how much time you'd like to reserve may reserve three minutes for rebuttal three minutes go ahead sir thank you and thank you may please the court the lower court here began its opinion by stating this case arose from a bizarre incident which the plaintiff wayne harvard drove for ten miles at highway speed with a man on the hood of his car with all due respect to the lower court that is not how this case rose this case a rose when a man violently attacked mr harvard and the passenger in his vehicle in jumped on the hood of his car made racial slurs presented weapons as you know false arrest and false imprisonment claims fail if you arresting officer had probable cause to arrest on any charge so my question to you has what's your best that he is not required to resolve all credibility conflicts and conflicts in the evidence that he has however he is not free to in more e cause to charge him with driving under the influence well what i'm sure is aware that mr harvard was below the legal limit he did not have any drugs in his system although there was the regis accusation that he was smoking crack cocaine in his vehicle there was no evidence to support that claim well but but the but the crime itself is an individual may not drive operates it's for control after imbibing a sufficient amount of alcohol such that the individual is rendered capable of safely driving operating or being an actual physical control now he observed  harvard and observed him being very sweaty and agitated in the midst of his eyes were darting around and even though he's below the legal limit could not the officer be justified in saying you know what this guy was not capable testimony in the case that he was driving faster than yes i am you know isn't your best case here to to say that the judge was wrong in saying that no reasonable jury could find the lack of probable cause i mean isn't that the standard that we really have here and whether the court should have made that determination or whether it's up to the jury to do that under the dempsey case i agree as as a court points out dempsey notes that the determination is necessarily fact intensive and it will usually be appropriate for a jury to determine whether probable cause exist to be recklessly engages in contact which places or may place another person in danger of death or serious bodily injury well i would argue that he did not engage in reckless conduct and the fact of the recklessness the state of mind would have to be determined by the jury is that do this is an odd set of facts there's no playbook for mr harvard as to what he should do so he called nine hundred and eleven he was in fear of his life and he did what nine hundred and eleven told him to do he got off at the proper exit court we do have credibility conflicts here we have mr sutton statement as to what happened which trooper says now this testified to that his statement didn't really make any sense that situation the question should go to a jury but the law says that a police officer making an arrest doesn't have to evaluate credibility doesn't have to make a credibility determination as a general matter so how do you square this  with that proposition i agree i agree but he is still my free to ignore the evidence in front of him the that is that is one of the reasons because he himself testified that and talk about trooper knowledge that the account that sutton provided didn't make sense yes absolutely and he did admit that and he did have a significant amount of evidence to show that mr now there are cases where we go through the exercise of reconstructing an affidavit and that's usually in a circumstance where there's a challenge to the application pretty original won't arrest were a search warrant is there we need to go through that exercise in i would point to the court to manwell versus city of joe let supreme court case from two thousand and seventeen where the supreme court held that individuals claiming a pretrial deprivation of liberty may invoke the th amendment when the deprivation occurs after the legal legal process commences so in this situation the legal process affectively commence when the trooper s process and he he did not give the full scoring there so it although the affidavit of probable cause is relevant it is not necessary to reconstruct it for the warrantless arrest purposes thank you let's go to o go through the dempsey exercise with regard to each of the crimes charged i don't believe so because the probable cause standard is so much lower than what has to be proved to convict somebody of a crime  you just have to prove that somebody that there was probable cause that a crime was committed you're not required to go through each of those elements for the crime and that is why all of didn't do that here appellant didn't do that here because appellate believe that there is no probable cause to arrest him for any crime so i do not believe that that is a requirement  recognized which is similarly situated in the lower court essentially made that standard identically since weighted the lower court even pointed to that a proper compared or for  mr harvard would be a caucasian driver drove at highway speed with someone on the hood of the vehicle but was not charged with crimes that is essentially the an identical compared or which is a very  narrow standard and would basically diminish the plaintiff's ability to bring an equal protection case but i thought that the district court said that it was the appellant who had chosen one black and the treatment of the two individuals by trooper says now this was clearly discriminatory and you can point to the the language used by trooper says now  on the scene calling my client boy repeatedly and then also to prove that discriminatory moto look at the accusation that my client was smoking crack cocaine in his vehicle what without any evidence under that standard they don't they have to be alike in all relevant aspects and all relevant aspects here would be the two individuals involved in a confrontation both facing the defendant  determination as to who committed the crime and traverses now as an equally apply the law here he focuses and investigation soley on the black individual and the white aggressor walks free like also white aggressor the victim also he does he does to the jury just decide whether this suspicion similar situation here i believe so i believe the jury should decide  all of these issues for the equal protection claim mr harvard meets all of these elements he he was treated differently obviously charged with crimes while he was the victim of the crimes mr sutton walks free and i was talking earlier about the discriminatory motive or or purpose of  differential treatment and that is proven by the the language used on the scene as well as the egregious accusation that my client were was smoking crack cocaine both that i think show a racial bias against my client  moving to the reckless investigation issue this is an issue that has been wrecked this is a immunity if the purpose of qualified immunity is to put an officer on notice as to whether his conduct could be constitutionally deficient and these claims have been recognized in the past  amendment there is not a probable cause requirement for reckless investigation although recklessness could go into the probable cause inquiry well how do you get around our case janice the reckless investigation claim in that case rose it had not yet been recognized since then it has been recognized as a claim it's just not it's just unclear as to whether that falls into  the th amendment or the th amendment regardless i believe that it has been established enough to put police officers on notice that they cannot engage in a in a reckless investigation what cut what kids can you identify continue i'm not sure we're going to go with that offer but let me ask i judge when dell whether you have anything else you know i have nothing further and judge words there thank you well then we're not going to take you up on your kind of counsel but we will get you back on rebuttal now let's hear from applebee's counsel please thank you your honor may i please the court michael scott n c from the pennsylvania office of attorney general on behalf of telling the trooper that something was threatening them with a knife there's no mention that he threatened them with cinderblock means that he's home there's no mention that certainly did not have any injuries consistent with having been and harvard said that harvard slowed down to give certain a chance to get off but he refused and there's also no mention that it's now as stated that he believed the source of the information because of defendant's reputation for criminal activity referring to harvard of course and there's no evidence of any criminal activity and to the extent that that may have been related to the trooper by sutton the trooper who all really said that he's had a history with certain and i did not  evidence not being in the affidavit know you're on and there's no call because the affidavit of probable cause that was what was submitted to the court when the criminal charges were filed by that time mr harvard had already been arrested and an affidavit might my adversaries been relying on wilson versus russo which is a case that has to do with an application for a warrant and when there is an application for a warrant then the jury could find a lack of probable cause but haven't we said specifically in dempsey and based on that she granted summary judgment haven't we said in dempsey if a reasonable jury could find a lack of probable cause looking at the totality of the circumstances in the light most favorable to harvard summary judgment is not permissible how do you get around that here looking at the totality of circumstances in the light most favorable to har reasonable jury could say there was no probable cause here don't we have to send this back and throw up a summary judgment let it go to trial let the jury decide probable cause no you're right because there are three understated facts here that have nothing do  that and he tried to get setting off off the hood and so i wouldn't go what's a man to do the guys pulling the windshield wipers off the wiper he's got a bulge in his in his waist bam i mean if i'm a reasonable juror i might find that there was absolutely no way that you could arrest this guy for anything at least call sutton a victim ridiculous i think these disputes about the knife and tearing things off the car they go to an affirmative defense of self we're talking about mens rea and in this case i like to hear your best explanation as to why we should not have a jury decide whether mens rea existed in light of all the  defense of self defense which this court has never required an officer consider as part of a probable cause determination and we go back to one fact the judge randell brought up and that is he's following the direction of the nine  eleven operator if but you know he was in the driveway trying to get out of the driveway something jumps on top if the nine hundred and eleven operator at that time said sit tight the  i dispatched an officer there and then sutton did and i'm so sorry and then harvard did what he did i can understand your argument but harvard did exactly what the nine hundred and eleven operator told them to do does that play no role in determining probable cause i don't think that not eleven operator told him to get on the highway that's mean if you're talking about the the officer who's the drug expert he's the one off the trooper says knowledge told him that he had been smoking crack and the only way he could have gotten that was from totality of circumstances it wasn't just the sweaty and the nervousness but it was also you have been drinking and that justified asking trooper beating to make a drug recognition evaluation and under cases like devon pack and par for city of philadelphia the only has to be probably cause for any charge that could have been charged and in fact he was arrested at that time taken for a drug recognition of valuation is enough to give probable cause that's a drug recognition is considered is part of drug recognition valuations to look at alcohol use as well no no i look how can you separate that out you're as good as the thing to do something pretty incredible right you're you're asking us to allow to take unverified information from an unreliable source and influence an expert's determination and the expert at mit's that the crack cocaine was the determine the factor in the conclusion that he reached because the only information he had about alcohol consumption was that the person was below the legal mid limit if you take that then when he was smoking crack cocaine while driving i mean what drug expert incredible testimony and you're right i think you have to look at both the favorable and unfavorable facts that's how probable cause determination is made and then and then see if any reasonable jury could find that probably cause is lacking i think with the admission that he had been drinking that he had been driving and in now you're saying that no reasonable jury could find an absence of probable cause looking at the facts in the light most favorable to harvard is that your contention as my contention you are because the standard requires this court to consider both favorable and unfavorable facts and on the face driving at a high rate of speed with a man hanging from a car is reckless conduct just as the district court said it's very definition of reckless conduct well that's for the probable cause could find that probable cause was lacking and yet i think you can tell from our questions that that we're there's a lot of facts going on but looking at them in the light most favorable to harvard so it's a tough case if i can ask you about  sutton was an aggressor that he threatened mr harvard yet he was not arrested only harvard was arrested if we look at that scenario in that way at a minimum we have two people both accused of a girl having aggressive behavior taken towards them but only one is arrested and the other is not why are they not at least similarly situated  in fact two similarly situated people each claiming the other took in a dangerous weapon towards them in a threatening way and how do you say they're not similarly situated if you use that frame as opposed to the frame the district court a higher degree of similarity than just their both telling their stories to the police officer and you arrest one and not the other and i think the reason he made the arrest was because he had certain understood spirit facts like driving on a driving at high rate of speed now maybe go to the jury on occasion again looking at discriminatory effect indiscriminate tory intent on equal protection claim and i think you have to get past a certain threshold before it goes to the jury you know well i don't think you have settled the political let's look at the facts right to come after you so everything that certain has trooper says knowledge has admitted was was incredible i mean what what law do you want us to create here with regard to any more texan cause is it that we have to find another black man who's attacked by another white man in a small pennsylvania town is that what we have to do because the other cases that you talked about were situational right you have people in a particular set of circumstances and you're comparing them this is the same kind of case we have people in a particular situation and we're looking at whether or not there's disparate treatment i'm wondering i understand why you're pushing back on this but i think you'd have to  driver one black driver think that's an easy comparison but we have achieved just where things are a novel is going to be hard to make a case that similarly situated people are treated differently especially when the facts are different if each person committed in a case could be made that this level of similarity needs to flex somewhat when there's no other rational explanation for treatment calling people names in the affidavit of probable cause why in the world which  was the victim why in the world would you do that it doesn't make any sense at all unless there is an equal treatment for a reason and a prohibited reason that that seems to me there might be some room in the law for a little bit of flex on the similarity when the facts clearly make up if you focus on the equal part what other constitutional remedy is there for this type of behavior not just found that he didn't have a lot of cooperation from the witnesses that was testimony that for example when he spoke to mr mazetti and he was trying to find out why mr harvard had given a ride home she said i can get the car any car what i want and he said i didn't find her cooperative either implying he was having some trouble getting cooperation so he relied on the facts that were undisputed and that's i think the difference here that's why he treated that's why he charge mr harvard right away and didn't charge him just because those facts were undisputed he had different versions from different people there was some suggestion that a lover's spat and i think that's that's the reason that they were treated different not because of mr har said to a new myself my opponent mentioned that this is a novel case just because this is a novel case doesn't mean that mr harvard's rights go out the window it doesn't mean that and prosecuted by racially biased police officer in the white victim walk free i'm sorry not the way feck them the way perpetrator walks free i respectfully request that this honorable court reversed the lower court's decision to grant summary judgment thank you for your thank you thank you any other questions judgment deller judge words no thank you ok thank you very much counsel we appreciate your arguments and will take the matter under advisement and we wish you and your family the best in this time of national crisis have a good day