good morning your honour's may it please the court my name is michael salomon and this is my wife suzanne salomon and we are appellants and plaintiffs in this case we are here this morning because we believe that the federal court had erred by dismissing our case and did not look at the merits or a case by dismissing it heck versus humphrey i mean i'm asking it seems to me in reading your notice of appeal that you you not yes or on and that's the only thing you're appealing here is the june sixth order that's all it says here i mean you got a notice of appeal from a final order dismissing the complaint entered you say june thirteenth that was really june sixth yes your honor as a matter of fact there had been several dismissals of our amended complaints but the only one which is really in front of us here is the june sixth yes  honor that is the one that is the most recent and the one that makes a big difference from the court had dismissed our case heck versus humphrey stating that we did not have any type of civil rights violations that were placed against us now this court well it's not exactly what they said but let's talk about then if that's the complaint and that's what we're up here the first issue is that the briefs before us your honors we placed at the case of city of akron a cummings versus the city of akron the court just putting that case in there was enough to address this issue absolutely i we believe that that the court did not have basis of dismissing our appeal there when they looked at our case they saw the conviction they dwelt on the conviction and the reason i'm focusing on this is that i understood that we agreed to provide you counsel but you said we don't want now the words we agreed to give you pro bono counsel just as the party in the prior case of the had and just as a party in the first case and they had and you said we don't want to we can do this ourselves right we do appreciate your generosity we believe that we knew we know our case very well i understand you know your case but one thing you need to know when you go on appeal is that it's not enough even if this case were cited and even if it was a case we were to look at it's not enough to just cite a case on appeal and that preserve an argument you've got to take up the argument in your brief and you've got to talk to us about that argument and why you win not just cite a case and say that's enough you got to talk to us if you to had pro bono counsel they would have known that and would have advised you and so when i go through these issues my worry wife's claims going to the real loop to claim going to the last three claims the establishment clause the right to privacy the due process clause they're not even mentioned so there's no way for us to look at those because they're not appropriately before us i understand your honor and that the thing the point of all these are founded on the conviction and that is the foundation of the district but but again i don't think you're listening to me in order for us to look at these claims you've got to give us some argument about each of the issues you can't just say this happened below and therefore i when you've got to say this happened below and this is this claim and this is the law that relates to this claim and this is the law as applied to the facts below which it didn't do and that was why we were anxious to give you some counsel they help you again i appreciate that your honor but if i may say i reckon to this as a building the federal court had built the due process the judicial you know the rest of the collateral estoppel all on the foundation that we were barred heck if we attack that foundation everything else falls there's no reason for us to attack stories in a building when we can just immediately take out the foundation that will take out the whole building in this case the federal court errored by believing that we did not have any because they continue to can join our conviction with our civil rights violations well i'd like to know what the heck's says absolutely why does it says that a conviction has to be expunged or reversed before we can claim civil rights violations but the fact is and there were civil rights and if in fact the conviction is not river and you want to go into federal court and try to reverse it or reverse it rather than going up on your appeal in state court that we have to bar it because of heck isn't that it that is one hundred percent and bread at the bottom and the case that this court has presented to us to research was spent versus the city of hammocks yes we see that case and other cases within it smith heart versus tolerate and sanford versus mots that if there are civil rights violations within a conviction that are that break or are not part of a single act then eight plaintiffs can bring the merits before the court and then you ever say anything like that in your briefs yes your honor we did we i guess i had a tough time with that i because when i read your briefs i could not really determine or distinguish if you will what part of the convictions that you had in the underlying case were different from the case you now want to bring i read through them i tried to separate them i tried to see if there was a difference but they were so confusing in the way you played them that i couldn't find it so i had a tough time well thank you honor for the candidness let me just say that the court presented the case of smith versus hemant week wasn't it yes we did because then it because we said maybe better read that and give us some explanation of the case with our civil rights violations the conviction is against harvest christian fellowship community church in two thousand and nine about a building they were using in our back yard a two thousand square foot building and the city of phoenix violated harvest christian fellowship community church inc in two thousand and nine then within one year later they charge the same exact charges of the same exact dates to me and violated me criminally now the difference is from two thousand and seven to two thousand and nine before the existence of harvest christian fellowship community church inc and before the existence of a two thousand square foot building the city of phoenix came to our home when it was my wife and i and told us that we were not allowed to have bible studies in our house unless we become a church first so we have violations in two thousand and seven to two thousand and nine that have absolutely nothing to do with the conviction now after the conviction harvest christian fellowship community church and cease to exist there is no signs or building or anything that which we meet and to this day the city of phoenix is informing us that we are not allowed to have bible studies in our living room unless we conform to a church first these are violations here that are separate and apart from and they are not part of the single act and here violations there that are separate and apart from that are not part of the violation so we stay to this day that the city of phoenix is telling us that no you cannot they violate us when they send police fire department and building inspectors in our home without due process without search warrants and said you guys can't be meeting here you need to leave that's a violation and that happened way before the building and it happened before the church even existed thank  a fourth amended complaint because despite five separate attempts appellants have felt to state a claim upon which relief can be granted and the core points out the opponents of also waived many of these these arguments they they waived the argument that they did state a claim upon which relief can be granted they do not address that in their briefs can i can i get to an issue that that concerns me about your position and that deals with whether or not this case is heck barred it seems to me that there is an issue here there is enough statements in our cases so far that it would appear that heck does not apply to injunctive relief i think that it is fairly clear as far as i am concerned at least at this point discussed otherwise and we ask you to take a look at the smith case also which gives us some concern if there is no waiver and that's an separate issue of the of the heck bar says some language without affecting our brief and the key of course is whether the relief would imply the invalidity of the underlying convictions and if even if it's injunctive relief that injunctive relief would be premised on conduct that is the state distinctly separate and wholly apart from the main maybe not our maybe that was joe dry hard statement sure and if the conduct may be implies an jump to ok well if the if according to the city of hemet case if the conduct is certainly separate and distinct from the conduct that gave rise to the convictions then heck doesn't apply it separate and distinct that's not the case here here the original complaint filed in this matter specifically challenge the underlying convictions and fact the appeal and it's moved for a temporary restraining order asking the court to not preclude execution of the sentence on the convictions and now we've gone through several iterations of this complaint but but the allegations in the claims remain the same they attack the very same code in the very same enforcement of that code that was the basis for the underlying convictions city of hemet again dealt dealt with conduct that is completely distinct and separate from the conduct that gave rise to the convictions and that's not the case here so your position is that injunctive relief doesn't make any difference at all well again it depends on how it's framed and claims for injunctive relief that if successful would would imply the invalidity of the convictions yes would still be barred under hack the key being whether it would undermine the convictions and in this case the appellants are alleging the exact same things they alleged in the defense of the criminal violations that the defenses in the criminal violations are the same is the allegations in this complaint so success on these claims would undermine the convictions it is of some worry to me to be fair that this particular sentence has already been served as heck and appropriate bar for the sentences already been served well he doesn't even apply it can apply depending on what the i guess if the sentence has been served how can the why well if it is the allegations woods would still relate to the conduct that was the basis for the convictions i believe heck would still apply and another concern is who has the mation you would have the burden your honor i believe once we came forward with arguments and facts showing that the claims if successful would would imply the invalidity of the underlying convictions but they never get any burden you've got a burden to prove that hecht would bar the claim i would agree and i believe whence we came forward with with that information in that and that showing that it was incumbent on the district court should have said now you've got of this is the one that i tried to explain to the opposition which is i don't know what they're asking me and you are that's the difficulty we've had this this is been a fighting a very difficult battle all of a sudden you get an issue and it disappears between your fingers kind of grabbing ahold of but it he says he won't go to a lawyer to be able to give him the advice he needs so we still have to deal with it which is why we wanted a lawyer to write a brief but it seems to me that the smith issue then he should just discussed and in this case and smith creates a problem for you because i district judge this might be helpful if they had an argument including facts that judge walsh didn't make that they have made he seems to be the best lawyer they have since they wouldn't all right this case is submitted i will take case one six seven zero zero zero three submit it and one seven one five one one six and submit it and the calendar is over for the day thank you very much