thirteen fifty nine sixty richard wesley versus joy in rigney individually and in her capacity as a police officer for the city of covington arguments not to seek fifteen morning morning my name is paul hill and the attorney for richard wesley at this time we did request three minutes of republican judge all right your honor i am here today to ask this court to overturn retaliatory arrest his retaliatory rest klein which was dismissed a few months later in regard to summary judgment i'd like to address the false arrest claim first judge first of all judge the procedurally rule twelve the six motion was unusual in that it was filed more than two years after we filed the original complaint so it was filed and during those two little bit more than two years we had completed discovery which obtained all of the relevant documents at sun difficulty and i might add including the cac type tape which is at the heart of the case and also the cabinet records for j s the seven year added to retaliation cal judge we didn't go back and change the initial complaint but she did that in relation that's the purpose that's why she did it because we that's why she's permitted to do it but it was an unusual exercise because we had to go back in time some two years before and look at what we pled and ignore all of the important evidence that we learned throughout those two years and in doing  so if we do that if we go back to the complaint and look at whether or not was properly put there's no doubt that that case was properly pled if you look at the requirements for rowley rollei requires a shorten plain statement showing the pleaders entitled to relief and it's not to be just a complaint is not to be dismissed if it's factual geishas rise above a speculative level and also because this was a civil rights complaint there's even a higher standard that the court must consider before dismissing the case this worker case zwicker vs khuda says in actions under the civil rights act the power of federal court to abstain from hearing and deciding the merits a claim properly brought before it is a closely restricted one which may be  only in an area nearly limited certain set of special circumstances it requires if there is a dismissal it requires this court to scrutinize such a dismissal dismissal with special care your honor is after four years of living in this case i can i think i understand why there is such a high standard to dismiss a civil rights case first of all the issue is so important i mean we're talking about a person's freedom the right to be free if for mr wesley mr wesley is one of our good people you know he put he put himself through school and he was arrested he did all that so he could be a counselor to teach kids his arrest and it all of that so it's certainly significant issue there but also and most importantly in a civil rights case the police the social workers they have all of the evidence we don't have anything in till we file the complaint so not until that happens can we can we properly understand the input to the significant issues involved in until we follow the complaint take advantage of the discovery rules so i think for those two reasons that's why there's such a high standard in dismissing a civil rights case at the at the pleading level and if we look at this case if we look at what whether or not we played it it all comes to what it comes down to really is whether or not we put sufficiently j s was an unreliable witness because if we cut to the chase so it seems like a good and incredible responded in the court decided to dismiss it pursued the rule twenty six and it was in a case a believe the court could've counsel could've used extraneous material in the court could have treated it as a summary judgment motion but that didn't happen here but if we look at whether or not we sufficiently pled whether or not j s was a reliable was not a reliable witness i there's little doubt that we did not only did we plead that we showed the or certainly should have known that the tale the j s was tell telling was completely incredible i mean to believe him if we go back and what we put in our complaint is that j s was a mentally disturbed young man we knew that we i believe we played that he was institutionalized for two weeks was actually eight days we didn't know that and then we also played that there was a negative medical exam after he claimed he was sodomized for over a year and we also claimed importantly the proximity of the office all of this allegedly occurred in an school setting in administrative pub of the school where ever of where the faculty would congregate or copy was there the mail room with the door open was was at fault here she was certainly put on notice that there was an issue here and what she didn't do is really beyond belief if you look at this case judge she was she knew that there was an alleged sodomy of a seven year old child in an office setting with a door open in and make a naked counselor she interviewed no one at the school no one there's a separate but the that she did not interview any other teachers or secretary the principal or no if she would have been or viewed the secretary we're talking about carrie fisher who's a secretary and in was outside the desk there was only one time to come out and help he did that obviously j s was upset and mr wesley went into action he did what he's supposed to do we made phone calls to north key he called the parents even arranged for a taxi to take j s to the school perry fisher witnessed all of that and if i would encourage the court to look i believe it's a document fifty seven sided throughout our brief but she claims mr wesley was never alone with j well you don't know that for sure she left some other things out maybe she would have interviewed that person and left that out thank you judge it we don't know that and if we could move on a little climb i didn't follow that initially because i didn't know i didn't know a lot of those things i didn't know that that rigney and allison campbell the social worker were friends they went to girls night cell that campbell when she got the case requested that rigney do the case with her she didn't call the police department they assigned someone so they did it together and then we also didn't know i couldn't figure out the timing of this because if you've got an allegation from rigney that there's there's that occurred i believe on february sixth that there is a child rapist that so brazen he does it with an open door in a school setting why would you arrest him then if she believed in her mind and the only reason that i can come up with is that she knew she didn't have probable cause and was what triggered the arrest the only thing that actually happened was that else and campbell through the social worker substantiated her abuse and mr wesley appealed that through his own attorney those documents were all found in rigby's case file which he handed it to me some years later now she wasn't copied on any of those documents and she wasn't part that so it's substantiated abuse finding she what she should have had those in her file if she wasn't privy to it and she didn't consider that that issue as to whether or not she filed the complaint  if we also also judge if we look at if we look at the at the table if you if your honour's have had an opportunity review that the claims the j s made in that tape are completely completely show why it was such an unreliable move we're going to say that that was a reliable witness how far we going to go in all sides you're are see that i'm a little bit what sometimes we don't want to be reminded of that you keep going i think you judge but i think what's happening here is is the defendant is attempting to take ehlers to an illogical extreme because you see it cited that all it takes is a witness eyewitness identification is good enough and that's what the district court relied upon but that would this has to be reliable and in this case there was a multitude of reasons why j s was not reliable and we ask the court to utilize the other language in in ehlers which which i cited which says that we're the police cannot turn a blind eye to expose with or evidence to pick and choose what they want to do to pin a crime on someone it's cetera et but the fact is at the time of the arrest to take of rigby had probable cause we had a statement first a statement made by the can we help setter that mr wesley had touched a us then we have this interview at the children's advocacy center we get into some detail gives credit rating evidence of exactly where it occurred what he could see at the time he was able to put into a time wasn't it it was iran and you're right it wasn't exactly consistent first he said that it was over his clothes and then he said that you know took his pants down and perhaps that's why he was only charged with sexual abuse in the first degree enough sodomy because there was some inconsistency but the fact was you know he was a young child my concern is if you've got a ninety four day time trying and you've got the three conflicting reports and i believe the last report is pretty far back from the eighty fourth day and and then she does not charge him with the activity alleged in the last in her he mean isn't that an indication that she found him on reliable in that last interview and in light of that how could she not have gone on investigated to have i believe the probable cause is what she had the facts that might have undermined that perhaps if she had talked to miss fisher she might have changed her mind but the facts are what were known to her as an officer at that time i mean i believe the victim's statement you know is in some detail and i believe that that establish probable cause was that why she waited i don't know exactly i don't know why perhaps she didn't speak to some of the teachers or things like that but i do believe that there was nothing she knew at that time undermined her belief that there was probable cause do we want someone to be encouraged not to look do we want to rule that makes an investigator barrier here in the sand rather than trying to ascertain the real truth of the situation and perhaps not and you had three months when mr wesley was still at the school every day counseling children and here is the celebration that he has molested at least three of the children at that school and nothing is being done then and so she undertake some other investigation all of which tends to indicate that there is that in fact there is no probable cause to arrest me i'm talking about the talking to the other children that finding out that nobody else had been molested i'm talking about the medical report that showed that there wasn't any damage to this child's genitals i'm talking about the absolutely improbable story he told about the fact that he was sodomized by this six foot tall man standing up i mean all of that that should have unremarkable medical exam that happens in quite a few oh well sure but this child was saying he had been sodomized over and over and over again for a year and that a seven year old child and there'd be a negative medical report i mean that of the things he said about leap years was occurring that it might seem unusual to you but to her it seemed it was unusual some of the things he was saying this was consistent with her experience with children who had been abused and  psychological issues and detective riggings opinion mr starks opinion that was a common fact that made abuse more likely than not it contributed to it wasn't a factor making him less credible i believe the facts that were known a period of time isn't that true that scripture that doesn't cooperate that something criminal happened here it only corroborates the fact that he'd been in the room before that doesn't make him a reliable witness as to what he is reporting happened in the room there was a bask in the room i mean that doesn't tell you anything about whether he's reporting reliably that he was molested by this man that's the problem with it it doesn't cooperate it only corroborates the fact that he's been in the room and not that anything untoward happened to him but that there that's where it is appropriate but it doesn't detract from it either i believe that we have here a lot of things that don't detract from we have the victim statement we have examination of what would detract you know all of us here get what's going on in this case is you've got to protect the ability of a child to report abuse just like you need to protect the ability of a woman to report abuse and those are really significant issues but our case on a balance is those against the destruction of someone else's life and that's what you are stuck as it says it seems to says this is going to be probable cause unless and it's an important unless unless you have a real reason to believe that someone is unreliable and isn't that your problem here  the changing story starts out he just touched my genitals over my clothes and then it ends up with multiple sodomy is by a man who's naked in his office at school over a year's consistent some of us would look at that frankly and say it was perfectly inconsistent but go ahead isn't there one other problem with the case that the judge below took that vakeel ian i think is real standard is plausibility isnt it yes your honor and the way i would address that is the fact that i believe it could the judge could have converted that to a motion for summary judgment didn't he didn't didn't until he can't apply mention briefly with respect to the unlawful scuse me the retaliatory arrests that in the vast majority in fact every case i could find the plaintiff was arrested for conduct he said no i'm not going to leave money on my at three but in the typical retaliatory arrest case the conduct is used as the conduct itself of the conduct of conduct in it's usually for for exercising a free speech right for cursing at the township meetings was arrested for disorderly conduct there's usually a direct connection in a retaliatory arrest case which is just not present here or there he was arrested reliable he there was nothing to undermine the probable cause he gave this he gave time in place details he was also missed the first interview on there because he didn't share all the details immediately i don't believe he changed his story i believe it was all consistent with a pattern of abuse he mentioned one incident in the taxi ride over he mentioned one mother got out of a car to take him into north kiddie or whatever it is she didn't say you attacked my son you touch my son did she what she said was i know what you told it's right and when he had told him was you go tell these people everything that's correct so was the mother objecting to what her son was going to say about what was going on at home  sam like she was objecting to what had just happened to the school you know she was very clearly upset and then the next day she told another covington police officer in detail what he had said in the cab ride that  genitals just but you almost have an excited utterance here she steps out and she says i know what you told me not what you did to him but what you told  and possibly but at least have to look at the other statements and think that the prosecutor never doubted probable cause and this case was dismissed soley because there were concerns about cooperation from j i said his mother the prosecutor was confident of the probable cause existed and based on the facts known to detective rigney there was probable cause to make the arrest of mr wesley whether this was a part of course this was not a perfect investigation but years after the lawsuit in the event why it had been some time but i don't have the exact date in for after discovery had occurred if this actually discovery concluded yes or other that was another difficulty is that this was added after disco the complaint was a minute after discovery had concluded which was a bit of a difficulty for is it made difficult for this for having a discovery related to this retaliatory arrest claim after she watched the cac interview she said that she interviewed j s for two minutes and decided not to take the case do you believe that she believed the j s was reliable that's the only thing she looked at she did know a lot of the things really didn't reveal a lot of those things to or also judge judges counsel says what the problem with that we're going to have in this case he's to if this court returns case back to district court they're going to file a motion for summary judgment from the same judge that said that there wasn't probable cause we that they asked this court to find to make a finding that there was in fact no probable cause in regard to retaliation claim and that's important because that becomes a law the case in the remained and we believe that would stop us from coming back here again and allow mr wesley to get his day in trial which he deserves but there's nothing else i think if he'd been an employee and he's working at a hospice in denver thank