violation under section one thousand nine hundred and three for damages the court this court was very clear in pinsky that it was looking to the common law to see if there was an analogy that should be adopted in that case the court found that malicious about some type of across the board affirmative good fifty fence rather what we're talking about are the elements that of the claim that the plaintiff has to prove pinsky also shows that there has to be a tightness of fit between the constitutional violation alleged there was due process and then also the common law toward analogy this being adopted there was prosecution to supreme court cases also in his eyes that point in the context of qualified immunity the verses city of independence case there the supreme court said that there was no history of cities enjoying any type of good faith community common law and therefore cities should be exposed to liability that was sure even though there was some exceptions to that where cities that common law if they were acting in a governmental capacity did enjoy a certain type of immunity but the court said that that wasn't enough for there to be an across the board  immunity likewise entire versus glover the supreme court also so the public defenders are exposed to liability now there is no good faith immunity in common law that was sure even the defense counsel a common law enjoyed a privilege if they said defamatory things in the course of judicial proceedings the court was clear that bajan fit the situation before their entire versus club or of a public defender and a prosecutor conspiring together  of instances where private parties has some type of affirmative good faith defense to every chaifetz or when the courts looking at these types of examples for example with due process they found an analogy to malicious prosecution in those situations and lack of probable cause and that brings me to my next point abuse of process has nothing to do with the st amendment's district court below relied on that as being a reason why they could say there is a good fifty offense but if use a process is limited to court processes it's not beyond that common law it would expand to other types of processes like in this case a collective bargaining agreement with the state and union were conspiring to force people to speak on behalf of political causes with which they disagreed and that really brings sure is the rub of it i mean this is a st amendment claim it's about free speech as nothing to do with misusing a court process and because of that because there is no fit this court this case bubble please the court i'm scott kremlin for the union union was following state law and supreme court precedent when it received fair share fees to pay for collective bargaining the district court was therefor private party that relied on a statutorily authorized process to obtain the assistance of the government could be considered a state actor the supreme court also recognize that that could lead to an injustice and the supreme court suggested that that problem which is what the court called it should be addressed by establishing a defense and since lug and the supreme court subsequent us yes racism this could fit fence across the board well across the board in the sense that whenever a private party is was it's own problems the species of common law tor that is most analogous are the same species of tort that applied in wyatt and pinsky here the militias prosecution abuse of process case we don't think the court has to do that the principles of a quality and fairness that are referred to when wyatt apply without regard to a specific common law analogy but if the court does look for a specific common law analogy the most analogous torts would be the abuse of process malicious prosecution species of tort and plaintiffs have not suggested that but all of those ar using a statutorily authorized process which is what we did here i understand the man to be readily at hand species which is helpful to your argument but i would think if if indeed there is no species of   long remedy to the point maybe that maybe that cuts against your argument well the supreme court as has never found a situation in which an analogy was not possible they've they've said that the common law is meant to serve as a source of inspiration not of prefabricated components justice scalia and andersen v crighton he dealt with a situation in which a police officer would not have had a defense at common law for searching house to look for a rd party fugitive nonetheless he found that qualified immunity applied because the court was looking to the common law tradition we're we're looking to the common law tradition but the common law tradition in terms of whether private parties who relied on a statutorily authorized process would have been liable and there isn't a common just on state law but on directly on point u s supreme court precedents principles of equality and fairness referred to and why justify a good faith defense to damages liability long's question that is now regularly relevant perhaps to this argument bring the moment this supreme court case came down and janice the state in the union stopped collecting any fair share fees  in in the record it's why the district court dismissed the case as move in fact payroll was already in progress at that time the state couldn't stop sending the check for a fair share for use which was actually for work performed before janice the union refused to accept the money they sent it back to everyone they respected immediately the rule of law even if the union may not have agreed with the five to four decision in janice and the rule of law should go both ways before the janice decision abood was the law to union was following what the supreme court said was the law and it would undermine subjective component is a right yes there is a subjective component but in this case we couldn't have known that the collection of fair share for use was unconstitutional because it was constitutional at the time as many of the lower courts of pointed out and that's why we refer to this is a case of good faith as a matter of law if you're following not just state law and what i'm getting at good faith as a matter of law  that's that's a little hard if you've got a subjective components to unpack that issue well as some of the lower courts have pointed out no no amount of discovery could show that we knew something that wasn't true at the time it was legal so we couldn't have known otherwise what in your view or maybe you can help us understand this emerging body  of the other circuits deciding this case do you have do we have a clearer there on that but so far the th circuit is the only circuit to decide exactly this case and they've ruled in favor of the union we have about twenty district court decisions all of which were in favor of the union after the harris fi quinn decision there were several district court cases all of which applied to good faith defense to rule in favor of the questions i'll cede my time to the state it please the court solicitor general clare kendall for the state defendants the state has a very strong interest in there being a good faith defense for private actors who are relying on presumptively valid state law and which the supreme court for forty one years held was a valid state law and on both of those things that's what i meant because i think that's a little problematic objective lee reasonable to act on a statute that had not been held invalid i would say in the very unusual and unique circumstances of this case where not only did we have a state law that was held to be not help not be invalid or double negatives but we actually have a boot that says it was valid and the doctrine of starry decisis i think is pretty would make it as a matter of law presumptively valid and  they subjective this discussion of subjective elements i think is incredibly dangerous to the rule of law the rule you know how it's court review is going to rule is not something for a horse race or betting when the supreme court rules it rules and until it rules what it has said is a law and we want people to rely on that we don't want private individuals saying well maybe they will or maybe they won't that's not what the laws about in the state has a very on a limb and say anytime that the supreme court has blessed the law said it's valid and then does a eighteen thousand eight hundred and forty years later i think that i don't care what the underlying claim is that that should be valid that that should be and as a matter of law good faith on the basis rely on or rebut specific elements of the underlying claim and i think that is probably i would respectfully submit that is a better way for this court to approach this problem correct if there's no for their questions thanks thank you liability because there is no common law history of them enjoying some type of across the board good faith immunity and then the public defenders say well we really need this because it incentivizes us to do a good job in representing people spring court said that well that's a good policy argument for congress but it's not for us to affect this agenda mr cranleigh in response to my question indicated this issue which of course  if there was analogous tort the jarvis opinion was very brief and it talked about it in terms of an affirmative defense but that's not how this court described their proper analysis as an pinski it's also different from what the why of versus call supreme court was talking about the footnotes of both the in majority and dissent described it in terms of elements not affirm a defense in the way that like a statue limitations would be applied so for these reasons jarvis should be followed by  anil and as i've talked about earlier there's really no analogous torture st amendment claim and because of that the unit should be exposed to liability how long and the relevant decision constitutional rights were violated and of course there's not always going to be a common law analogy to that and just like in versus city of independence tarver says glover when the court finds no history or good fit between the common law and the violation the there to attend his daughter's wedding stood beneath a tree when a limb fell crushing his leg and foot that limb came from a diseased and rotting tree there was no warning there was no notice seven surgeries later were here before this court because sandals is claiming they don't do business in connecticut sandals advertises in connecticut on their airways t v they publish ads in magazines and newspapers all delivering to my clients home they have dedicated specialized agents who are trained by sandals to obtain the title of specialized sandals agent they are given promotional materials by sandals even a car rep so they can drive around connecticut promoting sandals interests yet we're here because the district court found required an element that simply is not required the district court found that minimum contacts were insufficient to hail sandals into connecticut because the minimum contacts in connecticut did not cause this injury that is an element that is simply not required by the supreme court all that we need to show is that sandals contacts with the form state were related to the basis of the lawsuit how can one s that a company such as sandals who has dedicated sales representatives on the ground in connecticut in stamford in greenwich who openly solicit connecticut residents to come visit their resorts all over the world how can we not say that that conduct is related to what gave rise here your client booked through jet blue wrecked and he was not actually standing at the sandals resort where he was injured he was staying at his sandals ready sandals but yes this one that's correct your honor he was saying saying that a different sandals resort in st lucia but the fact that he was simply staying at a different resort doesn't in the analysis the advertising in the contacts that were being put forward by sandals in connecticut were all related to those properties in st lucia how can sandal say they didn't expect to be brought into a connecticut court to defend a lawsuit brought by a connecticut resident when they were spending these efforts to solicit these residents to visit their resorts all over the world including st lucia you're suggesting for a nd time in your argument that connecticut would have jurisdiction over any any case of this sort anywhere in the world because sandals is active world no i'm not your honor what i am what i am specifically saying is connecticut would have jurisdiction for actions brought by connecticut residents which is an important distinction to be made because the defendants rely upon the supreme court decision in bristol myers but that dealt with nonresidents scott hurley he is a resident of connecticut so what i'm proposing  jurisdiction yes your honor and the nd prong of that analysis your honor to allow your concerns about opening up a floodgate to litigation is the conduct that gives rise to the action needs to be related to what the advertising is and what the contact is here they're advertising the resorts the lawsuit here or arises out of the negligence in properly maintaining that resort it's not the case that your honor is decided involving involving somebody that had no connection to the contacts this is a situation in which the very advertising has to do with the resort if mr hurley he was at it tiki bar three miles from the resort and slipped  fell we wouldn't be here this actually happened on the resort this is a result of their failure to maintain the resort the very same resort they have or ties in on the internet through their specialized travel agents and f rules to say it's fundamentally unfair for them to be brought into connecticut court because they simply didn't anticipate being brought into connecticut kind of belies common sense when their entire corporate structure is designed to avoid liability in connecticut they have agents upon agents upon agents and they sit there and they maintain we simply didn't know what wedding venue is that and sandals resort don't have jurisdiction no right so it's just because the daughter chose to have her wedding sandals that he has a cost matching and sandals no your honor it's because sandals chose to advertise in connecticut to connecticut residents and a connecticut resident was on sandals property it doesn't have to be specifically to the plaintiff in fact this court has disregarded that analysis it's not based on the contacts with the plaintiff it's based on the contacts with the foreign state and here is the contacts in connecticut or substantial the context in connecticut or thorough and specifically designed to do what occurred here language in bristol myers squibb specifically rejected the causal relationship analysis justice sotomayor specifically stated in her the sense that the court chooses not to take this as far as a but for analysis that was rejected that's what bristol myers tried to get the court to adopt that was rejected it needs to be related to and here's why because the whole basis of this analysis is premised on fundamental fairness and if it's not related to the contacts in the form state it's understandable that would be an reasonable to bring in the fenton into a state that they have no contact with but when the contacts are related to the basis of the lawsuit how can you say it's fundamentally unfair how can you say it's unforeseeable how can you say sandals didn't know that the people that they solicit in connecticut might bring them home to avoided the ness problem of analyzing the connecticut statute he went directly to due process he then went to the due process and to the due process consideration i'm not going to consider the nd element reasonable inquiry i'm going to consider the st element minimum contacts because that's the specific issue in this case he considered the minimum context question under the minimum context question the st issue was the general jurisdiction the the at the time of oral argument and the transcript is not in your record but it's even in the record below but at the time of the oral argument plaintiffs conceded there was no general jurisdiction so when specific steps to set weekly then to the issue of the specific and that was what the case turned on now pardon me exactly so that's where we're at right now so let's talk just briefly about the facts there is evidence  sandals which was uncontested uncontroverted in which the talk is a hotel it does not solicit it does not do anything sri is a management company it does not solicit it does not do anything neither of these companies leader look talk or or sri had anything to do with the state of connecticut neither maintains office years they don't solicit business here they don't have a target connecticut here they don't have any one is u t c it's world wide it's a panamanian corporation it's a standalone company sandals has nothing to do with u t c u t c entered into a contract with you the i in american corporation and this is all in the record uncon i does the promotion and travel and things of that nature u p i runs the website you the i has contacts with it with the travel agents u p i does everything in american corporation in connecticut not sri not let talk there is no record evidence of that let me suggest the evidence of my television set and the connecticut  an awful lot of ads for precisely this loop body sound of resorts and that's not significant just not part of the record but that's part of the record absolutely but my clients the two companies that have been sued in this case have no relationship that they have nothing to do with that those are separate corporations that do that not sandal's requests for jurisdictional discovery on  relationship there were no specific facts it was conclusory allegation and that's what he found and that's what it shows and the record reef completely supports that so he felt that under an abuse of discretion standard there was no need for discovery here because there was question right judge i don't think it's required in this case honestly don't think it was required i'm just suggesting that it's just such strong and vivid views on the minor it appears that you would have no concern  there's also another question judge which you're going to have to consider in this agency issue and that is under under specific jurisdiction is agency even a plausible theory you know in gambler they suggested very strongly they suggested very strongly in a general jurisdiction setting that that agency should not be considered and in this court in the case of sonera holdings which is cited in our brief said the nd circuit observer the damage to the supreme court expressed doubts as to the usefulness of an agency analysis that focuses on the form states affiliates importance to the defendant other than on whether the philip is so dominated and i will tell the court that there had been other decisions nationwide hold and that is a matter of there is no longer an agency relationship theory an agency relationship theory that you could even plead so there's a legal hurdle right there that they have to be able to establish that that agency theory is viable we cited other law in our that said that a defendant's relationship with the rd party standing alone is insufficient basis rigorous stiction that's us bank and that spare celebrations of agency just like in this case if there were any at all or t exercise of control based upon the realities of the relationship that was the case which we cited in our brief here there is no reality use relationship because there is no relationship these are separate standalone companies that have sitters we don't even have that here we have separate corporations to insulate itself from liability which is one of the concerns of one of the panel members that there's nothing wrong with that that's the law and they're entitled to do it here that's exactly what happened so from a factual standpoint they have not established they have not established any type of agency let alone put it from of from a from a and from a legal standpoint there is good law questioning whether even an agency relationship in a specific personal jurisdiction can lie and i believe it cannot lie so for both factually and legal reasons it's my position and my client's position that the court should reject that particular these ads they cannot be hailed into this court and in view and that is the issue of specific jurisdiction you have asked that you have to view the defendant's conduct and protect the defendant under due process standards here this judge looked at the law he looked at the bristol myers and the walton case and said there has to be a direct connection to the cause of action he looked at two cases or three from your court charles schwab and bank holding versus b o way they said the same thing and he looked at a case this course decided just a year ago deal or renzo which is very factually similar as a sexual assault on in and they've made the same allegation website advertising it was rejected by this court and it was a and eighteen decision so in some u t c and u v are separate there is no evidence and there is no specific allegations of any type of an agency relationship agency should not even apply in personal jurisdiction and the fact is the court concluded that this tree fell on him in a distant far away island is the exact standard under which rest will meyers your own before i left so i mean i have been around the block and i have i been great belief and you know trial court discretion as you can probably tell from my argument and i thought this judge wrote a good order and went right to the point thanks very much evan i thank you for the time we're significant sure non significant non significant your honor the two remaining entities are the ones that bear responsibility for the happening in this accident the three original entities that were named were found by through investigation and through due diligence we realised that one of them were simply a for lack of a better word a company offshore located in jamaica that is a bit of a shell corporation we don't believe they have any affiliation with this particular court did not in any way find that specific jurisdiction failed to be met due to lack of minimum contacts and to due process that case was specifically found that the new york long arm statute did not apply it was not based on d process taking a look at unique vacations and their relationship with sandals i indulge the court the next time perhaps your honor you see a connecticut t v ad jump on the website because if you take a look at the website this corporation has no affiliation with sandals use words such as we are the world wide representative of sandals international our chairman our c e o and our family of resorts resubmit outtakes from the website representations made on the website about the c e o about the relationship between these resorts we believe that a opportunity to conduct jurisdictional discovery would at well our client did allege that the tickets were purchased through jet blue that offered sandals packages to my client at specific sandals resorts including the sandals resort where the accident happened we asked talks about agency between the defendants and sandals in the i don't believe in the complaint there was an allegation of agency within that the problem well your honor i believe that the allegations that were brought out in our opposition through testimony that sandals through their agency induced connecticut residents to travel to st lucia was certainly enough to at least provide us with the opportunity minimum contacts we believe the lower court added an element that the supreme court never required simply being only one at this point that you would be satisfied with the opportunity for jurisdictional discovery we'd be thrilled with that opportunity your honor we'd be even more thrilled if a court would find sufficient jurisdiction so we could proceed with discovery on this case but to summarily dismiss our opportunity to at least investigate the agency relationship between these two companies and sandals we believe is an abuse of discretion before coming into open court this morning we had the opportunity to have the next party hearing in the row and as part of that hearing mr stern and his  i would like to address two core issues in the case one of which is the clearly erroneous failure of the district court to consider the whole record on the issue of suggestive identification and its omission of salient facts that were reduced in that record of suggestive identification and indeed his consideration according to his opinion of matters outside the record which were not introduced during the week hearing and to the failure of the court to apply to i y with its biases and preconceptions on a matter it should be allowed to hear about other cases that it dress that bias and that preconception the st of these issues is the one which as i understand it the court will address in closed session  balanced its rule its own rule that it created in this case and i'm using its words when the jury would struggle enormously quote unquote with its preconceptions about whether or not a clean cut kid could become a terrorist an issue which as i understand it wasn't even raised in the case then the government would be allowed to bring in an expert to testify about other cases to tell the jury that in fact essentially a clean cut kid could become a terrorist hence permitted the testimony of an expert named the dino to testify that he interviewed thirty people thirty other terrorists and he concluded that  anybody essentially could be a terrorist but when it came to the fingerprint request during the examination of the print thing a print expert for the prosecution that the defense wanted to question the expert about the now famous mayfield incident and the report by the f b i which involved the f b i s conclusion for many many months that two people two different people had the same thing or print when the defense asked to bring and that report to the attention of the jury through cross examination of the fingerprint expert given the bias in the preconceptions that juries have that fingerprint evidence is infallible that it's a science that there's absolute certainty about it notwithstanding that preconception and that bias and the fact that the jury would struggle enormously to overcome that the corporate clouded it mission of the mayfield report or cross examination of the fingerprint witness about the mayfield report both situations  testimony about his interviews with thirty terrorists and the mayfield report deal with another case and other cases and this was the reason the court said it was examination using the mayfield report that it's another case it's going to distract a jury with other cases well with with the d no he didn't say i interviewed this person and i found x y and z and then i talked to this other person and these were her characteristics he didn't go into he just said there is no stereotype of who becomes a terrorist it can be anybody and what you wanted to do is not just introduce that there could be a mistake with fingerprints you got in on cross but in that particular case using different agents they had made a mistake and it would have required some background into those individual characteristics of what happened in that case so it is are those differences to asians or how would you harmonize just a general opinion no stereotype of a terrorist  as opposed to going into the specifics of a case of talking about what happened there what was wrong there i think your honor that the what was supposedly a no profile testimony about  became a profile testimony in that now the court's question could a clean cut kid as apparently mr for it looked like to the jury become a terrorist the answer which is is according to our profiles a clean cut kid can be a terrorist so indeed these other cases inform this profile which was presented to the jury don't worry about that this defendant could be a terrorist as much of the other evidence in the case was about could be could be this could be that could be his hair could be his hand writing no definite opinions but a lot of could be here with the mayfield report which to water which the f b i itself in the report said is a watershed case the st time that two people mayfield and the actual bomb or indeed madrid bombing case shared at least ten points of characteristics at least the experts thought so for many many months until finally the f b i with droom the mayfield identification but for many many months contrary to everything that juries have heard since since their childhoods my childhood i think the courts as well i think a prince don't lie were two people with the same fingerprints according to the f b i and according to the spanish authorities in fact your honour's the f b i met with the spanish authorities and were not convinced at st that their conclusion was wrong it was important absolutely important for the jury to know this if that was going to be any substance to cross examination of a fingerprint expert in fact the perceptions are so strong that this court in the case of far haim said that it was plausible for a prosecutor to use a batson challenge against a juror who watched a lot of television forensic science shows it was ok to excuse that juror because he was going to expect infallibility infallible scientific testimony in the case th the american association for the advancement of science has repeatedly said that the public perception has been shaped by decades of overstatement by fingerprint experts most people think fingerprints are infallible the f b i itself said that fingerprints are the gold standard of forensic science absolute certainty now what about the significance of that the government cites the case of united states against michel martin in the th circuit a case in which there was a full blown attempt by the defense in that case to make a daubert finding that fingerprints were not science and shouldn't be admitted as such the conclusion in the case was well most factors don't disfavor the admission of fingerprints however in that case which was handed down before the mayfield report there were to address all of the mistakes and the problems that the mayfield report brought up but that the preclusion was about the mayfield report words itself there's another one in th circuit called bonds from two thousand and nineteen actually but they haven't had that right court didn't have the advantage of the american association for the advancement of sciences recent report and seventeen based on mayfield concluding finally thing a prince are not science plain and simple that there is no scientific basis for concluding that two people can't have the same fingerprints thanks very much most so in this what was the significance i did thank you as a way of wrapping up your are  fine it's fine so this is the time to take the breaking point where we're here to ok posing council all right and then we'll hear martian for a meeting in canada the court my name is richard tucker i'm an assistant united states attorney in the eastern district of new york i also represented the government at trial in this matter i think the court has as anticipated my two responses on these two tenuously related issues dealing st with the fingerprint evidence i think it's important to note just from the outset that the mayfield case which as your honor noted involved different f b i personnel and very different facts including and this is the point i want to make in that particular instance in the mayfield case there is a single fingerprint match and in this instance the government a deuce the trial evidence that there were eighteen fingerprint matches that is fingerprints from  from for wreck this in the incident yes run it on the ground packing tape that was recovered from the unexploded vehicle borne improvised explosive device that was used to attack fort operating base chapman as i think the argument itself illustrated it takes a substantial amount of time to even explain the facts of the mayfield case and in a case like this where the defendant's conduct spanned continen and more than almost a decade judge cohen correctly ruled that allowing this frolic into a completely unrelated case was going to run the risk of potentially confusing the jury and the complicated facts before it now that said judge kogan was careful to permit defense counsel to pursue the substantive lines of cross examination that i think mr stern has articulated here today and and the theme throughout much of the defense in this case was one of subjectivity that theme was to route the cross examination of the fingerprint evidence and continue through the closing argument the idea that mistakes could happen was  licit and the fingerprint expert did not contest that that there was an element of subjectivity in her process she explained her process in detail and she acknowledged that mistakes could happen there's absolutely no basis to overturn judge kogan is ruling that precluded defense counsel from pursuing this totally unrelated constellation of facts involving different people with a significantly smaller quantity of evidence just because dr videos testimony was raised i'd like to address that briefly and your honor again anticipated my points dr videos testimony the vast majority of it related to questions about the history of al qaeda the structure of al leadership the location of the training facilities and the means by which individuals traveled to those facilities the discussion about whether there was a specific profile for an individual who could radicalize was at the very conclusion of his direct examination was really not a core part of what his testimony involved and also as your own identified and just so everyone is clear there was absolutely no discussion of other terrorists that dr vino had interview specifically by names the nature of their conduct