as two theories to count two substantive constitutional questions here i believe one is if there is a fourth amendment violation due to allegedly lack of probable cause and secondarily if there is evidence to maintain a substantive due process claim pursuant to section not genetics or on top of that there are three immunity questions even if the court finds sufficient evidence of an underlying constitutional violation which there isn't there is no evidence in this case other than a investigation occurred based on a tip from an informant that informant was willing to arrange meetings with mr thornton who was the that the person would arrive at a particular time and place would be traveling in a particular car the tip was corroborated by police when they spotted a patch or probable cause existed because there was a corroborated tip of the c i timing location of the meeting place color of the in the cars make in that there was a dent in the car in the court ruled even p c even probable cause existed there of criminal wrongdoing in the patrick case we saw in importantly there the court the panel of the court did not know the informant's past reliability and patrick yet it concluded that even probable cause existed and then in was on three the court said officers aren't regular required to witness actual criminal activity for probable cause to exist and they give substantial latitude in drawing inferences from the facts and circumstances mr thornton was never arrested here arrest warrant issued from a district court judge submit that is the enter position of a judicial determination of probable cause and that should end the inquiry at least for qualified immunity purposes that probable cause existed to issue that arrest warrant but mr mr bennett was never naturally or never actually arrested he turned himself in and was never put into a holding facility in the turn itself into the county but in this case and based on precedent probable cause existed even if it did not it is not clear it would not have given the man this fair warning or an officer or a reasonable officer in his position or every reasonable officer in his position that his conduct violated either the fourth of the fourteenth amendment but i do submit i want to make very clear your honor judge woman you know you were in the dissent if you will recall in iran versus clarke where this court talked about the propriety of their even being substantive due process client under section to leave you out judge erickson ok i was in there seven justices agreed from the u s supreme court in a plurality and albright that they allege prosecution allegedly without probable cause does not state really whether the court you know our circuit is a divine order of circuits as to whether we are in those three circumstances we allow a subset of due process quite that's really unimportant here i mean whether i should argue whether i should even make a record that amerada versus brooks there is no evidence below beyond speculation of any of those three circumstances that assad's and due process claim could be mounted by the pint of and even if there was on these facts there is not sufficient factual correspondence with prior precedent that would have put dean mannus on notice such that he does not retain i mean it the constitutional questions were not beyond  respond to how do we do respond to the district court statement in its opinion that the plaintiff has presented sufficient evidence to support his claim that man has concocted the during the drug buy scheme to set plaintiff up on false drug charges on usual fax who is this confidential informant jennifer carpenter was her name she had his housekeeper correct i mean you could make out well i guess you could make up these but it's different unusual put it that way and did they actually go to these different places and did they observe what they saw direct that's undisputed at below to arrange meetings the plaintiff admits in this and of course our motion exhibits in his deposition he met with carpenter on those two occasions well the second occasion was at wal mart in a downpour she said he would show up at three o'clock in a white escalate she told police that he showed up on cue she got in the car for one minute and got out she was searched before she had what was reasonably believed to be xanax on her before which is a controlled substance it's illegal to possess without a prescription she got into the car she got out of the car she was searched afterwards she was no longer found to have the xanax and she had money on her if that doesn't provide probable cause if that sort of scenario doesn't provide probable cause then i think that we're law enforcement in this country this would be a confounding decision for law enforcement this country but in any event it wasn't clearly established if those facts don't don't provide probable cause there's no case was a visual similar factual correspondence to suggest a demand is that what he did violated the judge moody your honor your missing nothing there is no evidence to support a set up or a scheme and when mr ford was asked at his deposition he freely admitted he was speculating and i'm subjective motivation which is irrelevant this is a fourth amendment claim to these facts support probable cause or at least arguable probable cause for the qualified immunity question and they do at least under the court's prior precedents and we can you of course as the court has made clear and in the they can scase not only do you have to show shocks the conscience you have to show the denial of a fundamental right he turned himself in he was never put into custody he was never arrested and even if liberty interests the due process liberty interest is at issue i submit that the trial which resulted in his acquittal gave him sufficient procedural you good morning you may proceed good morning your honor this is my first trip to this court and welcome welcome thank you i'll try not to make a fool of myself please the court my name is catherine and i practice in little rock arkansas prosecuted and accused of being a not only a drug user but he purchaser from known drug people i want to first address the confidential infor and you judge woman you stated you can't make this up and i agree this supposedly seasoned police officer who at the time was a captain and a member of the tri county drug task for deposition and his deposition and we tried to get to was this party you're tracking that you could use your housekeeper as a confidential informant he didn't see a problem with that and also that the drugs that are used were not taken from a drug locker where they had been properly identified or even from a pharmacist who could identify these were proper drugs know these drugs came from his housekeeper's girlfriend who was also coincidentally supposedly the source of these allegations against officer thornton she is absent from this case the by that was set up was supposedly audio taped the first one and videotape the second one however at trial and during discovery neither one of these tapes or video tapes the audiotape was an audible on the videotape was on viewable there was no evidence there they also tried to submit a text messages and those were excluded because there was no way to verify that these had actually come from officer thornton's telephone there were no phone high importance on the veracity the reliability and the past performance of a confidential informant none of that existed here  counsel brings up moran and i think moran is very important to this case and that case you also had a police officer in this case he was a sergeant supervising sergeant that was  prosecuted he wasn't even if this was a police misconduct abuse physical abuse he was prosecuted as a supervising sergeant he wasn't even present when the which was reversed because in that case it's similar to this case his stance of due process were vile rights were violated because the  evidence was it was somewhat manufactured in his case as well the issue of substandard due process in arkansas is a little bit different and substantial due process issue beginning in sullivan reminded the arkansas supreme court did interpret that the arkansas constitution of ford's greater protections than perhaps the us under the fourth they are they continue that under griffith the arkansas regarding a concerted search prosecutor's office robert dietrich told that they had him on tape they had him on audio and if you'll just resign the department will not prosecute mr thornton absolutely one hundred thousand percent convinced of his innocence said no i will not resign go ahead and prosecute me he was terminated the very next day and of course took the right to trial rather swiftly add is that the standard that your rights are violated if you turn yourself in i would hope well i think the argument was perhaps a little different than just that i mean it strikes me that what they're really saying is this there may be some sloppy police work here there may be some things that we wouldn't teach in a class but essentially i think what the what the state is arguing is that you start with the idea that you have a confidential informant and her roommate who apparently have some need to help themselves who approaches of peace officer and says i have reason to believe that officer thorton is a person that will and apparently they make a deal to have a controlled delivery of these drugs and they inaptly go about the business of trying to record these transactions they have two transactions  they're really not very very very well verified because all you have is the cia statement and answer is oftentimes the case is not always the most reliable human being that's walked the face of the earth and at the end of the day when presented to the court at trial because somebody found there was probable cause and somebody thought the case could go forward to trial that that they just said there's just not enough here because nobody ever bother therefore there was probable cause that satisfies the fourth amendment right but even if it doesn't there's no substantive deal here because nobody suffered any injury to their liberty interest blah blah blah blah but at the end of the day the question really is is that it appears from looking at judge moody's or opinion and if you look at the facts that he found in the one and a half pages that really don't really set forth many facts that would cause us to have a better understanding of exactly what he believes happened he just says there's enough evidence to think this may have been a corrupt bargain that this was an entrapment right and i think what the what the what's being argued in opposition of that is is that you know there's sermonize that it might be a trap meant there speculation that it might be an entrapment but there's little if any evidence that that exists why are they wrong on that argument well one thing that  this was more than a frame up thing i think there was underlying motivation here what mr korten was speculating to was the actual motives not that he was framed deliberately set up for the purposes of getting rid of him out of the department at the time he was the only black patrol officer and he was ironically promoted later down the right to sergeant but the still further he has now been demoted he and the only other black sergeant obviously not in our brains but it certainly will come up at trial this man suffered more he was he didn't spend stated because of what he saw on the record everybody's depositions and the evidence that was presented and again you know the fact that he was acquitted in a criminal trial is not dispositive but it certainly was something to be considered a jury of twelve people heard this as well and found it to be a green just and you know actually they probably you know that it's not fair for us to say they found an egregious what they found was that there was at least reasonable doubt true i mean they might have found that it actually happened but that there's reasonable doubt what am i correct that the arkansas state police participated in the investigation set up the audio wire the first time and the video surveillance the second time and of course neither one of those were true either neither one of them were neither one of them weren't the audio was an audible the video was on viewable and you couldn't attorney that came into play here about another investigation i'm sorry and it was their information received from the prosecuting attorney for arkansas county that there was that that that they  dispositive is that she came back without the xanax and but they that mr martin was never pulled over never searched to see fanny drugs on him and the reasoning behind that the state says well it was only two pills he could have just popped a minute well the same thing goes with the confidential informant who coincidentally had three pending judge drug charges her of her own and as this man's employee and under criminal indictment herself you can flip that and say she did this for mr manage to comply with his request to be in his good stead not that she was fearful that she could be prosecuted and she very easily could have down those two as an expose herself when she went back i mean you've been presented with information that is not in the record you had arguments made you that are not made below or here including state constitutional arguments that revolve around article two section fifteen of the arkansas constitution not the due process analog under the arkansas constitution that should have should even be considered you've been told there's a fundamental right in employment when the law is clear there is not especially in an at will employment state and what you've heard are allegations the record is the record today's the day that any information that i mean jennifer carpenter could have said this would have said this depose or let's get or let's get her information on the record that wasn't done here and it's representing representing the state this is a civil case against dean mannus if this is an attempt to re argue or related get the defense of the criminal prosecution then that clearly is not what we're here for the question is probable cause judge erickson as you recognize there is a judge to determine probable cause exists and there's been no effort through proof in this case to meet the high threshold as the u s supreme court has caused  nothing else in the record about that there's no official involvement of the prosecuting attorney in this investigation i guess is what i'm getting at other than you know i think that the warrant which is in the record was run through the prosecutor's office you know it comes out of the county county district attorney's office is the way that this was presented but you know the video no the video video is not great i'm not going to concede that it doesn't show anything but it's not the evidence it's not the record in this case because i did it's unnecessary to present they didn't present these text messages they aren't in the record either why are we talking about them what what is undisputed and most of that i'm clear is are the video is the video and the audio are those things on the record now by the more it's undisputed that mr thornton and miss carpenter communicated i don't care if they did it through text message or carrier pigeon he showed up when she said he was going to show up in the vehicle at wal mart at the and she got in the car for one minute and got out scott russell of the arkansas state police viewed this she was searched before she was search after she had drugs on him which by the way the issue of you know the the drugs came from deanna ray they two witnesses state police officer and my client recognized them to be xanax but rather than go off of that another pill from the same sample was sent of state crime lab and it was in fact alprazolam which is a barbiturate which is x so they claim they clearly communicated he testified that there were phone calls between her and him what evidence exists in this record that dean manis manufactured anything none and that's the issue here we're on a denial of qualified immunity interlocks tory appeal we have an undisputed factual record for two reasons it is truly undisputed the material fact and even if there's any dispute you take that in the light most favorable to mr shorten and you still answer the legal question respectfully of whether or not the law was clearly established but that it's undisputed for two reasons that by operation of law there was no response to the statement under speedy material facts below and that's if you know i don't not sure how i feel about making the argument but frankly rule fifty six one of the local district court rules in arkansas should mean something the federal court scheduling order should mean something and there was no response to the to the statement of undisputed material facts no statement those facts are undisputed and respectfully the most important thing is that statement from judge modi has no therefore there is no record support there is no factual support and you need deposition for that it is based on their allegations and perhaps the fact that he was acquitted criminally and that's just simply irrelevant let's just by the questions i'm out of time there well the case is submitted we think both sides of the arguments