decided to split their twenty minutes and argue ten minutes you'll see the digital timekeeping device on my screen when time has expired i will bang the gavel and finally please remember no frederick autographs knowing the court or the or is permitted to record these proceedings today is your honor go ahead mina plays the cord to the the this is the case for malicious prosecution and abuse of process arising out of a previous criminal action against carlin white she was acquitted of the criminal charges the nd amended complaint was just missed by judge custer under section six hundred and fifteen dollars of the civil practice act which means that all allegations of fact and reasonable inferences are to be construed in favor of the plaintiff the reason for dismissal of the malicious prosecution claims by judge custer is that malice was not sufficiently  in the braves there is a case that holds that if an action is filed for a reason other then to bring the criminal defendant to justice that sufficiently alleges malice for purposes of a malicious custody dispute and the plaintiff is the mother of a child who was nine years old at the time g f is initials a male child  and joseph fitzpatrick is the biological father the two of them were never married they spent some time together but separated shortly after the birth there was a child custody proceeding in which primary  criminal charges in the event that led to the criminal charges there were several pending motions in that child custody dispute and after the criminal charges were brought the in the child custody case primary custody was flipped from coral n y to joseph fitzpatrick and that remains the situation for eighteen months until coralie and was acquitted of the criminal charges of assault and battery and domestic assault at that point in time in the child custody proceedings there were further hearings and primary were determined in favor of the defendants but the federal court then failed to exercise supplemental jurisdiction over the state court actions that those state court actions were not barred by either ra or collateral estoppel in this case falls squarely within those decisions so yes this argument was made in the federal court but the federal court specifically carved out for a state court determination the malicious prosecution and abuse of process charges that are before the court here today ok but also the federal court did in fact correct me if i'm wrong also ruled it going besides just the initial charging of your client was what they found to have you no reasonable reason for doing so for those charging bodies but also moving forward and prosecuting the case is that correct no that's not correct they did not find no that was made in address that was all going forward no charge the federal court decided  determines that there was probable cause as a matter of law in summary judgment for the arrest the false arrest charge did not address the issue of whether there was probable cause to file the criminal charges or to continue to prosecute the criminal charges in fact specifically reserved malicious prosecution and abuse of process for determination by the state court and i think in our opening brief we cited some language from versus handle all were the same where the federal civil rights issues were decided in favor of the defendants a supplemental jurisdiction was denied on the state court claims and there was no race you to come out and collateral estop from state court determination of the state court claims so on the grounds that the trial court ruled that there was no malice alleged there is ample evidence that malice was alleged an issue which the trial court did not specifically address but which is argued other than the general gist missal for fair to state a cause of action without being specific the other issues that the parties have focused on whether there was probable cause to prosecute a criminal case in this case and to continue to prosecute it which is an element of malicious prosecution not only could you have lack of probable cause to initiate criminal charges you can have a lack of probable cause to continue to prosecute criminal charges during the prosecution of the case and we have alleged both in this case the evidence in the case is there was no blood on the knife the police officer bernsen refused to take the fitzpatrick shirt into evidence coraline white was contending that fitzpatrick's ones were self inflicted for the purpose of framing her and the shirt that there was a wound up near the collar of the t shirt but would have been through the shirt if corleone had stabbed him there would be a hole there so the shirt was definitely relevant evidence in fact the police chief testified and he had the same training as western grandson that they should have taken the shirt into evidence by the time they get around to the said destroyed this your art she demanded a lie detector test saying that her fingerprints would not be on a knife they refused to give her a lie detector test in fact later on before the criminal case was tried the state police lab tested the knife found no blood on the knife and no fingerprints on the knife which would be a remarkable if carlyon had used a knife to stab friends days or from next door or the house to determine a weapon the knife itself was not found until after officer west had taken carlyon out of the house for a period of at least two minutes leaving fitzpatrick and stays or his friend in the house with ample opportunity to have planted the knife which was right in a place that would have been seen by officer west when he st came in to the to the house because this occurred right at the front door   there was and i'm not reciting all the evidence here but there was ample evidence that there was an absence of probable cause which is the cases we've cited to the court is normally a issue of fact for the jury to decide in a malicious prosecution case following a previous criminal action against the civil plaintiff a criminal defendant for example then filed a malicious prosecution case and argued that the court of appeals had already decided the issue of probable cause and in the malicious prosecution civil case the court determined that that was a jury issue it went to the jury they found in favor of the i think there might have been a summary judgment for some defendants but it went to the jury against some of the police officers and then it went  and the jury ruled in favor of the defendant police officers gardner appealed and argued that probable cause had been determined by the prior appellate decision stating that there was no probable cause for him to be charged in the  place and the court ruled that that was still an issue of fact probably race you caught a collateral estoppel did not apply that was still an issue of fact to be decided in the malicious prosecution case so not my standing a prior  decision that there was no probable cause it was a jury issue to decide whether there was probable cause or not a similar case we've cited to the court for versus chicago and in the other cases all of which held that probable cause is normally an issue of fact to be decided by the jury in this malicious prosecution cases solomon versus amber barrow's rogers versus people ghassan like robinson versus  ample allegations in this case which support a lack of probable cause to initiate and to continue the prosecution of the criminal case against cora land and of course her testimony was that she did not stay on fitzpatrick then as soon as she came into the his house at his request he hit her in the face knocked her to the florent pandered to the floor and as he had any kept her pinned to the floor until the police arrived she had no opportunity to do anything with a knife that was later found and when she was aware that enough and fitzpatrick st said that she cut him with a razor and then later switched to claiming that it was the night which was not found until after he was left alone in the house for a period of at least two minutes with his next door neighbor sta found that mr great while you're on the reciting some of the facts of the case let me just ask a question with regard to what happened and getting her to his house i believe that my recollection is correct he he called her an admitted later that he lied to her to get her to come to the house is that correct that is true and he admitted up to arms or bernsen is there was there any testimony or any evidence is suggest why he did did that was her line of questioning the him regarding why he you know quote unquote learned her to the house i don't recall that he ever gove explanation other than he just admitted that he lied i guess any inferences would have to be drawn in favor of court one you could infer i suppose if he was entitled to the benefit of inference is that he did it just to avoid having to drive to greenville and drop him off just as a matter of you'd rather make her drive to his house they were supposed to me halfway in between her house but there when there was no testimony b have a car seat and that his wife anger had taken the other car and therefore he didn't have a car seat and he but that was a limited it was a lot sure and i know the facts of the case i was just trying to figure out there was a hole amber and the investigating officers a reform investigating officers who were from the sheriff's office sergeant janice parenthesis that amber had worked with for i think about six years because she worked in the sheriff's office for six years i think it was six years she worked with officer pereira's in the sheriff's office and and he was involved and speaking with officer berzon arrived at his initial conclusions without talking to courtland and in addition amber worked with our mr bernsen because he would take prisoners over to the sheriff's office from grease and process them and she worked with him there and amber and joseph and patrick are both prison guards in greenville so they were really part of the law enforcement community and they had relations with opposite bernsen and officer west who testified in all of the child custody proceedings in addition to the preliminary hearing the trial there were two separate there was an order  protection and actually opposite bernsen had recommended to joseph fitzpatrick on the day of the arrest of corleone that he file for an order of protection to boost his chance does the end the child custody case that recommendation was made by officer bernsen and both officer burn center knobs are west knew that that joseph is patrick had a past history of abusing women and twenty pounds there is no comparison physically as to the strength of the two when you consider all of those factors we would submit that it's an issue of fact to be decided by a jury not and a south dakota supreme court case which we've cited abuse of process as an el al terrier purposed for bringing the criminal action and the use of process not regular in the matter charged well that last term is sort of vague but in the missouri cases they both held and restatement of torts that the real grab i'm on of the cause of action is that you're using the criminal process for some purpose other than bringing the criminal defendant to justice and the nd element use a process in the missouri case that lee's say some use of the process not regular for the matter charged or aimed at an objective not legitimate in the proper employment of such process so they bring it back to essentially an l tory or purpose type of issue which is exactly what the restatement of torts says that you're bringing the criminal action for a purpose other than bringing that defendant to justice for the crime but in fact for some other purpose and the other purpose are sometimes  because of a pending divorce case or in the case of written bush vs home one of the missouri supreme court cases where a criminal charge for damage to a car was brought to assist the person charging that crime in a civil case to recover damages and we fall within the classic definition of abuse of process and i see my time is up claim did the federal courts did not address or rule on probable cause for the malicious prosecution of mr reed pointed out is that correct that is grass you are not specifically state that  completely different situation will be here there's already been  i think to boil down this collateral stoppel issue is very simple many times an arrest is made and charges are issued right away other times an arrest is made weeks or months of investigation go by before the charging documents are issued in the nd scenario there may be different evidence were for the issuance of charges than the arrest than the arrest that but when the you mean when the arrest and the charge are virtually simultaneous as they were here we're looking at the same issues and that's why we believe that these issues have been previously adjudicated all of the conduct of the police officers which the plaintiffs or the appellant is challenging happened before the arrest he's there challenging what happened at the crime scene what evidence was retained all our pre arrest issues which both the state court and the criminal action the district court in the federal court d and the appellate court in the th circuit have all found all of those actions were supportive of probable cause we have a situation where the police received a nine hundred and eleven call from a lady screaming the mom has a knife she's cutting him the place arrived they investigated the situation and made the arrest officer burns and even contacted the state attorney about what evidence he should or should not maintain so all of the actions complained of by the plaintiff our pre arrest and therefore that's why we're saying that they kills the plaintiff argues that there's this conspiracy they don't use that word in this case they used it in the federal court action between the defended the intimate the civilian defendants and the police because of their relationship because they're somehow prison guards and police officers have the sick recall that they go to the federal court examined that exact same of all of those facts and found it farfetched to believe that there's any type of conspiracy that was speculative at best we are here we are here on  motion to dismiss but it's unusual in that this case has been fully litigated full discovery was taken in the federal case depositions of all parties fully briefed and went up to the th circuit so the plight of us had more than ample opportunity to come up with facts to show malice and abuse of process and as we've cited in our brief when you're looking at a malicious prosecution claim the court looks at the facts a the time the complaint is find not evidence which is discovered later and i'm sorry to the case of mack vs st security bank it's cited in our brief so that circles back to the issue i was mentioning earlier where all of the facts known at the time the complaint was signed are the same facts the police had discovered in their investigation and are the same facts that three other courts have said amount to probable cause as a matter of law so whether the officers did a proper crime scene investigation whether they maintained evidence whether they believed or disbelieved a witness is all prior to the arrest it's all prior to the issu charges it's all been beaten to death and all the other courts and we believe it's time for that issue to be put to the side and the malicious prosecution claims simply can't stand the of process claim i want to touch on briefly as well it hasn't gotten as much attention yet today but that is judge from a different standard that we look at the actions after the charges have been institut actions are taken after the fact and again as mr densmore pointed out the test in that case is you have to show the all terri or motive or purpose again some kind of conspiracy or is the words the courts use and i want to stop there for a moment if it should be important to note that both of these theories malicious prosecution and abuse of process are not favored they're narrowly construed these are very very  unusual prop theories and so we don't want to expand potential liability under those but back to the abuse of process the nd element which point if cannot plead has not  and after five years litigation could never prove is that some act in the use of legal process not proper in the regular prosecution of proceedings the plaintiff has alleged no facts as to what the city of brief did no act what officer rested nothing that officer burden did after the issuance of charges which was improper or not a proper step in the legal process they testified at trial under subpoena from the state's attorney and we've cited case all that simply testifying obviously is not something which can give rise to liability so the police officers in this case you know are judged by a different standard than the prosecutor they make the arrest and they don't decide at the scene who to believe and who not to believe they have to give some credibility to some people but as we've cited in our brief it's not uncommon and common sense tells us that most of the time to be going to be faced with conflicting information you're not going to have somebody who says ok you're right you got if they or hey i didn't do it let me go in the place of ok they denied it so what let them go that's just not the way the system is set up so the police make their investigation which has been thoroughly vetted and approved in this case to the police found a probable cause existed for arrest and probable cause is a much lower standard of acquittal or for more beyond a reasonable doubt so the fact that ms white ultimately was acquitted by a jury in a secret will trial is absolutely irrelevant to the claims against the police officers and the city in this case the officers were involved at the outset turned it over to the state's attorney and the state's attorney did his job and prosecuted the case and justice was served because the jury said that she was not guilty and you know that's that is the ultimate decision of that jury it's not the decision of the police it's not the decision of the ex boyfriend or his wife who have been sued individually in this case  this is a case where there was conflicting evidence the police made a decision which at that there was ample evidence to arrest the point is to request that charges be huge against the plaintiff the state's attorney accepted that richard quest and issued charges the plaintiff has challenged all of that pre charge actions by the police and at every step of the way the quiet has been denied saying and that has been found to be appropriate and we would ask that this court continue on that course and find that the actions of the police officer were appropriate said rather our charges to look at the totality of the circumstances and determine whether it was reasonable for western bernsen to conclude at the time of her arrest that there was probable cause we hold that such conclusion was reasonable they decided that there was probable cause to make the arrest and nothing else and then they affirmed the district court which at page fifty six dollars of the appendix had ruled the court has considered the relevant factors and declines to exercise supplemental jurisdiction over any he referred to the counts that are malicious prosecution and abuse of process the court firmly believes that illinois state courts are far better equipped to hear cases that turn on the interpretation and application of state law when citizens of illinois as a matter of comedy and efficiency the privilege of hearing such cases should rest with the state court system the th circuit  firms that decision that is exactly what occurred in no act versus net read a high school and the court in that case specifically said whether another were another court fails to exercise was direction this case up jurisdiction and specifically reserves a claim for a state court determination that race judicata and collateral estoppel do not bar the state court from hearing those claims that were specifically carved out by the previous federal court the same thing of the arrest well st of all the decision to make an arrest is distinct and different from the decision to prosecute but malicious prosecution not only applies to the initial decision to prosecute but to the continuation of the prosecution after the cases filed in this case at least two significant events occurred after the criminal case was filed the fitzpatrick's destroyed the shirt that was not taken into evidence even though the chief of police testified that the shirt should have been taken into evidence and actually all of the police standards indicate that the sure should have been taken into evidence so the  defendants did not become aware of the fact was not established that the shirt was no longer available to take into evidence until after the case was filed after the arrest was made in addition the state lab tested the knife that was found forensically and determined after the criminal charges were filed that there was no blood on the knife and there was no fingerprints on the knife and after those two events the defendant's continued to press the criminal charge all the way to a jury trial so st of all the decision to make an arrest in the decision to prosecute are two separate decisions two separate standards for a probable cause and we've cited a number of cases to the court that hold that it's a separate decision even if there's no additional facts it doesn't mean that there is ample evidence to prosecute even if there's evidence to make an arrest at the moment that the arrest occurs so clearly in this case probable cause is an issue of fact and with respect to the fitzpatrick's although perhaps not in emphasize this enough while the police officers could argue we ha just competing claims that carlin claims that fitzpatrick stabbed himself he claims that she stabbed him the fitzpatrick's based on the allegations of the complaint don't have that i mean they have to go with the fact that as alleged fitzpatrick deliberately created his own wounds in order to frame carolyn because the fitzpatrick's would know they couldn't rely on some other evidence they would know whether he did that or not and those are the allegations we're here on a six hundred and fifteen motion to dismiss there's ample allegations of fact supporting the claims for malicious prosecution and abuse a process and those claims by two supreme court cases illinois supreme court cases are not barred by collateral estoppel or judicial stoppel so we would ask the court to reverse in