the morning your honor and may please the court patrick egan here on behalf of the helen helen to our police officers who were sued in their individual capacities as part of this cla well it's also procedural but the first reason is that we participate in this case from the beginning and i think planets we could see that there's plenty of discovery taken in this case there's plenty of back and forth there's plenty of discussion be over there in this case for so when we when we look at a fourteenth amendment due process claim we consider that claim to be a claim for right to a fair trial and in order to validate a claim like that that the right to a fair trial in general the plaintiffs will obtain evidence from the prosecutors will obtain and provide evidence from their district from their defense attorneys will obtain or and provide evidence from what occurred at the trial will disclose what they know about what occurred at the trial and there's this whole big meaty record that's provided and we were provided with none of that so concede that the summary judgment perhaps a focus is a little too much on the fourth amendment because those are the claims we usually see and especially those of the claims that we see when we've gone through discovery and every question has been about a fourth amendment issue and we've never heard anything about what occurred at the trial or what standard was applied or who testified at the trial so that's that's one of the procedural issues the the other issue that we had in this case or the other reason why we moved globally is that the defendants don't have the burden on qualified immunity plaintiffs have the burden to feed and cloth so if a defendant invokes qualified immunity it's incumbent upon the plaintiff then the burden shifts to the plaintiff to demonstrate the deprivation of a constitutional right and then and then also to demonstrate that the that the defendants individually acted in an objective leon reasonable manner in depriving the plaintiffs of his constitutional rights to have to go  the to both of my answers which is the help doesn't need to come from the descendants it's supposed to come from the plane it's because once call fight immunity is invoked notice is given to the plaintiffs that they have to overcome this and as or whatever he firmly find genuine issues of material fact then we were obligated to accept that unless the judge does not give does not i am a liar the facts and  determine you know give us some reason why there are issues of fact and and i'm just telling you that estimate as to most of the defendants here the judge didn't do that and i know why didn't do it he didn't have any help i mean didn't have any help from  from the defendant here and again he also similarly didn't have any help from the player that may be right to do that anyway we don't have any analysis on a whole lot of these defendants like for example the but the first responding demonstrating that these officers participated in a constitutional violation let's look at it coming back at the waiver issue plaintiffs plaintiffs claim that you waived this claim that the court  reversible erred in failing to analyze qualified immunity as to each individual defendant and in your reply brief you point out at footnote page ten that they asserted in their answer that and you name the various defendants involved invoke the defense of qualified immunity and then you say in your motion for summary judgment you made the same assertion namely that float the individual defendants close quote were entitled qualified immunity but as judge davis says it was mighty bare bones now in opposition to your motion for qualified immunity did the plaintiffs go into each individual offended or did they just address them summary judgment if you follow a rebuttal to that pointing out they failed to go into the individual defendants they failed each individual defendant is not qualified it's not entitle qualified immunity or did you respond at all i don't know what's in the reply brief how is it you don't know what's in the reply brief when you're off your organ this case let me correct that i know what's in the reply brief i simply don't want to represent to you that that we specifically requested that the plaintiffs address each individual you know i think that's about the most wishy washy answer of heard twenty six year i understand your honor and i'm simply saying that this is the burden that falls on a plate of help for you to say no we said it but i don't know what we sa brief we complained to the court that here we were with the fourth amendment claim that we knew it was a fourth amendment claim and suddenly we're being told as fourteenth amendment claim we have never been told anything about  any brady style claim we have been provided with any evidence that would have supported a brady stop claiming and we and we implored the court to choose to rule on that basis that there was not there was simply insufficient and that's when the fun in the reply armory in district court in response and i'm not could say as to each individual individual defend it because i don't believe that's it and that's why i'm being wishy washy because i don't believe that's you don't believe what's not in there is that each intell individual but i can't say that that's our burden and we didn't think that that was arbor and there isn't any case law that says that the that that it is the defendant's burden to point this information out and let me also know that ask the it ball which is the case in which the supreme court states that it is the burden of the plaintiff to individually name each officer among many other cases that doesn't go to the qualified immunity that goes to the existence of a claim in the first place so if the point here is that the  should be allowed to continue with the case with the with claims that don't exist under ask the it will it seems to be to be a similarly  inappropriate application of supreme court precedent so if ascot be able says if you don't have individual can in the individual officers that's by the way that's pleading stage that's not even a summary judgment state but if states but if you legally have no claim against an individual defendant if you can't describe his individual actions then again i understand your concern and i know i'm similarly  frustrated that what was the this was not clear to us at the time but we had just been told hey your fourth amendment claim is a fourteenth amendment claim the thing that you thought you were trying to defend is this of manipulation of evidence year of discovery we've never even been told who the prosecutor was so how can you make out a brady claim or a fourteenth amendment claim for deprivation of a right to fair trial if you did can't even name the prosecutor and so yes i think i'd say that's what we focused on in our reply brief was that that we didn't think that the elements of the claim not only that they hadn't been established by the evidence that was present but that they had not even been flat request additional briefing or additional time to present additional matters in support of summary judgment we did not because it again was the plaintiff's burden to overcome summary judgment and we pointed out the work on qualified a both both qualified immunity and summary judgment and we were moving both on the qualified immunity basis and then also on the underlying claims because a fourteenth amendment claim sometimes qualified immunity and the underlying claim they're much more they're much closer in type then you might see in a fourth amendment claim where the tension there between what what an officer knows and what what's in a warrant application can lead to more reasonable mistakes i don't know that you can have put it another way i don't know that you can reasonably mistake make a reasonable mistake about framing a criminal defendant usually the situation of the ye and we have an adequate briefing oh yes so you know under a canny if if if a different court decision or our opinion does not lay out some court to do that without me you know i understand that and i simply say that in the future it seems that the correct response is what the judge barksdale saying that we should have it implored the court to give us additional briefings so that we could address this fourteenth amendment claim that we didn't believe was the claim at issue but i still don't see how that excuses the plaintiffs it may be just as a matter of best practice is what we're talking about best practices i don't see how that excuses the plaintiff from their obligation of saying well we don't think that this was briefed up but here's our fourteenth amendment claim here's how we prove that the right to a fair trial was to be right about that you're right they may be they fell citations to show how what their involvement was in the investigation in the underlying factual statement we do have information about you know that the separate officers but we did not in our brief address them individually and the reason we did not file it does but i think that that's qualified by if you look at the cell a texas case and defendant still have an initial burden of identifying what the basis is on which they're moving and what absence of facts they say that there is what the which it believes demonstrate the absence of a genuine issue that's impact that's simply stating what the normal summary judgment rule lives but to follow that in a qualified immunity terms qualified immunity on its head because generally you don't even have discovery the one of the principles of qualified immunity is to put this to an end as quickly as possible and avoid discovery and avoid taking the officer away from his duties at such and such or so once the assertion is made qualified immunity which they raised in their answer to each individual which they raised in their summary judgment motion the burden shifted to you to show why each individual was not entitled to qualified immunity now in this instance you had a world of we did put in evidence about individual officers we did not address in the briefing each officer individually because we were addressing the issues that the defendants have raised and they never made any argument their arguments were always collectively defendants had first that as it pointed out the only focus on the fourth amendment claim there was no reason for that the first count in our complaint is a due process claims this is a claim about someone who spent two decades wrongly imprisoned there's no question that this was a due process case that was the primary claim it was not a fourth amendment claim primarily there were limitations in discovery because so much of the so many of the records had been lost at you know that's why we didn't know who the prosecutor was that's why we didn't have a trial transcript we tried to recreate it they couldn't find it they man or ten individuals when apparently the main focus is on this detective harder cathy carter well why do you need to hold down a lease other officers if you really don't have a valid basis for saying they're not  procedure with the victim's boyfriend g t and the problem is that this point the defendants concede that that identification procedure happened but each of the defendants individually at their depositions claimed it wasn't me i didn't know anything about it so that's the the i think would be found by the district court's findings that they are that it was these officers first carter there's evidence that she knew about this in any event she would have known about anything that happened but for the male  officers i think it is a question of fact there's no there's no basis to believe that some unknown officer or an affiliated with this investigation who had nothing to do with this investigation was out there conducting an identification procedure randomly with this officer and not telling anyone about it that makes no sense so the the obvious people who would be involved would be aggressors who is the partner who was participating in the investigation along with carter or  potentially a bear or both or some combination because he says it was two male officers who conducted this an invocation procedure what are the let's get along clarity here the parties that have been dismissed from this action  perhaps sacks the assistant superintendent deputy chief on behalf of both marie hill and down hill we have there are other claims that were dismissed by the district court but are not at issue in this appeal because it's a qualified immunity appeal but that would state that we think were wrongly dismissed the fourth amendment claim the court found that we had met factually our burden on each element but the only eve dismissed it as a farm of the statute of limitations we believe that was incorrect there's a claim under the eighty eight which is also dismissed by the district court whether we had could establish a fourteenth amendment claim without evidence about the trial the first time either of those issues was raised was on appeal the issues raised on appeal if you look at the brief the of appeal brief and compared to the summ judgment briefing is entirely different the issues are completely different and none of those issues were we didn't have notice to put in evidence related to those issues specially the trial issue because the defendants actually stipulated that mr hill was tr before the district court so we didn't put in additional evidence on an issue that they had stipulated to now they're trying to contest suddenly on appeal are you saying they didn't a short summary judgment that each individual was was a title of one form they never they knew they never made any arguments about the individuals or said anything about there's insufficient evidence as opposed to going to one individual officer as opposed to another i don't even think they mean the way that this summary judgment briefing went there were a lot of issues in discovery in this case because so much was lost we ended up with a very compressed schedule we had one week to respond to the summary judgment brief we also had as it was had to seek in excess of the get the victim's deposition because for health issues we asked for an extension for the defendants consistently objected and so we ended up having a very abbreviated schedule to respond so we did not address issues that they did not raise but i think we we didn't put in additional evidence on certain issues because they weren't raised it wasn't and it wasn't an issue when you were they move for i mean maybe they didn't brief the issue but when they move and we put in evidence related to the individuals we did not brief it related to we didn't separately in our brief say no and here's how it is that we marshal the evidence to say that there's a question of fact as to the direct involvement of this as to each individual defendant their motion talk to their motion specifically said all the defendants took collectively had probable cause that's what their motion says they said we should all go on title to qualified immunity because all of the defendants collectively what is your response to that pendants pointing out about the schwab's that were later used for the d n a evidence that the testing was not done by the new orleans police department was what was done by the coroner's office as far as that would have an effect on qualified immunity again this is your that's right the claim is not that the lab did anything wrong the claim is that carter and this is something that the district court did find specifically if you look at the record of page twenty nine thirty seven found that the results of forensic tests conducted with the investigation were  prosecutor the results were reported directly to the lead detective those were the court made the m franks that that carter either didn't provide the information to the prosecutor or provided false information before and on this testing and that the testing would in reported to carter but it's the one document the one testing document that's missing from the file of the card or them and certified in her deposition was the complete fall so you've got you know happened so i think the obvious everyone's understanding was that meant she was going she didn't report anybody because her current position is that it never happened she didn't know about it ok thank you very much i first would like to address the cittie identification issue and i don't know that it's going take very long but i think there's some disagreement about whether g t testified that there were two male officers one male officer but what's clear and use that as a basis to deny qualified immunity that simply denies qualified immunity as to an unnamed male police officer not as to any of the name defended it's and you can't create an act of a fact issue again under under recall you can't create a fact issue by simply saying what we don't know the name of the officer that's that's your obligation at the pleading stage and certainly it's your obligation at the summary judgment and qualified immunity stage  also want to know when we talk about a due process claim that's a kind of a very big formulation and we're not it's not really clear what the due process claim is in general when you have a fourth amendment claim is securing the liberty interest by probable cause whereas a fourteenth amendment claim will be securing the liberty interest by a right to a fair trial and that that has all of its concomitant rights and so  one of the questions judge barksdale that you just asked was what it cathy carter say when she was asked whether she had provided this information to the prosecutor if we knew that those questions hadn't been asked we knew that those questions had been asked of the prosecutor because we didn't even know the name of the prosecutor and we knew that those questions had been asked of the defense attorneys and we knew that no questions had been asked about what had occurred at the trial and so when we talk about it due process claim and someone who intends to to bring a due process claim and really wants to put their shoulder in it especially if it's if it's count one of their complaint and we sit through these depositions and we know that there isn't even an attempt practices would have been to address all eighteen counts in the complaint qualified immunity doesn't necessarily require that but again best practices probably probably should have named each individual officer and we should have named each individual item in the complaint but that doesn't absolve the plaintiff's of the obligation to especially on a qualified immunity motion to establish a constitutional violation and that means not well we looked at the we they said our information wasn't exculpatory and so we just had to disprove that you have to say in order to establish a constitutional violation this  it was in the possession of the of a specific defend and with kathy carter ask yourself whether the question was asked at the coroner's office was this information routinely shared directly with prosecutors because all you know is that kathy carter might have been a to the document that exists the report that exists which is not exculpatory it would first of all it's not a school tory but second of all where is the evidence that it was not shared with the descent with the criminal because there's no point there was never any question