please the court the last time i argued before this court was nine hundred eighty six and there was a judge arnold on that panel had that time also and i suspect that he might remark that since i am still at it than the other judge arnold the still added but the good die young i hope he doesn't think that but i mention that and i hope the court will forgive the personal allusion immunity and yet they they shade in the one another inevitably because the facts pleaded in in this case and certainly in our view disclose and interests an insurmountable i think that in substance that's correct the complaint alleges and i don't think there's any dispute the the defendant was charged he stood trial there was an acquittal on one count and a hung jury on the other count some weeks later  the circuit attorney elected to not like cross the case and that is where the plaintiff and we differ in our view the circuit attorneys decision the knowledge process file process and the service is part and parcel of the prosecutorial function and we think that the plaintive has attempting to add on to the prosecutorial function and administrative duty of the prosecutor to do more than to file and serve not process or a dismissal the plaintiff is positing a duty on the prosecutor to take a further step to ensure that the defendant would be released and yet on the face of the complaint the plaintiff also alleged is that once the defense counsel learned of the now process and approached the court by other client the corrections department and the sheriff she was told that there was a hold on the defend point not making any connection between your client and the alleged violation assuming there was a violation well i'm perhaps in front notions or not i think in substance they're the same i think i'll be  was a similar situation where an ali was filed and the claim was it was not properly served and the fifth circuit said that there was absolute immunity but we think even if you choose to believe that there is some administrative functions of a prosecutor in this context we think qualified immunity comes into play back to back on your through of circuit case of the case it seems to me there's a rose in the context where it's only a defendant but a material witness whose custody had been procured for purposes of the prosecutor so i think that implicates certainly the the qualified immunity argument which is as we all know the th should be communicated to the sheriff who then communicates to the department of the city department of corrections and so the communication goes really from the court and i think this is one point i wanted to make that the trio of district court eastern district of missouri cases that the plaintiff relies on the first one was judge fleiss in the paint case which mr gross also handled but judge fleisig held that the circuit clerk who normally would be the one who would notify everybody of the knowledge process is immune and it would seem to me that from the face of the complaint the duty to notify is certainly in the first instance of the call the court has to be notified by the prosecutor but then the press the court the circuit clerk should be notifying the sheriff who is the arm of the court who has the statutory duty under missouri law to bring prisoners before the court and to return them to custody and the sheriff is the one who normally would notify corrections and that there is no further need to hold the defendant but i have to emphasize that on the face of the complaint the plaintiff a eges that there was a hole he was told at least that there was a hole from another jurisdiction on the defendant and i think that that is to go back to judge arnold point establishes the lack of personal  the circuit attorney took no further action plaintiff attempts to glom together all of the potential actors and say the defendants in the world knew that the defendant was being held illegally but he does not a tension on the face of the complaint there's an allegation of a hold and that that originated outside this are going to turning unlike the cases that the plaintiffs cites in the circuit tourney had nothing to do with that whole the circuit attorneys not alleged to  immunity we get to the the fact that there is simply no personal involvement by the circuit attorney in the continued detention how does how how does this case compared to the second and third circuit cases that seem to say that there is an element of of administrative responsibility here that isn't prosecutorial in nature well the one case if i remember correctly i think it was nater that there were affirmative steps taken by the prosecutor to continue the detention and in the other case there was a as i say i mentioned a material witness whose custody had been procured by the prosecutor in the press and there was a specific directive from the court to the prosecutor to keep the court informed as to when this detainee use confinement was no longer necessary and the the record reflected that the prosecutor knew about that and knew that there was no further need for the detention of the material witness and yet failed to notify the court so i think there's a significant distinction between the conduct that's all that was shown in  cases and the conduct that's alleged here and i think you have to bear in mind also the duty of the circuit attorney to act or not act is a function of state law and the circuit attorney has no and obviously there was a delay that it was an eight day delay which is going to be a problem that i'm going to have to deal with in defending my other clients but i think it's clear that this case should be reversed on immunity question before we decided that qualified immunity question or could we in other words suppose we were to the sardis hypothetically that you're entitled to qualified immunity w we'll certainly be just as happy but i think that the court could i mean i mean it legally satisfy but i think the court would be quite proper to reverse only on the basis that the personal involvement is not there and you don't even need to address the immunity which is really part of the that the situation was fundamentally that there are there are distinctions but i think if you look at the opinions you will see that judge baker and later judge white dickerson fundamentally  function the clerk was immune and yet the prosecutorial immunity stems from the same notion of quezon judicial functions and i think the prosecutor's duty to procure the release of someone whose cases been dismissed is likewise crazy judicial or or nonexistent the duty is to notify and that duty is the quasar judicial function and the duty to notify can't be extrapolated to corrections absent a lot more than it's allege i my name's allowed gross i represent mr lewis he was locked and a st louis city jail the on the time when he was supposed to be released or court ordered me to use me  and i do want to address judge arnold your questions about gardner defendant gardner's involvement in this case at the complaint and obviously where the motion dismiss right now we haven't gone to the summary judgment  phase of this case yet but on the complaint itself there are multiple allegations against but in the garden or in particular specifically that gardner was responsible for the continued holding of louis on criminal charges that she had the authority to dismiss the charges and in fact did exercise that authority that she knew or should have known that innocent people were being held in jail even after their charges had been dismissed knows this was a case that's a part of a bunch of  thing well it started out as one your honor and i was volunteering on that case and discovered that it was part of a pattern of practice i'm so i think what has been ignored so far in this discussion is that this is part of a pattern or practice claim this isn't just about one incident here it's about a system as a whole that has been failing in opposing counsel mentioned that she left it to the system and that was that was his words  you can't leave it to a system when you know it doesn't work when you have a deeper responsibility to it when you have a responsibility as a prosecutor there are multiple cases it's a longstanding tenet of the american justice system that prosecutors particular instance mr lewis is a victim of a pattern or practice he is a victim of a system that is broken in that the defendant knew it was broken so you know the way i guess i visualize it is those kinds of  boxes where you can put your suggestion in but underneath there's a trash can you know that the bottom of it is empty is open that's that's the situation we have here a pattern practice of something generally brought up against  i agree your honor that pattern of practice claims often do include municipalities as it does here the city of st louis of the defendant along with the other actors in the city who were involved in this but a pattern or practice is not required to just be claim is not required to just be against the city it can also be against the actors in that city and that's why she is included here as well these folks were on notice that this was a problem in the city of st louis obviously evidence has been going forward without the participation of the defendant currently but there has been a longstanding practice of this happening in the city without folks doing anything about it and like i said the prosecutor does have a duty to ensure that folks who not only that folks are prosecuted but that innocent folks are released from confinement and that that's a long standing finding and in court cases through the u s supreme court through  history of the united states and then all of these cases as well the third circuit the second circuit the fourth circuit sixth circuit i mean we haven't had a case here in the eighth circuit yet other than the three lower court rulings but they have all agreed that absolute immunity should not apply here the question isn't whether somebody did something wrong it's not about whether the action itself was wrong absolute immunity would apply even on purpose she was doing something wrong it's about the action itself so here the question is whether she was involved in an advocacy function or whether she was involved in an administrative one and there's no  question well least according to the third circuit the second circuit court circuit and i haven't seen any other circuits disagree that the prosecutor has that ministre to duty to ensure the release of folks now it could be that there might be a mistake and i'm sure that's what defendants are going to be arguing on this case and on each of them as they come up but the pattern or practice demonstrates this isn't the mistake when systems when the added to the advocate function in the ministry to at it's an excellent question i do know based on the least these cases that i've cited that it is an administrative function to ensure the release of folks from jail that's part of the prosecutor  advocacy function stops at the point where it's no longer trying to prosecute a case the case is over it's done the last thing to do is to make sure that someone is released i mean in this case opposing counsel mentioned that the last clerk's responsibility to let let the parties know what the court has decided that's a great question they think depending on who you ask folks are going to tell different stories about that and that's why at this motion to dismiss it's not appropriate for us to end this case or end the defendant's involvement that you have to correct your honor and i believe i'm sorry like i said the eighth circuit does not  a missouri supreme court case that cited that states that the prosecutor does have this responsibility too but not a statutory one that i know of so that would be from case law in ms in the state of missouri well i mean in general i'm sorry yeah and in general your honor i do believe there is a duty on behalf of at least a city to do that or at least some of the officers there but on her specifically yeah on her specifically if you have the knowledge that there is a problem then you have a responsibility to act now if she doesn't have the knowledge that would be a factual question and you'd be correct but that would be more appropriate for summary judgment certainly not promotion smith's promotion of this mess the question is what is the action and does it is it doesn't fall within any of the immunities and when looking at the different absolute immunity here there are three steps one is to determine is there a common law tradition of extending absolute immunity to the situation there so this is the only way to hold folks accountable who chooses not to use the knowledge that they have not taught not to fix the system that they know is broken to just continue on as if nothing's happening that's the problem in obviously a lot of this comes so for those reasons absolute immunity does not apply to this case because it's not applying to the action here it's an administrative function qualified immunity also doesn't apply because there was a violation of the civil rights of mr lewis and that is alleged  be clearly established in the content i agree with i agree your honor it it does have to be clearly established with the context and without the context having a prosecutor filing dolly would seem like she told her duty and everything's fine the problem is the context in this case is different it demonstrates that when you file a nollywood the prosecutor does it doesn't get work supposed to go where people are held in jail for too long and the context here is a prosecutor who knows that the system isn't working but continues to act as if it does and because of the duty in the responsibility for a prosecutor to ensure that innocent folks are released as an administrative judge including what's at or in the judge but were here with these defendants at this point so currently the judges are not included with the clerks nor the clerks were they were dismissed so i guess at the end there was an appeal then they could be but yet they are what was most of the  was based on i believe it was the counsel mentioned us on this judicial role they had because the act that they had in transmitting this information or stamping it or whatever it was was considered part of that that  role and i haven't i mean i haven't seen any case law similar to this for the prosecutor that also applies to the clerk the prosecutor is treated differently at least in these cases than a clerk but it is possible down the line that maybe the clerk has to be included again i'm not sure but at this point the clerk is dismissed from the case for those reasons so the the rulings and these cases at the at the circuits throughout the united states specifically apply to the prosecutor i haven't seen any of that includes the clerk and we didn't take an appeal on that issue so good question though your honor but at these are like i said these are the reasons why this court should affirm a lower ball is applicable here the whole point is to cut these kinds of seats off when somebody is immune so that certainly the jury doesn't have to go through the whole process of discovery and potentially trial but i think counsel's arguments fly in the face of both the ball and the alkyd which involved immunity and involved allegations that john ashcroft knew x y and z about detention terrorists none of the cases that the plaintiff relies on posit an affirmative duty of a prosecutor to procure the release of a dependent when the case is dismissed and then less that has been clearly established there cannot be in the liability on the part of the prosecutor and that is not clearly the established in the in this alleged custom and practice you know i think that the reserve the good comments about there is no magic number of prior constitutional violations that is an automatic establishment of miscible liability and i think the hennepin county case from this court says the same thing you have a a series of for example jail suicides that there is not in and of itself establish a constant within the city administration that there is no desire to keep people locked up but there are as the plaintiffs have found there are situations where it does happen and the question is the causation and it is certainly not caused by the dr thank you also mr gross we appreciate your argument to us this morning helping us with some difficulty issues and for the briefing that's been submitted to the court we will take your case hund