ready to begin thank you your honor good morning you may have cleared the court stephen from new can assistant attorney general for the state of connecticut for defendant james stephenson and respectfully requesting that your honors reverse the decision of the district court that denied mr stevenson his qualified immunity and prosecutor on unities from soup if i may jump right into substance on the qualified immunity issues the right at issue is properly defined as this the right of an independent free standing brady disclosure requirement extending past prosecutors and past police police officers that attaches to a forensic witness or a scientist and nothing in this circuit has ever even addressed this let alone a stablish or decided it before the district court's decision in this case i mean there's no dispute about that there's no dispute that any there's no case that's been discovered or cited that analyzes and addresses this specific issue so instead the most we have is this court's decision and walker vs city new york which has been heavily briefed and was relied upon the district court the court erred because the most walker is possibly suggest that when this court came to address this issue that it may decide it in a way that extends this right past police officers but the supreme court has been very clear and this court has followed suit that suggesting the law at the time suggesting the right  may eventually develop in that way is insufficient the law at the time has to be clear and beyond debate and here we don't even have a decision that addresses it at all another important aspect of this is the case law from the circuit in the supreme court is crystal clear that mr stevenson and someone in his shoes which is how we must do the analysis someone in his role is not is not a legal scholar is not a judge or a law professor or a lawyer and he is not required to parse holding an dicked and determine exactly d where the trends of the law are going and accurately predict them and that's what the district court required him to do that's the level of knowledge and sophistication that the district or the plaintiffs are imputing on to mr stevens the walker decision addresses prosecutors and extends the prosecutor's duty in a limited way to police officers that's what it says that's what the district court in this case held that it says and the district court held it applied to police officers generally but then there's little to no analysis of how that clearly extends past police officers let me just ask i think we're at the three minute mark isn't the primary function of the connecticut state police lab to examine physical evidence at the crime committed to connect that crime the so the distinction that while that's a to roll the officers there do have different roles and different duties so unlike a prosecutor who can who can charge and prosecute and convict a criminal defendant police officers are going to arrest them the and those those officials obviously have a clearly established brady obligation the forensic examiners are and late and other similar lay scientists witnesses do not have that authority they're merely providing assistance to the true law enforcement officers and branches here just because he was an employee of a state agency does not render him a police officer there's no dispute in this in the stage in the case that he was not a police officer at the time in question so because he worked for an agency that had the word police in the title does not render him a police officer and does not render him fall sorry go ahead  then and somebody was working in that lab with that with this with the same the same result pertained in the one that you're arguing yes your honor with the caviar so yes if if the new haven police department is set up in a way that the state is where if you if you are a forensic examiner that that's your only role if there's overlap and you're also a police officer that would perhaps be different but as the state is set up assuming new haven will be set up the same way that once supports every police investigation presumably all around the state why isn't this lab integral to the to the operation of the of the police department and there were people in it would be reasonably held accountable as they would if they were regular sworn police officers yes you are so so yes this is the standard the test is what would a reasonable official and mr stevens shoes have known or not known or perhaps better stated to bend certain is really just what would mr stevenson or someone in his shoes know beyond debate and here because it's a constitutional right not statutory right where that's the text that makes it clear because it's a newly recognized constitutional right there has to be some authority some judicial authority that makes it clear beyond debate that this this issue extends to someone in his shoes now we don't have that and judge meyer held that you know walker doesn't actually involve someone in his shoes he said it was the police officers generally which does it by a police officers we don't contest that really this gets us into is it reasonable for someone to disagree over whether this right should extend or when it did and that's were some of the other decisions was basically from the th circuit come in because they're reasonable minds did disagree for judges there held that adversary's that that that is referring to the the forensic investigators duty to directly to the defense not to not to the prosecutor is that a way of distinguishing that case i don't believe so your honor and i apologize perhaps i'm mixing up the cases in my mind i thought that was that argument applied to the mowbray decision from the may be right but either way your honor no because in that instance that raises actually two very excellent concerns here which is one that really does now get us into parsing holding an dicked and what if he wasn't even sure whether he had to provide this to the defense or the prosecution based on an out of circuit case that gets us into parsing olding and dicta but the other issue is if we actually take that argument and extended to its logical conclusion it is actually raises the exact problem with the district court's decision here which is it's not entirely clear what someone in stevenson shoes now is required to do or was required to do everyone seems to be assuming that if this right extends it's the exact same as a police officers would be which is just provide everything to the prosecutor but that that i don't think we can assume that because the facts of this case alone demonstrate that someone is stealing from shoes actually gets materials and requests and interaction from other parts of government for example the nine hundred and ninety nine testing by stevenson and his formal report that was all done at the behest of the we have a police department and he submitted all those materials to the new haven police department and even sent him to the prosecutor initially so if we were to assume that it's just the regular walker clear  these officials very well could impact and respectfully probably would impact what their actual specific obligations are under brady if this court were to to finally recognize this right in the st instance and this case i also i would it seems to me this judge walker it seems to me that what you're saying d is that if you were in the new haven police department and they had their own crime lab and it was a police officer you would have an obligation but that doesn't have such an obligation because he's not he is not really a police officer yes he does work to the state police and so are we drawing a distinction now between whether he wears a uniform  judgment so we can understand what this guy with this guy what the situation really was here but that so that's my that's my question does it really boils down to these things like whether it wears a uniform or stevenson was a employed as a sworn police officer for either the state police our new haven at the time in question then yes walker would apply to him because that's exactly what walker says essential however we would not agree  that the distinction drawn here by our position is one that's either too fine or d improper and i think there's three important things to remember for that demonstrate that st it is one that other courts have drawn highway patrol division i believe and they drew that distinction now perhaps it's the case that this court decides that's the wrong distinction and that's not going to fly in the circuit but at least demonstrates it's not beyond debate even among legal professionals let alone a lay witness but also when we remember that the supreme court in this court's jurisprudence requires that we start the analysis for qualified immunity purposes from the viewpoint of the official that actually lends credence to our position because it's quite possible that not every forensic witness would be employed by the state if the prosecutor hired a private contractor that's not employed by a state agency or a police agency but presumably if the right extends to one forensic witness working with the prosecutor would presumably apply to all of them we don't have any any case law sorting out these issues at all and finally the rd point i think your honor is is to remember exactly the difference of our position at this stage which is for qualified immunity purposes we are only asserting the clearly established challenge here so it may very well step two we don't have any formal position or objection to the court recognizing the right if if it believes that that's a proper extension of the due process clause under the under the brady doctrine asking you what is your position because that you know i mean that your argument that's not an issue here because it's not clearly established but we might reach the issue and if we doesn't have a dog in the race for that as as my role as assistant attorney general for the state of connecticut my response would be that it would it may very well be a correct development for brady to progress and attach to the  state forensic lab or a municipal forensic lab that that may be a correct development of brady but what we just want to be clear because we have to advise all of our clients on these issues and right now it's not clear it's not clear at all what after its particular position court decision it's not clear at all to various lab techs now and connecticut in the circuit what they're required to do and if that's an issue that your hono wish for the briefing on would be we'd be happy to provide that as well can i just ask would you draw a distinction then i know we're taking you to your argument today but between state forensics lab which as i understand it i mean the police lab work is essentially for police agencies throughout the state and at that client that the only family client would you draw a distinction between them and independent contractors who might be asked to do scientific review for brady purposes no your honor because at least under the reasoning of the district court's decision they use the words arm of  the prosecution or part of the prosecution team and this is a great example of the issues with brady specifically and how to extend it or not extend it which is ultimately it's the decision of the prosecutor to go out  obligation of the prosecutor to go seek out all this these materials and make the underlying decision of what's brady and what's not and that makes sense for all sorts of reasons mostly because there are lawyers who know these issues cold d but the just because an official happens to have a government paycheck or not we don't believe that that would if your honour's were to extend the right we think it would be make more sense to have it applied to a lab techs versus not lab techs as opposed to the name of the agency the person works for and a perfect example of this in this case the the fact that the state police housed the forensics lab at the time that was a just a function of an administrative connecticut government that's actually no longer the case they're housed under a even bigger agency that houses even more other smaller departments and they're not even under the state police anymore so rather than the name on the letterhead or the paycheck the person actually obtains i think it makes more sense to have it based on their actual will and that comports with the various qualified immunity analysis that we start from the the role of the official your honor is douglas league for the appellate run and horn the question here is was it obvious to a civilian forensic investigator for the connecticut state police in two thousand that he could not hide exculpatory evidence from the prosecutor and the defense the question is not was it completely clear what exactly he had to do who exactly he had to give it to the question is was it clear that he could not do what the allegations of the complaint say he did which is intentionally hide it from everyone in kyle's versus with the the supreme court held that if quote others acting on the government's behalf in the case including the  kyle in his briefing and again in the argument today there is no question here that stevenson was acting on the government's behalf in the criminal case as just a living thing and walker pointed out that's the whole point of what the c lab was doing furthermore in walker this court held that quote book at least satisfy their obligations under brady when they turn exculpatory evidence over to the prosecutor so it is clear beyond dispute from that my client vernon horn had a constitutional right to any brady material that wasn't even since possession and it's clear that if you was a sworn police officer you would have had to affirmatively give that material to the prosecutor his whole argument is that he could have reasonably believed in two thousand that he was allowed to hide the evidence because he wasn't a sworn cop no reasonable official in his position in two thousand would have believed that and the reason why is that it's totally inconsistent with kyle if you know the defendant has a constitutional right to the material in your possession which he did under connell's even if the prosecutor doesn't know that material exists then it's obvious that you can't hide it if you know it has to end up in the defendant's hands how could you possibly reasonably believe you're entitled to hide it from everyone you can't moreover there is no reason to believe that the distinction between even thin in the early and mid ninety's did exactly the same work for the new haven police department while he was a detective same analysis same training same function it was just in house as opposed to being sent to the lab so what he's saying is that you could astute him for doing the exact same thing in one thousand and ninety four but you couldn't to him for doing it in two thousand because he turned in his badge and went twenty minutes at the interstate that's not reasonable and the reason it's not reasonable is because under coddled it was clearly a stablished that regardless of which agency he was in all the material in his possession needed to get into my client or in an orange hands or was a violation of his constitutional rights and i asked and your read of kyle's i mean kyle's is at is about the constitutional right of the criminal defendant to receive brady information but how does so clearly tell us that there are that there is a constitutional duty on particular government actors to provide the information as opposed to reading kyles a saying the prosecutor must reach out to people who may be in the hand in the possession of  information locate it and make sure it's disclosed well judge livingston st of all i would say that to the extent it's material the complete is silent on the question of whether the prosecutor asked even then do i have all the if i just want to make that clear but the answer to your question your honor is that it may be the case that title doesn't establish what exactly you have to do with it right you have to give it to the defendant you have to give them the prosecutor but number one walker does tell us that right walker tells us that for police you have to give it to the prosecutor so why is it reasonable to think it would be any different for someone to even since addition and moreover the question here is not what exactly did he have to do with it the question is was it clear that he could not do what he did which is hide it from everyone that's the key maybe it's in big us as to what exactly he had to do did he have to write a letter to the prosecutor did you have to deliver it to the prosecutor would you have to deliver it directly to the friend ok maybe that's not clear but there's no way that it can be consistent with kyle to hide it from everyone because if you hide it from everyone there's no way you can possibly make it into the defense's hand up you make the point that it should make no difference whether forensic examiner with it how at the police department or working at a police lab that your your statement could have these d horrific consequences and therefore should be laudable i'm wondering when where to draw the line here are you arguing that that was that there is no qualified immunity even per person who works  commercial lab because i think that a great question i think but that really goes to is was it reasonable for someone in that person's position to believe that they were not acting on behalf of the government within the meaning of connell's so i could see a case in which you had someone who's basically an independent contractor you know someone more in the nature of a civil rule twenty six expert witness for the government who says hey it's not clear to me that i am acting on behalf of the government in the case under the meaning of all this great is a thought that makes clear that the obligation attaches to those people but that is definitely not this case your honor i mean if it's the prosecution it's been up in court in two doesn't matter in terms of this case whether to the extent to which your client may have understood understood the situation under the whether he was prevaricating when he testified allegation isn't challenge i don't think it matters because that's not in dispute right there's there's no argument here that we haven't stated a point so for purposes of the analysis before this court even thing has material it's got the tory evidence in  agent of the of the police and that the walker holding was enough so even if so the classic brady claim we don't intention doesn't matter so i'm not sure why i mean intentionality may help make your claim by your argument why i think it it would just livingston but i'm trying to acknowledge here that perhaps there is some ambiguity at the margin as to what exactly he is supposed to do with he knows he has maybe it's not clear to him exactly where that's supposed to go i think it's clear very clear under walker that it's supposed to go to the prosecutor but maybe he could say i'm not a sworn top but it should be amply clear to him that the one thing he can't do is very it's a no win that's that's the point so that even if there's end of duty at the margin about what exactly he should do the question before this court is was it clear that he couldn't do what he did if  knew what he if you put in your argument you knew what you should be doing or could be held liable for what he was doing when he was when he was actually a member of a police department before he went into the crime  its job then is that those is that's relevant in terms of determining in this case whether you should get qualified immunity in other words well we have to ask the question of a certain level  generality or a certain level of specificity if you sort of sort of backwards certain level of specificity and how specific is it was that part of the specific statement of facts that one would look at here is the fact that he was a civilian forensic firearms investigator who was investigating the murder for the connecticut state police whether they were not permitted to hide material exculpatory evidence from everyone and i think because it's objective i don't know that steven biographical details factor into that part or else but i think they just go to show how absurd the distinction between a sworn an unsworn law enforcement officer he's trying to draw is in the brady context because the whole question of that strictly bridges reno cited in our brief with language that makes it clear as the lower court made clear throughout the country including the nd circuit that the test is is this person who brady material an interest well part of the prosecution team in the criminal case at issue and the courts have had no problem in distinguishing between some agency have some claim that because the i r s or the office of thrift supervision or some other remote agency had exposed the tory information it was a brady violation and they should know they're not part of the prosecution team but in this case mr jackson's allegations in his complaint which is what controls at this stage of the with the gate should make it one hundred percent clear and i don't know that there's any contest it that james stevenson the former new haven police detective who upon retirement moved over to the state police lad to do exactly what he was doing before in a different position  evidence we're talking about was sent to him from the the day after that was recovered from the crime scene so you know i mean a there might be a distinction with a commercial lab that contract to do some amount of piece work for the state and a connecticut and a state police lab that's just when the when the state police lab x whatever municipality it may be acting on behalf that it's part of the prosecution team basically yes your honor and by the way  good there have been cases around the country where that issue has been raised and in some of them they've held the british public action as well but that's not this case and the allegations of the complaint indicate how closely this so we don't have that that case where some lab technician in some remote area who would have no reason to know yet a brady obligation or she had a radio station with that case presents itself perhaps but that's not this case and that's not these allegations allegations by the way which are nowhere mentioned in any of the briefing that's been done by the apple on as it were in any event so i would emphasize that point a have become central to the case would have no way of knowing or would not reasonably be aware of or would be sir to use attorney for new can words that he had an obligation not to deep s helpful information with respect to the forensic findings that he knew were central to the case how could that possibly not be clearly established to him and everyone else who would perform a function by keep reform in this case relying on here today they've relied on it heavily throughout their briefing and the problem is other courts have disagreed with them bill it's on a expressly disagrees that that kyl's or strickler makes anything clear other than what the prosecutor is required to go to and that's what those cases stand for at least that's what it's clear that those cases stand for regarding of what the idea that it's not somehow relevant or or dispositive what stephenson was required to do his constitutional obligation is the issue being litigated here so that all this discussion about will is perhaps ambiguous or it's unclear because in big us or unclear what his brady obligation was that's qualified immunity that's what the case law says that's what is different about a qualified immunity argument versus a twelve b six argument if it's not defined with specificity what he was you must know he was doing then he's entitled to  immunity and a part of that is the fact that all these things about hiding things assume someone asked for this in the st place that's not alleged anywhere in the case finally this all shows what is really happening here which is  was integral part of the prosecution team only strengthens in confirms that prosecutorial munity argue i mean that is the buzzwords from hill and that is what is important for o'neill so  which in the complaint and in the transcript of stevenson's testimony made clear that that conduct was done at the behest of the prosecutor on the eve of trial as part of the prosecutor's preparation of his testimony as a witness and so that the issue whether whether the prosecutor commented to him or made a request to him to go go group or that working through and then come up with a with a better answer or whether he just i thought it was debatable or whether he just commented is there or is there any way that you can say this this beretta was was involved and then and but but but not particularly directing him to go to doing the i guess you could answer that on the absolute immunity point wouldn't that be critical in other words if you directed him to do something to further the prosecution to help him win the case that might be a very different question and that sort of unity than if you just and the law from the two o'neill decisions we respectfully submit it becomes very clear that only applies here and the important thing is the argument below and a briefing in the decision below there was a lot of argument over whether it was a request of direction and instruction respectfully all those words are actually borne out in o'neill in fact the actual words on the l is done at the behest of the prosecutor and more importantly that he wouldn't have done it if it wasn't for the prosecutor's inquiry ultimately we think that the three factor test we've proposed for this this immunity here close in time to the testimony at trial caused by the prosecutors in korea most important actually testified about in open court as a follow up those three are the critical factors from o'neill and they all apply here so regardless of whether we call that direction or an inquiry sume it was just a request of the motion to dismiss stage there's no dispute that those three factors close in time causation from the prosecutor's inquiry and follow up in testimony all part of this case and i think that's one factual question how these d r s the reports are generated when the briefing referred to the margin of error with regard to the rifling characteristics i've been assuming and just correct me if i'm wrong that what happens is some sort of computer analysis where you can see that what the margin of error the measurement would be need we don't believe so your honor we believe he was a part of the forensic lab and that he was consulted by the prosecution but we don't we don't consider me the same part of the prosecution team as say the new haven police w by the prosecution and here this was this was a witness had a small role in the case and we don't believe that it was an integral part of the team to the level that the police or some of the eyewitnesses or the other folks were honor i would definitely concede that it's alleged in the complaint that he's an integral member or arm of the prosecution but those words are in the complaint as part of an element of a brady crime so at this stage in the case that is alleged had ok all i wanted to say your honor is that on the allegations of the complaint this is a twelve b six motion there's no direction the prosecutor didn't know what stephenson was going to do yes to a question even sent right off it is own thing no one told him to change the margin of error which is something he doesn't put you into the database and it's no one told him to withhold the evidence know that no one told him what anything about what he has to do he did him self those allegations are true for these purposes there's no thank you i have a of error should be should be to two per one thousand as opposed to work for a one thousand you know judge walker what stevenson testified at his deposition is that it's a judgment call based upon the we're not in agreement on that but i think i think at this point the far field i think we need to have an adequate explanation of that and that point also in the briefs and we understand both of your points are there any other questions from the panel