criminal charges against the plaintiffs were dismissed on speedy trial grounds the district court granted summary judgment to the defendants reaching only one issue with respect to each defendant and this court need go no further with respect to bristow the court held that as a matter with respect to the district court held that as a matter of law had probable cause to arrest and prosecute the plaintiffs i will address each of these issues in turn beginning with bristow the district court held that bristow did not act under color state law because in order to do so he was required to but did not exercise abuse his authority under state law and that additionally his conduct would have been no different had he been employed by a private entity these are who's a four person or supervisor and such an entity that happens to be a state or regional entity what is his what are his or her actions and action where we are on generally a public employee acts under color state law while acting in their official capacity so in this case bristow was acting and the m t a doesn't dispute this that person was acting in the course of his official duties throughout the investigation and particularly with respect to december  their official duties when they're working when they're at work nine to five and one of the everything they do or one do we decide i think everything that they do that is within their duties that is within the authority granted to them by the state would be state action which is different from a state employee who just happens to be a state employee but is acting in the ambit of a personal pursuit someone who engages perhaps in sexual harassment or versus cal a i'm sorry a police officer who's off duty shoots a guest in their home that person just happens to be a state employee but in no way is relying on or exercising their authority under state law by contrast here bristow is assigned to he's instructed to keep an eye out for theft at the bat theft at the depot to keep a count of batteries and specifically on december th two thousand and twelve he's instructed to go to the engine wash find out what's going on there and report his findings back to his supervisor and the findings that he reports back are allegations that plaintiffs have stolen batteries from the depot he then goes further than that and explicitly invoking his authority as an m t a bus foreman tells police that when the plaintiff's left the depot with batteries or rather when de falco left the depot with batteries on december th that he wasn't exercising his ordinary duties as a helper which sometimes and this is undisputed involved removing batteries from the depot but rather he was engaging in theft and verse or knew that he said because all equipment movement had to be reported to him and he knew that de falco did not have authority to leave the depot with batteries on that day he was trying to tell supervisor and it's undisputed that bristow not only wasn't around december th that he had never been his supervisor he didn't know what his schedule was that day he didn't know what his assignment was that day he never spoke with his supervisor that day and he admitted that department which was to do surveillance basically i think it matters to the extent that by giving instructions to keep his keep his eye out for theft at the depot to keep account of batteries to you know to  to his supervisors that three of his coworkers had told him that they had seen theft at the depot and for the st three months of the investigation from september up until december th continued to report yes but just december th was the st time bristow claimed to have himself witnessed a theft and the allegations span and there were multiple employees who he made allegations against and they included  and francis bristow the appellant's entire argument in this case is premised on a false assumption that francis bristow knowing the in purposely lied about what he saw on december th two thousand and twelve that that premise pure speculation there is nothing in the record to support that assumption what do you say i mean there is aren't there the photographs of the taken out of the window from which he purportedly observed certain things that these look to me and therefore i assume could look to a reasonable juror as if he could not have seen the things he said he saw or at least you couldn't see in them where he said he saw them your honor this to bristowe and his deposition consistently said that he looked out the window in that building i think of that and also in his written statement he said the glass door which seems very clear the door is not made of glass the door is solid with a very small window in it and i think that it would be  surprised to hear this one i thought the one thing that was relatively clear in the case was that there were disputed issues of fact as to whether he did see how do you even have seen the things that he you started out by saying this is what we need to go into the entire case of the other side is based on a false premise because it's not true that he didn't see the things or that he lied about what was going on so if it's totally immaterial why are we where you arguing that it's not true fact your honor the question of whether mr bristow can actually see what he claims to have seen that day really only matters for purposes of whether he was acting under state law under color of law for section one hundred and eighty three to get to the point of whether he was a state actor that day but in terms of the false arrest claim we can go into the details of false arrest and whether the whether the plaintiffs have met each of those elements and they clearly haven't there's no l i'm sorry i'd like to that's not what the district court the district court did not even mention mothballs arrest claims and did not reach the merits of a mine nine hundred and eighty three claim based on faith false arrest the issue i thought that we were here to address is that the district court said that bristow is not a state actor you started out by saying that as a matter of fact there it is totally false that bristow lied about anything so i don't know i still don't know why we're even talking about that but if we are going to dispute here really is whether he knowing the lied about it there is no evidence in the record that he knowingly lied about what he saw the evidence is that he the evidence that's in the record is very clear that he believed he saw what he saw could the evidence is that because he says so but couldn't the jury infer from the fact that a he said he looked through a glass door that does not exist b to the extent there is glass in the door at all you cannot apparently or a reasonable jury could so find see what he said he saw where he said he saw it from that location see that he said various people told him  that these folks were stealing batteries when they all deny that they told him that and de that the supervisor of one of these two plaintiffs contradicts the story of what happened on the day that bristow said he saw what he saw now if a jury believes all of those facts and concludes that bristol in fact did not see what he saw given the weight of those things why couldn't they infer from that that it must have been intentional that this couldn't be a mistake and one could be a mistake west or who cares too could be a mistake maybe he saw them with the batteries but not in the washing station but by the time we're adding to  that that maybe he lied about what other people told him and that in fact an involved apparently neutral witness says i was there and  that he that he the supervisor hernandez was in the truck with him and there were no batteries in it a reasonable jury could not confirm that bristow lied intentionally about what he says he men who worked at bristow they don't claim to have been there that day bristow was an eye witness not about that they say they did not tell bristow something that bristow told the police each of them had said no i can think of reasons why they might be lying about that there's this sort of note that is found and somebody has lunchbox that is a memo that says they reported these things and i don't know who put it there and maybe someone put it there to make them feel like they were being accused of being a rat and then they have to deny it that's nice speculative theory but that's just jury stuff that's about why who's telling the truth and why so why isn't it relevant that besides the issue of what he says he saw he also said other things that are now contradicted by the people that he is relying on i don't think that's relevant for this particular eyewitness event and the fact that a man may have credibility issues for other events doesn't make him a bad witness for this particular one that where we haven't even gotten to his general credibility we haven't gotten to his criminal record we haven't gotten to the fact that he was a thief because i'm not sure that those are things that the police officer saw and what he says other people told him and they're both highly suspect a reasonable jury could find that both of those elements were to say the least inaccurate isn't that right that in order to get to a jury there would have to be evidence in the record that either of them was inaccurate in order to know what about the evidence of the affidavits of the three people who deny saying what he attributes to them and what about the photographs and testimony of the plaintiff they claim that bristow that they never told president something art of bristow's case that's part of what he tells the police that they are accusing him of making up a false case against them that's half the case is the three other people the other half of the case is what he says he saw right there there are different cases this case only involved the december th two thousand and twelve battery that that's the only that's the only case here the other cases were against different people and they do in the couple of questions and give you an opportunity to help me work this yes your honor judge chen i believe in the kid among other things that there was probable cause for the plaintiff's arrest is that right buses interest was in immediately suspending individuals who are accused of theft is that right now that may be relevant to due process claims here but tell me you want to address we can assume if he's going to get qualified immunity he must have been a state actor let's assume he just ok what object to be reasonable for mr bristow to have believed what he was seeing was a crime that day his supervisor called him as the supervisor drove out of the depot saying i see something strange happening with the trend tell can you go and watch them so he did it was unusual for far rockaway and a j f k employee to be working together they were separate depots as ms harris says they had separate supervisors it would have been very unusual for that to have been a situation where the two employees from two different depots would be loading batteries or moving batteries together that was not a normal  objectively reasonable for him to have believed what bristow told him taking the issues of bristow's credibility aside at least reasonable means in the context of qualified immunity includes a range of actions there right that's right and we have to it's not the reasonable man that to call me at that time when caro was the only detective working on the case right know there were other detectives also working on the case i was handed over to him it was handed over in the main detective working on it i was detective missing from the counterterrorism task force and i was handed over to detective long garro but there were other detectives and detective longoria for example went to make the arrest he went with a partner from his office was he not the case agent so to speak and she's the one in charge of the investigation yes he wasn't that somebody about it but also but isn't that sort of what you know it's not a question of did he call we don't know whether he called or he didn't call the question is could a reasonable juror make that finding because knowledge of this phone call it doesn't appear in his case records that he spoke with suki but even if you say himself that he doesn't know whether he called or didn't call he says he also says that he repeated records everything that he does have a case in his file and they aren't is exactly questions that go to a jury if you have a witness who says a detective from the m t a called me and garro is the person who is in charge of the investigation and the only person in charge maybe other people are helping him and you know we somebody is going to have to draw inferences about what actually happened we don't even have a flat statement from long arrow i never called anybody to check out that story we only have it best from him and i don't remember and we've got various facts in the record from which people could draw inferences so that's that's how this works either there was a case that a jury needs to make fact findings before we can decide an issue which by the way the district court never decided in this case and you're asking us to say as a matter of law there is qualified immunity based on a set of assertions a set of facts that may or may not be correct your honor there it's speculation it's it doesn't even rise to the level of facts here where you're saying it is not a reasonable inference that when a key witness in the case says i said something on the telephone to a detective from the m t a whose name i don't remember who called me and the person it's not a reasonable inference that the person who is in charge of that investigation either made that call or that someone made it on his behalf and reported back to him that's not something that's just speculation that's not something that could be inferred i'd there's no  does that's what i took that was the premise of my question given that could a reasonable juror infer is it a reasonable thing for a juror to conclude by a preponderance of the evidence that more likely than not this was call was either made by a longer are or were reported to him you're saying that is not a reasonable inference i don't think with more with more detail without more detail i don't think it would be reasonable for a juror to assume that it was somebody acting as our as to how mind to conclude it's an unreasonable inference what if i may ask the question what the judge chand how would judge chen and her opinion have responded to judge lynch is concerned i believe she called it speculation side response to this the real argument that you've got is that it's within that we have a police officer who even if it is true that bristow totally made up ninety percent or all of what he has to say on th subject that a reasonable police officer doesn't know that about bristow is lying he has a witness who says this and this sickly the only thing that might cast doubt on his credibility is known to the officer or maybe that someone disputes a part of bristol's testimony and maybe the officer should have seen should have looked out that window and made an assessment that for all we know he never actually made that observation and therefore it's within it's at least arguable probable cause for the officer isn't that really the argument yes and to to further bolster or to balance on st as credibility a little bit before detective ongaro arrested falco the st one of the two to be arrested a day before he arrested vincent williams who admitted to having stolen bus batteries so if bristow is not an incredible witness would some longer also has a reason to believe bristow because statements about williams were corroborated and so all of that goes to the idea that you know maybe that doesn't add up to probable cause he's got a witness who says he says he's an eyewitness and maybe after the fact  turns out he was making it up and that's a problem but the longer road doesn't know that and so maybe he does have probable cause and at a minimum maybe he has arguable probable cause that's right ok there anything else you'd like to say to wrap a couple of months ms harrison i think the thing i'd like to hear of the end of that conversation is with respect to longer than you did not address why is it not the case that a police officer who has a purported eye witness telling him i saw these people in effect stealing batteries or stating facts that would surely make a person think he was doing that agrees and has these statements from other folks even if one of them disputes having having given the information why couldn't a reasonable officer believe look i've got the eyewitness maybe there are issues with his credibility that will get sorted out in due course but i have at least got a reasonable basis to think that a crime that at a minimum argue probable cause going to we don't dispute that in the in the ordinary course of things generally a police officer may rely on a victim informant or an eyewitness to establish probable cause but that's only true when there aren't reasons to doubt that person's credibility and in this case there are substantial reasons that a reasonable jury could have found existed that should have caused the guard to question his credibility the principal reason was that a reasonable jury could find that little girl went to the fuel station office and having looked at those pictures you can see it was not possible for anyone to have seen anything happening at the engine wash entrance right from the window why do we think that i mean you know what if longer oh just didn't look he wasn't looking for that he went to that office but he wasn't really paying attention or there's no evidence that longer are oh so pictures or had made observations like the ones that your investigators made your hon to moni and this is page forty eight of plaintiff a balance open opening brief was that he went to the depot he recalled being there one time specifically to look at the look at the layout i'm i observed the location where he was staying and what the location the theft was occurring from to see if there was an actual view from that location and that was before the arrest of and that was before the arrest  have we don't know exactly what day but he wasn't assigned the case until february so we can assume no one visited the fuel station office at that time and no one had spoken with suki so there wouldn't have been reasons at that time to question  credibility but he didn't make the arrest at that time instead they waited three months and i think that matters also in considering the totality of the circumstances here this was not a situation where there was an urgent need to make an urgent arrest the alleged crime happened three months prior and by the time they got around to making the arrest they did have reasons to doubt credibility and those reasons should have caused longer to conduct some further investigation and it's undisputed that he conducted no further investigation prior to making the arrest based solely on bristow statements and the district court because the district court believed there was probable cause the district court never addressed qualified immunity that's correct and if the district court  d well ok so we don't have any conclusions about what facts might or might not be in dispute or might might or might not be reasonable with respect to if we don't think there's probable cause you know maybe some of these nuances would have a big effect on what's reasonable and what's not the that's great that the district court did not reach that issue i think that the arguments in support of probable cause are more or less the same arguments in support of qualified immunity because it's the same disputes of fact that aren't well but then you've got a you know then you can take the facts in the light most favorable to you but you're applying a different standard when one is asking not is this a probable cause or is even on that you say there's not probable cause if the officer has reason to question the credibility of the witness that can't really be the standard right and officer must always have reasons to question the credibility of fire an officer i wouldn't necessarily believe what anybody tells me for sure there's always people have motives that officer comes upon a fight in the street and  each day the other guy did it the officer could arrest them both right whoever whoever started it without making a determination that you know i'm i believe this guy i don't believe that guy there is a dispute it would have to be something like strong reasons to question the credibility or reason such that a reasonable officer could not believe this person i think it has i think the standard is is something like you've articulated and there's no question that officers are permitted to and do and must make credibility determinations in the course of conducting investigations but the argument here is that no reasonable officer knowing what  specifically i'm talking about principally that it was not possible to have seen the theft from that location but also if we put it to a jury and make it a fact finding as to whether longer made these observations  you know maybe a reasonable officer would have or should have made when their answer to that question be very significant as to whether it's qualified immunity or not i think in order to find qualified and unity without bringing this to a jury you would have to find that even if went to the location that he says he went to and observe the view he says he observed and saw that this couldn't possibly have happened that a reasonable offer officer still could have relied on their statement to