brief recitation where here there was a traffic stop where to omaha police officers pulled over a vehicle being driven by miss tabitha manning i think the breech layout there was some issues in regards to that traffic stop i think we've addressed those issues very well in the brief and i don't want to lose my precious time this morning going over that unless i do have extra time on rebuttal i think a good review there's a cruiser video that is part of the  have a good conversation with miss manning inform her that there are warrants out for her arrest to which she agrees and they inform her that they have to arrest her and take her to the d c c the douglas county correctional center they do that video shows miss manning in the backseat of the cruiser we pull into the sally port of the douglas county correctional center where the video stops now this is where we get into the issues upon moving miss manning from the vehicle one of the officers in sees a small bag of drugs to which we later have referred to as a bag of methamphetamines one of the exhibits is a photograph that's contained within the joint appendix of the deposition of officer von cotton pages seventy six through one fifty three officer cotton sees the bag asked miss manning about it she says it's not hers and that's where we are today ms man assertion is that she didn't put the drugs there therefore the officers put the drugs there now what we can all agree on is that the drugs were not in the vehicle when miss manning was placed in the vehicle officer caught in officer manning and tabitha manning all agree the drugs were not there when she got in they all agree that the drugs were there when she got out so we have her assertion that she didn't do it therefore the two officers did  didn't do it why is that just not a credibility issue that has to go to trial well your honor i think that what makes this different from a street credibility issue is this isn't in a criminal context where we're looking at the he said she said heard the nile's in this case are her allegations and the case law is clear you can't just make these allegations throw it up in the air see what sticks and hope for the vast and that's what we've argued and as you correctly pointed out the district court spent one paragraph in looking at this and in that one paragraph they made absolutely zero individual analysis on either of these two officers instead the district court chose to look at a hypothetical officer who plants drugs and because there's a hypothetical officer that plants drugs that doesn't get qualified immunity that now applies to officer cotton and officer delozier who the district court did not once mention by name in its decision and that's not the law now all shamelessly plug at the defense counsel in this case was the same as roberts and that's why we spent a lot of time with the roberts case here and this appellate court told the district court in the roberts case you have to provide us you with what it is what is it that they did that denies them that qualified immunity and the district court didn't do that in this case and miss manning says that's not a big deal the district court did the right thing by just glossing over that well that's not i agree the district court didn't do it as we've indicated in the past but i guess my point is what difference does it make it because can we look can we look at the record  say make those own findings ourselves to say look this is getting back to my question of credibility if the district court had done that it or if we sent it back in the district court did it the disregarded just say  stuck with these are her allegations and for this qualified immunity the plaintiff must produce evidence to show that there is an issue of fact and if her allegations can't stand alone in any other context as a one thousand nine hundred three case for example then they will not stand alone here if we would prefer with we would require more from her in an excess force case for example meaning she has to provide us with evidence more than just i didn't do it then that same standard should lawsuit to prove correct now and not the city's in that correct well that is correct your honor and i would i would argue that that's what we've been saying here and what we've tried to impart upon the district court is she has to meet these burdens and she hasn't met any of them and the district court glossed over it and said she says there's something there and that's good enough and that's not the right answer and that's certainly not what this court has said in other cases in the roberts case for example when you look at qualified immunity you know that puts that burden on her you know qualified immunity as the court said in four versus holston ninety four f third fifteen twenty eight qualified immunity is the rule only in exceptional cases will the government actors have no shield against them and i think we've lost over and don't give that individual analysis in case we are denying that qualified immunity that they should have in this case i think what judgment and was saying was look she is she says she didn't put  so they must have put it there and the the use is the hypothetical and i think what he's saying is well look what else can she prove i mean if she didn't put it there her whole case is i didn't put it there somebody else had to the only other people around with the officers what more did in a case like this what more could a played eve come up with well in your honor with a gain she has to show specific facts or fact is she she says i didn't do it i mean what more could you put well and the the reality is this this case doesn't change from today to trial there's nothing more we have three depositions we have a cruiser cam we have a nine one one call where i would point out in the nine one one call she starts off saying these officers they made a mistake and then in the course of that nine one one call she changes and says they must have planted it there so we hear in her own phone call where she's having these trying to make something make sense but you're right there is nothing else but she's got to prove this is her case to prove these officers planted it there there is nothing here that will support that there's nothing in the evidence that supports any of those assertions that they planted the evidence unless a jury belie well your honor i would argue that we should meet that or that could be a possible outcome could it not it could be but we shouldn't get it so isn't that enough that the district court was to view this evidence in the light most favorable to the plaintiff w talking about qualified immunity so she says she didn't do it if a jury could believe or disbelieve the officers well except your honor except for the fact that she still has to point to something that shows here's  here's another part of the problem we don't know who did anything in this case according to mismanage she's throwing it out there in the air hoping that someone will figure it out for her because her assertion is one of the officers planted this these drugs in the car the other one either knew or should have known about it and then his continuance in my prosecution was a violation of my rights i don't know which one is which somebody else will figure that out that's not for me to decide her allegation that she didn't do it doesn't establish that the officers did it and only if the officers did it prove that she has a constitutional violation of what was a fourth amendment violation that she alleged in that the issue here and so the officers said you have proving that we violated your constitution if somebody else did it they're not there or if it was left in the car by somebody else or whatever we were just up in the air at this point in time and they're just asking for qualified immunity and that is that there was a violated a constitutional right and it was a constitutional right that the new of right and that the issue here correct ok if i understood your question and short of that everybody goes on their way right if if i understood the question then  violation that they knew of and so she just can't say i didn't do it and prove it and she know the and that's what brings us back to this response to that was well one of them did it and if the other one didn't then he is entitle to qualified immunity at least and so that has to be established for either of them to be have committed a constitutional violation right my understanding of what the issue is here correct and i'll quickly point out that that's what we were asking and i think that's what this court has told the district court that it needs to do when it provides the individual analysis because if one of those officers did plant the drugs i always pick on officer della scene because he's the one that found the drugs if he's the one that found it an officer cop who was on the other side of the car wasn't near the drugs  only reached into and buckle her if he didn't know anything about it he's a he's if you look at the facts he's entitled to qualified immunity and miss manning says it's totally possible that he threw the drugs over her behind her somehow and gets them to the other side of and when when i asked mr mann well what is next what are you asking that they go back for the individualized analysis i mean to me there's credibility issues here  alice's and kicked three of the officers in that case and i think that's what we have to do in this case you look at the individual facts and you say there's nothing there for this officer and we move forward i think if  there's no more questions i'd like to reserve the rest of my certainly morning mr o'brian m it has ruled that there is no conspiracy and that you haven't appealed that have you that's correct though if there was no conspiracy then it had to be one or the other and if it was one and the other one's off the hook isn't that right no i don't think that is your honor i think without a conspiracy i mean unless they conspired together to do this how when you say no how what do you base that on well i don't make they get both physically thrown it and so forth well what did the what did the failure to prove a conspiracy mean that the district judge said when was he saying there it's my understanding that you boiled it down it was one or the other of them one of the other of them well first of all the we alleged and the district court denied summary judgment for the claim that at the very least both of officers knew that the meth had been planted by the time to have a manning was booked into jail and either they both knew when it was planted or one of the conspire with them to do it but observed or learned that the other one had done it and didn't and when they hadn't booked or anyway right and because it's possible well we had no way to show that there was a meeting of violation if that were the factual predicate if they both knew about it and a lot of the prosecution asked if they both knew that that mr manning was being criminally prosecuted based on fabricated evidence then they both would be guilty of a constitutional violation let's do the individual eyes assessment that the district court did not do let's talk about these two after you you explain what did each of the officers do individually that would give rise to the potential of a constitutional violation  either put the evidence there him self or was in on it or he at the very least knew by the time she was booked into jail after watching the video that she wasn't guilty of possession of meth and therefore by supporting this prosecution is guilty of the reached and thrown it over there in the same spot but i mean it may seem and faced with a proof my beyond a reasonable doubt a jury could have followed a leak could have he could have done it and if you're burdened with proof beyond reasonable doubt that's enough to let the jury speculate on that well that's what tabitha manning was facing i mean this same argument was look they checked before she was in there they found the drugs in there it could've gotten there any other way so that's enough so she was being prosecuted when shooting prosecute for possession before before that the prosecutor dismissed what allegation did you make that it couldn't have gotten in there any other way the fact that the officers testified that they had checked the backseat beforehand to make sure there was no contraband  good enough to prosecute someone in a criminal case the same basic reasoning had to get in there somewhere our reasoning is yes that it wasn't in there when the manning was arrested  doesn't appear she's getting rid of them as it would have been difficult if you look at the circumstances before she was put in the car she was out talking her care children were brought up from the babysitter she's out there talking them for a long time they bring up the fact that she has an outstanding warrant for unpaid fines so she knows she's going to arrested all this time elapses and so from argue the argument to the best explanation would be one of them either the police put this in the video just it doesn't appear that she's and that's what the judge cited in the district court the other is the fact that it doesn't make more sense if she was going to put if she had method she was going to get rid of it that she wouldn't wait till she was in the car with her hands cuffed behind her back to throw it in a police car and a third reason is that they first threatened to fingerprint the bag that they took trying to get it to admit or or they could d n a tested or they could drug test her and she said no yes i want you to do that and then they refused if if it was if it was her bag of meth she would have wanted them to fingerprint and they could have fingerprints and if there if her fingerprints appeared on the bag i would have resolved that but they didn't do that they threatened to do it but they didn't do it those those make it more likely if you start out with the assumption either the police did it or she did it and then this evidence shows it's more likely that she did it then therefore it's likely that the police put the math in the car and at this point they're not challenging they don't really spend any time challenging all fight immunity whether there's a clearly established constitutional standard that you can't  fabricate evidence not challenging that what they're saying i think is more that the district court didn't make if they were using an individual to be a coach's court's admonition to district courts to to to articulate individual assessments of the constitutional violations but they say that there was no factual finding and i don't think that's true and i think by the district court by ruling that there was but by denying their motion for summary judgment the court is saying that there's enough there's enough support for the factual allegation in the amended complaint that either one or both were aware of the drugs when they were put in the car and both were aware by the time she was booked into jail well i think it was robbers but one of our cases say that the district  on these should be making findings of facts and conclusions of law i don't i don't see that any findings of fact there's just and that's why we're struggling with this today but there's no other way to gregory it could have been stated expressly i feel this court finds that the officer sufficient evidence that the officers planted the mass in the car but what it does say by denying their motion for summary judgment that is the factual allegation that that the complaint is based on we to get over this precise hurdle that we're talking about here you alleged that the two officers conspired which they both had their hand in the in on doing this and the district court ruled that based on what you had presented there was no such conspiracy and you didn't appeal that you've waived that is you in coming before us the dysthymia right right because we didn't have any we didn't have any specific evidence our only evidence for conspiracy was that if they both knew about it it stands to reason that they would have that would have been some agreement we didn't have any specific evidence of how the agreement was reached and it's possible the allegation could be true that they both knew about this and support a false prosecution even if they never conspire well if it went to trial the trial judge can't instruct the jury without evidence in support of the instruction you've heard this evidence and i instruct you that if you believe that they were both involved but the trial judge said no there isn't those that evidence and you said i agree so i say we don't have any he didn't say that there wasn't a conspiracy he said that there wasn't we didn't have enough we didn't have any evidence of a point ok sorry but and a trial judge needs evidence t want to get lost in the weeds too much but i look at the statement that the lower court made when it was talking about the conspiracy and it says the plaintiff has no evidence other than a package of methamphetamine and what we're talking about and this is why the in the individual analysis is so important is we still have an a conspiracy claim it's just under a different name one of them did it maybe they both did it maybe they both did different things but they did it together that's really the claim that's a conspiracy under a different name and so that's why that individual analysis is important and it was the roberts case your honor where the court said it requires the lower court to create a careful order with findings of fact with that unless you're going to be asking this court to apply an individual analysis or to send it back for the district court to do that well your honor i think this court did a great job in the roberts case by doing it so i'm not going to tell you not to do it but in any event the individual analysis needs to be done ok thank you very much thank you for your arguments we will this to be done before the officers have to have a go ahead go to a trial if they don't want to go to trial or we're going to bring cards made it pretty clear that officers are entitled to this analysis so anyway we will be back and touched as soon as we have time to get to it thank you