good morning ours we have to support counsel as it stands currently with the district court's opinion on a case that should not go to trial will go to trial unless this particular panel acts there are three bases for our inner evidence that was advanced to prove intent related to officer burke second the defendants are entitled to qualified immunity in this case because it is a highly new case without any control and present third this case was fraught with error as of the last point which also touched on second point the defendant officers were initially dismissed based upon qualified immunity in this matter dating back to january twenty fifth two thousand and thirteen when the court ruled upon the motion to dismiss over two years later after the summary judgment had been briefed the village in the form of claims were fourth amendment claims and based upon run versus united states the subjective belief of the officers is not real so at the eleventh hour counsel i think you need to spend some time discussing on c in the jurisdictional issue your honor that's what johnson against jones is about yes your honor well in this particular case there are two bases for jurisdiction first there is an exception the johnson b jones when the court the district disputed issue of fact and it down to five that was the defendant's knowledge and motive johnson against jones says we can't really examine that without an ability to reexamine that i don't understand how there is anything left of this appeal because i you know you you can't avoid the consequence that if our played it was arrested because of his imputed religion there is a serious constitutional problem here and your honor that goes to our second issue that even if we want to second is and even if we are to assume that the officers had a discriminatory animus and intent under the circumstances where you have a private homeowner and who wishes to press charges and  unseen event which gives rise of probably cause which a district court did fine we believe that under those circumstances that qualified immunity would apply because there's not necessarily the intent of the district having to do with knowledge and sensually whether the defendants would have arrested the point of at they believed his religion to be different right they have  read i understand your point your honor and i would say and of these circumstances both officers testified that given the fact that there was a private homeowner they did not believe they had the discretion also the only compiled statute which cites to you doesn't identify what they're to do which was acknowledged by the district court and additionally there was no precedent on point to say that an officer under these circumstances might have been back to a house four days in a row or after four days you say there's no causation you're back to a dispute about facts rather than on certainty and the law and based upon what i'm arguing your honor and perhaps i'm being unclear is with respect to selective enforcement and the discriminatory intent even if this court were to presume and we accept as true that they did have discriminatory intent the fact that you have a property owner who is insistent on presses pressing charges which is undisputed signs criminal complaints to press charges both officers testified at their deposition and it's been uncontroverted to make a cut to the chase your argument is that even assuming discriminatory intent they had no discussion they had to arrest that's what i understand your argument to be because  complaining homeowner insisting on pressing charges but there's a dispute a fact about the scope of their discretion so that it's judges to pick is that just a different factual dispute that needs a trial and well i would also and it happened after or near the time of filing the owner supreme court it was cited in the apple e's brief the public duty exception or public duty rule has been abolished in illinois so now the officers are put in a catch twenty two because for example if they don't now they do all the duty to a private individual where they didn't and that case has been applied retroactively because they remanded it back to the circuit court in the state of illinois so enforce the laws and there's been no case that says from any circuit that we could on earth that the officers have the discretion when there is a private complainant to override that private complainants ability to press charges and make an arrest in that situation when there is actually there has been a crime committed and i think the lack of guidance was recognized from day one by the district court when it granted qualified immunity to the officers with respect to the illegal seizure fourth amendment claims and false arrest claims and now this is the end product of that lack of clarity and guidance so even if we're sume that there was in a rust and the officers thought he was a more regardless of their belief the officers are sitting in a position of a private homeowner who wants a press charges has pressed charges and  essentially initiating the stop unlike some of the other selective enforcement claims such as such as chavez versus the illinois state police the officers did not initiate this sto this was actually initiated two times by the homeowner mr clarke once on april eighteenth and then again on the twenty second when there was an arrest so i think under those circumstances and without any  morning your honour's barry horowitz representing plaintiffs believe in this case may please the court will while defendants would have preferred to see their version of the facts accepted by the district court the district court followed the law in this case and view the facts in the light most favorable to plaintive in the fact that the fence version of the facts was not accepted does not and cannot confer jurisdiction on this court the case law proving that this court lacks jurisdiction is clear and let's start with before scott b harrison two thousand and seven the seven circuit cases proceeding scott v harris like v of the le grand mccain you do plain tell us that qualified immunity appellants cannot question the sufficiency of the evidence that created a disputed factual issue for trial in jonesville clark this court only concluded it had jurisdiction to hear a denial of qualified immunity appeal because the defendant expressly conceded in adopting plaintiff's version of the facts and repeated oral argument were asking your honour's to accept everything jones says that is exactly that so between jones and deplane it is clear than appeal challenging this denial qualified immunity begins with the premise that all plaintiffs facts are presumed to be true or at the very least the facts that the district court identified in its opinion denying qualified immunity are presumed to be true that's the only way to present an abstract issue of a lot of appeal and that is exactly the opposite of the situation here defendants have based their entire appeal on their argument that plaintiff's version of the facts is wrong and the district court got those facts wrong and in fact the district court made several explicit findings and the fact we can go into those facts as to the discriminatory motive although it seems as though a plant defendants have possibly even left that issue is moot saying that they that there discriminatory motive might be moot but regardless defendants at least in their briefs refused to accept their version of facts on the and they'd say that the district court failed to see through plaintiff's charade that is a clear refusal to accept the district court factual findings and that's why there's no jurisdiction here they're not raising an abstract issue separable from the facts the instead asking this court to a band it's precedence on appellate jurisdiction in favor of a new rule that defendants self serving and biased testimony their denials that they didn't know anything about wars somehow contradicts plaintiff's tent contradictory testimony even though all of this court's precedents hold that on the spend in summary judgment motion plaintiff is entitled to have all the facts and reasonable inferences viewed in his favor the district court properly disregarded their self serving testimony and they expressly stated where appellant makes only a sufficiency of the evidence argument the appeal presents no abstract issue of law and the court lacks jurisdiction and interestingly also in that case they noted the facts of the gerardo claims are undisputed are disputed indeed gerardo simply has taken his version of the facts and labeled them undisputed that is exactly what defendants are doing here the then his purported abstract legal issue contains two factual elements that are in dispute that the homeowner unreservedly wanted to press charges and before the identity of the press trespasser was known the only basis for these alleged facts is the defendant's own biased testimony a police report from another case which is evidence in this case shows that defendant williams himself expressly noted the defense the homeowner in that case wanted to press charges now if the homeowner in this case wanted to press charges so adamantly and unreservedly why did that fact not show up in either of the two police reports that came that arose from from the ultra cations in this case and likewise four days before the arrest mr clark saw the real estate paperwork in the unknown car in his garage suggesting that moore's own this house defendant's inspected that same car so there is plenty of evidence to support defendant's knowledge that the trespassers may be affiliated with morse now scott the harris is essentially what they're hanging their hat on to say that this court can review the entire factual  discovery harris is not that large it does not drive so large a truck through the jurisdictional bases that we've just gone through instead it's a very narrow ruling one that even the defense of characterized as a rare and extreme circumstance where the appeals court is faced with objective evidence now in that case it was a videotape and a videotape which establishes that the plaintiff's facts or maybe even the facts that the district court found and assumed in its opinion  blatantly and demonstrably false so the appeals court can say so that is what scott the harris says if you have objective evidence like the videotape the appeals court can say the facts do not bear out as the plaintiff alleges but in this case there is no objective evidence there's nothing like an audio recording they don't have ten other witnesses who testify that planers version of the facts are wrong they have no subjective evidence or other only a they have is they their own self serving testimony and denials and that is why s there's a sufficient proof of the discriminatory motive for the arrest defendants raise some i'm sorry arguments in their brief regarding inferences and that plaintiff is trying to push too hard to get certain inferences but it's pretty clear from the facts that the defendant officers inspected the car and that there were real estate paperwork in that car and mr clark admitted on the day before or perhaps the very same day he saw that real estate paperwork in that car so the inference that every reasonable juror would understand is inanimate objects do not move on their own we've misplaced keys or phone and the first time someone asks you where did you last see them mr clark last saw the paperwork in the car we have knowing it was moved and the defendant's inspected that car the very next day now they're only argument to that is for all we know the paperwork could have been moved and they demand that we bring in the owner of the veldts wagon to testify that the car wasn't moved i mean all of this is ridiculous they have no evidence that it was moved and by the way defendants mentioned that there is no evidence for defendant burke defendant burke inspected the car along with the fender williams and w as i've already noted these are two disputed factual issues but even if you do not look towards the disputes in those facts we have it's case law that we've cited in our brief that says police officers have discretion at all times we have the testimony of the chief chief of police saying that they have discretion at all times so there is no support for their argument that they have they simply have to follow the demands of a private citizen if a private citizen demands they arrest someone they must follow through on that orders they're essentially asking this court to announce a new rule that your description is limited to to the demands of private citizens and then as to his argument regarding fairness regarding you know a case that would put them on clear notice that this is a clear step violation of clearly established law that's simply not the case you know defendants need only fair notice that there is a violation of the law here and it's been clear since the equal protection clause has been passed that you cannot vi you cannot enforce the law more harshly against a certain group of people a minority group of people based on their belief not to arrest in exchange for information as an informant the second was people be shepard's which dealt with when an officer can effect to a traffic stop and whether or not he has to act within a certain amount of time before effectuating the traffic stop man versus village of skokie which dealt with the public duty exception which i've already indicated was abolished by the illinois supreme court is no longer a good law and it's important to note that all of those cases dealt with officer initiation of a stop or of confronting the individual this case is entirely different there's not one case that has been cited so if you're assuming even presuming there was some animists there's not one case presented before this court squarely governs the facts that would give you fair notice and an officer fair notice that his conduct was running afoul of the constitution therefore i would suggest their request at this this court reversed the district court and apply