son himself was shot and killed by little rock police department officers trying to execute an ill conceived warrantless arrest of him while he was at his girlfriend's mother's home now as is the custom in little rock the little rock police department did an in house investigation and what that means is that rather than ship it to an outside agency where independence could be assured or at least promised they kept it in the house so that all the questioning and all the evidence gathering would be done by friends colleagues and coworkers of the shooters now detective chuck ray was the lead investigator in this matter and in that role he was charged with one thing above all others and that is to find the truth to assess the evidence fairly to question the and fraudulent concealment he finally admitted the truth to me in question is it possible that a person who didn't burglarized the home was shot and killed by officers that day answer statue and your honor i'm just about to get there i assure you right now i said i live this down to give you this predicate because really it lies at the heart of the statute of limitations issue that admission that i got from detective rae quite simply is at the heart of the statute of limitation issue that is the tragic seed that admission and that fact is the tragic seed from which this progeny treat group esteem bench the bottom line is this the officers on that day did not follow protocol they did not follow policy they were lazy they did not get a warrant they went in gangbusters style and they made a terrible terrible mistake they killed an unarmed man and that person wasn't even responsible for the act that they were legit being investigated now that act had to be handled that had to be covered up or somehow managed by the officers and that is why we are here today indeed innocent person was killed that day and rather than accept the tough responsibility that comes with it these officers in several others all conspired to conceal the specs and and thus the statue of limitations ran despite my client's due diligence in trying to find answers counsel i want to ask you about the various claims you have here you have several claims on excessive force and those those are subjects sort of the project and concealment but i want to understand the civil conspiracy claim and exactly what the allegations of that are because they could be different but i can't really tell based on what i have before me yes or so indeed we do allege excessive force unjustified shooting but the thrust of fact the express letter of the order that we're here appealing is confined merely to the statue of limitations issue so for the purposes of this argument i think it's fair to assume that the shooting was unjustified that she was unjustified and that my client despite his due diligence didn't file it within the requisite three year period so the conspiracy is not just among the defendants in the cells but also among the various investigators who did the in house investigation and i will point you know appendix page one fifty two one fifty four i get a laundry list of about thirty different ways that this matter was concealed and before you can get back i'm just trying to figure out what x underlie the civil conspiracy claim and how they're different from the excessive force the excessive force gets the shooting and justified shooting the conspiracy make it something i'm just trying to figure out exactly what x i don't like the civil conspiracy well for the purposes of today i'm really going to focus on to the beat once again that list the shooting it happened in her backyard in her kind of place of solitude right in a patio and she went in front of the she was swept out of her place barefoot wouldn't let her go back in her house and she gave a statement to the officers and she told them quite clearly that  you know and they're asking questions of her and what she saw she said and there you know they're basically trying to lead her to admit that they did that collin had a gun on his person which she wouldn't do she said during the statement i did not know that kollin had a gun on his person that statement was transcribed in house by l r p d produced presumably transcribers never come forward but that was transcribed falsely to reflect that she said i did know he had a gun on his person let that sink in for just a minute you have an eyewitness statement that gives eight witness who gives a statement that is exculpatory of the victim and it of the events of that evening are subsequent to that prior to the expiration of the statute of limitation a conversation was not had by the letter was sent in the letter is actually part of the thesis of the court's granting of summary judgment which is confusing on a couple different levels first of all ms hadfield did tell my crying that she believe the shooting was unjustified prior to the expiration the statute of limitations that was her opinion to him like countless other police involved shootings some people think it's unjustified it doesn't make it so but when he consulted the official final the one that is controlling in this matter the one that he shipped around to various attorneys to the f b i to the department of justice it was in complete contrast to what she was telling him her opinion of the shooting was and that is it reflected her belief that the shooting was justified so that's one aspect of it let me ask you this i want to kind of get back a little bit to my earlier question to ask it this way for all the claims you have in the complaint are you relying on equitable tolling are are there actual acts in any of those counts that happened within the statute of limitations you understand my question i'm afraid i don't quite understand why so my question is for all of the claims of the six counts in your in your complaint yes are you relying on equitable tolling for timely ness or are there some acts wrongful acts that actually occurred within the statute of limitations where you don't need equitable tolling what we believe that the that the statute is was told because of the project concealment and in so to answer your question directly all of our courts you know you can't have a conspiracy charge for instance without a constitutional violation of the heart of it so that constitutional violation the statute ran on that but it was because of the furtive acts and the positive affirming affirmative concealment of the defendants so all of the allegations that we the tie goes to the nonmoving so where they see that it's a mistake and they don't present anybody to back that up and we say that it's intentional and we show supporting evidence of that the tie goes to us there's no way that the court below should have  discounted that very important aspect of this well it seems to me that the issue in the case is that for purposes of our motion to dismiss we're not even a summary judgment motion dismiss we have to sue mall well part facts are true and so we have to assume that there was fraudulent concealment what so i'd start with that basis but the district court said well even and even if you assume this fraudulent concealment pleading concealment so you know i think that what we're talking about here essentially is the court trying to shift the burden not just before the burden because let's not forget there was also a video that was that was with the four representative in this instance is the uncle of one of the shooters that came across his desk mishap fields for your request came across his desk and what do you know when it was responded to there was no video in there the video has an admission by an eyewitness saying that collin was pinned to the ground with his arms behind his back when he was shot that is a contemporaneous utterance by an eyewitness and it was withheld from the actually video was not turned over but the existence of the video was known as a correct judge there was a tiny scant reference to a video but here's what's important imagine that this was a citizen  citizen homicide and there was in the citizen suspects said this was self defense i had to shoot the other guy because he was pulling a gun toward me and then it was investigated by the little rock police department do you think if there was a video of an eyewitness saying this guy was pinned with his arms behind his back that that wouldn't have been used to challenge that suspects account and yet in this police shooting investigation not one of these officers was ever asked about that video no one ever said hey we've got a video here of a kid who said that is he was pinned with his arms apparently back what do you see about that shooter number one how about you shoot number two shooters number three how can how can your story in this video be the same so there was a scant mention as to the existence of video but it did not at all talk about the substance of the video which we think is quite significant it quite simply doesn't pass the smell test judge in it's unbelievable to me that that these this conduct can be proven and can be established  painstaking depositions and yet the onus is put on my client to somehow dig through the out of the fraud to dig through and to put that onus on him is patently unfair they control the facts they control the evidence e to the panel the tragic nature of this case at no point in time we not recognize that there was a loss of life that occurred on in july of two thousand and eight however tragic as facts with respect to the robbery that the officers were there to investigate the shooting itself however we are here as the panel recognized strictly on whether or not these touch of limitations bar the existence of fraudulent concealment  i'd like to point the court to a recent decision by the united states supreme court in midland finding l l c versus johnson one thirty seven supreme court fourteen zero seven twenty seventeen in which the us supreme court acknowledged that the statute of limitations are not simply technicalities they reflect strong public public policy determinations that it is unjust to fail to put an adversary on notice to defend within a specified period of time that statute of limitations promote justice by preventing surprises through the revival of claims that have been to slumber until evidence has been lost memories have faded and witnesses have disappeared now i think both sides agree and appellants concede that at the as of the day of the shooting in july of two thousand and eight mr spradling knew that his son had been shot and killed by members of the police department within minutes of being notified that he had a letter from christina hatfield as appellant repeatedly points out with an eyewitness to the shooting in her backyard he emphasizes the fact that she about the location of mr collins prowling arms he also said i knew he had a gun and i knew he had a gun so i don't think that it's dispositive or proof such that he would prove the underlying fourth amendment was at the time that the freedom of information act request was made and i would like to point out that the request itself was actually made christina hatfield at no point in time did mr spradling make any requests for documents prior considered the case so the transcript of the recording was turned over to the request to a transcript of the statements that were given not a transcript of the n p r video the n p r video was not handed over however there and so at that point when he receives the file in early two thousand and nine he's put on notice and under don't mind if he's got inconsistent information or some suspicion that something is not right or that he hasn't been given the entire file or there's information that could be discovered he has an obligation to do it's due diligence suppose those suppose though you know that you said the video really doesn't help the audio doesn't help but suppose we have the exact same facts we have here except for one thing changes on the video or the audio or whatever the officer says it's overheard on the the audio i was having a really bad day i knew he didn't have a gun but i just why is that he has an obligation to do his due diligence if he is put on notice that there are some inconsistency and here as i said before i witness to the shooting has said to him not just i don't think they had or that it was unjustified not just wasn't reasonable not just i don't think he had a guy and she said i think your son was murdered in my backyard i have made myself available to you i have placed calls to the prosecuting attorney and the event that criminal charges are going to be pursued against these officers so he's got information that he could have filed a lawsuit the question isn't whether he could have retained counsel or whether he was successful in retaining counsel or whether the case was more difficult to litigate for lack of these things or whether or not the lack of the video or the recorded statements makes some case he mentioned mr lowe mentioned while he was here that we don't have an affidavit from the transcriptionist but affidavits from the defendants were submitted in which they stated under oath they were not the ones who transcribed the statement they were not the ones who responded to the filing a wrongful death action it can't be said that they weren't aware that the cause of action for a fourth amendment violation or any of the other out claims made in the complaint existed at the time he was aware that the cause of action existed he said he admitted his own affidavit that he submitted in response to the motion for summary judgment that we filed that he was aware of mishap fields believes he was aware that she didn't think it was reasonable there's simply not that you may be aware i think as he said a lot of people think if they're while they want to shop by police it was justified but you go to the file and you have a statement that is exactly contrary to what was actually said statement she says she didn't have a statement so she didn't have a car and the evidence was withheld why did what isn't that factor into this just because you think you might have had a cause of action you investigated and if the evidence was withheld why is that not concealment while your honor a few things there and the statement that opposing counsel has referred to as the witness statement given by christina hatfill the day of the shooting at the little rock police department in which we have admitted conceded that there was a mistake in the transcript and which she said i know he did not have a gun and versus i know he did have a gun however and this is going to reference a supplemental appendix page one thirty is where the mistake occurs hatfield but i mean i didn't know he had a gun on him however a mere five lines before that she says somebody said you know he had a gun on him and i said of course not i would have told you i know i'm going to be out i'm not going to be out there with my kids with a gun so if you look at the entirety  that day that she gave it there are multiple instances in her statement in which she says he didn't have i don't think he had a gun or i didn't know if he had a gun it's one mistake with in the entire statement and if you look at the entire statement plus coupled with her firsthand if you go back to the elements of fraudulent concealment the things that appellant must be able to show in order to get past our motion for summary judgment he simply hasn't done so  previously said he had a letter from mr hatfield he had access to all three hatfields he had at the five hundred plus case five page case file in which there were references to the n p r officer lundy gave a state have inconsistent accounts of what occurred then you were put on notice that you have an obligation to look into the issue further and that simply did not occur here moreover with the affidavit presented by mr spradling he concedes that he went and sought legal counsel the fact that the mere fact that he seeking little legal counsel has retained legal counsel indicates that not only could he have discovered that there is a potential cause of action he did know there was a potential thank you just a couple of things to say counsel talked about before the statute referred to its current interpretation at all times before statute expressly includes video recordings and that's important because the failure to include video court will be allowing is this you know you can try jointly conceal materials you can forge records you can alter and damage video but as long as you put a tiny little chrome in the file tiny little crumb you're going to be just fine you can be joe fine worst case scenario they find the crime and they file within the last the statute as is their right anyway best case scenario they miss it and the statute is blown and you know what they don't tend because they're grieving their loss of their loved one they don't really notice it through their tears it absolutely shifts the burden over to the point that to do the work of the government which is has a relatively high level of sophistication as matters the ship again of the foyer statue there is the persons who know how to interpret not my client and not miss hatfield why should they have to make a special request for videos when videos are expressly contained in the statute as to  fact of my client's wearing this yeah this is not a situation where this happens hands until the statute written he feverish lee sought out attorneys in throughout the entire process the problem is that he was shopping around a fraudulent file not only did he not catch the frauds and concealment but a happy dozen attorneys looked at the file and said no no it's not going to work she says he had a good so it was a defective file that he was unwittingly shopping around he did his due diligence the last thing i will say is this this is about collin spradling to be sure but this is about something much bigger and this is about trust in our institutions and whether we can rely on the government to give us the street truth whatever it is seems banks thank you so much for your time