accessory building there was a quote close question as to whether probable cause existed for mr hawes arrest that close question resulted in denial of qualified immunity to my client as to mr hall's th amendment claims of excess false arrest and malicious prosecution the district court's reliance however on mr hall's testimony is inaccurate and incorrect the district court quoted quoting their order that distorts order at page twenty two  that mr hall said that floor annoy planted the marijuana rolling papers and grinder on his property and in fact mr hall testified that the only way he can see it is that a member of the task  oil but a member of the task force must have planted it as such the trial court's reliance on hall's testimony was absolutely incorrect and as that testimony was the reason cited by the court for the denial of qualified immunity be reversed are you asking us to do anything more than review the sufficiency of the evidence underlying the lower courts the determination in summary judgment seems to me that's the heart of what you're saying that the district court mistakenly reviewed the evidence and this battle is over sufficiency of the evidence do i have that right or wrong it is an issue of evidence but it's also an issue of the court relying on speculation to you know i understand that but it goes to the sufficiency of the evidence you just say the court was wrong about how it weighed the evidence here this is a sufficiency of the evidence issue is it not correct  not and i'm not conceding that it's solely a fact issue but it is a sufficiency of the evidence because well where you're not there's no dispute that if an officer planted drugs in a home or a car wrongfully and that yielded an arrest based on probable cause there's clearly established constitutional law saying there was no probable cause and that kind of arrest would be  misapprehend this is purely a question of the city of the evidence so let and let me let me just finish if i can please and as i understand controlling supreme court law and at least a half a dozen times from this circuit if the only question on into law kotori appeal qualified immunity is the sufficiency of the evidence period you might be right about the sufficiency you might be wrong about the sufficiency but we're not going to consider it on an interlocutory basis because we're going to consider it on the back and at the final round is there something more than sufficiency of the evidence in this case what question of law do we have to address the question of law is whether speculation can defeat of such a motion for summary judgment related to the planning of evidence there's an it's not a factual issue as in a deputy  says i didn't plant the evidence and mr hall says i saw her plant the evidence or she did plant the evidence so that you have any case that would help reach that conclusion is from two thousand and two in this court there the officer i'm sorry the plaintiff there alleged that the officer planted evidence but there was no record evidence to support that allegation the only evidence was that mr the officer was involved in the search that he knew what happened he knew what was found and what was not found there was even further evidence that that officer i think that's right that in rural we said that planting or fabricating evidence in an effort to obtain a conviction violates clearly established law yes your honor but in that case that this court found that there was not any record evidence to support support that speculation and therefore granted the qualified immunity to the officer and upheld the summary judgment motion at the lower court so i mean that those are the facts that but in that opinion we went on to observe that into law kotori review quote would not be a veiled will when at issue is nothing more than whether the evidence could support a finding fact that particular conduct occurred isn't that the situation we have with florrie when she disputes the sufficiency of the evidence and then you cite could trial for the idea all you have is facts sufficiency of the evidence that's really the question that i'm drawing you may be right the only question is whether you're in this forum at the right time on an interlocutory appeal because remember that's an exception to the general rule that we want to wait until the final verdict so that we don't have to this is just the sound prudential rules so that we're not looking at things two times congress gives us authority in some circumstances on an interlocutory basis e g from a policeman arion junction granting it or denying it stuff like that but if there's no legal question and i'm just asking what's the legal question here there's certainly no legal question about whether planting evidence would violate the constitution the law school long and clearly established correct and i still submit that the legal question and i agree with the court and the coke  decision in two thousand also said this that there's a mixture of law and fact that the court can hear and even and that's true if there's a gallon of fact in a teaspoon of law and i think that the law that the court should look at here is that speculation whether speculation can support the denial of qualified immunity in this case if i guess if that is not true if the if this court cannot look at that question now that it sets the precedent that that was the claim was in his he never said that it was his he said i took responsibility to protect my daughter too i got the property and i severely limited access to the property did not allow anyone into the building unless the person he personally was present there for even then only allowing those folks in whom he knew well and the guy who had been there earlier favors was a prime candidate for having owned the marijuana had been banned from the property which he claims supported his view when he went forward for rid of possession so he said this more than i'm just saying it's not mine this is what i did when i took title to the property i did a b c and from that an inference could be drawn it's not a great argument speaking for myself the question is whether or not this whole debate however is about sufficiency of the evidence and sufficiency alone you notice at those points i would say that hindsight is two thousand and twenty but for a qualified immunity analysis we're looking at what before i knew at the time she didn't know anything about who owned the property what she did know was that there was constructive possession of the marijuana by someone in the accessory building mr hall owned it and that when they were confronted with that dark america want to mr also that's mine i don't want my daughter to take the fall for it those things support probable cause support at least arguable probable cause under the qualified immunity and you understand i raise the question because it starts with supreme court precedent supreme court of the united states says in johnson that review is limited to cases posing abstract issues of the law this is not the time to debate the facts and the sufficiency of the facts and it just struck me that that's really what you're arguing even if you're alternately turn out to be right i would respectfully disagree and i think that that would be to disagree with what the supreme court does in johnson absolutely not your honor what i'm saying is agree that we're bound by what they said in johnson no your honor what i'm saying is tell me what the question of law so the question of law is whether and i'm sorry i sound like a broken record whether speculation can support me all the evidence  the evidence offered is so thin that creates a legal question as well as a fact question i think there might be there might that's that's the argument right no you and i think there might be a soul the fact question even if he said planted that evidence he didn't even say that he said i don't know what could have happened but this might have happened that's the speculation that just cannot support this denial here and that's an issue of law got it  a sufficiency of the evidence which is not proper now it's a premature argument this court does not have jurisdiction of those that are good at a later date they would have the opportunity to argue that  is not raised in the initial brief here would not be considered you can't raise an issue in the reply brief and that's what they've done if you look at their briefs they blew this issue about who planted not the deputy a but someone else and they have to we have to show that she participated in it was never raised in the district court if you look at the brief ok granted that was the answer to my question someone from the task force must he says someone from the task force and she was in charge of it but the more important issue for this thing is as they never raise that argument in either the ni trial forty one all those cases that if you if you do that it was not raised in the initial brief here it's a ban and he didn't raise it and also this court has stated and we put in a brief that they didn't raise this control issue or her or who participated in it in the district court they never raise that issue so basically this court doesn't decide issues that would not waste in the district court and that's basically a case of essence or basically their arguments are procedural floor every step of the way st they want to argue the facts and if you look at mr hall's affidavit it's not speculation he took steps he relies that mr of favors rodriguez favors had had previously before he purchases property had used it to sell drugs he comes in he buys a property he goes in gets a favors did not come on this property he was never on the property there was no drugs in the parties and no illegal activity on the property there was no of winders all this none of this was on the property until they i if you look at judge battens opinion he was even struck but she never denied mr haas statements that this stuff was planted that she never selflessly did not it is amazing to st case i've ever seen when a a law enforcer also has been accused of planting evidence and they don't do not well i guess the question what was she asked the question did you plant  and did she not answer the question or was the question never asked i don't want to say was it was i think it came up in her deposition but i don't want to misstate the record you want me to evidence either i'm simply asking whether she was asked point blank real simple did you plant the dog in the location on that occasion i do not believe i asked  question like that but i believe i gave for every chance at a reasonable person would have denied the accusation and basically the bottom line is though is that again they're talking about the sufficien grieved that planning evidence is a violation of the constitution and someone who plants evidence is not entitled to qualified immunity so the only issue before this that they're trying to make is there's not enough evidence that it's qualified immunity plays a very significant role in civil rights litigation it serves to funnel middle important purposes it stops law enforcement officers who are doing their job in a good faith lawful manner to be sued of when their ex hasn't a discretionary authority in the proper manner it also though protect she saw mr hall he's under surveillance but in her deposition she admitted he was never under surveillance but what about the fact that your client said i'm going to take responsibility for the scientist and there was a calving out because i want to make sure that my daughter is not held responsible but isn't the officer entitled to rely upon that simple statement i'm taking responsibility for it doesn't that resolve the issue no because he basically said it's not mine it's you planted it but but for the purposes of this i would take responsibility but he didn't say it's not situation he says i will  it's mine and let's herder you know because whatever he said from when she was there you planted this but i don't want my daughter or arrested and she's testified that if he hadn't said that she would have arrested the daughter this is not something that he's made up some fictional accounts so nolte he put her on notice and he stated that it wasn't there you came but we're not we're not in a direct criminal appeal where we are dealing with the section one thousand nine hundred and three and we're dealing with qualified immunity how is that the fact that even with all the qualifications when mr hall says it's min calm you're planning this it's not there it's never been there i've never had a grinder i never had marijuana i never go near one never allowed marijuana but if you have if you want to arrest somebody  clean he didn't allow any drugs on his property he told her that he says you planning this but if you're going to if you can't come out here play at zit i will take responsibility to keep my daughter from being arrested not only not only plant the stuff but also to have his daughter falsely invested in the fact that he wants to protect his daughter from feeling fastly rested she should be able to escape liability because in charge of executing everything she was controlling everything she said that she was in control but again they didn't make this argument in the either the district court or the nissho brief they never said in the district argument in the district court they have abandoned it they can't vacate basically if you look at their brief in the district court they didn't come close to making an argument that she she had we failed to show that her participation and her direct involvement they never raised that issue that to this court when they said that she wasn't in control and in this court in their st week they said say use the issue of control then when i addressed that and showed that she basically testified that she's in control and report that in the brief of and that they didn't raise that in the district have done everything backwards and not complying with the rules but the case law is clear that they they have a for the purposes of this interlocutor we appeal they have basically abandon those issues now they may raise him arguably later in the final argument but but on this case yonder when they move for an interlocutory when they move for qualified immunity in the district court they never raise fact the argument that she didn't participate in it or that she wasn't involved in a direct way and this is some type of vicarious liability they never represented that to judge baton and what not presenting to you judge baton they ca argument but they're not entitled to do that but more and more importantly these are factual sufficiency arguments of the sufficiency of the evidence yonder and i think we've got the issue if you could bring your remarks t just one quick point i guess an issue that was raised on mr also oral argument that would have affected the analysis here and might affect your analysis which is the argument that at the scene mr hall told the deputies that they client ever asked point blank in the deposition whether or not she planted evidence i'm sorry no no your honor absolutely not you never asked and he never asked no your honor what we did though was when those issues came up on summary judgment and statements of material fact when those statements were made we objected to them especially lation because they are speculation although i understand that's a different point i'm just asking whether she was ever asked she was due to plant evidence no i didn't correct i never asked you know your own ok so i wanted to resolve that factual issue as far as i know the court is interested in the jurisdiction koch correct but and the problem is none of those are unassailable but none of them stand for the proposition that if the only issue is the sufficiency of the evidence that we can take it on an interlocutory basis and that's why a lot of these cases stand for that none of none of those specifically do this roe case though does and it deals with the planting of evidence and it was decided on in  if you have not if nothing further and you know thanks very much thank you both and we'll take the case under advisement and move on to the rd and the last of our cases this morning which is