the plaintiff's appeal following the grant of our motion to dismiss if it declined to accept our argument with respect absolutely unity primarily because it characterize the prosecutor's conduct in this case as administrative rather than advocated in light of the supreme court so why isn't it simply an administrative or a ministerial task to make certain that a person who is unjustifiably imprisoned gets released that's an aspect of goldstein but i don't concede by a long shot that that's the sole relevant aspect of goldstein goldstein also shows that we can't simply carve out the prosecutor studios to the administrative portion because that's what the plaintiff and goldstein was trying to do the plaintiff in goldstein was trying to administrative responsibility well but if it's not an administrative responsibility then he can't or i don't understand what the argument against absolute immunity is if you read goldstein have you read the language of goldstein i certainly have you know what they said about  they say something like all decide when the person is out of custody is that the kind of system you want us to through or i think you're i mean that it's pretty clear that we read goldstein differently that i read goldstein as having a second concern and that's with respect to the harassment of prosecutors with respect to lawsuits but maybe it would be helpful i simply know i don't know what you just said i regal's to us as involving two components one is the one that your honor described that is we want prosecutors to be able to exercise free judgment and that's one of the rationale behind that what we're going to judgment is there to exercise there's not really an issue of fact and that we have an order on the record and it's only the order on the record that controls what the prosecutors i mean jeff a david we have judge means affidavit as to what he said in chambers but judge means does not purport to say that the record of what his order was was somehow incomplete the order speaks for itself the order says that if there's a breakdown in the case and if the prosecution no longer needs you let me know mission either and i'll let you out now certainly the prosecutor has to interpret whether his work with th suggest would the pami has tried to call the prosecutor twenty five times richer they finally reach her and her response is how all these side when she gets out not the judge she did sign the out of the side now if you put that in context with the policy discussion schools in my mind is boggled by the suggestion that we should write an opinion here that would say to prosecutors you are absolutely immune if you take it upon yourself to detain someone in con a statement in order of a court i still think we're begging the question of whether there was an order at your end of the words on the record why not continuance the words on the record where breakdown of the proceedings asked of the telephone conversation between the the not been tried with a crime that's a far broader role than i'm advocating for your honor it's often the case that judges will say things in chambers and then do something differently on the record once they've considered the case i i once had a case in which the judge told us that he was going to hold a colleague of mine  contempt of court if we didn't turn over certain discovery materials but my colleague asserted executive privilege we then had a hearing on the contempt motion or the contempt consideration since there was no motion and the judge ultimately didn't hold my colleague in contempt  suggesting otherwise but but it's not a judge's queasiness that controls it's a judge's order that controls and i agree that it would be very unprofessional for prosecutors to do something that he or she knows the judge doesn't want him or her to do well wait a minute  you don't think there's a difference between that and a prosecutor deciding on her own taking it upon herself in total disregard of what the judge told her in chambers or in order and that's an issue that the person's going to enjoy and should tell she the well not not necessarily on our employer we could imagine that the judge had ordered the prosecutor to turn over certain witness statements that wouldn't change the holding of him where the fact that they were as it is not because of the legal obligation and you get into whether or not the exercise her discretion is tied to the heard you say i don't always find these terms of administrative and prosecutorial always helpful and so i'm i'm curious in this context as to what you mean or more to the point how you would be fine just what function ms smith was serving here what i heard you say a few minutes ago is a reference to securing the attendance of a witness court that it's complying with the judge's alleged order to provide continuance but the purpose of that of course isn't seeing anyone who has made the distinction though based upon goldstein coming down and factual differences between the your between the earlier opinion of this court and where we are now so well i'd like to hear you answer the question i would too i'm certainly tempted to you are now under goldstein it doesn't have to be the action that has advocated it merely needs to be connected to an advocate of action and securing the witness testimony is the advocate of action in this case it's what i was getting but of course your honor yes yes did directly answer the question but there can be a violation of the plaintiff's rights and yet absolute immunity that's why absolute immunity exists if what the question was simply did the prosecutor violate the plaintiff's rights then what is the point of the absolute immunity doctrine the absolute immunity doctrine clearly covers cover some conduct that violates that what he's suggesting here that yes there was a violation of the person's rights but that doesn't necessarily answer the question there are no i don't have i was trying to answer  is nevertheless entitle to the defense of absolute immunity let's use not hypothetical facts let's use the rather lengthy procedural history of this case given the aborted nature of prosecution that a number of function at a number of stages what if the detention of this witness had occurred the first time and the prosecutor had determined that she was in such need of this material witness that she chose to not report to the judge at any point throughout the various procedural stages of this case understand the question is it if the prosecutor never even heard of this i have been inarticulate but i am simply trying to suggest that rather than creating a hypothetical of many years let's use the time frame of the procedural history of this case with its various trials re trials souter and it had been the first time around that this witness had been detained pursuant to an order not i think third trial i think we need to be precise about what the right is and here the only right that's alleged is a violation of the fourth amendments probable cause very well i would hope that we would get to that when we discussed qualified immunity prosecutorial function to detain anyone whether a material witness or i thought who would resist new hampshire said fifty years ago this was remembering that regime attorneys general have the power to issue arrest and you're right you're on a book for a little act of the tanning is pretty clearly not a prosecutor function but i don't think that that's what we're talking about here she said she was doing she said she was going to decide how long we wouldn't be detained but in context she's speaking with the plaintiff's family so she means i rather than the plaintiff's family will decide whether she remains in jail not i rather than the trial judge it might be an issue of fact it's not what she said if the court wishes me to address qualified immunity here and give them another five minutes thank you jeff mckay the first issue is of course whether there was probable cause because otherwise we don't need to get to the more sophisticated issue of whether the particular role of that the plaintiff is asserting was clearly established and so the question is whether there were reasonable grounds to believe that the least restrictive means of ensuring the schneiders attendance a trial was to hold her in custody until the date of trial whenever that might be she had failed to appear at the first two trial she had a pattern of disregarding also pain as an bench w something previous into say wait a minute something's got to happen periodic review or something or the witness can't be held in prison forever based upon the initial determination that it was ok to to detain and if i might just tack on to that do we engage in that analysis looking at the fourth amendment of the fourteenth that the those are both very good questions your honor and there would if the court order accept my qualified immunity argument be a fight over due process upon remember the district court did not address that issue in the first instance the district court only addressed probable cause under the fourth amendment sort of directly answer your question judge mckay no i don't believe that there would ever be a point at which the fourth amendment's probable cause requirement comes into play here after the initial attention and probable c due process has not yet been briefed before this court and and we've argued otherwise below but but certainly the issue before the court right now is only limited to the fourth amendments probable cause requirement and so to say that that will be absolute the question of qualified immunity is before has not prevailed on a theory of due process which is why i haven't briefed it it's not that i ignored the issue is that it's simply not the issue on which we lost and that's where asked a probable cause you would have to accept that there's this idea of continuing seizures not just accept that the idea that there is continuing seizures for purposes of the fourth amendment probable cause but except that that was clearly established at the time of of missing his alleged conduct the case the case that's relevant is gallo of course which says that certain restrictions with respect to pretrial detainees can be sufficiently on our sister implicate the fourth amendment gallow on its own says what it says but window that gallo has been rejected by the seventh and the eighth circuits and that other circuits have said that things that are inconsistent with gala so the question i think through to directly answer the first part of the question yes there is that requirement with respect to discretionary as opposed to ministerial functions for qualified immunity we maintain our dispute with respect to whether there is an order if there is an order it certainly circumscribes the prosecutor's discretion she still needs to determine how precisely to comply with with the judge's order and i know that that's not much discretion at all and i'm not pretending otherwise but you need a very zen you know precisely to comply well then when the prosecutor simply has to and all you do what you who well absolutely absolutely you have to provide notice but the ministerial function exception to qualified immunity is extremely narrow it would have to tell the prosecutor precisely what you do when where it's at or any cases continue let me know i'm missing something here i do think that that to an extent this is going to come down to how one reads the record and the order on the record as opposed to the affidavit about what was said off the record as opposed to plaintiff's councils families conversations off the record et it's hard to say that she's been deprived of a constitutional right in traditional construct of qualified immunity i don't know how you can win big in if not in the traditional concept of qualified immunity how can miss smith possibly have notice of what  a belief that at some point she's got to realize that you can't just hold the person in custody indefinitely based on the original determination especially given what mr carro said about the other courts not looking  and at that point the fourth amendment does sort of drop out of the picture and additional protections that the constitution affords come into the picture i think we understand that at the heart of this is at least initially trying to understand what the nature of the right right is that's being asserted here that's necessary for us to identify if we're doing gauging meaningful qualified immunity that this american citizen had the fourth amendment right not to be seized without without reason well that's not issue here is that she was seized our problem is not the initial seizure our problem is her continued detention after that  a judge issues an order that says there's probable cause to detain you until february second and at that point it's not as though that seizure turns into a detention for constitutional purposes as it would for a mr sillerman you're not responding to the last three questions asked by judge nikki and me which are identify the right we if we write an opinion this is undoubtedly will and if we do not accept the district attorney's office position absolute immunity we have to get to the qualified immunity question if we get to that we've got to identify the right i mean it's just a basic step in the analysis so how do we do that i'm proposing that the right is a fourth amendment right not to be seized on a continuing basis unreasonable without probable cause especially by continuing and how would miss smith possibly have been able to divine that definition of the way miss smith could've divined that definition is that there was so much evidence in this case that would clue any prosecutor to understand that violating judge means is order was not reasonable it was a violation of the law to do that all is not the right doesn't get you go home base with cooperate immunity i don't think that the inquiry is whether miss smith understood that  schneider had a right i have to demonstrate to you that there's a right here for sure to overcome qualified immunity but i don't think that the increase should be looking at miss smith and and seeing what she was thinking at the time to see whether or not oh you know what really doesn't have a right here so i can violate the court's order i don't think that's really encourage no that may not be her notes and that is what i understand that we have to start with what is the right when it indeed is that you know we in on that letter it seems to me that's the precondition to an it to any argument by that a misstep in this case a qualified immunity that there's no discretion in this case it's a requirement for qualified immunity if there be a discretionary act and i think the panel has certainly demonstrated it well look at all the cases that are out there all the cases that the prosecutor's office has cited in its brief all deal with criminal defendants i frankly i just i read the fourth amendment the way a couple cases defendants that we were all prosecutors i was a state prosecutor and after that it's the court judge for four years i have seen one material witness case in all of those years because prosecutors informs the court's inquiry on that point is the state rule that applies it called the tension of witnesses rule five twenty two understood i know that's not it that the that the constitutional right itself but it i think it informs the court's analysis of whether there is a constitutional rule five twenty two talks all about the continuing nature of this seizure that a judge has the continuing opportunity to modify the terms of bail that any party can continually calm and apply to the court for relief to to modify the bill one way or the other so that rule was in existence that rule certainly provided enough notice to miss sniffen know that what she was doing was violating the law let me let me try this  in the one case i could find it was marble and white was the armstrong case and it's not where someone is held fifty seven days in jail without being taken before a judge is understood your earlier thinking you're saying because there was never a meaningful probable cause hearing in this case the fourth amendment right to continue you know armstrong the seventh circuit was saying we think it's up to the two processes implicated got it in the trial context they found the right there but you don't want to take of the subsidy process the reason i don't want to go there is because i know that the d a s office in this case has been actively urging me to would just on this last point i would just urge courts or recognize that this is perhaps a vacuum in the constitutional analysis of it i think that's exactly right but then the  going to say that it's unreasonable was frightened not of not initially the initial seizure one hundred of them i don't know what was it would be most of them especially if you decided that the problems that they had are were the case th purportedly made to some of the officers who attempted to rest or so there's clearly probable cause for at for a judge to determine that she was a flight rights but there was no probable cause to detain her beyond february second ok and that's not just judge means is subjective ruling it's on that i'm sure i would use the term subjective it's i think all three of the members of this panel would have ruled that there was no probable cause to detain her beyond february second the rule itself will five twenty two says you can only detain a witness to ensure her appearance for court that's required it was not required for her to be detained beyond february second mr over he could have pled guilty on february fifth or february fifteenth or march fifteenth there's certainly been no you know the judge might have still kept hearing beyond who are second may have thought that you'll be heard on this issue and i think that's a clearly established right when the judge says i'm going to give you a hearing on this issue you have the right to that here that's clearly established for two hundred twenty five years of american jurors you have if you would be open for area as i understand your argument   i would also take issue with the defendant's framing of the qualified immunity question itself they seem to say that is there are clearly established right to a second probable cause hearing i don't think that's the issue i think that's a an overly narrow definition of the issue seems to me the proper question that everyone should be asking here is did miss schneider have a clearly established right to expect that a government official like the prosecutor in this case or a police officer in some other case has to come forward with information that is valuable to the probable cause determination especially when a court orders but we can just put that aside for a second cited talk about police and prosecutors have to come forward when they come into new information that affects a probable cause determination probable cause to arrest probable cause to issue a search warrant they have to come forward when there's a change in circumstance a huge change there's clearly no dispute of my part that there was probable cause to believe that she was a flight risk generally but that's just out there in a vacuum when you get into the flight risk they get itself after they continue with they have continued wasn't the flight with exactly the same as it was when he initially rested or know the key difference was that when initially arrested there was a trial date five or six days later on february second the trial got continued for three how does that change the nature of the risk with the degree of risk because it's not necessarily required that she be there on may twenty fifth because of the likelihood probability possibility that mr overby would have pled guilty or the case somehow dissipated some other way and the schneiders appearance was not required at all we're going to keep a material witness in custody