tough and it's made more tough by the fact that we have very very undeveloped factual record to go from because this case was dismissed at such an early stage and i would knowledge right up front that i do have some familiarity with claims of that  you look at the record as undervote underdeveloped as it may be that we have anything that we presented in a complaint that could have been perhaps the fear that was unpossible and i believe that ultimately the first thing  never been applied to conduct outside of discovery but it was kind of a creative lawyer in but i mean the fact is a judge agreed with that doesn't that put some immunity on that ruling i mean by thing the judge agreed with very little that well i'm sorry the restraining order or or restraint was was issued by a court right no sir it was not who did who issued it the motion perhaps but that i think that gets to the heart of of your shoe in this case which is that there are these processes by which if the city felt that the conduct of mist the dia and her daughter vanessa been to readers and the members of her campaign staff was  have a little bit of a different question so if they head instead of going to the police had filed another action and perhaps even arguably more aggressive not just finding a motion for protect the city of gross filing of the declaratory judgment action would not have children person of ordinary firms and so they appeal award of summary judgment for the city of growth and so i have trouble distinguishing  which where were the panel as i understand it said that there is no work as a matter of law chilling of the person an ordinary furnace by the filing of a declaratory judgment action and to say that the dead is distinguish prosecution or even take to prosecution let me ask you this what are you maintaining is the abuse of process the motion the motion from in the state court in the city court did you make that argument in the state court when you get the opportunity to acknowledged that support she did also bring up in front of the district court that in discussing the parties she discussed in our complaint the role of the city attorney in supervising those attorneys and her her presumed u will it get to the point we could have actually gone ahead and made a it could have been dismissed with was with with credit without prejudice and we could've come back and supply the fact that the that we could have done it for inquiry and found one of the directors that would have supported that but i  attorneys but and so getting to getting to the point of the absolute immunity that's where the factual inferences become so important in this instance and we're asking the court here today to try to draw a conclusion about where in absolute immunity in the litigation process we're going to drive all the box around conduct that is or is not acceptable to qualify for absolute immunity argument is that are using a discover and i searched the case law and to my knowledge i've never found a case where you could address the conduct that protective order tempted to decide to to dissuade people from engaging in in discovering to taking dr box around that conduct at this point say that that's still entitle to to absolute immunity i think is the problem with having a woefully deficient factual record i think the case of an allowed to proceed to see whether or not the conduct of the appellant was such warranted that whether or not that that was actually a proper motion or was one of the frivolous motion but those are factual questions that we would have liked to them able to proceed so that we could present this court with a better factual situation to make the determination about where in the litigation process that absalom unity applies certainly when we get to the core the whole fandom unity argument we really did need certain more facts and we were allowed to develop and some of those facts lot of casual author and frankly how would you explain but versus economy two and would you explain it or not what is your best case in this in the case law all of this conduct being covered by absolute judicial munity my are my best argument is is that this isn't the case to the side where the box goes and ultimately we should be allowed because we have such a slim fa record to discuss what the conduct was but absolute immunity the very purpose of absolute immunity is to avoid the defendant having to go through think that record i mean there is a predicate resolution because we don't want those government officials to have to go through discovery and agree that at this stage of room with you reviewing this particular set of circumstances making that decision about where we're in this are going to draw that box i don't think is appropriate given what we don't have facts or for a factual determination if the court will out of like to reserve the remainder of my time  case you want to look at you know there the case law is is a pretty i mean it's very strong as to the attorneys maybe a little less strong as to defend howard the court who claiming immunity not because he's an attorney but because he was a witness and not because he was a witness at the trial but because she an affidavit and not because it was in a criminal case but was a civil case all of those are you may win or lose but those are all extensions from slam though she's not a lawyer it's upon her affidavit upon which the motion for protective order was filed and witness absolute immunity has been around but by verbally years later but i mean we do need you and there is a is a little bit of a memory thing it's not appropriate what i'm thinking is not quite as planned done well your honor i appreciate that the concern that you raise and i would hope that if you do an opinion in this case that your clarify that and in this particular case  make clear that the actions of miss howard should be covered by absolute immunity based on the fact that she did the provide an affidavit and was a testimonial witness in the other the other things not exactly a slam dunk it was a civil case not a criminal case and once again already seems to be fairly certain that whenever a governmental attorneys are engaged in a judicial function such as these absolute immunity will apply and it only makes sense  extension and that is that in a civil setting what we need to make clear and i think that's why this case has importance of that governmental attorneys involved in a judicial function you've got to look at the function as this court well a test of that though they should be cloaked with absolute immunity the fact that mr dunn doesn't like the selection of the rule that what the defendants proceeded under rule twenty six that doesn't make any six without justification and costs only to arrest plaintiffs the sarah was not only a witness she was a part yes and so are there any cases or him frankly have you even made any argument that miss howard argument is with your argument for absolute immunity for someone status as a party in ms howard's case because she was a governmental official and also witness i believe absolute immunity applies because understand the judge well but it was also given as in her position as a governmental official involved in the litigation not as an attorney but it is part of the oil attorney in the case at all if you were to completely different office but they did she just simply and the court never even had a chance to rule on the motion for protective order it was dismissed by the state district court they took the risk to bring ten to control to the state supreme court which was denied as judge johnson said he was perplexed why they didn't go to the court of appeals they could have done that but they didn't and as as judge will stated these immunity doctors should be asserted early to avoid the honors nature of the litigation these facts will never change and no matter what kind of discovery they did they  and in the district court in regards to this you have a person who is not an attorney but an affidavit is sought nothing ever happens with that affidavit are not made public  she does it we say she doesn't have absolute immunity are she doesn't have all the time you then every ask whose affidavit is filed in public in a court has opened themselves all the time what's your best law then that protect her because i don't want to go i don't think this panel wants to go riding on something that so what's your best case it says that she as a non a lawyer in this position is entitle to absolute immunity because i don't know word a good and what the problems are if it doesn't exist well your honor i think when we look at i testimony in a prior trial so i don't hunt reeses bennett which is a tenth circuit case so i didn't briscoe versus the hugh which is a us supreme court case any further state this immunity applies to witnesses who sign an revocation hearing p j extra objects in versus wagner that the ten struck a case of six or three fed third eleven eighty two so judge judge johnson at page twelve of his opinion specifically and squarely addresses these absolute immunity issues with respect to it what this is an affidavit is very very clear on it a judge johnson a chief judge johnson spent the consumer amount of time in my opinion thoroughly analyzing these issues that this is akin to the same function and should be treated as sane and to try to make a differentiation i do not believe you should do that i believe it's absolute immunity i believe judge johnson is right the case authority cited is specifically cited in our brief and where it appears in the transcript up but we would ask that that this case be brought to an end absolute immunity applies all of my community if you have any hesitation about mr howard qualified immunity certainly applies this case should be over and save the taxpayers money of further litigation in this matter i have forty seconds left if they had any questions at one question yes or did judge johnson  that that he never said specifically that she has absolute immunity as a party but i'm not sure that she doesn't and i would ask that you really take a hard look at that ok because i think she should have absolute and an immunity as a party as well any questions  that was exactly what i was going to address of getting at this is that as a party there isn't anything that indicates that a party is absolutely a new tune when they are engaged in the litigation litigation process i understand the arguments about counsel i understand why i feel that all there mr howard that was probably our biggest consternation and the reason for bringing this before the court was ultimately corporate immunity would still be an issue for her it wouldn't which we address on a factual basis that is if i can finish  howard as it goes to afternoon when it gets to the qualified immunity what we're looking at is that a clearly established right now you've heard the characterization that there is no clearly established right to engage in conduct that's harassing and intimidating that's true but that's evidence to say that that conduct was protected speech and that it was therefore improper for offered immunity to attach because they should have known that infringing on that right was for profit immunity doesn't apply to