honors the details of this matter while they may seem complex the essence ins is simple this case arises out of colonel franks reporting to the henderson police department of what he reasonably believed to be a crime related to the age of way board members retaining of three point seven million dollars in surplus funds from the age to a members however instead of thoroughly investigating colonel frank's claim lieutenant farley took the word of the accused board members and along with the assistance and subsequent  the city of henderson arrested and maliciously prosecutors colonel frank an air force veteran with twenty two years of service who had never been in any trouble before but difference is that me i believe it goes to show that you know mr frank there was no reason for colonel frank to be accused of making a known lie you know not a trial judge cases that have to do with this kind of property and use and things like that generate more hostility than  cases people will argue over boundaries of adverse possession and do who's on the board of directors these are hot temperature cases and they usually involve people who were  airline pilots doctors judges etc who are used to getting their way so if what colonel frank felt was reasonable what why is what the lieutenant did not reasonable he took it to the prosecutor he took it to an independent prosecutor he did he didn't just run off and handcuffed these guys he deferred to people up the chain and got the go ahead how can that even libel when a part of this we believe that the city of employees working there in involved on the board of directors and your honor lieutenant farley based his probable cause on what he said were two lies or misstatements by colonel frank one about expert advice being sought but ignored and then one involving duis holiday said that was a lie that he had received this in money as the expert opinion your honor is there is a difference between opinion and advice whereas this c p a had said in his it his opinion was that what they've done and had done seemed to be proper his advice was actually he believe there should be a do a vote of the membership and the board of directors but really you're not answering my good colleagues question my go colleague says he went through you suggest he didn't do anything to help your client he thought your client was bad and i don't know whether i agree with that because there are things in farley's affidavit that include favorable affirmation to your client but let's get past that all he did was he said ok i've investigated this and after i investigate this i'm filing these affidavits for the warrants with the city's attorney's office who approved them and then at that point there's no evidence in the record that far did fire lee did anything have to that it was all a city attorney city attorney approved the warrants presented them the magistra the magistrate judge reviewed them and issued the warrants and the attorney's office filed the pool complaints he's now it doesn't seem to me that one can suggest that what mr farley did was bad because all he did was put together an affidavit and in the affidavit he presented it to the right people why is that a problem after that he was out of it he didn't have anything to do with it as in your hon i would submit that again from the outset of this litigation this involves more than just lieutenant farley this involves a whole i don't want to say conspiracy in farley no what is this your claim is  it was saying that the advice was that it should have been a do a vote but you're out of there was also in the affidavit for reference to colonel frank's wife and how she was running for election again when colonel frank judge who lives there the entire court should be disqualified and but when it's applied towards you to say well maybe she was thinking about running when he did this and then she did run we have to say no you can't consider that it's it's not just wrong it's militias and it's evil and you know you're just looking at things with the glasses on that turn everything your way and that's not the standard we're going to apply for moves for him yes or if you think for three reasons first i think the court has identified this is a smiddy case this is a newman case this is a case where the independent acts of prosecutors immunize the officer who acted in good faith from liability against a malicious prosecution claim they had a burden on summary judgment t presumption and they felt they didn't even address it in the lower court in any of their moving papers or in their opposite in their opposition you know counsel can't help but look at this especially as a trial j say ok the lieutenant farley realized there's nothing here and he said go away why couldn't he have stopped there and you know mr frank doesn't get what he wants but he gets the case dismissed out of prosecutorial discretion why can't he just walk away and live to fight another day but they have to fight each other all the time what's behind that you know i don't know and i don't think  it's certainly not presented on the record what's behind it there's no explanation on the record from them what it what is behind it and in these cases of probable cause i think we don't look at those sorts of things we look at what the officers objective were looking at  time they prepared these arrest warrants and on these facts objectively you have a five page arrest warrant that lays out all of the documents that farley reviewed in reaching his conclusions and identifies specific documents that indicate the basis for those conclusion and the only response from the plaintiffs here is that we just have a different version and that falls squarely under  rebutted through a showing of improper influence by the officer on the prosecutors it has to be shown by the withholding rather than going to smitty why isn't your better argument that the only thing farley did in this case was investigate the claims investigate the claims trying to help frank when he investigated the claims he found them lacking and then he found these other things and these affidavits have two facts that really say why he's giving his affidavit and then he presents from the city attorney and he's done why are we trying to get all affidavit oh i would agree that there is probable cause and the district court rightly determined that you can look at the you can look at the documents that frank inste irrelevant because it was considered by far only correct no it was not there never was no the feather off evidence comes nearly two weeks after the charges are filed in this case so may been presented to farley but that's after i thought it was presented to him and was printed or by him not in preparing the affidavits and you if you can that is what i want to make sure of although i don't want to you can go right to the volume two of the record page two fifty seven and two fifty nine and it and they specifically says in that declaration the feather off declaration that he met with him after the charges had been filed all this evidence is pretty presented and then in fact you know that's a good point for farley because one of the one of the elements in overcoming this presumption against immunization is he that he concealed evidence what does farley do when when they present him with his evidence he says hey this is out of my hands go present it to frank's defense counsel  present it to the court i think there's another important thing that hasn't been emphasized here we're not just talking about the city of henderson prosecutor that reviewed this we're not just talking about a municipal court judge from the city of henderson we're also talking about independent prosecutor who from another jurisdiction who rescreen the entire case for a determination of probable cause and then you have proceedings going on for another year in front of an independent judge who has multiple opportunities to declaration add volume for the record at page three seventy four you can look at paragraph five and paragraphs ten for her for her disputed declaration that we really did decide to dismiss the case it wasn't based on any new information it was the interests of justice expensive prosecution weighing those things that an independent prosecutor has a right to that's paragraph ten of her declaration i mean we're talking about a misdemeanor here and you are looking at retaining i guess what you're looking at well you're looking at retaining very expensive experts to go through all of this complicated tax stuff and another prosecutor from another jurisdiction with a busy caseload and i think she set forth the reason for why she dismissed  there's an there's another point here and i think that the court has an additional grounds on which to find for the city here and that is that the ten francs was entitled to qualified immunity in this warrant as this case is held in armstrong citing the messerschmitt supreme court case that is the best evidence of a good faith act that you can have that the officer was decision was reasonable to have the warrant issued there is nothing that they've done to rebut that presumption and that is their burden on summary judgment to rebut these presumptions if you look at the exhibits that they cite in their opposition to the motion for several judgment we've got three depositions witness reports by them of the porter tax memo which helps us we've got the farley affidavit for the warrant five pages referencing documents we've got the iris explanation of items that's one one piece of evidence i'd like to focus on very quickly because in their moving papers they talk about how far lee has misconstrued this and rely on the ultimate conclusion of the i r s investigation first off this i r s explanation of items letter at page two fifty one of the record i don't even know if it's authentic but i but it certainly is a preliminary document and if you look at that document it clearly says that the choice response is pending this is just the irises first volley as to what they think is going on there is nothing beyond that and there's certainly no no explanation by a competent expert of how this proves that farley was wrong and frank was right if that's even the right question to be addressing because we're talking about reasonable suspicion we're talking about probable cause at the time he issued the arrest warrant there's no other there's the feather off affidavit which again is irrelevant because it comes after the fact and then there is a expert declaration on the ultimate legal conclusion of whether there was probable cause none of that stuff helps the hurt their case to carry their burden to demonstrate a genuine issue of material fact very quickly with regard to the motion to dismiss if you find for the city if you find that farley had probable cause anymore no liability  claims go away you can't have mono liability without an individual actor and the judge did not abuse her discretion here they had multiple opportunities to amend issues were fully briefed she informed them of the defects in their pleading event circulating all of this the courts correct these are hotly contested hot button items that your ways have been traditionally the court is correct ask what did farley do wrong i'm here to tell you exactly what he did wrong and the problem is all of these issues all of them circular rate it's warning around circulate around questions of fact the kinsey lamb decision tells us that the existence of probably cause itself is generally a fact question for a jury to decide that did not happen here that's the heart of our appeal what did occur was well part of your appeal may be that generally the jury would determine if meant issue in this particular case we're really talking about whether there's any chance these affidavits that were filed by farley were then filed with the city attorney has probable has alleged probable cause in those affidavits so why the the the porter memo in which he says there was a lie circulated made by my client colonel franks the lie he says was somehow distorting what that memo said and the story in the resolution that adopted or at least pretended to adopt that memo let's take a look at both that recommendations made by the porter memo and what my client reported sergeant farley the memo says there should be two things that should be a vote of the membership they did not do reimburse the excess dues in adopting the resolution and need not have the approval of the h o a s members but then why does he go on to say it's better practice and i recommend overtly i mean all i'm suggesting is if that's holiday but that's not a deuce all day and nor is it a refund or repayment if you look cautiously and carefully what that is they tell you that they were thinking about an increase in the two thousand and eight then they decided they didn't need it so they  the forgiveness of an unnecessary increase is not the same thing as a refund of seven hundred thousand accounts for we're talking about probable cause here and we're saying there is no question he got one hundred dollars there's no question they got all the horse in that he knew of and voted on getting that hundred dollars you just want to put a different spin on what the hundred dollars is and on a probable cause determination i mean you may win determination by farley that there was conduct committed by my client somehow that beyond question no other determination could have been made respectfully i don't see any evidence of the of the requisite deceit that he seems to find  leaves to me that you want to make a good argument that you see it differently but nonetheless the facts are nonetheless as i have outlined them your client knew voted on and received a hundred dollar do no question and it was related to the two thousand and seven excess a membership income and there's no question the tax research memo said the board at the legal authority to elect to reimburse the excess tuesday in adopting the resolution with that farley said in his affidavit i think i have probable cause for arrest here from that point there's nothing farley did resign from that point it all went to the city attorney we certainly have alleged that there should be the entire city who should be here defending this action the court's aware of that we s early motions dismiss which we think weekly inappropriate grand and prematurely granted with a look at the memo if you look at the exact language of the resolution was this a result of the excess of membership income over membership expenses for the year ended december thirty one two thousand and seven that's not just that year that's the full three point five million that have been accumulated by this runaway issue a since two thousand and two rankly that's what evil thing it was all he said it was related to the two thousand and seven excess membership and what the the report made without question in the affidavit that is in front of you by mr franks colonel franks to farley was there's a three and a half million dollars in excess of funds that have been accumulated and either refunded nor reimbursed nor paid taxes on and that's what the law requires and that's what iris ruling seventy point six four says which they say we're going to understand realize in this resolution number