Legal Case Summary

. And a criminal investigator named Mr. Haines gets that report about 17 days later, or looks at the report about 17 days later, in context, Mr. Griffith. And tells Mr. Griffith, if you want to pursue this case, you've got to come in and sign an affidavit for us. Mr. Griffith doesn't come in and sign the affidavit. About a year later, April of 2010, I'm sorry, March of 2010, Mr. Griffith calls investigator Haines and says, what's going on with my case? And investigator Haines says, well, you never came in to sign your affidavit, though there is no case. He said, if you want to pursue this case, you need to come in and sign your affidavit. So Mr. Griffith came in, in April of 2010, and signed his affidavit. The packet of information, including that signed affidavit, was transmitted to the county attorney's office on July 29 of 2010. The county attorney's office reviews that information. The county attorney's investigator executes an affidavit, a complaint that's sworn to, and it's presented to Judge Bench, who's a county court of law judge, which in Texas is a licensed attorney. The county court of law judge and neutral, independent, intermediary, and magistrate reviews the information and issues a warrant for Michael Milton. Now the warrant itself doesn't contain identifying information dated birth, driver's license, number, anything like that. Which in most warrants I was saying they're executed by county courts and district courts they do contain that information. So it's a little bit unusual warrant. Well, the warrant that I see from Judge's usually have the identifying information. And if it had that, then we wouldn't be here. If the judge had done his job, we wouldn't be here. It's a bottom line. Judge, it's done his job. Pardon? The blame on the judge? Well, Your Honor, I think the county court of law judge ought to review all the information, and I think it's his responsibility to make sure that any warrant that is issued is issued for the right individual. He's a final determiner

. Now the county court of law judge has absolutely information. The whole information was the middle name, right? Pardon your Honor? The whole information was the middle name, right? Well, Your Honor, there was no false information it was submitted. And there was no middle name submitted. The affidavit just submitted Michael Milton. That's all the affidavit that was issued by the county attorney's office did. So nobody made a false representation? Nobody made a false representation. And this is not one of those cases where the officers have some personal vendetta or their persons spoken out against police. This is not where they're trying to get this guy on the side. It's just a complete error. That right? Everybody agrees with that? Yes, Your Honor. It's a complete error. There's no malice. There's no... Well, does everybody agree it? It was not a reckless mistake? Yes, Your Honor. I think everybody does. Well, they've done it. I think so, Your Honor. I guess they'll tell me, but if they agree that it wasn't reckless and it wasn't false, I don't know why we're here. But we got 30 more minutes, so go ahead. Yes, Your Honor. Thank you very much. The affidavit actually of their expert, who's a retained expert witness, who's being paid money, all it says is that he doesn't think that..

. You're wrong with that, is there? Oh, no, Your Honor. It's just, in my experience, you can pretty well... You can get experts to say a lot of different things. What you're saying is right. We wouldn't have put this case on a full argument, but we thought there was a serious question here as to whether the false wrong information was recklessly given to the judge. And, surely, if no error-erroneous information was given to the judge, there are no case. Well, I agree. The only thing that shows in the record that was given to the judge is the affidavit that was prepared by the Ken Nutanee's office and Justice Michael Milton. You know, but the really important thing here... is to introduce the wrong person to the matter. The wrong person, actually, I believe, was Mr. Griffith who introduced the situation. He provided the identifying information. But he didn't give the middle name. He did not to... not to acknowledge. Right, so how did they get the wrong middle name then? That's a great question, but I think what actually happens is you get the identifying information, you get the characteristics, you get the address, you get the age. And then a lot of times it goes through dispatch, a lot of times it goes. But, you know, just.

.. But in this case, that was Phillips who got that information from the victim. That was Phillips who got the identifying information from... All right, so you're saying everybody agrees? It wasn't reckless and it wasn't false and all that. So I'm reading from the District Court's order with a judge that offered suggests it was improper. Offer it is the expert that was hired by the plaintiffs who's a former Sheriff's Deputy who gave an affidavit talking about how they use this PID system. Yes. And he says it was improper to use the PID system without further knowledge of the assailant's characteristics. That's one of the things he says. Offer it. I'm just asking if that's what he says. That's what District Court had in order. So he did say it. Yes, you are. That's what they do. So, and so then the judge says further, the mechanics of the PID system remain unclear. It also remains unclear the extent to which Phillips obtained identifying information of the assailant from Griffith. And whether any of that information was cross checked against the PID results. And so then he goes further and he says, and so that is we have some disputed facts about what the cond... what Phillips conduct was and what Phillips should have done that those disputed facts were sufficient that qualified immunity ought to be denied at this time. Now, it doesn't mean that the facts are developed later that he did everything he was required to do. He didn't misuse the system

. He doesn't have to get any other identifying information. Nobody ever does. If all that's borne out, then he could perhaps be entitled to qualified immunity. But what the judge said is those facts are undeveloped at this time because as I understand your position, what you say is he didn't sign the affidavit therefore qualified immunity. We're not talking about what he did on the PID system, what he looked at, what he should have done. We haven't offered any evidence of facts in connection with that. We meaning you and your side. We're just saying legally he's entitled to qualified immunity because he didn't fill out the affidavit. Isn't that your position? Your Honor, actually there's three positions that we've taken in the case. All right. First is that he did not sign the affidavit. He was not the investigator assigned in the case. He was simply the B deputy. The deputy... Is that all three of them? No, Your Honor. That's the one that he didn't sign the affidavit, which is the one I said, right? All right. Let's go to two. What's second? The figure, Your Honor, is that the affidavit was submitted by their expert and the court actually finds the exact same thing. It's conclusory in nature. The court specifically says, Alfred surmises that this occurred. Alfred suggests this occurred. Alfred has no personal knowledge of what occurred. He has no personal knowledge at all. And we point that out in our reply brief when we talk about how that evidence should not be considered by the court

. It's on page six of our... I'm sorry, our reply to the response to our motion for assembly judgment. So it's pointed out to the court below that this is not evidence that should be properly considered because this person has no personal knowledge of what occurred on this occasion. And even the court concludes that these are conclusions surmises suggestions. I thought you also have a point that it doesn't matter what the expert says that it most disurrises to negligence because it's not... Even if the guy failed to check something and a cross thing, that it's not the kind of recklessness that's legally cognizable as recklessness in this context. I totally agree, Your Honor. That is the argument, one of the arguments that we're making. But that's argument number three. That's argument number two, Your Honor. And number three is the causal, the breaking, the causal. What's our argument number two was the affidavit was submitted by an expert and affidavit should be disregarded. That's because it was a conclusionary affidavit. Well, that's the same as what the judge just said. That's two different things, isn't it? One is a legal point that even if it was true and considered, it still doesn't arise to legal recklessness. Exactly. That's a two A and a two B. And then your three is that there was a correct in the causal chain because the judge's involvement. The judge's... You should just not yes in agreement

. Is that right? No, go ahead. Yes, Your Honor. Okay, I'm just trying to make sure we have your arguments. If you're not making an argument, you need to be candid with the court. Oh, yes. I thought these were your arguments. And if they're not your arguments, be sure and tell us. No, Your Honor. There are arguments. That's two A and two B. Now what's three? Three, Your Honor, we have four arguments. And the arguments are Kelly Phillips is entitled to qualified immunity based on McCaleck versus Herman, which is the fact that he did not, he was not involved in, did not submit the affidavit to the magistrate. Second argument is that... That was just like one. Well, that's not affidavit. This is he didn't submit the affidavit. He didn't sign it. He didn't submit it. He didn't sign it or submit it. He didn't sign it or submit it. He didn't know it was being submitted. He didn't know that the criminal investigation division had done anything with the complaint. I mean, he's four steps out of this process. He's the guy on the street

. He sends it to CID. CID gets the affidavit from Griffith. CID sends it to the County Attorney's Office. The County Attorney's Office reviews the information and takes it to the County Court of Law Judge. My guy... What should the judge have done? You said the judge had done his job. What should the judge have done? Well, Your Honor, I think the judge should have made sure that the identifying information was correct if it was incorrect. And I'm not even sure that it was really incorrect. But if it was incorrect, the judge is responsible for reviewing all the information. That's why he's shielded by absolute immunity. He reviews all the information and makes a judicial determination about whether the information rises to the level necessary to issue a warrant. And without some type of intentional misrepresentation or malicious representation, you know... What should the judge have done? You said make sure the identifying information was correct. In this case, what would that have been? Well, Your Honor, I'm going to back off that statement. I don't think it's a fault of the judge. I should probably shouldn't blame the judge. He's relying on the information. But generally, in an arrest warrant, you see a date of birth or you see something on the arrest warrant. And that's what we don't have here. And that's at the judge level. You know, my guy has four steps removed from that process. And

... The County Attorney's person could have put that in. At each step, it could have been put in. At each step... How could have gone back to the office and got that before? No, Your Honor. I mean, it goes from... You know, it goes to CID for investigation. So it goes from the street officer. He doesn't do the investigation. You did it to do that, okay. It goes to the CID. And from CID, it goes to the County Attorney. So, you know, the point here, Your Honor... Your Honor is that the... It's just qualified immunity. You know, we're just talking about the two individuals who have been sued. Phillips and Meeks

. That's what we're talking about in this case. If the plaintiff wants to pursue his claims against the County, then he can do that. And he can make arguments that something occurred that was improper at these other levels. You recognize this is... Look, everybody's nightmare. That they're the wrong guy. And there's telling everybody they're the wrong guy. And they're stuck in jail and nobody believes them. I mean, this is just like, you know, and this is a terrible nightmare. You know, and unfortunately, it happens in our system. I mean, we have the best criminal justice system in the world. We have the best civil justice system in the world. But mistakes do get made in our system. And it's unfortunate when they happen, but they do get made. And even judges who are doing their dead-level best to do everything right, make mistakes. As do investigators, as do law enforcement officers. And one reason it's the best system is the errors get corrected sometimes. Yes, yes. The first solution of it, reversals do occur. And they're really the only thing that works. Well, it makes everything honest. Well, I'd try to make everything honest. I mean, our court system is fantastic with the way that it works. I mean, we're extremely fortunate and lucky. My officers are fortunate and lucky to be in a court system that will analyze their actions and make a determination if they should face the rigors of trial. I'm sorry. I'll run you out of town. That's all right, Your Honor. Thank you very much. Mr. Dub. May it please support and counsel. Your Honor, I believe that this argument needs to be framed with one of my clients' claims also included official immunity under state law. But appellant did not bring that on appeal as well. Looking at the judge, God be's order. And the state law is that the elements for official immunity are substantially similar to the reasonableist of the federal qualified immunity claim. So even if this court, and I would submit to you, even if this court decides that we don't get to proceed on our qualified immunity claim, those same exact issues are still going to be litigated on the state law claims of official immunity. Those can go back to state court, can't they? They can. But I would just frame my argument in that as the overall result of this court's ruling on the effect on the appellant may end up being the same. But saying that, I would like to speak to the facts in this case. That sounds like so-so-okay if I lose here because I still got them. That's what that sounds like. If you're making an argument for us, the rule for you, you got to tell me how that statement helps you. Maybe you're just being candid and I appreciate your candid, but... Well, Judge, does it help you? I believe just as an overall for a judicial economy and I was being candid to the court, yes, in explaining why I believe that any party is not going to be affected. I mean, I should rephrase that I believe that my argument's framed within that. So I'm just saying you should lose on your argument, but we should send you on back there and you can go to state court and hash this out. No

. My officers are fortunate and lucky to be in a court system that will analyze their actions and make a determination if they should face the rigors of trial. I'm sorry. I'll run you out of town. That's all right, Your Honor. Thank you very much. Mr. Dub. May it please support and counsel. Your Honor, I believe that this argument needs to be framed with one of my clients' claims also included official immunity under state law. But appellant did not bring that on appeal as well. Looking at the judge, God be's order. And the state law is that the elements for official immunity are substantially similar to the reasonableist of the federal qualified immunity claim. So even if this court, and I would submit to you, even if this court decides that we don't get to proceed on our qualified immunity claim, those same exact issues are still going to be litigated on the state law claims of official immunity. Those can go back to state court, can't they? They can. But I would just frame my argument in that as the overall result of this court's ruling on the effect on the appellant may end up being the same. But saying that, I would like to speak to the facts in this case. That sounds like so-so-okay if I lose here because I still got them. That's what that sounds like. If you're making an argument for us, the rule for you, you got to tell me how that statement helps you. Maybe you're just being candid and I appreciate your candid, but... Well, Judge, does it help you? I believe just as an overall for a judicial economy and I was being candid to the court, yes, in explaining why I believe that any party is not going to be affected. I mean, I should rephrase that I believe that my argument's framed within that. So I'm just saying you should lose on your argument, but we should send you on back there and you can go to state court and hash this out. No. I'm really puzzled too, why you began with that. No, Your Honor. Well, then let me get to the factual part of the argument that I think that this case turns on. The officers' actions were reckless because, number one, when you look at the affidavit that Mr. Alford did and the court had started to focus on that, that not only was the Michael Glenn Melton, it was more than just a middle name issue. Included in the record is that both Alford as our expert and the appellant both stated at some point that Mr. David Glenn Melton, the actual salient, is a known criminal, and that based on that, they should have looked more than what was in the information made to make that. But who should the beat officer have to do that? When they're just filled not the report, they have to put that in. I mean, I don't, why is that on him? It's on him because part of what his report included a type, he had a handwritten report that he submitted to the court, or submitted to CID, and then he included a type written report attached to that that included my clients identifying information. There is no other possible way that this officer could have obtained that information without going to the PID system, meaning there's no other possible way that it could have, they should have known and he was reckless of looking at anybody else, but Mr. So it's undisputed that Mr. Phillips himself introduced the wrong person into the situation? I believe it is. I believe that's what the, you know, based on the affidavit of my expert is that, and as appellant has said, that it was, it's a conclusory argument, okay? I would counter that to say is that Alfred had eliminated all other possible ways that this extra information was entered into, and then it was forwarded on to CID. How much discovery has occurred? Almost little, very little. There were attached to the individual petition that State Court was attached to a request for disclosures, those were never answered because it was removed to federal court, then after a short time Judge Gabi entered a scheduling order and within 60 days, that appellant made its motion for summary judgment. There have been no depositions and no others, and that is one of the counter alternative arguments is that that just has been not enough time to hash out these facts. And is, is, makes totally out. I believe he's still in on his official community claims. Okay, so, makes is in only on the state law claim, and Phillips is in on this claim, and he's in because he allegedly introduced it by attaching a computer report. The wrong name might, is that right? Yes, sure. Okay. What case would tell us that this is reckless disregard for the truth as opposed to a clerical error? And that's where I would point to the trial court's order, looking at the Frank's case, is that it was a reckless misstatement by making it, by going into this system and finding the first person with a Michael Melton and not cross-checking it. That amounts to the reckless statement. Weren't the officer in heart more involved than the preparation of the affidavit than Phillips was here, undisputably? Well, in heart, that is true, but the difference between heart, they were more involved, but the difference between this and heart would be that heart involved, like Malichick, multiple officers and making their own conclusions. This case revolves about one person, and only one set of facts with one victim in this case that gave any information. Right, but he's not making any conclusions

. I'm really puzzled too, why you began with that. No, Your Honor. Well, then let me get to the factual part of the argument that I think that this case turns on. The officers' actions were reckless because, number one, when you look at the affidavit that Mr. Alford did and the court had started to focus on that, that not only was the Michael Glenn Melton, it was more than just a middle name issue. Included in the record is that both Alford as our expert and the appellant both stated at some point that Mr. David Glenn Melton, the actual salient, is a known criminal, and that based on that, they should have looked more than what was in the information made to make that. But who should the beat officer have to do that? When they're just filled not the report, they have to put that in. I mean, I don't, why is that on him? It's on him because part of what his report included a type, he had a handwritten report that he submitted to the court, or submitted to CID, and then he included a type written report attached to that that included my clients identifying information. There is no other possible way that this officer could have obtained that information without going to the PID system, meaning there's no other possible way that it could have, they should have known and he was reckless of looking at anybody else, but Mr. So it's undisputed that Mr. Phillips himself introduced the wrong person into the situation? I believe it is. I believe that's what the, you know, based on the affidavit of my expert is that, and as appellant has said, that it was, it's a conclusory argument, okay? I would counter that to say is that Alfred had eliminated all other possible ways that this extra information was entered into, and then it was forwarded on to CID. How much discovery has occurred? Almost little, very little. There were attached to the individual petition that State Court was attached to a request for disclosures, those were never answered because it was removed to federal court, then after a short time Judge Gabi entered a scheduling order and within 60 days, that appellant made its motion for summary judgment. There have been no depositions and no others, and that is one of the counter alternative arguments is that that just has been not enough time to hash out these facts. And is, is, makes totally out. I believe he's still in on his official community claims. Okay, so, makes is in only on the state law claim, and Phillips is in on this claim, and he's in because he allegedly introduced it by attaching a computer report. The wrong name might, is that right? Yes, sure. Okay. What case would tell us that this is reckless disregard for the truth as opposed to a clerical error? And that's where I would point to the trial court's order, looking at the Frank's case, is that it was a reckless misstatement by making it, by going into this system and finding the first person with a Michael Melton and not cross-checking it. That amounts to the reckless statement. Weren't the officer in heart more involved than the preparation of the affidavit than Phillips was here, undisputably? Well, in heart, that is true, but the difference between heart, they were more involved, but the difference between this and heart would be that heart involved, like Malichick, multiple officers and making their own conclusions. This case revolves about one person, and only one set of facts with one victim in this case that gave any information. Right, but he's not making any conclusions. He's just pushing a button and attaching the wrong report at most, right? You're not saying he's making a conclusion that your client is the person who's really responsible in a sort of way. Well, he is by submitting that person to the next up the chain and identifying it to become the arrest warrant. Okay, why isn't the chain of causation broken under our precedent? Because this court's, excuse me, the trial court of that sign that arrest warrant information was tainted because of the reckless misstatements of officer Phillips. There's no way that that court would have been able to make that determination had it not been for the reckless misstatements of officer Phillips. So, is your best case, what is your best case that this is reckless disregard for the truth as opposed to error? I'm still not clear on that. Because... I don't see how this is reckless disregard. It's reckless because not only did the defendant know that the actual assailant was one of a known criminal person in this county. And I think that's a good time to bring up... The penalty had brought up Fitch v. Moro. I think that that is a case where this court had determined that, as you said, judge, that it is not more than just because that was a Harris County case. And in Harris County is, you know, three million people were as Hunt County is about 80,000. So because it's not a big county, he should do better on his computer. Is there a case that's good for you in this area? That's a bad case for you. That is a bad case, but I think it's distinguishable. But the problem is that Phillips and our Alfred both said that the actual assailant was a known criminal to the department. And that should have been enough of a flag for them to be like, oh yes, I know that this is not the guy we're looking for. It is this individual. This individual has a criminal record. And not only that, they put in, you know, identifiers that were my client's birthday and his driver's license based on that system. If it's right there in front of them, if they have it for their disposal in a system of a county of 80,000 people, there can't be that many people with them

. He's just pushing a button and attaching the wrong report at most, right? You're not saying he's making a conclusion that your client is the person who's really responsible in a sort of way. Well, he is by submitting that person to the next up the chain and identifying it to become the arrest warrant. Okay, why isn't the chain of causation broken under our precedent? Because this court's, excuse me, the trial court of that sign that arrest warrant information was tainted because of the reckless misstatements of officer Phillips. There's no way that that court would have been able to make that determination had it not been for the reckless misstatements of officer Phillips. So, is your best case, what is your best case that this is reckless disregard for the truth as opposed to error? I'm still not clear on that. Because... I don't see how this is reckless disregard. It's reckless because not only did the defendant know that the actual assailant was one of a known criminal person in this county. And I think that's a good time to bring up... The penalty had brought up Fitch v. Moro. I think that that is a case where this court had determined that, as you said, judge, that it is not more than just because that was a Harris County case. And in Harris County is, you know, three million people were as Hunt County is about 80,000. So because it's not a big county, he should do better on his computer. Is there a case that's good for you in this area? That's a bad case for you. That is a bad case, but I think it's distinguishable. But the problem is that Phillips and our Alfred both said that the actual assailant was a known criminal to the department. And that should have been enough of a flag for them to be like, oh yes, I know that this is not the guy we're looking for. It is this individual. This individual has a criminal record. And not only that, they put in, you know, identifiers that were my client's birthday and his driver's license based on that system. If it's right there in front of them, if they have it for their disposal in a system of a county of 80,000 people, there can't be that many people with them. But in that part, the problem in this case, and didn't have the reason that the district court did not qualify immunity at this time, it just says it's unclear what the PID does, how it ought to be used, whether or not using that alone is sufficient, whether or not you ought to do some cross references, cross checking, aren't all those facts undeveloped at this point, which is a sufficient reason to determine that you got a genuine dispute of facts that are material. And so you don't grant qualified immunity at this stage. Exactly, Judge. And I would also add that not only is it just based on the PID system and identifying this, but the laps of time of two years just weren't just sat on the county's desk that there was not any effort made to they never found the right individual. If it's just sitting there, I think that would be part of the recklessness of the of the appellent to not follow up if they're correct. The county did is imputed, did you? I'm sorry. What the county did? How is that imputed to the BID officer? Because in a, not in charge of the county. No, he's, that's true, but in a county this size, most of these officers, I would argue, have multiple roles. They see these individuals on a regular basis. He has some kind of authority to tell them you better get moving on this or something. No, but he would be the only one in the unique position to identify and tell his superiors that, hey, this is the wrong guy. Okay, can I ask you a couple questions about how there's a fact issue? Yes, Judge. Assuming, argument, though, that your expert is absolutely correct, that this is a bad system to use without doing some cross check or adding some more data. And that he, the officer should have used more data and imputed and done a little more. How is that a reckless disregard for the truth, the failure to use the computer programs incorrectly in conjunction with other data? Because they did have the, they do have the information of the right of sailing. They have, I know, but how is that a reckless disregard? How does that create a fact issue? If we all agree that they could have done something else, I, I, I don't know what the fact issue is. Because if we spot you, that your experts write that they have this other computer system and that it's best practice to do this other thing and you could do more, even if he didn't meet the standard of care in the industry and we spot you the expert and not, not saying the expert is wrong or should be disregarded, I still don't see how you win. I would just submit, Judge, that that is the crux, I guess, is because the information was so readily available and the truth was so easily right there in front of them that he recklessly disregarded it. And you, do you, and I'm going to ask you, I think, for the third time, do you have a case that says that failure to follow the standard of care and the industry of police officers in this sort of way is a reckless disregard for the truth? Just the general statements of the law that I have put forth to the court. No, I don't have a specific case to this exact fact scenario judge. But I would just, well, then why wouldn't he be titled the qualified immunity because it's not clearly established that an officer who fails to follow the standard care in the retrieval of information is a violate why didn't he win on clearly established? Because I don't believe that it has been clearly established by this court or that in fact him not doing those things by him not following the standard care is not is nothing more than negligence. Okay, but you have to actually bear the burden. This is qualified immunity is weird that way of showing that it's clearly established that it is a violation. Even though he gets to raise it, he doesn't have to meet it. You have to come back and meet it. You bear the burden to show that it's clearly established law that an officer would know that failure to follow the standard of care in this in this way is violation of constitutional rights or could be

. But in that part, the problem in this case, and didn't have the reason that the district court did not qualify immunity at this time, it just says it's unclear what the PID does, how it ought to be used, whether or not using that alone is sufficient, whether or not you ought to do some cross references, cross checking, aren't all those facts undeveloped at this point, which is a sufficient reason to determine that you got a genuine dispute of facts that are material. And so you don't grant qualified immunity at this stage. Exactly, Judge. And I would also add that not only is it just based on the PID system and identifying this, but the laps of time of two years just weren't just sat on the county's desk that there was not any effort made to they never found the right individual. If it's just sitting there, I think that would be part of the recklessness of the of the appellent to not follow up if they're correct. The county did is imputed, did you? I'm sorry. What the county did? How is that imputed to the BID officer? Because in a, not in charge of the county. No, he's, that's true, but in a county this size, most of these officers, I would argue, have multiple roles. They see these individuals on a regular basis. He has some kind of authority to tell them you better get moving on this or something. No, but he would be the only one in the unique position to identify and tell his superiors that, hey, this is the wrong guy. Okay, can I ask you a couple questions about how there's a fact issue? Yes, Judge. Assuming, argument, though, that your expert is absolutely correct, that this is a bad system to use without doing some cross check or adding some more data. And that he, the officer should have used more data and imputed and done a little more. How is that a reckless disregard for the truth, the failure to use the computer programs incorrectly in conjunction with other data? Because they did have the, they do have the information of the right of sailing. They have, I know, but how is that a reckless disregard? How does that create a fact issue? If we all agree that they could have done something else, I, I, I don't know what the fact issue is. Because if we spot you, that your experts write that they have this other computer system and that it's best practice to do this other thing and you could do more, even if he didn't meet the standard of care in the industry and we spot you the expert and not, not saying the expert is wrong or should be disregarded, I still don't see how you win. I would just submit, Judge, that that is the crux, I guess, is because the information was so readily available and the truth was so easily right there in front of them that he recklessly disregarded it. And you, do you, and I'm going to ask you, I think, for the third time, do you have a case that says that failure to follow the standard of care and the industry of police officers in this sort of way is a reckless disregard for the truth? Just the general statements of the law that I have put forth to the court. No, I don't have a specific case to this exact fact scenario judge. But I would just, well, then why wouldn't he be titled the qualified immunity because it's not clearly established that an officer who fails to follow the standard care in the retrieval of information is a violate why didn't he win on clearly established? Because I don't believe that it has been clearly established by this court or that in fact him not doing those things by him not following the standard care is not is nothing more than negligence. Okay, but you have to actually bear the burden. This is qualified immunity is weird that way of showing that it's clearly established that it is a violation. Even though he gets to raise it, he doesn't have to meet it. You have to come back and meet it. You bear the burden to show that it's clearly established law that an officer would know that failure to follow the standard of care in this in this way is violation of constitutional rights or could be. Well, and then it's because of this particular set of facts. I don't believe I've been presented to this court and that that's right. And sometimes if it hasn't been that's unfortunate for people who want to make law in this area for the plaintiffs, but because because but that's the way the law works, isn't it? Well, Judge, I'm not asking this court to make law for what I am asking is that to make a distinguish of the cases that I do admit are bad for me, such as is is fish. I mean, I understand that. And back to that fish case, you keep asking me or the court has asked me about a case that is good for me. I would only just be able to distinguish that case because in that case, not only did that officer look into the initial investigation, they used a computer data system, but that officer took the time and testified to say that he compared these two names of two individuals and compared other identifying the case. And then it made a conclusion that it was the same person. This officer didn't do that. This officer had a much smaller database available to him with individuals that these officers know I can tell you in this, the county of this size is that these officers know who the bad guys are. And by having it so readily available to him, he failed to look anything past what he had right there in front of the record show that your client's name was in the computer. No, that has not been developed has not been able to develop in the record. So the record doesn't show whether the other man's name was in there either the real bad guy, the real criminal, Michael Glenn. It doesn't say it does we don't have that in the record yet, no objection. Or we know is that the officer. Well, in my officer, my expert argues that based on his knowledge of the system, his knowledge of the actual same at Michael Glenn Melton is why it would be in there because he has known this one as a known criminal of the community. That's why he would know. And we get there by. By process of elimination and and my officer's expert opinion on his inner workings of that particular department in that size county. Your expert says both names were in the computer. No, he does not specifically say that. And that is would be something that we had asked the lower court to help us deep time to develop. In our response to the most important for some reason originally. Your client have a criminal record? No, you are. So, arguably I guess he would have no presence in the record. Well, it's not in the record. Him being in that system, you know, we weren't able to develop that as much, but you know, whether or not there's witnesses in that system as well could be part of it

. Well, and then it's because of this particular set of facts. I don't believe I've been presented to this court and that that's right. And sometimes if it hasn't been that's unfortunate for people who want to make law in this area for the plaintiffs, but because because but that's the way the law works, isn't it? Well, Judge, I'm not asking this court to make law for what I am asking is that to make a distinguish of the cases that I do admit are bad for me, such as is is fish. I mean, I understand that. And back to that fish case, you keep asking me or the court has asked me about a case that is good for me. I would only just be able to distinguish that case because in that case, not only did that officer look into the initial investigation, they used a computer data system, but that officer took the time and testified to say that he compared these two names of two individuals and compared other identifying the case. And then it made a conclusion that it was the same person. This officer didn't do that. This officer had a much smaller database available to him with individuals that these officers know I can tell you in this, the county of this size is that these officers know who the bad guys are. And by having it so readily available to him, he failed to look anything past what he had right there in front of the record show that your client's name was in the computer. No, that has not been developed has not been able to develop in the record. So the record doesn't show whether the other man's name was in there either the real bad guy, the real criminal, Michael Glenn. It doesn't say it does we don't have that in the record yet, no objection. Or we know is that the officer. Well, in my officer, my expert argues that based on his knowledge of the system, his knowledge of the actual same at Michael Glenn Melton is why it would be in there because he has known this one as a known criminal of the community. That's why he would know. And we get there by. By process of elimination and and my officer's expert opinion on his inner workings of that particular department in that size county. Your expert says both names were in the computer. No, he does not specifically say that. And that is would be something that we had asked the lower court to help us deep time to develop. In our response to the most important for some reason originally. Your client have a criminal record? No, you are. So, arguably I guess he would have no presence in the record. Well, it's not in the record. Him being in that system, you know, we weren't able to develop that as much, but you know, whether or not there's witnesses in that system as well could be part of it. But I hate to keep coming back to we haven't had the sufficient opportunity to develop that part of it. And the and the and the and the firmness of judge God is ruling now doesn't prevent a later determination that Phillips may be entitled qualified. It doesn't absolutely they can re-erage me. You could develop some facts and you could also be determined to be entitled qualified. I guess I'm guilty of personalizing this. I live in the county, which is relatively small. But there are about six guys named James Graves. And I sure would hate to think that if a warrant got issued and they came pick me up, it'd take me about 16 days to discover that they had the wrong James Graves. And one of them made a guy with no criminal record. And then there's another guy who's a known criminal in the county. And I got to sit in jail for 16 days before they figure out. We got the wrong guy. That's what happened here. Yes. Well, and criminal offendants often say it would me if you got the wrong guy. I mean, that's just something that happens. The only system that they had put in place is the one that they failed to rely on. And that is what we believe is reckless. Okay, sir. We have your argument. Thank you. Thank you, Judge. Mr. Davis. Found a man to whom I'm about. Thank you, honors

. But I hate to keep coming back to we haven't had the sufficient opportunity to develop that part of it. And the and the and the and the firmness of judge God is ruling now doesn't prevent a later determination that Phillips may be entitled qualified. It doesn't absolutely they can re-erage me. You could develop some facts and you could also be determined to be entitled qualified. I guess I'm guilty of personalizing this. I live in the county, which is relatively small. But there are about six guys named James Graves. And I sure would hate to think that if a warrant got issued and they came pick me up, it'd take me about 16 days to discover that they had the wrong James Graves. And one of them made a guy with no criminal record. And then there's another guy who's a known criminal in the county. And I got to sit in jail for 16 days before they figure out. We got the wrong guy. That's what happened here. Yes. Well, and criminal offendants often say it would me if you got the wrong guy. I mean, that's just something that happens. The only system that they had put in place is the one that they failed to rely on. And that is what we believe is reckless. Okay, sir. We have your argument. Thank you. Thank you, Judge. Mr. Davis. Found a man to whom I'm about. Thank you, honors. You know, there seems to be an argument that's being made that the record wasn't properly developed. The court allowed 60 days. The court ordered us to file our motions for summary judgment based on qualified immunity. That was a court's order and ordered us to do it within 60 days. So the plaintiff had ample opportunity to develop whatever evidence and whatever discovery and take whatever depositions they wanted to take. They simply did not afford themselves for that opportunity. So your honor, we shouldn't be penalized because they claim they didn't develop the record. Additionally, your honor, I would. Well, right now they won below though on that one again. As regards Phillips, they won on the record they developed. They won for now. The judge said they get to go forward and no qualified immunity for Phillips. Yes, Your Honor. All right. And did not point out to the court below at any point that they hadn't had an adequate opportunity to conduct all the discovery that they wanted. But in going back, the judge is going to give you an adequate opportunity when you go back to demonstrate that Phillips is in fact entitled to qualified immunity. Isn't that going to happen? No, Your Honor. It won't. The judge issued an order saying that we had to file our qualified immunity motions within 60 days. The court's not going to reconsider that issue. The court's ruled on that issue. We can't bring it back up. We'll have to go all the way through the discovery process. We can file a motion on behalf of the county. You know, but we bring it back up after discovery. We've already conducted some discovery

. You know, there seems to be an argument that's being made that the record wasn't properly developed. The court allowed 60 days. The court ordered us to file our motions for summary judgment based on qualified immunity. That was a court's order and ordered us to do it within 60 days. So the plaintiff had ample opportunity to develop whatever evidence and whatever discovery and take whatever depositions they wanted to take. They simply did not afford themselves for that opportunity. So your honor, we shouldn't be penalized because they claim they didn't develop the record. Additionally, your honor, I would. Well, right now they won below though on that one again. As regards Phillips, they won on the record they developed. They won for now. The judge said they get to go forward and no qualified immunity for Phillips. Yes, Your Honor. All right. And did not point out to the court below at any point that they hadn't had an adequate opportunity to conduct all the discovery that they wanted. But in going back, the judge is going to give you an adequate opportunity when you go back to demonstrate that Phillips is in fact entitled to qualified immunity. Isn't that going to happen? No, Your Honor. It won't. The judge issued an order saying that we had to file our qualified immunity motions within 60 days. The court's not going to reconsider that issue. The court's ruled on that issue. We can't bring it back up. We'll have to go all the way through the discovery process. We can file a motion on behalf of the county. You know, but we bring it back up after discovery. We've already conducted some discovery. I hope, you know, if that were the case that we could, but I don't believe that I think the court will say the opportunity rule on qualified immunity. The motion is addressing qualified immunity. Ordered them to be filed within 60 days. Both parties have addressed it. We're moving forward. But to the point that he said there was a fact issue, then you can fill that fact in. I mean, the court said there was a fact, right? The court said there was a fact issue based on their experts' conclusories. Well, here's what he said. He said these open questions preclude qualified immunity because their resolution in Milton's favor could support a finding that Phillips was reckless and not inidentifiable. He said there was a fact that he was not in the favor of a qualified Milton as the assailant, satisfying the requirements for valid Frank's claim, which by inference means that there could be a resolution not in favor of Milton. Isn't that what that means? He's not saying I won't ever take this up again. He's saying these are open, he calls them open questions. Well, you're on here's the situation that developed it's up to the plaintiffs in the case to defeat qualified immunity. We raise it. They have the burden of proof. If they haven't established the facts and the fact issues that are submitted to the court, then they've lost that opportunity. The burden's on them. It's not on us. And it was in they wants. We just need to affirm. No, you're on. They want you need to reverse in grant qualified immunity. My clients. Can I ask you? Yes, sir. Is it undisputed that Phillips introduced the wrong printout when he attached it to his? Is that true that he attached it to his his his written handwritten report he attached the printout? Is that true? You're on that I don't know we know the handwritten reports there we don't know who you don't know where that piece of paper came from. It could have come from investigation

. I hope, you know, if that were the case that we could, but I don't believe that I think the court will say the opportunity rule on qualified immunity. The motion is addressing qualified immunity. Ordered them to be filed within 60 days. Both parties have addressed it. We're moving forward. But to the point that he said there was a fact issue, then you can fill that fact in. I mean, the court said there was a fact, right? The court said there was a fact issue based on their experts' conclusories. Well, here's what he said. He said these open questions preclude qualified immunity because their resolution in Milton's favor could support a finding that Phillips was reckless and not inidentifiable. He said there was a fact that he was not in the favor of a qualified Milton as the assailant, satisfying the requirements for valid Frank's claim, which by inference means that there could be a resolution not in favor of Milton. Isn't that what that means? He's not saying I won't ever take this up again. He's saying these are open, he calls them open questions. Well, you're on here's the situation that developed it's up to the plaintiffs in the case to defeat qualified immunity. We raise it. They have the burden of proof. If they haven't established the facts and the fact issues that are submitted to the court, then they've lost that opportunity. The burden's on them. It's not on us. And it was in they wants. We just need to affirm. No, you're on. They want you need to reverse in grant qualified immunity. My clients. Can I ask you? Yes, sir. Is it undisputed that Phillips introduced the wrong printout when he attached it to his? Is that true that he attached it to his his his written handwritten report he attached the printout? Is that true? You're on that I don't know we know the handwritten reports there we don't know who you don't know where that piece of paper came from. It could have come from investigation. It's been seven years. It could have come from CID. It could have come from the county attorney's office. Is it in the record of whether the real person was convicted or not? Just curious. Is that in the record? No, Your Honor, there's no there's no record of that. I think the Fitch case is directly on point in our situation. I think it's particularly instructive. A cert was denied in that case. In that case, the investigator who signed the warrant actually went on a computer database and came up with the wrong name. In his actions were deemed to be negligent. He mistakenly picked a plaintiff's name, which was similar but not the same as the name given to him by the investigating officer. And the court said, okay, it's a mistake. That's negligence based on those facts that's negligence. And it was determined by a neutral and detached magistrate that a warrant should issue. So the court found both. In Fitch, I believe it's very instructive to the court and very helpful to us. Thank Your Honor's. I appreciate your time very much. Thank you. Thank you.

Mr. Davis. Thank you, Mr. Gordon. The honors we're here today on an appeal from a denial by District Court of Qualified Immunity to my client, Kelly Phillips, and to the sheriff in Hunk County. Basically, I think the facts of this case are very important. And the undisputed facts are as follows. On June 28, 2009, my patrol deputy, Kelly Phillips, went out because there was a claim that somebody had been assaulted. He met the individual at the hospital. The man's name was Richard Griffith, and he claimed that he had been assaulted by an individual by the name of Michael Melton. The officer got the identifying information, according to the undisputed record, in this case, description of the individual, etc., from the victim of the crime, Richard Griffith. Based on that information, he drafted a report. He took pictures of the individual, too, who was injured. All he did was draft a report with that information in it. He didn't go arrest Mr. Melton. And Mr. Melton was well known to Mr. Griffith. Mr. Melton, that he was complaining about, a day to Mr. Griffith's wife. But my officer didn't go making a arrest based on the allegation that was made. He didn't draft an affidavit in present a warrant or present it for a warrant. All he did was draft a report based on the information that he got at the time of the murder, in person to procedure. When he went back in for the end of the evening, he filed his report with CID, the criminal investigation division. And a criminal investigator named Mr. Haines gets that report about 17 days later, or looks at the report about 17 days later, in context, Mr. Griffith. And tells Mr. Griffith, if you want to pursue this case, you've got to come in and sign an affidavit for us. Mr. Griffith doesn't come in and sign the affidavit. About a year later, April of 2010, I'm sorry, March of 2010, Mr. Griffith calls investigator Haines and says, what's going on with my case? And investigator Haines says, well, you never came in to sign your affidavit, though there is no case. He said, if you want to pursue this case, you need to come in and sign your affidavit. So Mr. Griffith came in, in April of 2010, and signed his affidavit. The packet of information, including that signed affidavit, was transmitted to the county attorney's office on July 29 of 2010. The county attorney's office reviews that information. The county attorney's investigator executes an affidavit, a complaint that's sworn to, and it's presented to Judge Bench, who's a county court of law judge, which in Texas is a licensed attorney. The county court of law judge and neutral, independent, intermediary, and magistrate reviews the information and issues a warrant for Michael Milton. Now the warrant itself doesn't contain identifying information dated birth, driver's license, number, anything like that. Which in most warrants I was saying they're executed by county courts and district courts they do contain that information. So it's a little bit unusual warrant. Well, the warrant that I see from Judge's usually have the identifying information. And if it had that, then we wouldn't be here. If the judge had done his job, we wouldn't be here. It's a bottom line. Judge, it's done his job. Pardon? The blame on the judge? Well, Your Honor, I think the county court of law judge ought to review all the information, and I think it's his responsibility to make sure that any warrant that is issued is issued for the right individual. He's a final determiner. Now the county court of law judge has absolutely information. The whole information was the middle name, right? Pardon your Honor? The whole information was the middle name, right? Well, Your Honor, there was no false information it was submitted. And there was no middle name submitted. The affidavit just submitted Michael Milton. That's all the affidavit that was issued by the county attorney's office did. So nobody made a false representation? Nobody made a false representation. And this is not one of those cases where the officers have some personal vendetta or their persons spoken out against police. This is not where they're trying to get this guy on the side. It's just a complete error. That right? Everybody agrees with that? Yes, Your Honor. It's a complete error. There's no malice. There's no... Well, does everybody agree it? It was not a reckless mistake? Yes, Your Honor. I think everybody does. Well, they've done it. I think so, Your Honor. I guess they'll tell me, but if they agree that it wasn't reckless and it wasn't false, I don't know why we're here. But we got 30 more minutes, so go ahead. Yes, Your Honor. Thank you very much. The affidavit actually of their expert, who's a retained expert witness, who's being paid money, all it says is that he doesn't think that... You're wrong with that, is there? Oh, no, Your Honor. It's just, in my experience, you can pretty well... You can get experts to say a lot of different things. What you're saying is right. We wouldn't have put this case on a full argument, but we thought there was a serious question here as to whether the false wrong information was recklessly given to the judge. And, surely, if no error-erroneous information was given to the judge, there are no case. Well, I agree. The only thing that shows in the record that was given to the judge is the affidavit that was prepared by the Ken Nutanee's office and Justice Michael Milton. You know, but the really important thing here... is to introduce the wrong person to the matter. The wrong person, actually, I believe, was Mr. Griffith who introduced the situation. He provided the identifying information. But he didn't give the middle name. He did not to... not to acknowledge. Right, so how did they get the wrong middle name then? That's a great question, but I think what actually happens is you get the identifying information, you get the characteristics, you get the address, you get the age. And then a lot of times it goes through dispatch, a lot of times it goes. But, you know, just... But in this case, that was Phillips who got that information from the victim. That was Phillips who got the identifying information from... All right, so you're saying everybody agrees? It wasn't reckless and it wasn't false and all that. So I'm reading from the District Court's order with a judge that offered suggests it was improper. Offer it is the expert that was hired by the plaintiffs who's a former Sheriff's Deputy who gave an affidavit talking about how they use this PID system. Yes. And he says it was improper to use the PID system without further knowledge of the assailant's characteristics. That's one of the things he says. Offer it. I'm just asking if that's what he says. That's what District Court had in order. So he did say it. Yes, you are. That's what they do. So, and so then the judge says further, the mechanics of the PID system remain unclear. It also remains unclear the extent to which Phillips obtained identifying information of the assailant from Griffith. And whether any of that information was cross checked against the PID results. And so then he goes further and he says, and so that is we have some disputed facts about what the cond... what Phillips conduct was and what Phillips should have done that those disputed facts were sufficient that qualified immunity ought to be denied at this time. Now, it doesn't mean that the facts are developed later that he did everything he was required to do. He didn't misuse the system. He doesn't have to get any other identifying information. Nobody ever does. If all that's borne out, then he could perhaps be entitled to qualified immunity. But what the judge said is those facts are undeveloped at this time because as I understand your position, what you say is he didn't sign the affidavit therefore qualified immunity. We're not talking about what he did on the PID system, what he looked at, what he should have done. We haven't offered any evidence of facts in connection with that. We meaning you and your side. We're just saying legally he's entitled to qualified immunity because he didn't fill out the affidavit. Isn't that your position? Your Honor, actually there's three positions that we've taken in the case. All right. First is that he did not sign the affidavit. He was not the investigator assigned in the case. He was simply the B deputy. The deputy... Is that all three of them? No, Your Honor. That's the one that he didn't sign the affidavit, which is the one I said, right? All right. Let's go to two. What's second? The figure, Your Honor, is that the affidavit was submitted by their expert and the court actually finds the exact same thing. It's conclusory in nature. The court specifically says, Alfred surmises that this occurred. Alfred suggests this occurred. Alfred has no personal knowledge of what occurred. He has no personal knowledge at all. And we point that out in our reply brief when we talk about how that evidence should not be considered by the court. It's on page six of our... I'm sorry, our reply to the response to our motion for assembly judgment. So it's pointed out to the court below that this is not evidence that should be properly considered because this person has no personal knowledge of what occurred on this occasion. And even the court concludes that these are conclusions surmises suggestions. I thought you also have a point that it doesn't matter what the expert says that it most disurrises to negligence because it's not... Even if the guy failed to check something and a cross thing, that it's not the kind of recklessness that's legally cognizable as recklessness in this context. I totally agree, Your Honor. That is the argument, one of the arguments that we're making. But that's argument number three. That's argument number two, Your Honor. And number three is the causal, the breaking, the causal. What's our argument number two was the affidavit was submitted by an expert and affidavit should be disregarded. That's because it was a conclusionary affidavit. Well, that's the same as what the judge just said. That's two different things, isn't it? One is a legal point that even if it was true and considered, it still doesn't arise to legal recklessness. Exactly. That's a two A and a two B. And then your three is that there was a correct in the causal chain because the judge's involvement. The judge's... You should just not yes in agreement. Is that right? No, go ahead. Yes, Your Honor. Okay, I'm just trying to make sure we have your arguments. If you're not making an argument, you need to be candid with the court. Oh, yes. I thought these were your arguments. And if they're not your arguments, be sure and tell us. No, Your Honor. There are arguments. That's two A and two B. Now what's three? Three, Your Honor, we have four arguments. And the arguments are Kelly Phillips is entitled to qualified immunity based on McCaleck versus Herman, which is the fact that he did not, he was not involved in, did not submit the affidavit to the magistrate. Second argument is that... That was just like one. Well, that's not affidavit. This is he didn't submit the affidavit. He didn't sign it. He didn't submit it. He didn't sign it or submit it. He didn't sign it or submit it. He didn't know it was being submitted. He didn't know that the criminal investigation division had done anything with the complaint. I mean, he's four steps out of this process. He's the guy on the street. He sends it to CID. CID gets the affidavit from Griffith. CID sends it to the County Attorney's Office. The County Attorney's Office reviews the information and takes it to the County Court of Law Judge. My guy... What should the judge have done? You said the judge had done his job. What should the judge have done? Well, Your Honor, I think the judge should have made sure that the identifying information was correct if it was incorrect. And I'm not even sure that it was really incorrect. But if it was incorrect, the judge is responsible for reviewing all the information. That's why he's shielded by absolute immunity. He reviews all the information and makes a judicial determination about whether the information rises to the level necessary to issue a warrant. And without some type of intentional misrepresentation or malicious representation, you know... What should the judge have done? You said make sure the identifying information was correct. In this case, what would that have been? Well, Your Honor, I'm going to back off that statement. I don't think it's a fault of the judge. I should probably shouldn't blame the judge. He's relying on the information. But generally, in an arrest warrant, you see a date of birth or you see something on the arrest warrant. And that's what we don't have here. And that's at the judge level. You know, my guy has four steps removed from that process. And... The County Attorney's person could have put that in. At each step, it could have been put in. At each step... How could have gone back to the office and got that before? No, Your Honor. I mean, it goes from... You know, it goes to CID for investigation. So it goes from the street officer. He doesn't do the investigation. You did it to do that, okay. It goes to the CID. And from CID, it goes to the County Attorney. So, you know, the point here, Your Honor... Your Honor is that the... It's just qualified immunity. You know, we're just talking about the two individuals who have been sued. Phillips and Meeks. That's what we're talking about in this case. If the plaintiff wants to pursue his claims against the County, then he can do that. And he can make arguments that something occurred that was improper at these other levels. You recognize this is... Look, everybody's nightmare. That they're the wrong guy. And there's telling everybody they're the wrong guy. And they're stuck in jail and nobody believes them. I mean, this is just like, you know, and this is a terrible nightmare. You know, and unfortunately, it happens in our system. I mean, we have the best criminal justice system in the world. We have the best civil justice system in the world. But mistakes do get made in our system. And it's unfortunate when they happen, but they do get made. And even judges who are doing their dead-level best to do everything right, make mistakes. As do investigators, as do law enforcement officers. And one reason it's the best system is the errors get corrected sometimes. Yes, yes. The first solution of it, reversals do occur. And they're really the only thing that works. Well, it makes everything honest. Well, I'd try to make everything honest. I mean, our court system is fantastic with the way that it works. I mean, we're extremely fortunate and lucky. My officers are fortunate and lucky to be in a court system that will analyze their actions and make a determination if they should face the rigors of trial. I'm sorry. I'll run you out of town. That's all right, Your Honor. Thank you very much. Mr. Dub. May it please support and counsel. Your Honor, I believe that this argument needs to be framed with one of my clients' claims also included official immunity under state law. But appellant did not bring that on appeal as well. Looking at the judge, God be's order. And the state law is that the elements for official immunity are substantially similar to the reasonableist of the federal qualified immunity claim. So even if this court, and I would submit to you, even if this court decides that we don't get to proceed on our qualified immunity claim, those same exact issues are still going to be litigated on the state law claims of official immunity. Those can go back to state court, can't they? They can. But I would just frame my argument in that as the overall result of this court's ruling on the effect on the appellant may end up being the same. But saying that, I would like to speak to the facts in this case. That sounds like so-so-okay if I lose here because I still got them. That's what that sounds like. If you're making an argument for us, the rule for you, you got to tell me how that statement helps you. Maybe you're just being candid and I appreciate your candid, but... Well, Judge, does it help you? I believe just as an overall for a judicial economy and I was being candid to the court, yes, in explaining why I believe that any party is not going to be affected. I mean, I should rephrase that I believe that my argument's framed within that. So I'm just saying you should lose on your argument, but we should send you on back there and you can go to state court and hash this out. No. I'm really puzzled too, why you began with that. No, Your Honor. Well, then let me get to the factual part of the argument that I think that this case turns on. The officers' actions were reckless because, number one, when you look at the affidavit that Mr. Alford did and the court had started to focus on that, that not only was the Michael Glenn Melton, it was more than just a middle name issue. Included in the record is that both Alford as our expert and the appellant both stated at some point that Mr. David Glenn Melton, the actual salient, is a known criminal, and that based on that, they should have looked more than what was in the information made to make that. But who should the beat officer have to do that? When they're just filled not the report, they have to put that in. I mean, I don't, why is that on him? It's on him because part of what his report included a type, he had a handwritten report that he submitted to the court, or submitted to CID, and then he included a type written report attached to that that included my clients identifying information. There is no other possible way that this officer could have obtained that information without going to the PID system, meaning there's no other possible way that it could have, they should have known and he was reckless of looking at anybody else, but Mr. So it's undisputed that Mr. Phillips himself introduced the wrong person into the situation? I believe it is. I believe that's what the, you know, based on the affidavit of my expert is that, and as appellant has said, that it was, it's a conclusory argument, okay? I would counter that to say is that Alfred had eliminated all other possible ways that this extra information was entered into, and then it was forwarded on to CID. How much discovery has occurred? Almost little, very little. There were attached to the individual petition that State Court was attached to a request for disclosures, those were never answered because it was removed to federal court, then after a short time Judge Gabi entered a scheduling order and within 60 days, that appellant made its motion for summary judgment. There have been no depositions and no others, and that is one of the counter alternative arguments is that that just has been not enough time to hash out these facts. And is, is, makes totally out. I believe he's still in on his official community claims. Okay, so, makes is in only on the state law claim, and Phillips is in on this claim, and he's in because he allegedly introduced it by attaching a computer report. The wrong name might, is that right? Yes, sure. Okay. What case would tell us that this is reckless disregard for the truth as opposed to a clerical error? And that's where I would point to the trial court's order, looking at the Frank's case, is that it was a reckless misstatement by making it, by going into this system and finding the first person with a Michael Melton and not cross-checking it. That amounts to the reckless statement. Weren't the officer in heart more involved than the preparation of the affidavit than Phillips was here, undisputably? Well, in heart, that is true, but the difference between heart, they were more involved, but the difference between this and heart would be that heart involved, like Malichick, multiple officers and making their own conclusions. This case revolves about one person, and only one set of facts with one victim in this case that gave any information. Right, but he's not making any conclusions. He's just pushing a button and attaching the wrong report at most, right? You're not saying he's making a conclusion that your client is the person who's really responsible in a sort of way. Well, he is by submitting that person to the next up the chain and identifying it to become the arrest warrant. Okay, why isn't the chain of causation broken under our precedent? Because this court's, excuse me, the trial court of that sign that arrest warrant information was tainted because of the reckless misstatements of officer Phillips. There's no way that that court would have been able to make that determination had it not been for the reckless misstatements of officer Phillips. So, is your best case, what is your best case that this is reckless disregard for the truth as opposed to error? I'm still not clear on that. Because... I don't see how this is reckless disregard. It's reckless because not only did the defendant know that the actual assailant was one of a known criminal person in this county. And I think that's a good time to bring up... The penalty had brought up Fitch v. Moro. I think that that is a case where this court had determined that, as you said, judge, that it is not more than just because that was a Harris County case. And in Harris County is, you know, three million people were as Hunt County is about 80,000. So because it's not a big county, he should do better on his computer. Is there a case that's good for you in this area? That's a bad case for you. That is a bad case, but I think it's distinguishable. But the problem is that Phillips and our Alfred both said that the actual assailant was a known criminal to the department. And that should have been enough of a flag for them to be like, oh yes, I know that this is not the guy we're looking for. It is this individual. This individual has a criminal record. And not only that, they put in, you know, identifiers that were my client's birthday and his driver's license based on that system. If it's right there in front of them, if they have it for their disposal in a system of a county of 80,000 people, there can't be that many people with them. But in that part, the problem in this case, and didn't have the reason that the district court did not qualify immunity at this time, it just says it's unclear what the PID does, how it ought to be used, whether or not using that alone is sufficient, whether or not you ought to do some cross references, cross checking, aren't all those facts undeveloped at this point, which is a sufficient reason to determine that you got a genuine dispute of facts that are material. And so you don't grant qualified immunity at this stage. Exactly, Judge. And I would also add that not only is it just based on the PID system and identifying this, but the laps of time of two years just weren't just sat on the county's desk that there was not any effort made to they never found the right individual. If it's just sitting there, I think that would be part of the recklessness of the of the appellent to not follow up if they're correct. The county did is imputed, did you? I'm sorry. What the county did? How is that imputed to the BID officer? Because in a, not in charge of the county. No, he's, that's true, but in a county this size, most of these officers, I would argue, have multiple roles. They see these individuals on a regular basis. He has some kind of authority to tell them you better get moving on this or something. No, but he would be the only one in the unique position to identify and tell his superiors that, hey, this is the wrong guy. Okay, can I ask you a couple questions about how there's a fact issue? Yes, Judge. Assuming, argument, though, that your expert is absolutely correct, that this is a bad system to use without doing some cross check or adding some more data. And that he, the officer should have used more data and imputed and done a little more. How is that a reckless disregard for the truth, the failure to use the computer programs incorrectly in conjunction with other data? Because they did have the, they do have the information of the right of sailing. They have, I know, but how is that a reckless disregard? How does that create a fact issue? If we all agree that they could have done something else, I, I, I don't know what the fact issue is. Because if we spot you, that your experts write that they have this other computer system and that it's best practice to do this other thing and you could do more, even if he didn't meet the standard of care in the industry and we spot you the expert and not, not saying the expert is wrong or should be disregarded, I still don't see how you win. I would just submit, Judge, that that is the crux, I guess, is because the information was so readily available and the truth was so easily right there in front of them that he recklessly disregarded it. And you, do you, and I'm going to ask you, I think, for the third time, do you have a case that says that failure to follow the standard of care and the industry of police officers in this sort of way is a reckless disregard for the truth? Just the general statements of the law that I have put forth to the court. No, I don't have a specific case to this exact fact scenario judge. But I would just, well, then why wouldn't he be titled the qualified immunity because it's not clearly established that an officer who fails to follow the standard care in the retrieval of information is a violate why didn't he win on clearly established? Because I don't believe that it has been clearly established by this court or that in fact him not doing those things by him not following the standard care is not is nothing more than negligence. Okay, but you have to actually bear the burden. This is qualified immunity is weird that way of showing that it's clearly established that it is a violation. Even though he gets to raise it, he doesn't have to meet it. You have to come back and meet it. You bear the burden to show that it's clearly established law that an officer would know that failure to follow the standard of care in this in this way is violation of constitutional rights or could be. Well, and then it's because of this particular set of facts. I don't believe I've been presented to this court and that that's right. And sometimes if it hasn't been that's unfortunate for people who want to make law in this area for the plaintiffs, but because because but that's the way the law works, isn't it? Well, Judge, I'm not asking this court to make law for what I am asking is that to make a distinguish of the cases that I do admit are bad for me, such as is is fish. I mean, I understand that. And back to that fish case, you keep asking me or the court has asked me about a case that is good for me. I would only just be able to distinguish that case because in that case, not only did that officer look into the initial investigation, they used a computer data system, but that officer took the time and testified to say that he compared these two names of two individuals and compared other identifying the case. And then it made a conclusion that it was the same person. This officer didn't do that. This officer had a much smaller database available to him with individuals that these officers know I can tell you in this, the county of this size is that these officers know who the bad guys are. And by having it so readily available to him, he failed to look anything past what he had right there in front of the record show that your client's name was in the computer. No, that has not been developed has not been able to develop in the record. So the record doesn't show whether the other man's name was in there either the real bad guy, the real criminal, Michael Glenn. It doesn't say it does we don't have that in the record yet, no objection. Or we know is that the officer. Well, in my officer, my expert argues that based on his knowledge of the system, his knowledge of the actual same at Michael Glenn Melton is why it would be in there because he has known this one as a known criminal of the community. That's why he would know. And we get there by. By process of elimination and and my officer's expert opinion on his inner workings of that particular department in that size county. Your expert says both names were in the computer. No, he does not specifically say that. And that is would be something that we had asked the lower court to help us deep time to develop. In our response to the most important for some reason originally. Your client have a criminal record? No, you are. So, arguably I guess he would have no presence in the record. Well, it's not in the record. Him being in that system, you know, we weren't able to develop that as much, but you know, whether or not there's witnesses in that system as well could be part of it. But I hate to keep coming back to we haven't had the sufficient opportunity to develop that part of it. And the and the and the and the firmness of judge God is ruling now doesn't prevent a later determination that Phillips may be entitled qualified. It doesn't absolutely they can re-erage me. You could develop some facts and you could also be determined to be entitled qualified. I guess I'm guilty of personalizing this. I live in the county, which is relatively small. But there are about six guys named James Graves. And I sure would hate to think that if a warrant got issued and they came pick me up, it'd take me about 16 days to discover that they had the wrong James Graves. And one of them made a guy with no criminal record. And then there's another guy who's a known criminal in the county. And I got to sit in jail for 16 days before they figure out. We got the wrong guy. That's what happened here. Yes. Well, and criminal offendants often say it would me if you got the wrong guy. I mean, that's just something that happens. The only system that they had put in place is the one that they failed to rely on. And that is what we believe is reckless. Okay, sir. We have your argument. Thank you. Thank you, Judge. Mr. Davis. Found a man to whom I'm about. Thank you, honors. You know, there seems to be an argument that's being made that the record wasn't properly developed. The court allowed 60 days. The court ordered us to file our motions for summary judgment based on qualified immunity. That was a court's order and ordered us to do it within 60 days. So the plaintiff had ample opportunity to develop whatever evidence and whatever discovery and take whatever depositions they wanted to take. They simply did not afford themselves for that opportunity. So your honor, we shouldn't be penalized because they claim they didn't develop the record. Additionally, your honor, I would. Well, right now they won below though on that one again. As regards Phillips, they won on the record they developed. They won for now. The judge said they get to go forward and no qualified immunity for Phillips. Yes, Your Honor. All right. And did not point out to the court below at any point that they hadn't had an adequate opportunity to conduct all the discovery that they wanted. But in going back, the judge is going to give you an adequate opportunity when you go back to demonstrate that Phillips is in fact entitled to qualified immunity. Isn't that going to happen? No, Your Honor. It won't. The judge issued an order saying that we had to file our qualified immunity motions within 60 days. The court's not going to reconsider that issue. The court's ruled on that issue. We can't bring it back up. We'll have to go all the way through the discovery process. We can file a motion on behalf of the county. You know, but we bring it back up after discovery. We've already conducted some discovery. I hope, you know, if that were the case that we could, but I don't believe that I think the court will say the opportunity rule on qualified immunity. The motion is addressing qualified immunity. Ordered them to be filed within 60 days. Both parties have addressed it. We're moving forward. But to the point that he said there was a fact issue, then you can fill that fact in. I mean, the court said there was a fact, right? The court said there was a fact issue based on their experts' conclusories. Well, here's what he said. He said these open questions preclude qualified immunity because their resolution in Milton's favor could support a finding that Phillips was reckless and not inidentifiable. He said there was a fact that he was not in the favor of a qualified Milton as the assailant, satisfying the requirements for valid Frank's claim, which by inference means that there could be a resolution not in favor of Milton. Isn't that what that means? He's not saying I won't ever take this up again. He's saying these are open, he calls them open questions. Well, you're on here's the situation that developed it's up to the plaintiffs in the case to defeat qualified immunity. We raise it. They have the burden of proof. If they haven't established the facts and the fact issues that are submitted to the court, then they've lost that opportunity. The burden's on them. It's not on us. And it was in they wants. We just need to affirm. No, you're on. They want you need to reverse in grant qualified immunity. My clients. Can I ask you? Yes, sir. Is it undisputed that Phillips introduced the wrong printout when he attached it to his? Is that true that he attached it to his his his written handwritten report he attached the printout? Is that true? You're on that I don't know we know the handwritten reports there we don't know who you don't know where that piece of paper came from. It could have come from investigation. It's been seven years. It could have come from CID. It could have come from the county attorney's office. Is it in the record of whether the real person was convicted or not? Just curious. Is that in the record? No, Your Honor, there's no there's no record of that. I think the Fitch case is directly on point in our situation. I think it's particularly instructive. A cert was denied in that case. In that case, the investigator who signed the warrant actually went on a computer database and came up with the wrong name. In his actions were deemed to be negligent. He mistakenly picked a plaintiff's name, which was similar but not the same as the name given to him by the investigating officer. And the court said, okay, it's a mistake. That's negligence based on those facts that's negligence. And it was determined by a neutral and detached magistrate that a warrant should issue. So the court found both. In Fitch, I believe it's very instructive to the court and very helpful to us. Thank Your Honor's. I appreciate your time very much. Thank you. Thank you