and washington and sergeant lucas and i think the best place to start in this case is that there's a crowd there was probable cause for the arrest before the arrest that there was a positive identification no it was approximately twelve hours later so how can that service probable cause for  no reason to believe that he wasn't not theirs and there was no evidence that they didn't have a reason to believe that any reason to believe that in other words the three arresting officers consulted with their sergeant sergeant lucas and i think that's kind of the definition of qualified immunity where you know but all that really know is that the injured party had been assaulted by two black males and that there was a black male in the hospital that came in relatively contemporaneous with gunshot wounds they really didn't know any more than that that no there was and there is so noted in the investigator support but that that has nothing to do with the positive even claim that there was there was no probable cause at the very outside but we also we also say we also i think have demonstrated that there's no evidence in the record that it would have been clear to the three arresting officers or to sergeant lucas that the the arrest was unlawful and that's the definition of qualified immunity that's why the three arresting no independent knowledge of any of this other than what the officers told them did no he was not at the scene he was contacted by his officers correct they said and he said go ahead rest  you had the information that the officers had that they conveyed you know that they conveyed to him that you're not containing the sergeant had less information than the officers there's no indication that he had any of us the officers contacted him and  again as i thought about this is seems like that's kind of the definition of qualified immunity where you know you go to you go to your supervisor there are a lot of misrepresentation made about the record that i pointed out in my reply brief particularly with regard to invest the investigator moses what are they oh as pertains to the facebook activity and the phone calls you have to remember that investigator most do not have access to plaintiff's facebook page or the phone until the morning of jury selection while the jury selection was in progress that was the first time that investigator moses was given access or given the opportunity to review the face but that is correct the credentials that were given to her by plaintiff were incorrect the correct credentials were given to her on the morning of jury selection so narrative that day there had been some credentials given to her to access facebook in the in plaintiff's statement there were there were credentials given but they were incorrect and did she make any effort to go back to the to the defendant to ask for the correct credentials before the first day of trial i'm not aware that she did what what occurred on the morning of jury selection was that plaintiff's mother was in court and in that she provided the credentials and pictures were located showing plaintiff at home with a certain time stamp may fourth twelve forty ish am investigator mosts went to another floor because there wasn't a color printer on the tenth floor to print out those pictures and it turned out that when she did so there was a different time and there as you know as i point out in the  she answered the questions that were posed to her at the trial but most of us had interviewed the gentleman in custody and she knew that that was his basically his sole offense and so at any time she knew exactly where he was and she could have gone and said i can't get in with your password or whatever else  there's no indication there's nothing in the record about oh ok thank you and she also didn't have access to plaintiff's cell phone until the morning of jury selection at which time she went through the calls and then truthfully testified according to the questions that were asked of her relative to that phone activity she didn't intentionally because she wasn't aware of them at the time of her investigators report she didn't see the phone until approximately ten o'clock on the morning of jury selection and she didn't withhold the lack of positive identification of mr knox either that is in her investigator's report as i remembered she was that consul table during the trial is that right settled and he was he was aware about the timestamp he testified of his deposition he didn't recall whether it was told him by the police or by the prosecutor mr mantei penny but he said he was given the impression that the time stamp could could have been changed in many says and so i'm in the middle or trial and frankly i say i don't want this to blow up in my face he's fully aware of this and made a tactical decision which has nothing to do with any of the police officer or the facebook photos that and have they been part of the record in this case that the evidence  that was considered the summary judgment i guess i'm trying to understand why not how how time the time stamps could have been changed and what's the evidence on that other than ms moses saying that they were changed is actually technologically possible to change the time stamps on face understanding it is i certainly don't have the knowledge to do it better any evidence of that in the record but apparently it technically could be done and is really expert testimony is there any kind of evidence that it could be changed not time and answer the the the big takeaway there is she answered truthfully i understand the questions that were posed to her by the prosecutor about this and she do not point a finger at anybody where she may have been mistaken but if you couldn't change the time stamp and she was testifying incorrectly would you agree well if it couldn't be i don't know what the explanation would be that she saw a different different time but what she testified to is that there were different times not pointing the finger at anybody because  she didn't have the expertise to do so and just to wrap up briefly these three arresting not the correct person there was a positive id twelve hours later and with respect to investigator moses she did what she was supposed to do she did not hide anything she testified truthfully answering all the questions that were asked of her by the prosecutor plaintiff's defense counsel was was aware of what she was aware of he testified to that himself and made the made his own tactical decision made his own tactical decision and that not based on iran doing of any of these police officers are there any other questions i think not thank you coun good morning your honor is my name is heather lewis donna i represent the plaintiff was wrongly wrongfully convicted and falsely imprisoned for nearly two years of his life for a crime that it is undisputed that he's innocent of and we're here an interlocutory appeal from the denial of qualified immunity and despite the supreme court very clear instruction in johnson b jones it's progeny and all the six circuit cases discussing the scope of the poetry stiction which establishes that only the purely legal questions are the questions that are properly before this court despite that the defendant's brief basically the majority of the brief answer except for the last two lines and page twenty five in the last page and twenty six do ask this court to delve well beyond the jurisdictional boundaries here go wade way into the facts and review the district court sufficiency of the evidence determinations at summary judgment and there is very clearly no jurisdiction to do that here and even miss white's argument here starts arguing a factual dispute probable cause for the false arrest which is a matter that is not properly before this court the district court found that that has to be decided by the jury because the facts in the record here show that probable plaintive could prevail the probable cause was lacking but so putting that aside what were the only thing that's properly before this court right now is the purely legal question of whether it was clearly established in twenty fourteen that the failure to intervene and mr buckley's false arrest claim was clearly established and so that is the only question that is properly before the court i want to address that because it wasn't addressed in the argument or more confused by that point sure seems to me it's kind of like well the suspenders here i mean if there's a false arrest why do you need a claim for failure intervener how can you tell to intervene in your own conduct that's that's a fair question judge of bush because it's true that each of the four defendants here that we have false arrest claims against the three detectives who are at the hospital in the sergeant lee because they get to calm the family who is conveyed all the same information that the three officers had at the hospital you're right we have a false arrest claim against all four of them for their personal moment in that false arrest so it is an additional theory of liability there you'd agree if we found there are sufficient  the false arrest claims go forty one to the officers it's not necessary to have this failure and again claim that's just a redundancy here that's true that's true i would say you know you could decide this issue on forfeiture because the only legal question before this court was addressed by the appellants in one page or their opening briefing completely ignored in their reply so were the court wanting to reserve that issue for another day i think you could find that like that issue on forfeiture and the same for is that she was operated after the positive identification was made now if the defendant had offered nothing about facebook in the would she be in the clear proceeding just on the basis of that positive identification well no they made straight answers no your honor  why because just like insights there were additional material falshood that were presented to the prosecutor penny in the weren't packet as well as for communications with him that so those material false ods and there were three of them that are undisputed that the district court relied on here that was that mr and there was material omissions i understand that but i've sort of changing the facts ok a little i guess my question is is a positive identification with nothing more sufficient for a prosecution to be instant so if we were in the hypothetical world not here where there is just a positive id and there is new material falsehoods or material  six circuit twenty sixteen case where when an officer is confronted with exculpatory evidence they can't turn a blind eye and so we have here not just the facebook account of exculpatory evidence but we also have that there was evidence related to the not shooting so the not shooting is the father shooting that happens about an hour later nine miles away from the original shooting separately and independently reported to the detroit police department there are police reports related to that shooting officers who included in the investigatory report of the shooting team of washington done in tangling and that information also was not provided to the prosecutor and we know from the prosecutor that he would have wanted to know that he would have gone further into the more i'm sorry you were talking about the link between the link i'm sorry i guess so the only link to mr bunkley is the fact that he's in the hospital waiting room for his father who has been has suffered  and she did make a positive i d but there are sufficient you know there were it's not just the idea here so again you have to take all the evidence that was known at the time and i will say with respect to the facebook evidence so the face at a record seventy seven dash three page a d thirteen eighty eight or the chris net reports from an officer credit to did forensic work on behalf of the detroit police department in the post conviction proceedings but now we think it's a fact question as to when law tanya moses saw the facebook yeah that's all you need it is a fact question and the reason for that is that when they when she came to interview mr buckley when he was in custody she pretty provided his facebook police department prints in the truck police department that showed the independent reporting to the police department of the knox shooting and i do want to step back before i have my time expired to say that again these questions i think i want to answer these questions but i do want to remind that we are now talking about reviewing factual and determinations that the district court made and denying summary judgment that are not worse we have to determine whether those disputes of fact are actually material to the issue which is why at least some of the questions that i'm rolling around in my head come to mind and and one of them is that correct me if i'm wrong but my understanding was that moses actually provided some very specific information to the prosecutor that was not true absolutely correct and there's three of those falsehoods that are undisputed by the parties that the district court relied on but i think in the qualified immunity analysis with respect to defendant moses the question is was it clearly established that because we have a malicious prosecution claim against her so the question for qualified immunity was was it clearly established in two thousand and fourteen that you needed probable cause to initiate and continue criminal prosecution and that question that legal question is not even disputed it wasn't disputed at summary judgment it's not disputed well but i think it's more specific than that and will fight immunity just whether or not there's probable not falsify evidence to manufacture probable cause i mean that's not a that's not a legal question that's in dispute and so we have three falsehoods material falsehoods that are not disputed here that were conveyed to the interested but if not i'm happy to entertain any other questions that than me i think we're good to get ok thank you very much for  plaintiff continues to misrepresent the record to try to create very material factual disputes that just are not here but don't you have to accept the facts and in the defendants of the defendants and princes of the facts in order to bring this appeal i mean we don't really have jurisdiction unless you're accepting all these facts there we i think we've demonstrated that there isn't a material factual dispute plain as counsel just talked by the prosecutor at trial she didn't misrepresent anything legally speaking in the police department is going to somebody take evidence out of them no planes could just continuing to misrepresent the factual record mr knox is not the only link to mr mr buckley miss ainsworth positively identified him that's the starting point here we have the positive well it's not a starting point for the arrest if that identification wasn't made until after the arrest and everything else really sort of proceeded from the arrest isn't that a problem well as  said there is at the very most a closed twelve hour period where plaintiff could even contend that there was a probable cause but we also we also contend that that there was probable cause for the arrest at the time there was no reason there would be officers had every reason to believe that he was the correct person they had no reason to believe that the arrest was  therefore qualified immunity would would apply there was no evidence there is no evidence falsified by investigator mosts i went through in the reply brief and and and showed that by her her testimony she answered the questions that were asked of her there was no no represent no misrepresentations of anything the lack of positive identification mr knox is in the investigators report that was not omitted the the prosecutor knew all about the facebook issue heat he testified to that and again made his own decision disputes to to argue that the court doesn't have jurisdiction i would submit the court absolutely has jurisdiction this was this was recently discus false here there is no disputed material fact also here again we may overlook a factual disagreement if the defendant despite disputing the pla