are as to whether the what they're what they're going to tell your honor is well the david made independent investigation well that's that's a fact question for the jury as to why they did it not his if you look at his affidavit he found in november two thousand and thirteen and the independent investigation but because he just wanted to get this dow off his back so that's why there's a fact issue whether there was an acting on a call or state law and i don't we haven't a judge assigned to the arrest warrant yes or and then  and i don't know whether it has left us but then when it was tried before i believe it was tried before different judges just could and he characterized this as being a child support matter he said our jails will be for every time a woman gets after and so what you do with it we still need terminations that the warrant has some facial is based on some facial claim of probable cause that could be made and if that determination was made in the way that a warrant can probably be issued in any effort state action or otherwise by pharaoh that's what's broken so would you agree that if the warrant is fac but if you can show that a person procured a healing a way then that can be approximate collars and has to be illegal like we have issues in searches of whether warning actually was based on probable cause or not and you you don't we try that but you was not protected speech when i warm and is trying to collect her child support to me is just beyond fallible that is protected speech and he mentioned this his brain spins three or four pages quoting e mails seventy five percent i'm more directly about child support exhibit five our response to my asking for some adjustment is the exhibits energy used at the justice co and you'll see that a large amount of them are specifically about child support and there's know she didn't go to them to look told and then she gets arrested in november but he denied his deposition said i didn't know she was going to get you know she was even going to alabama talking but a jury could find that he's being upset about her going to bring him back to court me more about this and i'll have you arrested and according to the district judge that is ok i can do that but there was a statute on the books that said emailing use an e mail to harass somebody is a crime yes and that wilson good morning then proceed thank you your honor i think that i'm very glad to hear mr wade said there's no issue about the constitutionality of the statute because it takes the whole realm of my argument out of play i agree there's no issue regarding that it was not brought up before the court below and was not decided before the court below the issues are both state actor and probable cause the court has touched a very cogently to the with its questions on the points that are there in my argument but i'd like to go against the guideline that they give the lawyers argue the fourth fifth circuit don't delve directly into the facts we need to dispel that this is all about a child support issue in the way we do that and the way we do that to avoid creating an issue effect is to look at miss moody's testimony i examined her about each of these messages that are all exhibits in the record and as to some of them they mention child support but you can't inject first amendment protected messages the ones making fun of his wife being in a wreck the ones making a lot of mr farrow second marriage breaking up as to all of those things she admitted she sent those for no reason connected to getting child support variously she phrased those as it was supposed to be mean it was supposed to be ugly to him she it needed to a state of mind that comes within the statute and when asked directly would i think that a reasonable person the proper probable cause standard a reasonable person viewing these messages could think that they were arrested and their answer was yes so this is not all just about a poor unfortunate ex wife trying to get child support and i don't think we need to delve into the merits of the divorce and who's the bad person suffice it to say she's admitted to the conduct that establishes probable cause she's admitted she sent the messages she admitted all of the messages were received by mr farrel she admits that the purpose of many of them was to harass him she admits that mr farrel told her to stop sending messages and that none the less and that he was feeling harassed by her messages and nonetheless she repeated her behavior so we need to dispel that at the outset that this is all a valiant effort to gain some over the trial of all of the salacious details that are referenced in the briefing referred to happened well before in the references or in our briefing well before the time that mr farrow complained to law enforcement he only made that complaint after he told her to leave him alone and   in the messages that's the context of this the timeline is over a year is the perfect illustration of why he was frustrated why he called several times to find out what's going on he was continuing to get these emails and text after requesting they were stop so yes he was frustrated and he wanted to stop so he made repeat inquiries to law enforcement he talked with other law enforcement officers detective reichert one of the other investigators is the one who officially opened the case in september in between when the complaint was made in november of two thousand and twelve and when the warrant was issued in november of two thousand and thirteen detective reichert open the case he received some of the messages while investigator cooper was out or facts are watch on the face of the e mails is that correct that mr farrell telling him this is this is going on i think mr of cooper the detective cooper tried to get information from mr moody during the investigation he attempted to conduct that investigation but she wouldn't talk to him and told him to talk to her turny he tried to get to the attorney all before signing the affidavit of to find out if there was anything else that needed to be considered and both of them said no we're not t fact question then we don't mean there's not one to look at the question of whether it's a fact question of whether this was state actor or not because of the fairly joint action test it requires something more all of the cases that analyze this issue do so in in situations where the state has ceded or somehow given some direction of the state's power to a private citizen by way of joint action in all of the shoplifting cases that have been decided sim sources jefferson downs daniel ferguson and all of those cases that talk about accessing the justice system does not make you a state actor the unifying issue that either caused it to be state action or caused it not to be was whether there was a preconceived plan an  amongst the state official in the private citizen to achieve an unlawful purpose there's no way that you can reasonably extrapolate a shake strap a lake that someone but come to new would be complaining of continued criminal conduct is is jointly acting he didn't seek the warrant he didn't sign the affidavit mr farrel didn't meet with the detective and the prosecuting attorney all of their actions were done separately they were not done jointly all mr farrel did was access the justice system of the case law that this circuit has handed down this court his big civically said that execution of a private party by a sworn complaint which forms the basis for severe that that would have been a different court in a different situation though and i apologize if i misspoke even providing a rony isn't from ation to an office even lying to an officer let's look at the brooks your brother's case which you probably out an arrangement that when i tell you to rest somebody i want you to arrest him it seems but early in that arrangement before it's really understood you could have a significant enough person or a bothersome enough person that convinces law enforcement to act really normal occurrence for a merchant who offers groceries and dry goods for sale to the public to regularly have shoplifters and the law enforcement comes to brick sure brothers or walmart or wherever they come to on a regular basis it's the preconceived play and that by designation only brooks brothers or wal mart can say this person stole arrest them and will deal with it in court that's where in the state se can attribute state action to a private act or independent investigation of any nature in those cases that they talk about even interviewing the witnesses the one witness if there's one witness talking with the store is long as there is an independent investigation in proximate cause to arrest the terminations that breaks the chain and it's not state action in this case we have two degrees of separation which i think is  a very important point that second degree of separation of having the justice court even if you assume for argument's sake that mr farrel overrode investigator cooper's free will and that investigator cooper then took information to the justice court even if you assume that to be the case the justice court issued a neutral decision based on the evidence before it we want to talk about  versus brit is not applicable to this case because everybody is uncontested what's in the affidavit is true miss moody he says the statements in the affidavit supporting the arrest warrant or tru she admits to every element of proximate cause she admitted that she electronically communicated to mr farrow for the purpose of harassing him she admitted every one of those things and so i think that that be not incorrect in this regard but it's my understanding that regardless of if any technical defects in the warrant the issue is whether or not there is probable cause to a wrist and that's manifested in a warrant and it's a it's a protective measure that a law enforcement officer who's been presented with facts can take them to a disinterested neutral magistrate and say hey what do you think about this but he can arrest somebody without a warrant if there is probable calls and  i think that he had probable cause both at the time he made the decision to arrest both at the time that he made the decision to seek the warrant and in retrospect by the admitted testimony of mr moody she's nefarious intent but to show the court what we were dealing with you know the whole entirety of them are in the record but but suffice it to say many of those had nothing to do with the first amendment exercise and so about when there is a taint to the deliberation of proximate cause nobody has pointed to any evidence that the proximate cause deliberation was tainted nobody has said that anybody lied to either investigative cooper or to judge phillips who issued  think that the issue is the state is validly controlling her conduct whether or not she is exercising an expression of her first amendment rights one there's not an escape hatch in the in the statute for that what's regulated is the kind of sending those messages it's communicating to not communicating about and it's the repetitive nature of those contacts that invades a person's right to be unmolested in their home unwarranted unwanted and specifically prohibited messages our supreme court has said that that's valid in a nonpublic forum in one to one contact in this in the  scope of emails and also in the sca are exceeding the scope of mail which e mail is another variant of mail texts are the same thing as phone calls so i think that we're in a situation where there's been a valid exercise there are no issues of fact the only issues affecting because it's the most important issue state action because if mr mr farrell is not a state actor all of this other stuff is academic that's where the rubber meets the road and the only indications that the pla has put forward is that mr farrell complained a lot because he kept getting these messages that he said i want that person arrested victims of crime want people arrested a year long investigation that went on without any charges or without any follow up of on what he perceived was criminal conduct against him that can be frustrating that's something that a person is going to deal with a law enforcement officer or agency's going to deal with regularly with people that perceive they've been victims of crime and  were in this case so i think that that does not transform into state action without some credible issue of fact that that tainted the probable cause determination and there's just nothing other than conjecture leap from one to the other in this case if you accept the plaintiff's argument and if you deem a criminal informant even if he lives to be a state actor you're going to open the floodgates of  eighty three litigation to the district courts into this court in cases that it was never meant to address because the constitution protects citizens from the government state law protect citizens from citizens and there's a method there a malicious prosecution claim a state law claim maybe that's designed for the allegations in this case but not in one nine hundred eighty three the last thing i'd like to talk about is if we get to that point i respectfully submit that he's not a state actor case is closed it alternatively there's proximate cause admitted lee conceded by the plaintive and that for closes any further investigation but i respectfully when you talk about what did they concede miss miss moody's testimony concedes all the elements of probable cause ok you are about that's what you meant the nature of her intent i believe is effectively a judicial admission and a concession that proximate probable cause exists even if all if we get past all of those things there should be immunity for my client luger one of the cases one of the seminal cases own joint action in state action in this context of talks about the need for a good faith or to not chill the citizen's rights to exercise their rights in the criminal justice system or in the civil justice system freely if you transform every person who makes a criminal complaint into a state actor or threaten with constitutional litigation you have effectively done what lugar warns against have not safeguarded the freedoms of the citizens you circumscribe them by causing them to be subject to a set of rules and a set of laws that were never designed to apply to them as non governmental non sta actors because there is an underlying foundation for of immunity to criminal complainants in the malicious prosecution law i think that qualified immunity as it exists for state actors should transferable to any private citizen who has deep been deemed to be a state actor it's only fair and in this case the same probable the same qualified immunity that in years to the benefit of investigator cooper should  to my client mr farrel as well if he's deemed a state actor and in that scenario his intent doesn't matter whether he wants her arrested or not if there's probable cause he's qualified liam i  realize that there is precedent that traditional framework of qualified immunity does not apply to private citizens even when they deem to be state actors but a case that coincidently mr wade argued for this circuit that went up to the fifth circuit and came back there was a pronouncement that while they are not subject to qualified immunity in the traditional sits under the one nine hundred eighty three analysis a person deemed a state actor is entitled to a good  and unity and that requires a showing that person one to two parts one acted with malice state amman issues of fact that's not the focus to that person head to know that the state their exercise of state authority was unconstitutional they had to have reasonable knowledge in this case we're not talking about taking the statute as mr wade suggested we're talking about accessing the criminal justice system in finding filing a complaint and as a result unless it can be shown that there was no probable cause and no reasonable basis for mr farrel to have filed his complaint he's entitled to good faith immunity affidavit where tracks the language of the statute and then it says oh november twenty eighth two thousand loyal scott bear reported her slave near miss text messages cetera after asking him to stop she's not a lawyer she can't know whether that's happened immediately before where he first went to law enforcement in november of two thousand and you've if you look at the top there he does sent what he does to tell him how to contact me it says don't take from a further unless it is to pick up my daughter then everything else she says if you read it it's nasty language it all pertains to him picking up her daughter and she says when you didn't you know you were supposed to be at seven thirty and you didn't come you didn't show up it's pitiful to tell a five year old you're coming you don't come and i just that his sons feel this was unwanted speech the united states supreme court said well we take a very narrow view of that it's true that the family didn't want to out there but we take an extremely narrow view that in this case your honor she's trying to collect her child support and she's talking about visitation with her child thank you the father says don't talk to me unless it's about picking up my child well on the chantry court orders you got to talk to the father about you know picking up that you're so he doesn't have any authority to tell her don't pick up to me about child support or in this case he said just to pick up my daughter but she a baby that instruction and she she use foul language toward him but that's all she talked about was a situation picking up a child so we don't think your r k should be thrown out because i don't ski or cross examination to get her to meet whether it's true that i did send all of these certain selected emails that she said were main or unwarranted or whatever