the government and i would like to point out to the court specifically is a case that we did not quote the normal in our brief but a case that was quoted and cited to in the government's brief that case being the young versus county of los angeles case when we look at the younger sister county of los angeles case we have a scenario in which individual was pulled over for minor citations in that case it was lack of a license plate lack of a mare that was an african american male who was a probation officer at that time we know what that what incident occurred between him and the officers now in that case summary judgment was granted by the court particularly on on all causes of action and in particular w political to this case is the the entry of summary judgment against the plaintiff in that case for his cause of action for negligence and  this particular case what in determining probable cause for false arrest for a foreign arrest what what do you consider what are the factors that you consider well in that case where we did have that they did find probable cause for the arrest based on that by lation california penal code one forty eight and in that case we did have based on the facts and the court did did affirm summary judgment on in this particular case the district court judge found probable cause because she looked at the statute one eleven and she determined that resisting arrest or impeding an officer is covered by that particular statute and so therefore because not not addressing the arrest but because in fact there that that hit have you read chapman i have not read chapman well there's a two thousand and eight opinion which actually is written by our presiding judge here which takes a look at one eleven and says that there need be an arrest for one eleven to be violated or something equivalent to an arrest and in fact the district court in this particular case did not find arrests she relied on resisting which is also covered by the statute but in but according to chapman that is not enough to establish probable cause so we are  and he did nothing he just stood his ground and tense nothing and he was arrested under section one eleven and we said there was no probable cause there because there was no assault the issue that i thought was in dispute here was whether just pulling back to resist  does not equal probably cause or whether that was a cell so i think you have to separate grounds for possibly prevailing here but i think chapman is in this case on the court found and the government has argued that the grand jury indictment alone establishes a rebuttable presumption of probable cause and you don't seem to really address that in your briefs in your brief except you say because your client posited a different version of the facts that allowed is enough to overcome the presumption under california law that the indictment establishes what's your case the fact is that mr de groot contends that he pulled away the phone and that that issue is what we believe should really go before the jury well is it that actual fact or is the fact that he was acquitted on the charges of assault and that is an added factor which may be used by a org to rebut the presumption i believe that can be used to rebut position presumption as well as the fact that the cases cited for for us supporting this as assertion that the probable causes supported by the indictments are both cases in which the they were applying for search warrants so can i ask you what happened to the phone phone and we know that it came out in trial that the video evidence was no longer on the phone there's is there anything can you point to any page in the record before the district court that says what you just said is there any page in the excerpt of record where there is any evidence before the district court that video was a racist or that the phone was returned to your client without video i couldn't find it that doesn't mean it's not there but can you point to a page where that evidence is there i cannot your honor but i believe that that's something we could point out at trial but don't you have to point it out to the district judge on summary judgment are we limited to the record before the district court your honor oh and i i cannot answer that that question at this point and i know i'm here but what i do what i did really to address the court was the set granting of summary judgment in this case was premature was premature and that is that there is facts here that need to be put before a jury but this is a very significant fact right you're making representation that your client was videotaping this particular exchange that videotape would be crucial evidence i'm shocked actually that there wasn't  a ruling from the court in the criminal matter as to whether or not there was a destruction of this evidence and an instruction for you based upon the destruction of the evidence but you are certain that your client was videotaping this exchange and then when the phone receiver termed it was erased based on the representations of counsel on the on the on the trial  prosecutors on the other represents representation the defense counsel the representations of my client that they video was not that he was taking a video and the video was not present on the phone that comes not in the criminal trial where he  is a instruction to your benefit or to his benefit based upon the destruction of property or how did it come out and you're not i know that it came out in the previous trial i don't want to fall i don't want to fall back on the excuse that i'm here to argue pared was to try to preserve the claim for negligence and that i believe that that's the that's what really can be preserved here counsel your for your time let's thank you here from the other  side more your arse michael carey bad for the united states i think all start where you just work with opposing counsel was that it was there or spoil ation instruction there was not there was no finding by the district court that the government destroyed any video you know in the criminal trial or in the civil case the phone has returned and it's my understanding it's that it's technically impossible to tell whether a video existed  so if that's true and we have to view the lights and the facts in the light most favorable to the nonmoving party right now so we have to soon that it's true where's the video presumption of probable cause you have a california case on that or ninth circuit case on that well you know i'd suggest that there's not any discussion of this all in the  and that case is building off the supreme court case called community fletcher is it is it your position that a plaintiff simply coming in and saying my version of facts is different than the government's is not he was acquitted and how about the fact that the indictment was based on the officers version of the testimony and now we must look at the fact that establishes probable cause that it's very seldom used in this particular context but then you add number one the fact that he was acquitted i mean obviously the charges were brought based upon the representation made by the agent and he was acquitted you can suggest that there's different standards etc but also your ad summary judgment and in summary judgment you are to consider facts in the light most favorable to the defendant or and now the plaintiff in this particular case and does that not suggest you're supposed to look at even the rendering of an indictment as in a sense impacted by the standard of consider the evidence in the light most favorable to the plaintiff in this particular case and then on top of that is this last video which would if it was presented be really significant evidence in this case right i understand where you're coming from about well the fact that he was found not guilty must have some very downside let me ask you on that are you familiar with the ninth circuit in california court of appeal cases saying that's all i mean just the factor doesn't have to be i mean you're supposed to look at all of these factors to find out whether there is an exemption from are an exception to the presumption right now that's one factor i  hear i hear you're saying but again it just can't be the standard in my mind because then every time you have a not guilty verdict you have a lot civil suit and a civil suit it's just that you might not be able to prevail  action of pulling away his phone from the agent's hand constitute in his song which it must undergo happen in order for there to be probable cause there regardless of whether an indictment is shoot or not answer so you consistencies in the different asian stories would be one example so like i said some e mail or other written or text message communication between the agents sort of trying to trying to figure out what our stories are not that i see any proper conduct by an agent i mean would that be a relevant factor if there was some kind of investigation but absolutely tell me tell me what what justifies that the border patrol agent without getting into whether he reached in a week or not what justified him for him to go up  to the on to the truck and confront mr the group both verbally but also physically what's what was the what was the law enforcement purpose there just because he had a video or because he was making an obscene gesture is that does that justify police you know jumping out of the vehicle and confronting the defendant if you but if you view  evidence evidence the light most favorable to to the defendant or now the plaintive reaching in and grabbing the phone is there a legitimate law enforcement purpose that behavior if that was just the facts i would say probably not but there was more here plaintiff had been waved through three times and is refusing to move the truck and that's what the problem was here and that's why this whole thing started is the pla