good morning chicago where judges my name is sean gusto on behalf of defendants of pelleas catarrh august county department of probation supervisor michael sharpe officer denise lang barsky and director gerald zimmerman i hope not to reach the red light today as should be immune from suit for their cause i pressed authorial act of bringing a violation of probation proceeding which is within the scope of their duties and requires that they exercise substantial discretion not only interpretating the sometimes and arguably vague terms of the probation conditions and also whether the conduct of the probation or violated those conditions but also in determining what sanction to seek from the court assessing the offender's threat level and recommending to the court what penalty should be imposed on the probation or for their violation you asking us to do or should we be referring that to the new york state court of appeals your honor i believe that this court could do it based on the the established there's plenty of precedent i knowledge that th has not decided that new york probation officials have absolute absolute immunity for suit in this situation in the context of bringing a violation of probation proceeding but i think it's a  to many of the situations where individuals who are not actually prosecuting attorneys have been granted immunity so you're asking for you're suggesting that we articulate a pronouncement on qualified immunity or absolute immunity when you say quote as i judicial it sounds to me like absolute apps and i believe absolute would be appropriate under the circumstances of this case and there is also an argument for immunity given that until the fourth apartment rendered his decision these facts would no longer be enough to establish probable cause qualified immunity or whether the officers at that could have thought they had probable cause as i understand  even the the fourth department says that the police inquired as to what it happened so you might think it was questioning but i'm wondering whether it's arguable probable cause rather than actual probable cause  conditions of probation the under the facts of this case with the police officer speaking and as the fourth one found inquiring of the defendant the probation officers acted reasonably  and i think that except that there was probable cause at the time moving forward to under similar facts with the force of arms decision interpretation of the term questions under these facts i think that there would be a probable cause issue at that point is the lack of malice just an easier call the failure to plead malice i think that they're both pretty easy calls but yes the issue of malice there it's a a long complaint and it's pretty clear from the complaint that the the real dispute here is with the first set of defendants that the plaintiffs sued the dist the actors within the district attorney's office has offered nothing but speculation of some friendships between the a pelleas and individuals  district attorney's office who prosecuted him and it's just mere speculation and surmise and no no concrete pleading of malice or any one of those will get us there any one of them gets us there but you'd still like us to rule and call of absolute immunity because you think officers need clarity they need to know what's going on and as a matter of public policy and you know the the probation officials shouldn't have to fear you know civil suits when they exercise their discretion when they they follow new york law and you know exercise discretion in determining whether or not to file a violation probation and what what sanction to seek but if it's if it's really a matter of public policy isn't that something that is best left to the highest state court rather than us but the court of appeals did rule in the tango by tool of edge case that a probation supervisor was entitle to immunity and it doesn't really get into the details very much but for pork for performing an act within the scope of her duties which is exactly what we have here and these there's no question that it is within the scope of the probation officers duties to file a or to commence a violation of probation proceeding