new case that just came out in april of this year that is very important is this hartmann versus more it has relevance to the constitutional violations claim mainly the fatality of first amendment claim has to be involved in some conduct intimately associated with the judicial phase of the criminal proceeding in order to claim absolute immunity but what is the first point  clear that the official seeking absolute immunity bears the burden of showing that the absolute immunity is justified for the function in question and that point was reiterated in buckley where the court stated the question then is whether the prosecutors have carried their burden of this stablish and that they were functioning as advocates when they were endeavoring to determine whether the boot print at the scene of the crime i'm had been made by the petitioners foot in this case  not have any probable cause to initiate this prosecution we've alleged that he knew it all the time but the problem is that you have onerous and you know difficult part of a con here i mean do you just agree in other words buckley draws a yellow bright line down as to probable cause as to whether there is advocacy and therefore absolute immunity versus investigative administrative and qualified absolute immunity but simply because you go to the grand jury does not give you the cloak of absolute immunity it does not mean you function as an advocate if we read buckley someone somewhat differently that as long as you go to the grand jury and ask for an invite and you know you don't have probable cause but you use the grand jury which is the way you're supposed to go and you're not investigating yourself you're not personally getting out doing any investigative work but you're doing what prosecutors do if we read it that way how does the prosecutor here violate buckley he violated buckley because again you have to have before you go to the grand jury you have to have you lack probable cause you have buckley said that if you don't have probably cause you can't be an advocate period it doesn't say that it says the opposite it's only prosecute it's just a minute a prosecutor would be entitled to absolute immunity from the malicious prosecution of very next point which is that helen and statements to the media are not entitle to absolute immunity again buckley made it very clear that comments to the media have not functional tied to the judicial process just because they are assume for the argument that he made the family her remarks how do you get from that to your constitutional claims well first of all the defamatory remarks we've alleged was also in retaliation for the chief exercising his first amendment rights it's the other interests goes over damages and we allege in the complaint very clearly that the chief suffered a loss of the employment that he suffered a stroke during the arraignment that he suffered pain and suffering not being defamed where people would say oh the chief of police was committing crimes he almost certainly didn't have a property interest in the because he was an at will employee in his police job for state that it first where the prosecutors and investigators other government officials have brought a retaliatory prosecution without probable cause that the plaintiff can bring an action against both the investigators and the prosecutor where the prosecutor is operating in the context as an investigator and his our contention here that it's just returning helen that was always operating in the context of an investigator he never crossed over the bright line in the probable cause just like in buckley if you recalls and buckley there was fabricated evidence in the supreme court said that fabricated evidence does not give rise chief first deputy chief paul comments about the status of the evidence and deputy chief paul cummins told him we have no evidence we have no suspicion we have no probable cause he pulled down the rules of professional conduct pulled down the uniform charging because he was a politician not an advocate and he admitted that he and that's played in the complaint he says i'm a politician if you says he's a politician then he's admitting he's not an advocate he's admitting he's not going there as a prosecutor he's going as evidence then you have no problem cause and buckle you had fabricated evidence the distinction between fabricated evidence like you would why watch out of absolute immunity for prosecutors because ordinarily they claim it's clearly drawn because there was fabricated evidence the court concluded that that substantially was no evidence and even when the prosecutor went to the grand jury with the fabricated blueprint the court very clearly said going to the grand jury does not retro saying forget it we're not doing that what this is why because they helped because they just return and went there as a complaining party he went there to admit that he had no evidence his deputy albert murray admitted he had no evidence but then he stated we were obstructed obstructed obstructed the we is where the emphasis is he's now complaining as a witness he admits he has no evidence so now he's not functioning as a prosecutor he's functioning as a complaining witness that he has crime and therefore he's only entitled to qualified immunity he is he admits that he's not he doesn't have evidence so he can't be an advocate so he always remain in the position of view that an investigator or complaining witness or hearten versus more in hartmann you had some a postal independent contractor who had lobbied to have the post office changes optical scanning technology so that the post office going to sort the mail very quickly the cultural investigators were upset with his lobbying congress to get this bill passed so they have launched a criminal investigation against him without any evidence the court hel conservative aspect of the supreme court they held that this retaliatory prosecution volleyed is his first amendment right to go and speak to congress and go an advocate to the public and that is state of the cause of action believe clearly influenced the grand jury they heard the television articles they were told these reports they heard the news reports they read and paper where the chief was accused of committing crimes all of this resulted in this  prosecution and more says that the chief state's a claim for retaliatory prosecution retaliatory charges being brought against him because he complained as i mentioned to the mayor defamation claim but i'd like to briefly address counsel's arguments regarding heart i think george burns on his already adequately responded to the argument that buckley creates some bright line rule that probable cause and the absence of probable cause is what determines whether you're an addict or an athlete or that's not what buckley says and it's also not what hartman says which is what he implied and hartmann is also not a retaliatory terminations claim what hartman said in a footnote hartman was a begins claim brought against postal inspectors not prosecutors postal inspectors for  basically inducing a retaliatory prosecution and the court held that a claim could be stated for retaliatory prick prosecution if you were to show that the inspectors induce the prosecution but you had to plead and prove a lack of probable cause in doing so there's a single footnote regarding absolute immunity of prosecutors and basically all it's done as is restate the general rule already stated an employer buckley and progeny and it says that a prosecutor would be entitled to absolute immunity for those same conduct the malicious prosecution but not if he was acting as an investigator which is not an issue that was in hartmann and not an issue that they  or we're arguing i should say that investigatory conduct is protected by absolute immunity and that's also not what the district court found instead the district court found that the allegations regarding investigation did not state a constitutional claim buckley did not address whether or not the allegations of fabrication of evidence in buckley actually stated a constitutional claim under section one thousand nine hundred three it basically said we're not addressing that issue all we're deciding is whether or not absolute immunity applies to to the conduct of fabricating evidence in any event with morris or any allegation that the investigation resulted in any fabrication constitutional wrong that took place during the investigation more pastime to hartman then why isn't the hook up by saying if you have a tally of charlie investigation that you want it had otherwise actually and it turned out that there was no probable cause representing the state to the evidence or the investigation if you really say we don't have any evidence because person actually there was no evidence of a concern of obstruction of justice and did not request that the grand jury return an indictment for it then he said things and properly or per someone else so to speak he the allegations in the complaint are that he made comments to the grand jury that there were in adequa he well actually i don't know to go back to something that counsel earlier said about him actually having personally participated in the investigation that's not an allegation the complaint there's no allegation that it was like that a participant in a larger set of  cases tell us that's a core prosecutor function is how he actually been sworn in as a witness and given testimony i think i might be hard pressed to argue that the case will suggest that he is acting as a prosecutor in that role but in making a few random statements in the process of eight incredibly i mean the transcript of this grand jury proceeding is unbelievably long i have not come close to reading half of it but it's boxes in the context of that entire grand jury proceeding he makes a few remarks in closing statement about the course of the investigation involves and be some becomes the complaining witness who loses his prosecutorial immunity i find that difficult to reconcile with the cases that zach and this court has recognized that i think the important thing is that my question is what about the hook up to the suspension well and beyond that the first amendment even though he has no property let's first amendment cause of action against district attorney how and then he asked he not only has to show that he does have a property or were liberty interest that was protected by the constitution in his job since we're talking about the damage here being a suspension or terminations and and i'd like to know in fact that all of the cases cited by appellants on this as well as all the cases that we found in cited talk about actual terminations and although counsel mentioned  terminations and terminations appears in their briefs there is no allegation in the complaint that they were actually terminated from public employment and that they were temporarily loses from their leadership position during the pendency of the criminal charges if that would have i was i would assume that if they were temporarily suspended and leaving aside their policymaking role for a moment because they went to the newspapers and said  had engaged in protected speech and that as a result as a direct result they were removed either from public employment and potentially even from their you know leadership position  about former chief sanders former chief sanders allegations are that the investigation into him in the defamation into him actually started prior to his protected speech he then and gauged in protected speech by  hallinan had made an ethical proposals and that as a result of the investigation remembering this is an investigation that had no constitutional wrong in it somehow intensified and that the defamatory statements actually also intensified he meant what i hear you saying yes there might have been a theory here but it is an election complaint essentially if he had alleged that it was because of what the mayor heard on television helen and saying about him now and then was saying it for a challenge tory purposes and that led him there to just charge him there might be an issue there might be an issue there i actually could not find a case in which a third party had made the defamatory or somebody down the line making the complaints for a challenge for your purposes and the board doesn't have a retaliatory motive but the fact is that the individual who causes the board to fire the person can still have a problem well i don't know that that's right i think by your protected speech and i don't know that he can show that here and more importantly i don't think he'll ledgers it here at best what he alleges was that the consequence of his suspension was a result of the indictment in which the defamation is certainly the major part but there are new allegations here about who suspended him and why and i think you order for this to be a case in which you know the substantial motivating purpose is this protected speech yesterday at least  suspend them i don't think that's right and i  statements had no ability to actually affect the constitutional deprivation claim which you know which was the last of her job and in fact found that she didn't have property interest in the job anyways but  of first amendment retaliation claim then yes it would be a jury causation would ultimately be a jury question jeannie was not a jury trial case it was actually kicked out i cannot remember if this is which will be six for summary judgment i he's going to lose it seems to me it has to be on the ground that even if this did cause that it's not what had caused it when asked to me it has to come back to the question of whether he needs to have a property interest isn't as employment  interest in his reputation because if he doesn't need one of those things i don't know why the allocation isn't good enough to responses quickly run realize a very little time left first i think you will find that he needs a property interest second i think a result of having someone arrest him conduct a public smear campaign against him in violation of his in retaliation for him exercising his first first amendment freedom of speech right that is the next year that i lot that led to the arrest of the plaintiff and held that since she was not functioning as a prosecutor when she made false statements she could not have been functioning as an advocate therefore she was functioning as a witness it's the same situation here when helen goes to the grand jury and makes false statements to the grand jury he's not functioning as an advocate he's functioning as a witness and justice scalia in the clean a case really  long as he is complaining he's the complaining party and he's sure he's not a sworn witness but that's not a requirement he is a complaining party yes instead he's a politician so he's trying to incite these people get many of whom probably voted for him to bring indictment so that he can gain the political benefit he can be the beneficiary of this indictment hopefully he would then gain votes aren't you saying that it politicized his office but you're not saying he went out and gave testimony that he  deputy told him that this was unethical and that what he was doing was wrong and he's yes i know but i'm a politician so he defines himself as something other than a prosecutor to something other than an advocate and admits he has no evidence he