morning morning james the tool for the appellants i'd like to reserve two minutes your honors in two thousand and ten we filed this complaint against mahoning county and the concha police officers because when they would arrest defendants they would ignore completely ignore the fourth amendment what i mean by that is the fourth amendment requires a independent qualified magistrate or judicial officer to make a substantive probable cause determination are allegations not in our complaint show along with three hundred and so exhibits that that doesn't occur there as i stand before you today six years later the same abuse takes  place detective will walk into a clerk's office in one of the township police departments and say to the clerk i want to charge this gentleman with this crime the clerk would then type up the form complain pursuant to statute and sign it without any information in front of or without a narrative without the facts impossible to make a probable cause determination it still goes on today the district court the first time this is the second time we were here the first time dismissed our claims on hack and race judicata this court reversed senate back the trial court again dismissed our claims on the rig what's your what did judge leroy get wrong in saying you need to show that the plaintiffs were arrested without probable cause other words even if we agree with the key thing you've led with that the county in the township are doing is not consistent with fourth amendment law so let's just say we accept that premise of i'm not sure you're right about the clerks but let's just say we accept the other promise judge the oyster all well and cause what's your answer to that part of the appeal whitely that the supreme court already rejected that argument whitely the court later on in the opinion said and there was no probably cause so why would they do that it wasn't right there's a factual distinction judge alito boy is focused on the officer that actually made the arrest and whether or not he had probable cause in our case in our allegations in our complaint are that there will be a charging officer the clerk's involvement and then the arresting officer the arresting officer will only have this complaint that's invalid and they can arrest no independent basis for probable cause if you use reasoning then you don't need the fourth amendment as long as the police officer get in his mind has probable cause the test doesn't go to the fourth amendment magistrate or judge you ignore that step and that's what's happening in of the compliant do you say alleged that these individuals were arrested without probable cause that's just it we don't allege that we'll ledge that a judicial officer never made that determination that's required by the fourth amendment we can't make that statement we don't know the officers probable cause is never been tested but i mean i guess the thing that seems puzzling is why shouldn't it be a requirement that the actual plaintiffs here be able to say they arrested me for prostitution in youngstown on this date you don't have a problem big for you know someone said they saw me in gauged in the act on this day and you come for insinuating that probably because i was i was in florida you've got it's the wrong person in other words what's so bad about the require a stand why you're running from the requirement that the plaintiff sought to be able to say there was no probable cause as to them that's what makes it a reasonable we're not running from that your honor that the county and the townships are running from the fourth amendment they are weak wired to do that i conduct this so that i get one part of what you're saying and i i think there's a lot to it  but another way of putting it is you know a violation of the warrant clause does not always establish the fourth amendment violation that's another way to think about this if a first time reasonable search and seizures in what usually makes a seizure and reasonable is there's an absence of probable cause it's not who saw who made the arrest it's that there's just an absence of probable cause that's what nine of the ten times makes it i'm reasonable and so since you have to show a violation the fourth amendment not the warrants clause to get into the door that's that's that's the pleading defect that i'm seeing or at least i'm wondering about it's interesting that you say that because the requirement for a search warrant is identical to that for say king in those cases damages against officers or damage against the county's or both well injunctive relief mostly we want the county and the in the police departments and the clerks to actually  substantive probable cause determination by somebody that's capable of doing it and somebody that's independent from the police and the prosecutor we don't have that here provides for these clerks to issue th with that you had met her she had a rest with probable cause without a warrant right i'm sorry officers can't arrest with probable cause without a warrant they can but then they have forty eight hours within which to apply for probable cause determination there but that's another problem there and that's a different argument that's what you know that's the argument you bring the forty eight are our argument in your complaint i didn't see that in the complaint because because we're saying that they're charging officer in the arresting officer two different people that's the that's what the court relied on when they decide it's not a problem if the first one writes out sufficient for probable cause a second officer can go serve a know if they go to if they get a probable cause determination yes that's not a problem we skip that step in hony county judicial officer never sees the officers narrative his report to make that determination there's nothing in front of the clerk that signs the warrant that lets them make that determination that's the basis of our case so just to be clear you're not bringing a forty eight hour kind or your out we are not so would one of one of the things that's funny is why you're in federal court we have this law that talks about you know you can have a rest without a warrant as long as you're probably because we have case law that seems to say yes it's important to have first hand information as to what the problem comes from but you don't have a claim if there was still probable cause for the arrest so one question was why didn't you go to state court you could have gotten because i mean it sounds like there's some very good state law for you we found a really county is out of the ordinary and problem with the procedure is that you don't want to have to undertake this analysis in each individual criminal case is that correct so what you're looking for is some sort of ruling that that the procedure itself is  process some of my defendants in these cases still have never had that determination as i stand here today are you a ignore it or just a relief or is this just damages here injunctive relief and damages in classification because it happens in every case it's not one case it's every case and so often why isn't it easy to find a plaintiff who for whom this happened number one and number two there was no probable cause then you solve all the problems you you get your thing fixed you get your damages so if there's thousands of these you think there must be quite a few where there wasn't probably because arguably this plaintiff shannon graves is one of those people bingo and she's the plaintiff in this and if you didn't not allege the arrest without probable cause and it does not allege failure of the judicial determination within the forty eight hours because we believe it's the government's obligation to make a probable cause determination it's hard for us to allege that there was no probable cause when it was never tested at that level that it was skipped completely it's complete that it's just as your client was there any evidence of this in the clients like i had no idea where this came from i was just doing my homework and boom they arrested me and then you say in the complaint there was no probable cause that this person violated this law but that's not our complaint your honor i understand what you're saying our complaint is that they ignore the fourth amendment i would say they're ignoring part of the fourth amendment in my thing i would ask you to think about in looking at your discussions in the provisions of the complying i would have been inclined to think that  or the person who makes the custodial arrest that that officer has no personal knowledge or the custodial interrogation is used to secure probable cause because that was missing in the first instance but that you  d that as a client that there was no probable cause i think those are collateral problems with my main issue with the state of the government ignoring the fourth amendment those are all issues but i'm focused on the fact that they completely ignore that procedure ok we're focused on the law the federal law that says you may you may arrest somebody without proper arrest warrant or you may arrest somebody with out an arrest warrant if you have probable cause but the your allegations we don't address that second circumstance the court focused on that too and i think that's part of the problem even if a police officer makes an arrest or resisting arrest arrest let's say he's and that person is in custody that police officer has to apply for a probable cause determination basically apply for a warrant present his facts to a judicial officer who's independent from the police and the prosecutor and that judicial officer has to make a probable cause determination based upon his report what he saw when he made the good morning your honour's my name is jim matthews it's my privilege to be here this morning on behalf of the township police there were three primary things that we addressed before the district court and i think are fair game for us to discuss morning the most important thing to discuss is the first basis for which the district judge granted the motion to dismiss and which has been discussed during the appellant's presentation and that is relating to this issue of whether or not there was a direct  challenge to probable cause for arrest of these plaintiffs and what i heard this morning was the acknowledgement or concession very candid indeed from appellants counsel that there is no claim in the case there is no claim articulated in the opponents were actually arrested without probable cause i believe that's fatal to the case under webb and under the xenia case that's cited in web as opinion in this particular case in the absence of a direct allegation by the appellants that their particular arrests were without probable cause then there is no way to to tie in some policy or custom argument that there is a systemic policy or custom of the township happily as i represent to cause arrests without probable cause which would arguably violate the fourth amendment but you would can see that there are sufficient allegations that these clerks had a rubberstamp percey and made no probable cause determination in issuing the arrest warrants clearly a direct allegation of that that's right now that leads right into my second point on dealing with them and they'll issue from the perspective of my amp pelleas we have to look first at the status of deputy clerks in this system and that's articulated i think very clearly in our briefs i'm not here to belabor the points that are brief but if you look at it logically we know that both the revised code the high revised code as well as criminal rule for promulgated by the ohio supreme court allow district clerks court clerks deputy clerks to make probable cause findings that's number one on their capacity their capacity in the system then has no connection no relationship whatsoever to the township forms of government that i represent the deputy clerks served directly under the clerk clerk of the court in honing county who is a county official but the court the case law is clear when those when those county officials however are performing the function of judicial officers including the function of making findings of probable cause they're actually state officials why is that still true after the supreme court's decision in regents of the university of california because yeah it's my position that it remains well it will again who would probably or who would i guess that's the question who would if the clerks were doing something faulty yes and you can pass through their relationship to the state and any eleventh of amendment immunity they may have it would be the county who would then be responsible as a fallback for their conduct but it does remain my position and it's clearly the county's position i know they're not here to argue today but they have briefed that position as well that the deputy clerks are serving a state function and our state officers when they're of probable cause what about the county prosecutor county prosecutor plays a very interesting role in this case and it's very crucial to my mil arguments that i addressed below and have briefed in this case when you it was always directed back to the county prosecutor in his role of statutory legal counsel for the various entities there's a revised code provision in title three that provides that the county prosecutor serves as the statutory legal account legal authority legal counsel not only for township entities like my applebee's but also for all of the county boards all of the independent prosecutors in the county that handle the lawsuits and the only allegation of a policy or custom in this case was that the county prosecutor had promulgated and put out a policy of having these so called barebones complaints brought before non judicial officers for probable cause probable cause determination was the only effort at all to tie that policy to the township is an allegation that township police officers relied upon that policy promulgated by the prosecutor that's all that's in the complaint there are t specific paragraphs that relate to this policy than paragraph eleven in the allegation that there was a widespread policy and that it was policy entered with the discretionary authority of the county prosecutor and doesn't that make a difference that it is the county prosecutor you then have to look again at the at the statutory role and the functional role of the county prosecutor feasibly the apple the township's statutory legal counsel and that's it there is no case authority there's nothing to suggest that the county prosecutor in formulating a policy for the courts to function under what i am arguing is a state function that somehow that connects back to the townships as being a policy upon which a township could be held liable under my nails and i would extend it further that not my argument is not only is the county prosecutor not serving in a policymaker role for the townships in making this alleged policy for the courts he is also to the extent he's advising township police officers not somehow elevating the status of a township police officer a township police officer is not in the role of a policymaker when filling out paperwork and walking in front of a of a desk to have a finding of probable cause so i believe that judge that the district court was correct not only in the first conclusion we addressed but also in an addressing manil here in finding that there was no allegation upon which to advance a municipal liability claim against the end of the townships but if the first problem is fatal you don't have to get to the second one right because if there's no conservation violation is nominal issue all right about that that is correct you're said you're going to make three points to yes judge you slide and from the second the third just now or you know the third one that the suspense is building for well i'm glad for that one to a been handled and i will move on to number three and  that is my argument that i advanced below in advance here on race judicata the district court also agreed that if you carve out the two claims of ms sexton and ms graves those are two individuals who entered guilty pleas as we all know the federal courts do their best to follow the state law that's a political in determining the extent to which race judicata would apply we have advanced and you think that in your state there is no distinction drawn proposition that was an underlying criminal proceeding where there was an issue that was not advanced that the court said could have been advanced and applied as ohio law on race judicata there's then the fifty four fifty five  case which was a case i had the privilege of arguing before the bench some years ago which dealt with underlying criminal cases in which the constitutionality of first amendment challenge to some signed regulations could have been advanced but amendment issues not only in the con text of a petition for prohibition before the ohio supreme court that matter was not reached on the merits it probably has very limited utility in a race judicata argument but never out for the record a ratio to kind argument really relies upon the fact that the appellant's advanced a motion to dismiss in their underlying criminal cases there has been some suggestion that there really isn't a proper mechanism for that that there is no hill that ohio courts don't give per close of effect to factual determinations made in earlier criminal proceedings or legal defenses that hay of fact intensi affected by the difference between civil and criminal fact finding procedures how do you distinguish that and i'll be candid with you judge that i'm not familiar with the case that you're citing i don't know if it's distinguishable from the cases i have relied upon i'm just taking the position that there is ohio authority not only cited in the brief but also cited in both fifty four parkins and in dobbin meyer supporting the position that an underlying criminal proceeding can be used to enforce race to a kind of principals and again i wish i could answer your question squarely on any distinctions that are out there but i have to be candid with you i can't address anderson on that point now the finish with race judicata have one more question ok all right  no one is requiring them to do so but there's never been analogous action of a failure to train or some deliberate indifference theory advanced has never been alleged never been articulated in any of the briefing in this case and once again on behalf of the apple e townships i would have to suggest to you that if any type of claim like that were to be interjected in this case it would not flow back to the townships in terms of alleging municipal liability in the township  government under chapter five in ohio is very limited we don't control functions of any courts we certainly don't control the probable cause findings by the courts a number of the townships do operate police departments but there's never been an allegation that somehow the police officers are not trained properly by the township's in fact the exact opposite has been the argument the argument has been that the police officers are following the legal advice of the county prosecutor in the mechanics of going about a probable cause find final couple points real quick on the race you got a point is under the state vs jones case that's what in real life interesting only relied upon by the the seventh district ohio court of appeals case that actually authorized a form of remedy or relief if in fact there's been some improper use of a bare bones complaint and an improper finding of probable cause by it and untrained deputy clerk the court of appeals actually endorsed the process there of having your underlying case squashed here there's no question that the exact same fourth amendment arguments were raised in the underlying criminal cases by these appellants and while the is not the type of opinion that we would expect from a bench like this it does very clearly articulate that the motion was overruled that became a final judgment on that issue when there was no effort to appeal in the underlying from a low cases when circle to the things we were talking about very early on if in fact you had a plaintive who was willing to step up and say i've gone through my underlying criminal case and i've had it quassia and my arrest was without probable cause you may then be able to articulate a fourth amendment violation that you could bring a claim against the police officer a deputy sheriff or someone else who was involved in the arrest that's not the posture here and that's not the style of the claims that were alleged my final points would be addressed to the the other very narrow assignment that's raised in front of you and that relates to the refusal of the district court to allow a fifth amendment with a complaint if you look at the record what happened here is there was an initial motion to amend the complaint and it was at that time to raise a constitutional challenge to criminal rule for into its common and state statute the district court allowed that amendment that had been proffered in everybody understood what it was to be about had allowed that amendment and all of a sudden out of the blue a completely different amendment shows up purporting to add new parties and new plaintiffs and thirty or so new defendants it's because that amendment did not conform to the one that was represented to the district court for its leave was sought that it was initially stricken and all the way down the line when these amendments of come in before the district court they have failed to comply with the order on what the amendment would consist of and that's the reason for the refus to allow this last i'm in this one last question yesterday if you've been litigating this for all this time and you recognize that a viable klein could be studied if it were properly alleged and practical question why don't you fix it they i take some additional time to to answer that because that's a wonderful practical question and i can stand here and represent to you that the county prosecutor's office has taken efforts to correct it or change it to alter the process how do i know that strongly enough to stand here and represent that to you i know it because there are two court of appeals opinions from the seventh district which i will submit under rule twenty eight in a letter form to you as supplemental authority i typically don't take the the posture of defending cases and looking at remedial measures and that type of thing but here i think your question is very fair just to know if there's been a practical resolution there were two challenges in a sebastian ritchie case that went up to the court of appeals raising these fourth amendment issues claiming that there was a corrupt mechanism of using deputy clerks and insufficient forms and such and in both cases the  has rejected that claim now that they remember with the new procedure was if we look at those cases will we see what it is yes judge and that's why i will submit them to you ok essentially in the proverbial nutshell for you you will read in there that the deputy clerks are now testifying as to what they did to make their findings and what they relied upon and perhaps the most important thing that you'll read from the cases i think we should just read them but i think you are going way beyond the record in that if i were sitting where