending that the injury to the clavicle occurred in the old carry on to patient at the hospital knowing that that was not true and her sapir yours let her do it they let her do it by not supervising her and they let her do it by not training her just letting her be be an investigator get a little practice that's right thank you very much thank you both thank you your hon