Legal Case Summary

All persons having this has been the honor of the United States Court of Appeals for the Third Service of our last and growing year in New York. For this court is now in session. God save you, United States, and it's honorably a big issue. Morning, everyone. Morning. First matter is Schneider versus Smith. Good morning, Your Honor. Please, the court. Peter Carr on behalf of a Palantina Smith. I would like to reserve two minutes for a battle. Time permitting I plan to address both of the issues on appeal, but I'd like to start with absolute immunity. When this court heard this case previously on the plaintiffs' appeal following the grant of our motion to dismiss, it declined to accept our argument with respect to absolute immunity primarily because it characterized the prosecutor's conduct in this case as administrative rather than advocated. In light of the Supreme Court subsequent decision in Goldstein. How does Goldstein help you? All Goldstein said is that some kinds of administrative decisions are so tied to the judicial, yet the litigation process, the prosecutors process. They can't be struck way that out. So that's not this case. This is not the failure to turn over Brady information or of Giglio information. This is an attorney who decided that she was going to determine by herself, when, if ever, the person she had detained was going to be released. That's not the kind of decision that they were talking about in Goldstein. The first way that Goldstein helps us, Your Honor, and the first way that Goldstein changes the case is that it shows that the analysis is not quite as simple and straightforward as was put forth in the original decision in this case

. One can no longer simply say that the prosecutor's position or maybe can just adjust my question that I asked you. How does Goldstein, the way they talk about the administrative duties of a prosecutor, what in that language in that case helps you in this case? The central aspect of Goldstein that helps us is that it distinguishes between what I would call prosecutorial administrative duties and general office administrative duties, administrative duties that merely happened to have been undertaken by a prosecutor such as hiring employees, making payroll determinations, maintaining the field of justice. So ignoring a judicial order isn't a prosecutorial? Well, I think that both parties in the district agree that there are two components to what Goldstein says is what I'm characterizing as a prosecutorial administrative duty. One, it needs to be connected to the judicial process or to the prosecutor's trial advocacy duties. And two, there's a possible requirement that it involves legal knowledge and the exercise of related discretion. So why isn't it simply an administrative or a ministerial task to make certain that a person who is unjustifiably imprisoned gets released? I absolutely agree, Judge Smith, that it is an administrative task, but under Goldstein that doesn't end the analysis. If one considers what the tasks were in Goldstein, one of them was maintaining an information system. In plain English, what the court meant by that in Goldstein was they needed to maintain a list or a computer database of informants, so they received plea deals or favorable services. So what purpose? The ultimate purpose would be to make a decision a trial as to whether to turn over impeachment evidence, which could affect the prosecutor's advocacy in that he will now face impeachment evidence. Listen, a much more straightforward reading of Goldstein is that it simply extends to supervisors and a prosecutor's office, the same immunity that the prosecutor under the supervision has when doing something, it really connected with the trial function. There's no question, Your Honor, that that's an aspect of Goldstein, but I don't concede by a long shot that that's the sole relevant aspect of Goldstein. Goldstein also shows that we can't simply carve out the prosecutor's duties to the administrative portion, because that's what the plaintiff in Goldstein was trying to do. The plaintiff in Goldstein was trying to say, oh, I'm not talking about the prosecutor not turning over Brady or Giglio material trial. What kind of administrative task an prosecutor undertake that wouldn't be covered by absolute immunity? Administrative tasks that merely happened to have been undertaken by a prosecutor, much as judicial immunity would not apply simply to tasks such as hiring that merely happened to have been undertaken by a judge. But if the administrative has... Let's go back to the chief judge of a case question. I don't think the supervisor in a prosecutor's office would think disobeying a judge's order was an administrative responsibility

. Well, if it's not an administrative responsibility, then in Canada, I don't understand what the argument against absolute immunity is. Have you read Goldstein? Have you read the language of Goldstein? I certainly have. But they said about Imblur, and Imblur is important to the analysis and Goldstein. Have you read that? Absolutely, Your Honor. Don't they talk about the problem with allowing prosecutors to get into a decision where they can't be concerned about personal liability, as they go about exercising their prosecutorial functions? That's certainly one of the two. Is that what we want here? Do we want to create a situation where a prosecutor can decide that she's beyond the reach of a court, doesn't have to worry about personal liability, and can decide to tell someone how decide when and if I let the person not have... Isn't that exactly the situation that the court suggests an Imblur would not be appropriate for absolute immunity? One of the concerns that the court expresses in both Goldstein and Imblur is that the prosecutor not be forced to stand trial for the normal activities of his job. Why? Why? Because otherwise it will disweight people from serving as prosecutors, otherwise litigants will be able to endlessly arrest prosecutors. The only thing that's been shown is that they talk about neutralizing the independent exercise of judgment on the part of the prosecutor. The person shouldn't be in a position where in order to perform their job, they have to worry about personal liability. That's what the court and Goldstein talked about. That's what Imblur talked about. In that whole discussion in Imblur about Imblur in Goldstein, that was the first of it, and as I read it, and I read it again this morning, it seems like this is exactly the kind of situation that the policy reasoning behind Imblur in Goldstein would mitigate against. Because you want to have prosecutors, I would hope you would agree. Concerned about prosecutorial liability when they say something like all decide when the person gets out of custody. Is that the kind of system you want us to erect? I think you're on that. It's pretty clear that we read Goldstein differently

. That I read Goldstein as having a second concern, and that's with respect to the harassment of prosecutors with respect to lawsuits. But maybe it would be helpful if I simply knew. I didn't know what you just said. I read Goldstein as. As involving two components, one is the one that you're on are described. That is, we want prosecutors to be able to exercise free judgment, and that's one of the rationales behind that. What kind of judgment is there to exercise about obeying the judge's order? Well, certainly that brings us to a question, Judge Stern's, whether there was a judicial order here to obey. Why isn't that a good issue of fact for the jury, not for me? Well, there's not really an issue of fact in that we have an order on the record, and it's only the order on the record that controls what the prosecutor's down to. We have judge means as affidavit as to what he said in Chambers, but judge means does not report to say that the record of what his order was was somehow incomplete. The order speaks for itself. The order says that if there's a breakdown in the case, and if the prosecution no longer needs you, let me know, Miss Schneider, and I'll let you out. Now, certainly the prosecutor has to interpret whether. Let's just work with that. Let's just go with that. Let me understand. Okay, that's the order. If there's a breakdown in the case, I think the term was continuous, not a breakdown. If there's a continuous, let me know and I'll let her out. That's on the one hand

. Then we have the prosecutor who after at least the records would suggest that the family has tried to call the prosecutor 25 times, didn't reach her. They finally reach her in her responses. All these side when she gets out, not the judge. She didn't say not the judge. All the side. Now, if you put that in context with the policy discussion of Imgler that was in Goldstein, my mind is boggled by the suggestion that we should write an opinion here that would say to prosecutors, you are absolutely immune. If you take it upon yourself to detain someone in contravention of a statement or an order of a court. I still think we're begging the question of whether there was an order. The words on the record were not continuous. The words on the record were breakdown of the proceedings. As to the telephone conversation between the plaintiff's family. I'm certainly progressed to the upper David. I explicitly placed the honest on mismix. To know him, find me if for any reason the overbecase was continued or broke. I'll absolutely can see that the judge means for purposes of this appeal said that in chambers. He did not say that on the record. So prosecutors are free to ignore whatever judges say in chambers and keep somebody in custody. Even if they know and doing it, it's contrary to the judge's intent in authorizing the detention of someone who's not been charged with a crime. That's a far broader rule than I'm advocating for your honor

. It's often the case that judges will say things in chambers and then do something differently on the record once they've considered the case. I once had a case in which the judge told us that he was going to hold a colleague of mine in contempt of court if we didn't turn ever certain discovery materials. But my colleague asserted executive privilege. We then had a hearing on the contempt motion or the contempt consideration since there was no motion. And the judge ultimately didn't hold my colleague in contempt. But you went to the judge for that decision. Your colleague just didn't decide. I'm good. Or this. My point is that here judge means says one thing in chambers, then he does something else on the record. It's what he does on the record that controls not what he said in chambers. On the record, I'm not sure I agree with that, but on the record, he makes clear his queesiness, the idea of holding somebody for any extended period of time is not charged with a crime. I don't think I was a prosecutor for a number of years. I think I would think I would come on that. I'm certainly not suggesting otherwise, but it's not a judge's queesiness that controls. It's a judge's order that controls. And I agree that it would be very unprofessional for a prosecutor to do something that he or she knows the judge doesn't want him or her to do. Well, wait a minute. Let's go with that

. Should we then allow for absolute immunity in the context with the 20-decent which is totally unprofessional? Unless we're going to say that we're going to have to disregard the US Supreme Court's decision in emblem or where the prosecutor was accused of intentionally suppressing Brady material intentionally supporting perjury. What could be more of a question, Brady material and an attorney deciding to keep somebody in jail even though she knows. Of course, I see a difference. If you let me finish this question, I like the question, but it would be nice to be heard the question. I apologize. You don't think there's a difference between that and a prosecutor deciding on her own, taking it upon herself in total disregard of what the judge told her in chambers or in an order. And that's an issue of fact that the person is going to stand jail and she told she the prosecutor's size otherwise. You don't think that's different than what you have an emblem with a Brady decision. We were just discussing your honor. That's different than what you have an emblem with a Brady decision. I think that there are differences, but one can certainly imagine material differences. Well, not necessarily your honor. In Imblur, we could imagine that the judge had ordered the prosecutor to turn over certain witness statements. That wouldn't change the holding of Imblur the fact that they were seducing the witness. No, because it was a legal obligation and you get into whether or not the exercise or discretion is tied to the prosecutorial function. That's the whole underwriting purpose of Imblur and Ingalls. The latter part that it's tied to a prosecutorial function clearly securing witness testimony. However, distastefully or unprofessionally the prosecutor might have done that as related to a prosecutor. Well, then we don't have the protections of Fourth Amendment law

. We can just decide that whenever a prosecutor decides it's in best interest if he's a her case to make sure witness was a patrol. The police got in arrest that witness and hold the witness until the case is heard for trial. We can talk about budget reduction. We can get rid of all these judges who are clogging up the works and crossing the taxpayers' dollars. Well, that makes sense. Let me jump in here if I may, because I want to clarify something or attempt to that I think I just heard you say. I don't always find these terms of administrative and prosecutorial always helpful. And so I'm curious in this context as to what you mean or more to the point how you would define just what function Ms. Smith was serving here. What I heard you say a few minutes ago is a reference to securing the attendance of a witness. But surely you're not suggesting that because that is related to the prosecutorial there are no bounds. A couple of components. If you're under simply once me to characterize it, I'm comfortable with the characterization and the original opinion of this court that is complying with the judges alleged order to provide continuance. But the purpose of that of course is the one who has made the distinction based upon Goldstein coming down in factual differences between the between the earlier opinion of this court and where we are now. So I'd like to hear you answer the question. I would too. I'm certainly attempted to your under Goldstein. It doesn't have to be the action that is advocated. It merely needs to be connected to an advocated action and securing the witness testimony is the advocated action in this case

. It's much as maintaining the list of informants in Goldstein was not itself advocated. It's administrative but it relates to the prosecutorials advocated functions. Well here though the keys to the cell were given to the prosecutor. Let's assume your distinction is correct. What if there had been a second continuous. The case is now put off which is not heard of in the murder case. Another six months. Is there a point at which. Some violation of something occurs. That's what I was getting to. But of course, yes, yes, did directly answer the question but there can be a violation of the plaintiffs rights and yet absolute immunity. That's why absolute immunity exists. If it were the question were simply to the prosecutor violate the plaintiffs rights, then what is the point of the absolute immunity doctrine? The absolute immunity doctrine clearly covers covers some conduct that violates the point. Well, you're suggesting here that yes, there was a violation of the person's rights but that doesn't necessarily answer the question of. No, you're on our I was trying to answer judge turns this question which I took to be could there be a point at which there is a violation of the plaintiffs rights and I could. If you're the thesis is correct, how could there be because no matter when that point comes, the prosecutor is acting pursuant to her prosecutorial function of securing witnesses for a trial 1015 years from now she's still acting in that role. Even if we get to what yes or no, there can be a violation but the fact that there's a violation. No, I'm not asking about a violation. I'm asking about how can you create a situation where as you can see it at some point, well, I guess you're right

. That is true. I'm wrong about that. You didn't say at some point there's a violation of a right and you're saying that doesn't mean that there is a deprivation of immunity. That is what you're ugly. So they keep her in custody for 10 or 15 years and that's a far out hypothetical. You're saying there's still immunity because she's still performing the prosecutorial function. Yes, yes, Your Honor, much as clearly when a prosecutor subborns perjury intentionally he's violating the criminal defendant's rights but the prosecutor when he intentionally subborns perjury is never the less. That's entitled to the defensive absolute immunity. Let's use not hypothetical facts. Let's use the rather lengthy procedural history of this case given the aborted nature of prosecution at a number of function at a number of stages. What if the detention of this witness had occurred the first time around and the prosecutor had determined that she was in such need of this material witness that she chose to not report to the judge at any point throughout the various procedural stages of this case. So it's what fourth fourth trial I think was there 30 on it. Would you would you justify that as being absolutely immune over such a period of time? I'm not entirely certain that I understand the question is it if the prosecutor never even when I've been in articulate but I am simply trying to suggest that rather than creating a hypothetical of many years. Let's use the time frame of the procedural history of this case with its various trials retryals, et cetera. Well, and it had been the first time around that this witness had been detained pursuant to an order not I think in anticipation of the third trial. I think we need to be precise about what the right is and here the only right that's alleged is a violation of the fourth amendments probable cause. Okay, well I had hoped that we would get to that when we discussed qualified immunity certainly and I know you wanted to address those issues maybe it's the time to get qualified immunity which will have to reach if we don't accept your position on absolute. If the court is willing to give me the time my time. I could just one more question on this and I make a very succinct

. How is it a prosecutorial function to detain anyone whether a material witness or I thought Coolidge versus New Hampshire said 50 years ago that this is your member in that regime attorneys general have the power to issue arrest warrants on their own authority. I thought we decided that decades ago that that is not a prosecutorial function. I am not aware of any precedent nor has has the plan for the district could ever argue that detaining a material witness is not part of the prosecutorial function because that that I think pretty unambiguously is part of security. I agree with detaining what is a prox of to a function. Well if we assume probable cause then we're assuming that there's a reasonable probability that the witness won't appear unless she is detained so they're yes detaining is necessary to secure her attendance. Is it the prosecutor's function to detain because here that was what the prosecutor saw her role as she decided and she told when she was finally after the 25th call. Meet she said I'll decide basically exactly for freezing I'll decide when the witness gets out is that a prosecutorial function. Yes yes I would argue that that the two to to to to detain not to make application to a court to detain you certainly can't find even any textual basis in the Pennsylvania rule of criminal procedure for the position you're taking your right you're on the little act of detaining is is pretty clearly not. Not a prosecutorial function but I don't think that that's what we're talking about here she said she was doing she said she was going to decide how long the witness would be detained but but in context she's speaking with the plaintiff's family so she means I rather than the plaintiff's family will decide whether she remains in jail not I rather than the trial judge might be an issue of fact. That's not what she said if the court wishes me to address qualified immunity we're going to give him another five minutes. Thank you Judge McKay. The first issue is of course whether there was probable cause because otherwise we don't need to get to the more sophisticated issue of whether the particular rule that the plaintiff is asserting was clearly established. And so the questions whether they were reasonable grounds to believe that the least restrictive means of ensuring this Schneider's attendance a trial was to hold her in custody until the date of trial whenever that might be. She had failed to appear at the first two trials she had a pattern of disregarding all subpoenas and bench wise. There was probable cause to rest but the problem I have in my guess is we all have it is the the fair place one of my colleagues in New York's Fortin States the analytical context here with the police with the violation of the right assuming that there's in the 30 years probable cost of detain is there any point at which some kind of protection creeps in to prevent the witness from being detained. Indefinitely based upon the original finding of probable cause is there any point along the continuum. What does that mean that once a person is constitutionally detained they can remain in that sentence now but detained was never been charged with a crime they can remain detained forever is there any point at which something creeps in to say wait a minute something's got to happen periodic review or something got occur. The witness can't be held in prison forever based upon the initial determination that it was located to detain her and if I might just tack on to that do we engage in that analysis looking at the fourth amendment or the 14th. That those are both very good questions you're on and there would if if the court were to accept my qualified immunity argument be afraid over due process upon remand but the district court did not address that issue in the first instance the district court only addressed probable cause under the fourth amendment. So to directly answer your question judge McKee no I don't believe that there would ever be a point in which the fourth amendments probable cause requirement comes into play here after the initial detention and probable cause hearing. Due process is not yet in brief before this court and we've argued otherwise below but but certainly the issue before the court right now is only limited to the fourth amendments probable cause requirement and so to say that that was the absolute the question of qualified immunity before us. And that's clearly been been argued I understand what you saying that you you literally qualified immunity to a fourth amendment lens not a 14th amendment lens but that was the decision that was made in brief in the case. Well the plaintiff has has not prevailed on a theory of process which is why I haven't briefed it it's not that I ignored the issue it's that it's simply not the issue on which we lost. As to probable cause you would have to accept that there's this idea of continuing seizures not just accept that the idea that there is continuing seizures for purposes of the fourth amendments probable cause but except that that was clearly established at the time of of missing is alleged conduct. The case the case that's relevant is yellow of course which says that certain restrictions with respect to pre trial detainees can be sufficiently onerous is to implicate the fourth amendment. And yellow on its own says what it says but will note that yellow has been rejected by the seventh and the eighth circuits and that other circuits have said things that are inconsistent with yellow so the question I think becomes whether when there is an express circuits but can we say that anything is clearly established. Smith Smith was not practicing in a jurisdiction that directly answers to the third circuit from miss miss perspective what the seventh and eighth circuits have said about continuing to be. Are you suggesting that the DA's office doesn't answer the United States Constitution? It does your honor but the seventh and eighth circuits have as much to say and I don't mean this with any disrespect at all about what the Constitution says is the third circuit does. So I don't feel they don't. Well not in the Philadelphia federal course but certainly in the Philadelphia Common Police Court seventh and eighth circuit precedent is as valid as third circuit precedent. So nothing I'm sorry nothing can be clearly established when the circuits themselves disagree and the Supreme Court hasn't spoken. Let's assume that that's true and I might be inclined to agree with you but does the community in a qualified sense attached to discretionary conduct if as a matter of fact it was believed that the judge did issue clear order. Report back to me what is discretionary about the act that she then failed to undertake to directly answer the first part of the question yes. There is that requirement with respect to discretionary as opposed to ministerial functions for qualified immunity. We maintain our dispute with respect to whether there is an order if there is an order it certainly circumscribes the prosecutor's discretion she still needs to determine how precisely to comply with the judge's order and I know that that's not much discretion at all and I'm not pretending otherwise but you need a very minimal precisely to comply. Well the prosecutor simply has to determine what reasonable compliance constitutes and judge McKee I can see that that's a very easy decision to make but for purposes of the ministerial function my kids my they say why because I told you it's very simple you don't have to get in any analytical. Quant can on to at all you do what you do absolutely absolutely you have to provide notice but the ministerial function exception to qualified immunity is extremely narrow it would have to tell the prosecutor precisely what you do when where etc. Yeah the cases continue let me know am I missing something here I do think that that to an extent this is going to come down to how one reads the record and the order on the record as opposed to the affidavit about what was said off the record is opposed to plaintiffs council's families conversations off the record etc

. So to directly answer your question judge McKee no I don't believe that there would ever be a point in which the fourth amendments probable cause requirement comes into play here after the initial detention and probable cause hearing. Due process is not yet in brief before this court and we've argued otherwise below but but certainly the issue before the court right now is only limited to the fourth amendments probable cause requirement and so to say that that was the absolute the question of qualified immunity before us. And that's clearly been been argued I understand what you saying that you you literally qualified immunity to a fourth amendment lens not a 14th amendment lens but that was the decision that was made in brief in the case. Well the plaintiff has has not prevailed on a theory of process which is why I haven't briefed it it's not that I ignored the issue it's that it's simply not the issue on which we lost. As to probable cause you would have to accept that there's this idea of continuing seizures not just accept that the idea that there is continuing seizures for purposes of the fourth amendments probable cause but except that that was clearly established at the time of of missing is alleged conduct. The case the case that's relevant is yellow of course which says that certain restrictions with respect to pre trial detainees can be sufficiently onerous is to implicate the fourth amendment. And yellow on its own says what it says but will note that yellow has been rejected by the seventh and the eighth circuits and that other circuits have said things that are inconsistent with yellow so the question I think becomes whether when there is an express circuits but can we say that anything is clearly established. Smith Smith was not practicing in a jurisdiction that directly answers to the third circuit from miss miss perspective what the seventh and eighth circuits have said about continuing to be. Are you suggesting that the DA's office doesn't answer the United States Constitution? It does your honor but the seventh and eighth circuits have as much to say and I don't mean this with any disrespect at all about what the Constitution says is the third circuit does. So I don't feel they don't. Well not in the Philadelphia federal course but certainly in the Philadelphia Common Police Court seventh and eighth circuit precedent is as valid as third circuit precedent. So nothing I'm sorry nothing can be clearly established when the circuits themselves disagree and the Supreme Court hasn't spoken. Let's assume that that's true and I might be inclined to agree with you but does the community in a qualified sense attached to discretionary conduct if as a matter of fact it was believed that the judge did issue clear order. Report back to me what is discretionary about the act that she then failed to undertake to directly answer the first part of the question yes. There is that requirement with respect to discretionary as opposed to ministerial functions for qualified immunity. We maintain our dispute with respect to whether there is an order if there is an order it certainly circumscribes the prosecutor's discretion she still needs to determine how precisely to comply with the judge's order and I know that that's not much discretion at all and I'm not pretending otherwise but you need a very minimal precisely to comply. Well the prosecutor simply has to determine what reasonable compliance constitutes and judge McKee I can see that that's a very easy decision to make but for purposes of the ministerial function my kids my they say why because I told you it's very simple you don't have to get in any analytical. Quant can on to at all you do what you do absolutely absolutely you have to provide notice but the ministerial function exception to qualified immunity is extremely narrow it would have to tell the prosecutor precisely what you do when where etc. Yeah the cases continue let me know am I missing something here I do think that that to an extent this is going to come down to how one reads the record and the order on the record as opposed to the affidavit about what was said off the record is opposed to plaintiffs council's families conversations off the record etc. My time is expired so unless there are further questions thank you thank you thank you. May I please the court my name is Daniel Sulehrman and I represent the Apollee Nicole Schneider who is the plaintiff. So maybe he's seeking for himself he can focus on the latter part about his customer Mr. Car the in the qualified immunity here we have a situation where there is hard to say that she's been deprived of a constant institutional right in traditional construct of qualified immunity I don't know how you can win and if it not in the traditional construct of qualified immunity how can miss miss possibly have fair notice of what she's doing in what the laws are doesn't you automatically get qualified I'm not questioning that would be clear but you've got a judicial determination okay you can hold this person so this will so February second okay no for amendment concern here and if the issue comes down to a belief that at some point she's got to realize they can't just hold the person in custody indefinitely based on the original determination especially given what Mr. Car said about the other court's not looking at the wasme at the same way do what we did under gallow and qualified immunity how can you say she's on notice basically under sauce here. I think the court first has to recognize that there's a distinction between criminal defendants who have a hearing at which time probable causes determined to detain that person and at that point the fourth amendment does sort of drop out of the picture and additional protections that the Constitution affords come into the picture. I think we understand that at the heart of this is at least initially trying to understand what the nature of the right is that's being asserted here that's necessary for us to identify if we are to engage in meaningful qualified immunity now. That's this American citizen had the fourth amendment right not to be seized without without reason. Fourth amendment that's not an issue here is she she was seized we our problem is not the initial seizure our problem is her continued detention after that. So we have here is a remedy in search of a right right. And I'm submitting to the court that the right that exists here is the right of a citizen who gets initially physically seized on January 26th and a judge issues an order that says there's probable cause to detain you until February 2nd. And at that point it's not as though that seizure turns into a detention for constitutional purposes as it would for a criminal defendant who has all of those other rights available is it a liberty interest when the initial liberty interest has been constitutionally circumscribed it's a continuing seizure it's a seizure that took place on one day and it can you were describing the facts. Mr. Silverman you're not responding to the last three questions asked by judge McKee and me which are identify the right we if we write an opinion on this is we undoubtedly will. And if we do not accept the district attorney's office position on absolute immunity we have to get to the qualified immunity question and if we get to that we've got to identify the right. I mean it's just a basic step in the analysis so how do we do that I'm proposing that the right is a fourth amendment right not to be seized on a continuing basis. Unresultable without probable cause especially fine continuing and how would miss but possibly have been able to divine that definition. Well the way miss Smith could have defined that definition is that there was so much evidence in this case that would clue any prosecutor to understand that violating judge means his order was not reasonable it was a violation of the law to do that. 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. My time is expired so unless there are further questions thank you thank you thank you. May I please the court my name is Daniel Sulehrman and I represent the Apollee Nicole Schneider who is the plaintiff. So maybe he's seeking for himself he can focus on the latter part about his customer Mr. Car the in the qualified immunity here we have a situation where there is hard to say that she's been deprived of a constant institutional right in traditional construct of qualified immunity I don't know how you can win and if it not in the traditional construct of qualified immunity how can miss miss possibly have fair notice of what she's doing in what the laws are doesn't you automatically get qualified I'm not questioning that would be clear but you've got a judicial determination okay you can hold this person so this will so February second okay no for amendment concern here and if the issue comes down to a belief that at some point she's got to realize they can't just hold the person in custody indefinitely based on the original determination especially given what Mr. Car said about the other court's not looking at the wasme at the same way do what we did under gallow and qualified immunity how can you say she's on notice basically under sauce here. I think the court first has to recognize that there's a distinction between criminal defendants who have a hearing at which time probable causes determined to detain that person and at that point the fourth amendment does sort of drop out of the picture and additional protections that the Constitution affords come into the picture. I think we understand that at the heart of this is at least initially trying to understand what the nature of the right is that's being asserted here that's necessary for us to identify if we are to engage in meaningful qualified immunity now. That's this American citizen had the fourth amendment right not to be seized without without reason. Fourth amendment that's not an issue here is she she was seized we our problem is not the initial seizure our problem is her continued detention after that. So we have here is a remedy in search of a right right. And I'm submitting to the court that the right that exists here is the right of a citizen who gets initially physically seized on January 26th and a judge issues an order that says there's probable cause to detain you until February 2nd. And at that point it's not as though that seizure turns into a detention for constitutional purposes as it would for a criminal defendant who has all of those other rights available is it a liberty interest when the initial liberty interest has been constitutionally circumscribed it's a continuing seizure it's a seizure that took place on one day and it can you were describing the facts. Mr. Silverman you're not responding to the last three questions asked by judge McKee and me which are identify the right we if we write an opinion on this is we undoubtedly will. And if we do not accept the district attorney's office position on absolute immunity we have to get to the qualified immunity question and if we get to that we've got to identify the right. I mean it's just a basic step in the analysis so how do we do that I'm proposing that the right is a fourth amendment right not to be seized on a continuing basis. Unresultable without probable cause especially fine continuing and how would miss but possibly have been able to divine that definition. Well the way miss Smith could have defined that definition is that there was so much evidence in this case that would clue any prosecutor to understand that violating judge means his order was not reasonable it was a violation of the law to do that. 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And that would just simply tell us the same thing that Graham said, we don't know either. But that there's conflicting law on the circuits, as to whether it's a continuing violation under the fourth, whether there's any right at all. You're not adopting my bait about this perhaps not being a discretionary act at all. No, I was the next day I was going to say is it seems to me that's the precondition to any argument by the Smith in this case of qualified immunity that there's no discretion in this case. It's a requirement for qualified immunity. There'd be a discretionary act. And I think the panel has certainly demonstrated its awareness that this was not a discretionary act. I think to- What if you have no discretion, take away scenario, the words the prosecutor does is not to the discretionary act. But nevertheless, the end result is not the violation of a Constitutional right. Then there's clearly no liability. No, look, all the cases that are out there, all the cases that the prosecutor's office has cited in its brief, all deal with criminal defense. Frankly, I just, I read the Fourth Amendment the way a couple of cases that I cited in my brief read the Fourth Amendment that a material witness is in a different position than a criminal defendant. Well, that may be, but does that help you in the qualified immunity context that all the cases, and pretty much all the cases out there period deal with criminal defendants, that we were all prosecutors. I was a state prosecutor, and after that a state court judge for four years, I have seen one material witness case in all of those years. Because prosecutors understand, unlike Miss Smith, that you can't do what she did. That's why there are no cases out there. This is the outlier because of the outrageousness of what she did. But that may well be, but absent any cases out there, we still have to get the clearly established. She's got to have no invasion

. And that would just simply tell us the same thing that Graham said, we don't know either. But that there's conflicting law on the circuits, as to whether it's a continuing violation under the fourth, whether there's any right at all. You're not adopting my bait about this perhaps not being a discretionary act at all. No, I was the next day I was going to say is it seems to me that's the precondition to any argument by the Smith in this case of qualified immunity that there's no discretion in this case. It's a requirement for qualified immunity. There'd be a discretionary act. And I think the panel has certainly demonstrated its awareness that this was not a discretionary act. I think to- What if you have no discretion, take away scenario, the words the prosecutor does is not to the discretionary act. But nevertheless, the end result is not the violation of a Constitutional right. Then there's clearly no liability. No, look, all the cases that are out there, all the cases that the prosecutor's office has cited in its brief, all deal with criminal defense. Frankly, I just, I read the Fourth Amendment the way a couple of cases that I cited in my brief read the Fourth Amendment that a material witness is in a different position than a criminal defendant. Well, that may be, but does that help you in the qualified immunity context that all the cases, and pretty much all the cases out there period deal with criminal defendants, that we were all prosecutors. I was a state prosecutor, and after that a state court judge for four years, I have seen one material witness case in all of those years. Because prosecutors understand, unlike Miss Smith, that you can't do what she did. That's why there are no cases out there. This is the outlier because of the outrageousness of what she did. But that may well be, but absent any cases out there, we still have to get the clearly established. She's got to have no invasion. I think what informs the Court's inquiry on that point is the state rule that applies, it's called detention of witnesses Rule 522 under the state. I know that's not the constitutional right itself, but I think it informs the Court's analysis of whether there is a constitutional right. Rule 522 talks all about the continuing nature of this seizure that a judge has the continuing opportunity to modify the terms of bail that any party can continually come and apply to the Court for relief to modify the bail one way or the other. So that rule was in existence. That rule certainly provided enough notice to Miss Smith to know that what she was doing was violating the law. Let me try this. In the one case I could find that was Mildeline Point was the Armstrong case in the seventh circuit, where someone has held 57 days in jail without being taken before a judge. As I understood your earlier distinction, you're saying because there was never a meaningful, probable cause hearing in this case, the Fourth Amendment right continued. In Armstrong, the seventh circuit was saying, we think something that the process is implicated in the trial context. They found the right there, but you don't want to take us to the subject of the process. The reason I don't want to go there is because I know that the DA's office in this case has been actively urging me to go that way. So I know they got something in store for me if the case gets remanded. By the air, well you guessed it. I wasn't. I would just, on this last point, I would just urge the Court to recognize that this is perhaps a vacuum in the constitutional analysis. I think that's exactly right. But then the problem becomes, given if we forget absolutely many go to a qualified community, if we are going to be the falling trees that makes the sound that obliterates the vacuum, we're landing on this mess and it may not be fair because she have known it seems to me the response to that is common sense should tell you. As a prosecutor, you can't just indefinitely detain but common sense is not the test I'm dissociated. I guess you and I'm sure as to Kirk and get what we're, these what I am struggling with and that judge turns exactly right

. I think what informs the Court's inquiry on that point is the state rule that applies, it's called detention of witnesses Rule 522 under the state. I know that's not the constitutional right itself, but I think it informs the Court's analysis of whether there is a constitutional right. Rule 522 talks all about the continuing nature of this seizure that a judge has the continuing opportunity to modify the terms of bail that any party can continually come and apply to the Court for relief to modify the bail one way or the other. So that rule was in existence. That rule certainly provided enough notice to Miss Smith to know that what she was doing was violating the law. Let me try this. In the one case I could find that was Mildeline Point was the Armstrong case in the seventh circuit, where someone has held 57 days in jail without being taken before a judge. As I understood your earlier distinction, you're saying because there was never a meaningful, probable cause hearing in this case, the Fourth Amendment right continued. In Armstrong, the seventh circuit was saying, we think something that the process is implicated in the trial context. They found the right there, but you don't want to take us to the subject of the process. The reason I don't want to go there is because I know that the DA's office in this case has been actively urging me to go that way. So I know they got something in store for me if the case gets remanded. By the air, well you guessed it. I wasn't. I would just, on this last point, I would just urge the Court to recognize that this is perhaps a vacuum in the constitutional analysis. I think that's exactly right. But then the problem becomes, given if we forget absolutely many go to a qualified community, if we are going to be the falling trees that makes the sound that obliterates the vacuum, we're landing on this mess and it may not be fair because she have known it seems to me the response to that is common sense should tell you. As a prosecutor, you can't just indefinitely detain but common sense is not the test I'm dissociated. I guess you and I'm sure as to Kirk and get what we're, these what I am struggling with and that judge turns exactly right. It's, the remedy may be there, but unless it's hitched to a right, it's the remedy that's not going to be needed. I'm proposing that American citizen says the fourth and on that right not to be seized in the manner in which this Schneider was seized in this case. And that is not just, you use these in the context of her continuing correct detainment. Correct. Just to make it come within our literal and bit of the fourth amendment. But you ask any personal in the street, whether or not this was a reasonable or an unreasonable seizure, a hundred percent of them are going to say that it's unreasonable. Well, it's a problem, not initially the initial seizure, a hundred percent, I don't know what the percentage would be. Most of them, especially if you recited the problems that they had trying the over me case, the threats that a missionary purportedly made to some of the officers who attempted to rest her. Oh, there's clearly probable cause for a judge to determine that she was a flight nurse, but there was no probable cause to detain her beyond February 2nd. And that's not just judge means is subjective ruling. It's, I'm not sure I would use the term subjective. It's I think all three of the members of this panel would have ruled that there was no probable cause to detain her beyond February 2nd. The rule itself rule 522 says you can only detain a witness to ensure her appearance for court that's required. It was not required for her to be detained beyond February 2nd. And Mr. Overby could have pled guilty on February 5th or February 15th or March 15th. There's certainly would have been no. The judge might have still kept her in custody beyond February 2nd. He made a thought, well, I know I said, if the case is continuing, I'm going to let her out, but we're talking about a two or three day delay

. It's, the remedy may be there, but unless it's hitched to a right, it's the remedy that's not going to be needed. I'm proposing that American citizen says the fourth and on that right not to be seized in the manner in which this Schneider was seized in this case. And that is not just, you use these in the context of her continuing correct detainment. Correct. Just to make it come within our literal and bit of the fourth amendment. But you ask any personal in the street, whether or not this was a reasonable or an unreasonable seizure, a hundred percent of them are going to say that it's unreasonable. Well, it's a problem, not initially the initial seizure, a hundred percent, I don't know what the percentage would be. Most of them, especially if you recited the problems that they had trying the over me case, the threats that a missionary purportedly made to some of the officers who attempted to rest her. Oh, there's clearly probable cause for a judge to determine that she was a flight nurse, but there was no probable cause to detain her beyond February 2nd. And that's not just judge means is subjective ruling. It's, I'm not sure I would use the term subjective. It's I think all three of the members of this panel would have ruled that there was no probable cause to detain her beyond February 2nd. The rule itself rule 522 says you can only detain a witness to ensure her appearance for court that's required. It was not required for her to be detained beyond February 2nd. And Mr. Overby could have pled guilty on February 5th or February 15th or March 15th. There's certainly would have been no. The judge might have still kept her in custody beyond February 2nd. He made a thought, well, I know I said, if the case is continuing, I'm going to let her out, but we're talking about a two or three day delay. Precinct report is not in. Then an augur is not available on February 2nd to take a plea if he decides to accept all the evidence. That you don't want to say that, you don't have to say that there was no evidence to justify, what you want to say is that she at least had a right to be heard on that question, if whether there was any evidence. Because Judge Means actually said, I am wondering that you'd be heard on this issue. And I think that's a clearly established right. When a judge says I'm going to give you a hearing on this issue, you have the right to that hearing. That's clearly established for 225 years of American jurisprudence. You know, you would be open for a, as I understand now you argue that, and I've got the meaning of understanding it, you're saying that, all right, I'll concede that there was trouble caused, the detainer initially, but that problem caused evaporating the context of the judge's order. Do you think it would be open to a jury to find that as a matter of fact that there was no problem caused? Yes. Under the fourth amendment to detain her after a certain point in time, is that effect for sure an issue of law? Well, I'm not sure. I certainly would go that way. Is that sliding scale out over time? I would certainly... You know, that's how the weasel way from our question, yeah. I would certainly propose to my trial judge that there be an instruction to the jury that there was no probable cause to detain beyond February 2nd, in light of judge means is order to that effect. Thank you, Greg. This is a trial judge. I have put probable cause to a jury in excessive force cases or wrongful detention cases

. Precinct report is not in. Then an augur is not available on February 2nd to take a plea if he decides to accept all the evidence. That you don't want to say that, you don't have to say that there was no evidence to justify, what you want to say is that she at least had a right to be heard on that question, if whether there was any evidence. Because Judge Means actually said, I am wondering that you'd be heard on this issue. And I think that's a clearly established right. When a judge says I'm going to give you a hearing on this issue, you have the right to that hearing. That's clearly established for 225 years of American jurisprudence. You know, you would be open for a, as I understand now you argue that, and I've got the meaning of understanding it, you're saying that, all right, I'll concede that there was trouble caused, the detainer initially, but that problem caused evaporating the context of the judge's order. Do you think it would be open to a jury to find that as a matter of fact that there was no problem caused? Yes. Under the fourth amendment to detain her after a certain point in time, is that effect for sure an issue of law? Well, I'm not sure. I certainly would go that way. Is that sliding scale out over time? I would certainly... You know, that's how the weasel way from our question, yeah. I would certainly propose to my trial judge that there be an instruction to the jury that there was no probable cause to detain beyond February 2nd, in light of judge means is order to that effect. Thank you, Greg. This is a trial judge. I have put probable cause to a jury in excessive force cases or wrongful detention cases. I'm just wondering if that would be the rule. That's saying you said that if the judge says, you're going to get a hearing on X-Nate, this right to a hearing, the judge could gratuitously decide to give a hearing even though there's no legal requirement that he or she do so. I don't know if that gets rise to... I guess it gets rise to a right of some sort. I don't know. I would also take issue with the defendant's framing of the qualified immunity question itself. They seem to say that is there a clearly established right to a second probable cause hearing? I don't think that's the issue. I think that's an overly narrow definition of the issue. It seems to me the proper question that everyone should be asking here is did Ms Schneider have a clearly established right to expect that a government official, like the prosecutor in this case or a police officer in some other case, has to come forward with information that is vital to the probable cause determination, especially when a court orders it. But we can just put that aside for a second. The cases I cited talk about police and prosecutors have to come forward when they come into new information that affects a probable cause determination, probable cause to arrest, probable cause to issue of search warrant. They have to come forward when there's a change in circumstance. But here the change in circumstance didn't really negate the probable cause. The reason the judge means allowed the witness to be arrested, that reason was still there even after the over-b case was continued. Judge Meantz just still would have had grounds legally to detain her. Still the same Mr. Flight

. I'm just wondering if that would be the rule. That's saying you said that if the judge says, you're going to get a hearing on X-Nate, this right to a hearing, the judge could gratuitously decide to give a hearing even though there's no legal requirement that he or she do so. I don't know if that gets rise to... I guess it gets rise to a right of some sort. I don't know. I would also take issue with the defendant's framing of the qualified immunity question itself. They seem to say that is there a clearly established right to a second probable cause hearing? I don't think that's the issue. I think that's an overly narrow definition of the issue. It seems to me the proper question that everyone should be asking here is did Ms Schneider have a clearly established right to expect that a government official, like the prosecutor in this case or a police officer in some other case, has to come forward with information that is vital to the probable cause determination, especially when a court orders it. But we can just put that aside for a second. The cases I cited talk about police and prosecutors have to come forward when they come into new information that affects a probable cause determination, probable cause to arrest, probable cause to issue of search warrant. They have to come forward when there's a change in circumstance. But here the change in circumstance didn't really negate the probable cause. The reason the judge means allowed the witness to be arrested, that reason was still there even after the over-b case was continued. Judge Meantz just still would have had grounds legally to detain her. Still the same Mr. Flight. Just that he decided he wasn't going to do that, but he would have been... And that's the law of the case. The law of the case is there was no probable cause to detain her beyond February 2nd, the initial trial date. Because it's not, her appearance was not required. Judge Meantz, there's clearly no dispute on my part that there was probable cause to believe that she was a flight risk generally. But that's just out there in a vacuum. When you put it into the flight risk, negate itself after the continuous. The day after the case was continued, wasn't the flight risk exactly the same as it was when he initially arrested her? No, the key difference was that when initially arrested, there was a trial date five or six days later. On February 2nd, the trial got continued for three and a half. How has that changed the nature of the risk or the degree of risk? Because it's not necessarily required that she be there on May 25th because of the likelihood probability, possibility, that Mr. Overby would have pled guilty or the case somehow dissipated some other way and this Schneider's appearance was not required at all. Where are we going to keep a material witness and custody for three and a half months for a case that doesn't exist? Yeah, I'm not too busy. Let me try, as I'm warming up to your fourth event of the theory. I think what you're saying is that there was certainly probable cause found, but the judge only found probable cause to hold her until a specific date. Absolutely. You're not contesting that had she come forward, brought the witness back in, he could have found probable cause to continue. We have detention

. Just that he decided he wasn't going to do that, but he would have been... And that's the law of the case. The law of the case is there was no probable cause to detain her beyond February 2nd, the initial trial date. Because it's not, her appearance was not required. Judge Meantz, there's clearly no dispute on my part that there was probable cause to believe that she was a flight risk generally. But that's just out there in a vacuum. When you put it into the flight risk, negate itself after the continuous. The day after the case was continued, wasn't the flight risk exactly the same as it was when he initially arrested her? No, the key difference was that when initially arrested, there was a trial date five or six days later. On February 2nd, the trial got continued for three and a half. How has that changed the nature of the risk or the degree of risk? Because it's not necessarily required that she be there on May 25th because of the likelihood probability, possibility, that Mr. Overby would have pled guilty or the case somehow dissipated some other way and this Schneider's appearance was not required at all. Where are we going to keep a material witness and custody for three and a half months for a case that doesn't exist? Yeah, I'm not too busy. Let me try, as I'm warming up to your fourth event of the theory. I think what you're saying is that there was certainly probable cause found, but the judge only found probable cause to hold her until a specific date. Absolutely. You're not contesting that had she come forward, brought the witness back in, he could have found probable cause to continue. We have detention. That's correct. What? Okay, no, I follow you. Thank you. Thank you, Mr. O'Connor, you're a user of some time I think. Thank you, Mr. O'Connor. Given the tenor of the court statements and questions, I would be inclined to rest on my initial argument unless there are further questions for me. Excellent. Thank you, Mr. O'Connor. Thank you. Okay, we'll take the matter in advisement. It's a very, very difficult case, and at least for me, a very troubling case, we'll take the matter in advisement.

All persons having this has been the honor of the United States Court of Appeals for the Third Service of our last and growing year in New York. For this court is now in session. God save you, United States, and it's honorably a big issue. Morning, everyone. Morning. First matter is Schneider versus Smith. Good morning, Your Honor. Please, the court. Peter Carr on behalf of a Palantina Smith. I would like to reserve two minutes for a battle. Time permitting I plan to address both of the issues on appeal, but I'd like to start with absolute immunity. When this court heard this case previously on the plaintiffs' appeal following the grant of our motion to dismiss, it declined to accept our argument with respect to absolute immunity primarily because it characterized the prosecutor's conduct in this case as administrative rather than advocated. In light of the Supreme Court subsequent decision in Goldstein. How does Goldstein help you? All Goldstein said is that some kinds of administrative decisions are so tied to the judicial, yet the litigation process, the prosecutors process. They can't be struck way that out. So that's not this case. This is not the failure to turn over Brady information or of Giglio information. This is an attorney who decided that she was going to determine by herself, when, if ever, the person she had detained was going to be released. That's not the kind of decision that they were talking about in Goldstein. The first way that Goldstein helps us, Your Honor, and the first way that Goldstein changes the case is that it shows that the analysis is not quite as simple and straightforward as was put forth in the original decision in this case. One can no longer simply say that the prosecutor's position or maybe can just adjust my question that I asked you. How does Goldstein, the way they talk about the administrative duties of a prosecutor, what in that language in that case helps you in this case? The central aspect of Goldstein that helps us is that it distinguishes between what I would call prosecutorial administrative duties and general office administrative duties, administrative duties that merely happened to have been undertaken by a prosecutor such as hiring employees, making payroll determinations, maintaining the field of justice. So ignoring a judicial order isn't a prosecutorial? Well, I think that both parties in the district agree that there are two components to what Goldstein says is what I'm characterizing as a prosecutorial administrative duty. One, it needs to be connected to the judicial process or to the prosecutor's trial advocacy duties. And two, there's a possible requirement that it involves legal knowledge and the exercise of related discretion. So why isn't it simply an administrative or a ministerial task to make certain that a person who is unjustifiably imprisoned gets released? I absolutely agree, Judge Smith, that it is an administrative task, but under Goldstein that doesn't end the analysis. If one considers what the tasks were in Goldstein, one of them was maintaining an information system. In plain English, what the court meant by that in Goldstein was they needed to maintain a list or a computer database of informants, so they received plea deals or favorable services. So what purpose? The ultimate purpose would be to make a decision a trial as to whether to turn over impeachment evidence, which could affect the prosecutor's advocacy in that he will now face impeachment evidence. Listen, a much more straightforward reading of Goldstein is that it simply extends to supervisors and a prosecutor's office, the same immunity that the prosecutor under the supervision has when doing something, it really connected with the trial function. There's no question, Your Honor, that that's an aspect of Goldstein, but I don't concede by a long shot that that's the sole relevant aspect of Goldstein. Goldstein also shows that we can't simply carve out the prosecutor's duties to the administrative portion, because that's what the plaintiff in Goldstein was trying to do. The plaintiff in Goldstein was trying to say, oh, I'm not talking about the prosecutor not turning over Brady or Giglio material trial. What kind of administrative task an prosecutor undertake that wouldn't be covered by absolute immunity? Administrative tasks that merely happened to have been undertaken by a prosecutor, much as judicial immunity would not apply simply to tasks such as hiring that merely happened to have been undertaken by a judge. But if the administrative has... Let's go back to the chief judge of a case question. I don't think the supervisor in a prosecutor's office would think disobeying a judge's order was an administrative responsibility. Well, if it's not an administrative responsibility, then in Canada, I don't understand what the argument against absolute immunity is. Have you read Goldstein? Have you read the language of Goldstein? I certainly have. But they said about Imblur, and Imblur is important to the analysis and Goldstein. Have you read that? Absolutely, Your Honor. Don't they talk about the problem with allowing prosecutors to get into a decision where they can't be concerned about personal liability, as they go about exercising their prosecutorial functions? That's certainly one of the two. Is that what we want here? Do we want to create a situation where a prosecutor can decide that she's beyond the reach of a court, doesn't have to worry about personal liability, and can decide to tell someone how decide when and if I let the person not have... Isn't that exactly the situation that the court suggests an Imblur would not be appropriate for absolute immunity? One of the concerns that the court expresses in both Goldstein and Imblur is that the prosecutor not be forced to stand trial for the normal activities of his job. Why? Why? Because otherwise it will disweight people from serving as prosecutors, otherwise litigants will be able to endlessly arrest prosecutors. The only thing that's been shown is that they talk about neutralizing the independent exercise of judgment on the part of the prosecutor. The person shouldn't be in a position where in order to perform their job, they have to worry about personal liability. That's what the court and Goldstein talked about. That's what Imblur talked about. In that whole discussion in Imblur about Imblur in Goldstein, that was the first of it, and as I read it, and I read it again this morning, it seems like this is exactly the kind of situation that the policy reasoning behind Imblur in Goldstein would mitigate against. Because you want to have prosecutors, I would hope you would agree. Concerned about prosecutorial liability when they say something like all decide when the person gets out of custody. Is that the kind of system you want us to erect? I think you're on that. It's pretty clear that we read Goldstein differently. That I read Goldstein as having a second concern, and that's with respect to the harassment of prosecutors with respect to lawsuits. But maybe it would be helpful if I simply knew. I didn't know what you just said. I read Goldstein as. As involving two components, one is the one that you're on are described. That is, we want prosecutors to be able to exercise free judgment, and that's one of the rationales behind that. What kind of judgment is there to exercise about obeying the judge's order? Well, certainly that brings us to a question, Judge Stern's, whether there was a judicial order here to obey. Why isn't that a good issue of fact for the jury, not for me? Well, there's not really an issue of fact in that we have an order on the record, and it's only the order on the record that controls what the prosecutor's down to. We have judge means as affidavit as to what he said in Chambers, but judge means does not report to say that the record of what his order was was somehow incomplete. The order speaks for itself. The order says that if there's a breakdown in the case, and if the prosecution no longer needs you, let me know, Miss Schneider, and I'll let you out. Now, certainly the prosecutor has to interpret whether. Let's just work with that. Let's just go with that. Let me understand. Okay, that's the order. If there's a breakdown in the case, I think the term was continuous, not a breakdown. If there's a continuous, let me know and I'll let her out. That's on the one hand. Then we have the prosecutor who after at least the records would suggest that the family has tried to call the prosecutor 25 times, didn't reach her. They finally reach her in her responses. All these side when she gets out, not the judge. She didn't say not the judge. All the side. Now, if you put that in context with the policy discussion of Imgler that was in Goldstein, my mind is boggled by the suggestion that we should write an opinion here that would say to prosecutors, you are absolutely immune. If you take it upon yourself to detain someone in contravention of a statement or an order of a court. I still think we're begging the question of whether there was an order. The words on the record were not continuous. The words on the record were breakdown of the proceedings. As to the telephone conversation between the plaintiff's family. I'm certainly progressed to the upper David. I explicitly placed the honest on mismix. To know him, find me if for any reason the overbecase was continued or broke. I'll absolutely can see that the judge means for purposes of this appeal said that in chambers. He did not say that on the record. So prosecutors are free to ignore whatever judges say in chambers and keep somebody in custody. Even if they know and doing it, it's contrary to the judge's intent in authorizing the detention of someone who's not been charged with a crime. That's a far broader rule than I'm advocating for your honor. It's often the case that judges will say things in chambers and then do something differently on the record once they've considered the case. I once had a case in which the judge told us that he was going to hold a colleague of mine in contempt of court if we didn't turn ever certain discovery materials. But my colleague asserted executive privilege. We then had a hearing on the contempt motion or the contempt consideration since there was no motion. And the judge ultimately didn't hold my colleague in contempt. But you went to the judge for that decision. Your colleague just didn't decide. I'm good. Or this. My point is that here judge means says one thing in chambers, then he does something else on the record. It's what he does on the record that controls not what he said in chambers. On the record, I'm not sure I agree with that, but on the record, he makes clear his queesiness, the idea of holding somebody for any extended period of time is not charged with a crime. I don't think I was a prosecutor for a number of years. I think I would think I would come on that. I'm certainly not suggesting otherwise, but it's not a judge's queesiness that controls. It's a judge's order that controls. And I agree that it would be very unprofessional for a prosecutor to do something that he or she knows the judge doesn't want him or her to do. Well, wait a minute. Let's go with that. Should we then allow for absolute immunity in the context with the 20-decent which is totally unprofessional? Unless we're going to say that we're going to have to disregard the US Supreme Court's decision in emblem or where the prosecutor was accused of intentionally suppressing Brady material intentionally supporting perjury. What could be more of a question, Brady material and an attorney deciding to keep somebody in jail even though she knows. Of course, I see a difference. If you let me finish this question, I like the question, but it would be nice to be heard the question. I apologize. You don't think there's a difference between that and a prosecutor deciding on her own, taking it upon herself in total disregard of what the judge told her in chambers or in an order. And that's an issue of fact that the person is going to stand jail and she told she the prosecutor's size otherwise. You don't think that's different than what you have an emblem with a Brady decision. We were just discussing your honor. That's different than what you have an emblem with a Brady decision. I think that there are differences, but one can certainly imagine material differences. Well, not necessarily your honor. In Imblur, we could imagine that the judge had ordered the prosecutor to turn over certain witness statements. That wouldn't change the holding of Imblur the fact that they were seducing the witness. No, because it was a legal obligation and you get into whether or not the exercise or discretion is tied to the prosecutorial function. That's the whole underwriting purpose of Imblur and Ingalls. The latter part that it's tied to a prosecutorial function clearly securing witness testimony. However, distastefully or unprofessionally the prosecutor might have done that as related to a prosecutor. Well, then we don't have the protections of Fourth Amendment law. We can just decide that whenever a prosecutor decides it's in best interest if he's a her case to make sure witness was a patrol. The police got in arrest that witness and hold the witness until the case is heard for trial. We can talk about budget reduction. We can get rid of all these judges who are clogging up the works and crossing the taxpayers' dollars. Well, that makes sense. Let me jump in here if I may, because I want to clarify something or attempt to that I think I just heard you say. I don't always find these terms of administrative and prosecutorial always helpful. And so I'm curious in this context as to what you mean or more to the point how you would define just what function Ms. Smith was serving here. What I heard you say a few minutes ago is a reference to securing the attendance of a witness. But surely you're not suggesting that because that is related to the prosecutorial there are no bounds. A couple of components. If you're under simply once me to characterize it, I'm comfortable with the characterization and the original opinion of this court that is complying with the judges alleged order to provide continuance. But the purpose of that of course is the one who has made the distinction based upon Goldstein coming down in factual differences between the between the earlier opinion of this court and where we are now. So I'd like to hear you answer the question. I would too. I'm certainly attempted to your under Goldstein. It doesn't have to be the action that is advocated. It merely needs to be connected to an advocated action and securing the witness testimony is the advocated action in this case. It's much as maintaining the list of informants in Goldstein was not itself advocated. It's administrative but it relates to the prosecutorials advocated functions. Well here though the keys to the cell were given to the prosecutor. Let's assume your distinction is correct. What if there had been a second continuous. The case is now put off which is not heard of in the murder case. Another six months. Is there a point at which. Some violation of something occurs. That's what I was getting to. But of course, yes, yes, did directly answer the question but there can be a violation of the plaintiffs rights and yet absolute immunity. That's why absolute immunity exists. If it were the question were simply to the prosecutor violate the plaintiffs rights, then what is the point of the absolute immunity doctrine? The absolute immunity doctrine clearly covers covers some conduct that violates the point. Well, you're suggesting here that yes, there was a violation of the person's rights but that doesn't necessarily answer the question of. No, you're on our I was trying to answer judge turns this question which I took to be could there be a point at which there is a violation of the plaintiffs rights and I could. If you're the thesis is correct, how could there be because no matter when that point comes, the prosecutor is acting pursuant to her prosecutorial function of securing witnesses for a trial 1015 years from now she's still acting in that role. Even if we get to what yes or no, there can be a violation but the fact that there's a violation. No, I'm not asking about a violation. I'm asking about how can you create a situation where as you can see it at some point, well, I guess you're right. That is true. I'm wrong about that. You didn't say at some point there's a violation of a right and you're saying that doesn't mean that there is a deprivation of immunity. That is what you're ugly. So they keep her in custody for 10 or 15 years and that's a far out hypothetical. You're saying there's still immunity because she's still performing the prosecutorial function. Yes, yes, Your Honor, much as clearly when a prosecutor subborns perjury intentionally he's violating the criminal defendant's rights but the prosecutor when he intentionally subborns perjury is never the less. That's entitled to the defensive absolute immunity. Let's use not hypothetical facts. Let's use the rather lengthy procedural history of this case given the aborted nature of prosecution at a number of function at a number of stages. What if the detention of this witness had occurred the first time around and the prosecutor had determined that she was in such need of this material witness that she chose to not report to the judge at any point throughout the various procedural stages of this case. So it's what fourth fourth trial I think was there 30 on it. Would you would you justify that as being absolutely immune over such a period of time? I'm not entirely certain that I understand the question is it if the prosecutor never even when I've been in articulate but I am simply trying to suggest that rather than creating a hypothetical of many years. Let's use the time frame of the procedural history of this case with its various trials retryals, et cetera. Well, and it had been the first time around that this witness had been detained pursuant to an order not I think in anticipation of the third trial. I think we need to be precise about what the right is and here the only right that's alleged is a violation of the fourth amendments probable cause. Okay, well I had hoped that we would get to that when we discussed qualified immunity certainly and I know you wanted to address those issues maybe it's the time to get qualified immunity which will have to reach if we don't accept your position on absolute. If the court is willing to give me the time my time. I could just one more question on this and I make a very succinct. How is it a prosecutorial function to detain anyone whether a material witness or I thought Coolidge versus New Hampshire said 50 years ago that this is your member in that regime attorneys general have the power to issue arrest warrants on their own authority. I thought we decided that decades ago that that is not a prosecutorial function. I am not aware of any precedent nor has has the plan for the district could ever argue that detaining a material witness is not part of the prosecutorial function because that that I think pretty unambiguously is part of security. I agree with detaining what is a prox of to a function. Well if we assume probable cause then we're assuming that there's a reasonable probability that the witness won't appear unless she is detained so they're yes detaining is necessary to secure her attendance. Is it the prosecutor's function to detain because here that was what the prosecutor saw her role as she decided and she told when she was finally after the 25th call. Meet she said I'll decide basically exactly for freezing I'll decide when the witness gets out is that a prosecutorial function. Yes yes I would argue that that the two to to to to detain not to make application to a court to detain you certainly can't find even any textual basis in the Pennsylvania rule of criminal procedure for the position you're taking your right you're on the little act of detaining is is pretty clearly not. Not a prosecutorial function but I don't think that that's what we're talking about here she said she was doing she said she was going to decide how long the witness would be detained but but in context she's speaking with the plaintiff's family so she means I rather than the plaintiff's family will decide whether she remains in jail not I rather than the trial judge might be an issue of fact. That's not what she said if the court wishes me to address qualified immunity we're going to give him another five minutes. Thank you Judge McKay. The first issue is of course whether there was probable cause because otherwise we don't need to get to the more sophisticated issue of whether the particular rule that the plaintiff is asserting was clearly established. And so the questions whether they were reasonable grounds to believe that the least restrictive means of ensuring this Schneider's attendance a trial was to hold her in custody until the date of trial whenever that might be. She had failed to appear at the first two trials she had a pattern of disregarding all subpoenas and bench wise. There was probable cause to rest but the problem I have in my guess is we all have it is the the fair place one of my colleagues in New York's Fortin States the analytical context here with the police with the violation of the right assuming that there's in the 30 years probable cost of detain is there any point at which some kind of protection creeps in to prevent the witness from being detained. Indefinitely based upon the original finding of probable cause is there any point along the continuum. What does that mean that once a person is constitutionally detained they can remain in that sentence now but detained was never been charged with a crime they can remain detained forever is there any point at which something creeps in to say wait a minute something's got to happen periodic review or something got occur. The witness can't be held in prison forever based upon the initial determination that it was located to detain her and if I might just tack on to that do we engage in that analysis looking at the fourth amendment or the 14th. That those are both very good questions you're on and there would if if the court were to accept my qualified immunity argument be afraid over due process upon remand but the district court did not address that issue in the first instance the district court only addressed probable cause under the fourth amendment. So to directly answer your question judge McKee no I don't believe that there would ever be a point in which the fourth amendments probable cause requirement comes into play here after the initial detention and probable cause hearing. Due process is not yet in brief before this court and we've argued otherwise below but but certainly the issue before the court right now is only limited to the fourth amendments probable cause requirement and so to say that that was the absolute the question of qualified immunity before us. And that's clearly been been argued I understand what you saying that you you literally qualified immunity to a fourth amendment lens not a 14th amendment lens but that was the decision that was made in brief in the case. Well the plaintiff has has not prevailed on a theory of process which is why I haven't briefed it it's not that I ignored the issue it's that it's simply not the issue on which we lost. As to probable cause you would have to accept that there's this idea of continuing seizures not just accept that the idea that there is continuing seizures for purposes of the fourth amendments probable cause but except that that was clearly established at the time of of missing is alleged conduct. The case the case that's relevant is yellow of course which says that certain restrictions with respect to pre trial detainees can be sufficiently onerous is to implicate the fourth amendment. And yellow on its own says what it says but will note that yellow has been rejected by the seventh and the eighth circuits and that other circuits have said things that are inconsistent with yellow so the question I think becomes whether when there is an express circuits but can we say that anything is clearly established. Smith Smith was not practicing in a jurisdiction that directly answers to the third circuit from miss miss perspective what the seventh and eighth circuits have said about continuing to be. Are you suggesting that the DA's office doesn't answer the United States Constitution? It does your honor but the seventh and eighth circuits have as much to say and I don't mean this with any disrespect at all about what the Constitution says is the third circuit does. So I don't feel they don't. Well not in the Philadelphia federal course but certainly in the Philadelphia Common Police Court seventh and eighth circuit precedent is as valid as third circuit precedent. So nothing I'm sorry nothing can be clearly established when the circuits themselves disagree and the Supreme Court hasn't spoken. Let's assume that that's true and I might be inclined to agree with you but does the community in a qualified sense attached to discretionary conduct if as a matter of fact it was believed that the judge did issue clear order. Report back to me what is discretionary about the act that she then failed to undertake to directly answer the first part of the question yes. There is that requirement with respect to discretionary as opposed to ministerial functions for qualified immunity. We maintain our dispute with respect to whether there is an order if there is an order it certainly circumscribes the prosecutor's discretion she still needs to determine how precisely to comply with the judge's order and I know that that's not much discretion at all and I'm not pretending otherwise but you need a very minimal precisely to comply. Well the prosecutor simply has to determine what reasonable compliance constitutes and judge McKee I can see that that's a very easy decision to make but for purposes of the ministerial function my kids my they say why because I told you it's very simple you don't have to get in any analytical. Quant can on to at all you do what you do absolutely absolutely you have to provide notice but the ministerial function exception to qualified immunity is extremely narrow it would have to tell the prosecutor precisely what you do when where etc. Yeah the cases continue let me know am I missing something here I do think that that to an extent this is going to come down to how one reads the record and the order on the record as opposed to the affidavit about what was said off the record is opposed to plaintiffs council's families conversations off the record etc. My time is expired so unless there are further questions thank you thank you thank you. May I please the court my name is Daniel Sulehrman and I represent the Apollee Nicole Schneider who is the plaintiff. So maybe he's seeking for himself he can focus on the latter part about his customer Mr. Car the in the qualified immunity here we have a situation where there is hard to say that she's been deprived of a constant institutional right in traditional construct of qualified immunity I don't know how you can win and if it not in the traditional construct of qualified immunity how can miss miss possibly have fair notice of what she's doing in what the laws are doesn't you automatically get qualified I'm not questioning that would be clear but you've got a judicial determination okay you can hold this person so this will so February second okay no for amendment concern here and if the issue comes down to a belief that at some point she's got to realize they can't just hold the person in custody indefinitely based on the original determination especially given what Mr. Car said about the other court's not looking at the wasme at the same way do what we did under gallow and qualified immunity how can you say she's on notice basically under sauce here. I think the court first has to recognize that there's a distinction between criminal defendants who have a hearing at which time probable causes determined to detain that person and at that point the fourth amendment does sort of drop out of the picture and additional protections that the Constitution affords come into the picture. I think we understand that at the heart of this is at least initially trying to understand what the nature of the right is that's being asserted here that's necessary for us to identify if we are to engage in meaningful qualified immunity now. That's this American citizen had the fourth amendment right not to be seized without without reason. Fourth amendment that's not an issue here is she she was seized we our problem is not the initial seizure our problem is her continued detention after that. So we have here is a remedy in search of a right right. And I'm submitting to the court that the right that exists here is the right of a citizen who gets initially physically seized on January 26th and a judge issues an order that says there's probable cause to detain you until February 2nd. And at that point it's not as though that seizure turns into a detention for constitutional purposes as it would for a criminal defendant who has all of those other rights available is it a liberty interest when the initial liberty interest has been constitutionally circumscribed it's a continuing seizure it's a seizure that took place on one day and it can you were describing the facts. Mr. Silverman you're not responding to the last three questions asked by judge McKee and me which are identify the right we if we write an opinion on this is we undoubtedly will. And if we do not accept the district attorney's office position on absolute immunity we have to get to the qualified immunity question and if we get to that we've got to identify the right. I mean it's just a basic step in the analysis so how do we do that I'm proposing that the right is a fourth amendment right not to be seized on a continuing basis. Unresultable without probable cause especially fine continuing and how would miss but possibly have been able to divine that definition. Well the way miss Smith could have defined that definition is that there was so much evidence in this case that would clue any prosecutor to understand that violating judge means his order was not reasonable it was a violation of the law to do that. 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And that would just simply tell us the same thing that Graham said, we don't know either. But that there's conflicting law on the circuits, as to whether it's a continuing violation under the fourth, whether there's any right at all. You're not adopting my bait about this perhaps not being a discretionary act at all. No, I was the next day I was going to say is it seems to me that's the precondition to any argument by the Smith in this case of qualified immunity that there's no discretion in this case. It's a requirement for qualified immunity. There'd be a discretionary act. And I think the panel has certainly demonstrated its awareness that this was not a discretionary act. I think to- What if you have no discretion, take away scenario, the words the prosecutor does is not to the discretionary act. But nevertheless, the end result is not the violation of a Constitutional right. Then there's clearly no liability. No, look, all the cases that are out there, all the cases that the prosecutor's office has cited in its brief, all deal with criminal defense. Frankly, I just, I read the Fourth Amendment the way a couple of cases that I cited in my brief read the Fourth Amendment that a material witness is in a different position than a criminal defendant. Well, that may be, but does that help you in the qualified immunity context that all the cases, and pretty much all the cases out there period deal with criminal defendants, that we were all prosecutors. I was a state prosecutor, and after that a state court judge for four years, I have seen one material witness case in all of those years. Because prosecutors understand, unlike Miss Smith, that you can't do what she did. That's why there are no cases out there. This is the outlier because of the outrageousness of what she did. But that may well be, but absent any cases out there, we still have to get the clearly established. She's got to have no invasion. I think what informs the Court's inquiry on that point is the state rule that applies, it's called detention of witnesses Rule 522 under the state. I know that's not the constitutional right itself, but I think it informs the Court's analysis of whether there is a constitutional right. Rule 522 talks all about the continuing nature of this seizure that a judge has the continuing opportunity to modify the terms of bail that any party can continually come and apply to the Court for relief to modify the bail one way or the other. So that rule was in existence. That rule certainly provided enough notice to Miss Smith to know that what she was doing was violating the law. Let me try this. In the one case I could find that was Mildeline Point was the Armstrong case in the seventh circuit, where someone has held 57 days in jail without being taken before a judge. As I understood your earlier distinction, you're saying because there was never a meaningful, probable cause hearing in this case, the Fourth Amendment right continued. In Armstrong, the seventh circuit was saying, we think something that the process is implicated in the trial context. They found the right there, but you don't want to take us to the subject of the process. The reason I don't want to go there is because I know that the DA's office in this case has been actively urging me to go that way. So I know they got something in store for me if the case gets remanded. By the air, well you guessed it. I wasn't. I would just, on this last point, I would just urge the Court to recognize that this is perhaps a vacuum in the constitutional analysis. I think that's exactly right. But then the problem becomes, given if we forget absolutely many go to a qualified community, if we are going to be the falling trees that makes the sound that obliterates the vacuum, we're landing on this mess and it may not be fair because she have known it seems to me the response to that is common sense should tell you. As a prosecutor, you can't just indefinitely detain but common sense is not the test I'm dissociated. I guess you and I'm sure as to Kirk and get what we're, these what I am struggling with and that judge turns exactly right. It's, the remedy may be there, but unless it's hitched to a right, it's the remedy that's not going to be needed. I'm proposing that American citizen says the fourth and on that right not to be seized in the manner in which this Schneider was seized in this case. And that is not just, you use these in the context of her continuing correct detainment. Correct. Just to make it come within our literal and bit of the fourth amendment. But you ask any personal in the street, whether or not this was a reasonable or an unreasonable seizure, a hundred percent of them are going to say that it's unreasonable. Well, it's a problem, not initially the initial seizure, a hundred percent, I don't know what the percentage would be. Most of them, especially if you recited the problems that they had trying the over me case, the threats that a missionary purportedly made to some of the officers who attempted to rest her. Oh, there's clearly probable cause for a judge to determine that she was a flight nurse, but there was no probable cause to detain her beyond February 2nd. And that's not just judge means is subjective ruling. It's, I'm not sure I would use the term subjective. It's I think all three of the members of this panel would have ruled that there was no probable cause to detain her beyond February 2nd. The rule itself rule 522 says you can only detain a witness to ensure her appearance for court that's required. It was not required for her to be detained beyond February 2nd. And Mr. Overby could have pled guilty on February 5th or February 15th or March 15th. There's certainly would have been no. The judge might have still kept her in custody beyond February 2nd. He made a thought, well, I know I said, if the case is continuing, I'm going to let her out, but we're talking about a two or three day delay. Precinct report is not in. Then an augur is not available on February 2nd to take a plea if he decides to accept all the evidence. That you don't want to say that, you don't have to say that there was no evidence to justify, what you want to say is that she at least had a right to be heard on that question, if whether there was any evidence. Because Judge Means actually said, I am wondering that you'd be heard on this issue. And I think that's a clearly established right. When a judge says I'm going to give you a hearing on this issue, you have the right to that hearing. That's clearly established for 225 years of American jurisprudence. You know, you would be open for a, as I understand now you argue that, and I've got the meaning of understanding it, you're saying that, all right, I'll concede that there was trouble caused, the detainer initially, but that problem caused evaporating the context of the judge's order. Do you think it would be open to a jury to find that as a matter of fact that there was no problem caused? Yes. Under the fourth amendment to detain her after a certain point in time, is that effect for sure an issue of law? Well, I'm not sure. I certainly would go that way. Is that sliding scale out over time? I would certainly... You know, that's how the weasel way from our question, yeah. I would certainly propose to my trial judge that there be an instruction to the jury that there was no probable cause to detain beyond February 2nd, in light of judge means is order to that effect. Thank you, Greg. This is a trial judge. I have put probable cause to a jury in excessive force cases or wrongful detention cases. I'm just wondering if that would be the rule. That's saying you said that if the judge says, you're going to get a hearing on X-Nate, this right to a hearing, the judge could gratuitously decide to give a hearing even though there's no legal requirement that he or she do so. I don't know if that gets rise to... I guess it gets rise to a right of some sort. I don't know. I would also take issue with the defendant's framing of the qualified immunity question itself. They seem to say that is there a clearly established right to a second probable cause hearing? I don't think that's the issue. I think that's an overly narrow definition of the issue. It seems to me the proper question that everyone should be asking here is did Ms Schneider have a clearly established right to expect that a government official, like the prosecutor in this case or a police officer in some other case, has to come forward with information that is vital to the probable cause determination, especially when a court orders it. But we can just put that aside for a second. The cases I cited talk about police and prosecutors have to come forward when they come into new information that affects a probable cause determination, probable cause to arrest, probable cause to issue of search warrant. They have to come forward when there's a change in circumstance. But here the change in circumstance didn't really negate the probable cause. The reason the judge means allowed the witness to be arrested, that reason was still there even after the over-b case was continued. Judge Meantz just still would have had grounds legally to detain her. Still the same Mr. Flight. Just that he decided he wasn't going to do that, but he would have been... And that's the law of the case. The law of the case is there was no probable cause to detain her beyond February 2nd, the initial trial date. Because it's not, her appearance was not required. Judge Meantz, there's clearly no dispute on my part that there was probable cause to believe that she was a flight risk generally. But that's just out there in a vacuum. When you put it into the flight risk, negate itself after the continuous. The day after the case was continued, wasn't the flight risk exactly the same as it was when he initially arrested her? No, the key difference was that when initially arrested, there was a trial date five or six days later. On February 2nd, the trial got continued for three and a half. How has that changed the nature of the risk or the degree of risk? Because it's not necessarily required that she be there on May 25th because of the likelihood probability, possibility, that Mr. Overby would have pled guilty or the case somehow dissipated some other way and this Schneider's appearance was not required at all. Where are we going to keep a material witness and custody for three and a half months for a case that doesn't exist? Yeah, I'm not too busy. Let me try, as I'm warming up to your fourth event of the theory. I think what you're saying is that there was certainly probable cause found, but the judge only found probable cause to hold her until a specific date. Absolutely. You're not contesting that had she come forward, brought the witness back in, he could have found probable cause to continue. We have detention. That's correct. What? Okay, no, I follow you. Thank you. Thank you, Mr. O'Connor, you're a user of some time I think. Thank you, Mr. O'Connor. Given the tenor of the court statements and questions, I would be inclined to rest on my initial argument unless there are further questions for me. Excellent. Thank you, Mr. O'Connor. Thank you. Okay, we'll take the matter in advisement. It's a very, very difficult case, and at least for me, a very troubling case, we'll take the matter in advisement