arrested charged and sentenced or imprisoned for about seven hundred forty four days under the misapprehension of facts by the government that he was an alien or foreign born this appeal really centers on whether the trial court jumped the starting line a little bit in said there is no question of fact as to whether there was probable cause  the part of two particular ice agents the defendants in the case there really is an insufficient record to get into what they reasonably believed would be probable cause and what are the disputes of facts here are you disputing that when he was arrested he said to us that he was a jamaican national and that war and that he had been previously removed from the united states no the disputed fact is what the ice agents reasonably knew or should have known as to his nationality because and this happened in the trial court just for clarification i was not trial counsel coming into this strictly at the appellate level but what happened in the trial court is the from the record it appears that the focus went to what did mr gra know as being probable cause for the agents and really the issue should have been focused on what was reasonable for the agents mr gray would be one parts or isn't that investigation but but at least in part they are allowed to listen to what he says to them yes that's correct the trial judge used a very helpful analogy or metaphor he said listen you know if someone walks in and says i robbed the bank on the corner of elm and church and the agents go look at the bank's camera and sees that it's not the person the defendant saying that he robbed the bank is that probable cause and that's that is an excellent example of what happened here what mr gray knew or didn't know about his own legal status belies the point that they charged him with a crime for which he was not guilty and so to focus on his that might apply if we were seeking if this was a situation where he was denied us citizenship in front of the agency had administrative level but here he was charged with a crime and there had to have been probable cause there had to have been reasonable investigation and ice more so maybe even then a u s attorney should know because it's within their jurisdictional space how to determine someone's nationality it's not enough for them simply to inquiry but i would add that you know and i say this you know equally it may turn out in the course of discovery that there were other facts that were known or came to light the problem is we here on an appeal of a motion for summary judgment and those facts just are no if we get our second bite at the apple as it were and go back we'll take the depositions of you know and i believe if in the transcript there was even some inquiry by the trial judge to say hey you know have you done the depositions of the agents themselves and so forth so the trial judge had the record correctly had the record that he had even based on the record that he had and my time running short i would know to the court that the legal standard being under north carolina last record versus hedrick says a relevant part that's to establish probable cause the evidence need not amount to proof of guilt or even a to prime a facia evidence of guilt but it must be such as would actuate a reasonable man or woman acting in good faith reasonable person acting in good faith so all of that given that ice should have known that ice knows should know its jurisdiction better than anyone should have done a little more inquiry and in the factual record they knew that the before so for them to just say ok let's take a look and do a little further inquiry before we go in charge of crime to find out now he had counsel mr grey had counsel to counsel certainly fell down on th responsibility for several years but counsel for mr gray was not necessarily responsible for prosecuting mr grey he was there to defend mr gray and the government was there to prosecute th used that statement as one piece of evidence going back to what the trial judge used as his analogy the mere fact that somebody invents that he doesn't he did something may mean it may not necessarily mean that he in fact did it or  that he was guilty of the crime that he was being you referring to the analogy if you go if that if someone comes in and says i robbed a bank i'd say at that moment there's probably probable cause that he robbed the bank probably because could dissipate if the officers then go to the bank and see that no robbery has taken place but your argument has to be that the notations in the file were sufficient corrected because they had and enough that we could take it to a jury and have a moment with a trier of fact to determine thank you the analogy in the better analogy i think given the facts of this case are not did someone here a bank alarm someone walks up and says oh i robbed the bank the better factor the better analogy is someone is caught who has escaped from jail the crime they were they were prosecuted for convicted and sentenced with bank robbery when you catch that person first keep him from jail the agents are never asked to go back and look at whe was represented by counsel when gray committed a felony he was put into removal proceedings he was represented by counsel he conceded that he was not a citizen of the united states that was his moment and that in fact everything else that comes after in one thousand nine hundred five when gray does not ask to see if you derive status in fact the notation in the file which is the record for seventy says that two when when great was after eighteen years old so in the in the one thousand nine hundred five litigation he asked for discretionary relief but concedes the idea that his jamaican national so now we go forward to two thousand and twelve the interest legally reactors we then compare that to the known the file we have the previous removal order that establishes probable cause now the court wasn't shifting the burden of establishing probable cause to mr gray as opposing counsel suggest what the court was doing in this case is focusing on the fact that this is now a civil case for malicious prosecution and associated torts which all sort of fall into the  fourteen two thousand and thirteen two thousand and fourteen one of the really key points is the letter from mr gray's immigration attorney that the court appoints a woman by the name of the tory a block and that's at five o nine in the record and what that letter says is that no one knew that when gray could acquire citizenship through his father that this was a convoluted path and that that right there is probably some of the best evidence of the fact that there were the best evidence that undercuts the argument that the agency should have been able to figure out prior to the criminal rast that he was a citizen we know in c i s is investigation of a citizenship following the claim that he's a citizen the cia has requested additional information we know that victoria block submitted additional information affidavits the father's naturalization certificate which shows that when i was living with him but that's not in front of the agents on august twenty ninth two thousand and twelve what's in one of the things your adversary suggests in the course of his argument was that irrespective of what they knew on day one there came a time eight days later or somewhere during this rather lengthy period where agents knew or should have known that he was in fact a citizen are you suggesting that having made the determination they made on day one they had no further obligation ever to check that as as judge living today as judge livingston suggested it would never anticipated well i think in the i think iran is right in the criminal proceeding that if if we were litigating a motion to dismiss a criminal proceeding and there were facts that came to the agent's exculpatory information that came to the agent's mind that i was here representing the government on a criminal case i think i'd be in a much harder position for sure i think the problem for the plaintiff's argument is that this is a civil case for malicious prosecution so the really the moment in time that we're looking the snapshot in time we're looking at is what the agents so i think that's the problem with the idea of looking what would have happened in two thousand and thirteen two thousand and fourteen if i think i've been i think i don't want to concede there would be a much tougher case because i don't have that authority in this case but i think i'd be in a much tougher case if i was up here arguing well they should have done any additional investigation in the course of preparing this for trial in a criminal trial but defending the government on civil case i can look at that snapshot because really the question is did they have probable cause to initiate the prosecution that's the north carolina law believe the case  was turner so we do really do look at that snapshot on her because at that point in time the agents don't have any more control over that prosecution even if she did that and there's been no accusations about the prosecutors themselves in north carolina or the court or anything along those lines it's really just been focused on the agents in terms of the timeliness of the plaintiff's complaint or claims i raise that second only because this is the rare case where time when this is not actually a threshold  prosecution in this case would be timely the false arrest negligence and negligent intentional flexion emotional stress would not be timely however the court can dispose of this issues ruling on probable cause if the court reached the issue of  timeliness it's clear to me when you look at the plaintiff's complaint which i believe the record is pages specifically pages fourteen to sixteen and then the administrative claims are at one fifty six to one fifty eight one fifty nine the plaintiff's complaint and the plaintiff's administrative claim focuses solely on the conduct of the agents and the decision to make the arrest and so there really is no additional facts that play into that negligence claim the negligent infliction and obviously the false arrest is simply capital false arrest there's no reason why equitable tolling would apply here nor has the plaintiff even raised it nor did they raise it with mr gracewood below so that's not the issue here the issue is simply that false arrest the they bring these charges that they are in fact bringing these charges in good faith under strickland you know for north carolina and that is a question of fact i think that deserves further in and deserves to go beyond a summary judgment motion would have been you know if this had happened in the context of an accidental deportation which barely did in one thousand nine hundred five so we're talking about whether mr gray properly informed the agents or or decided to assert his u s citizenship to avoid the deportation that's completely separate that's in a civil proceeding this being in a criminal proceeding this being sworn affidavits and ultimately a loss of liberty for seven hundred forty four days while it's later learned that he's a u s citizen there's a burden there and that's what the civil cause of action is saying that they didn't meet that burden for probable cause when they said you're not a united states citizen they should have gone to the bottom of the well to make sure that every stone in that well was in fact going to support he was not a u s citizen and they did not do that he was only mr gray with subsequent counsel who later corrected that mistake and that's relevant and that should be consideration for further discovery and