from two thousand and ten that invokes a st amendment retaliation point and this word help with the allegation may be improbable but they are not implausible accordingly the state to claim i wonder about that and what i'm looking at is ashcroft or says it all course and granted this is not completely clear but here's the court talks about it's not enough for facts to be merely consistent with liability just very quickly where a complaint pleads facts that are quote unquote merely consistent with the defendant's liability and stop short the line between possibility and possibility of an entitlement truly and then i see judge krieger saying and i think you're on exactly the right point but i'm concerned about the defendant acted that he must plead facts that taken in the light most favorable to him dispel the possibility that the defendant acted with mere negligence and i try to line those two things up and i wonder if it's not a little bit semantics krieger if he's saying exactly what i call saying that you can't just come in and say we have this possibility and it's just as good as the rival interpretations when it also sets not enough and that's my under the direction of defendant mueller has arrested and detained thousands of arab muslim men as part of its investigations of the events of september th the supreme court noted that this a temper th attacks were committed by nineteen the context for such claims are that there are all kinds of parallel conduct that can be engaged in by economic competitors that do not count as a sherman act violation or less there's a specific conspiracy the facts alleged in mr moses you know amended complaint are very different from the types of general facts there that are sucked in and voted on one way that are subject to an obvious alternate explanation there are no such obvious alternate explanations there may be defenses and this one of the allegations against detective dependent would be that he one of the allegations supporting the malicious prosecution claim is that he knew that the victim of the sex old originally said she couldn't name her attacker he knew that she gave a physical description that matched elsie jackson he knew that she that identified elsie jackson and that all of those things occurred before she had this  everybody that too he didn't keep that to himself and then he died and i want to know how you can sue him after the claim of the not the he claims statute has all new go expired detective hup who did what he was told he told what he found and he i think you want to go out of charging horse and find the true answer when he said just the opposite working for the d they're going to charge him with whatever they charged him with it seems to me it's a frivolous case well your honor if i could get back to the fact that perhaps this relates to my answer to church folks question because this would be a very different scenario if w i'm sorry i don't remember that you're at the top of my head is johnson on the malicious prosecution claim i think if you boil it down here your argument is that the district attorney lacked probable cause identify him or the perpetrator she would have said if you know this is it for the cops this all come out to the jury in other words you say it's a dream and that's not good enough but was the jury told was the victim cross examined on the last was the victim was blood expert test cross examined on the seven percent to the extent all of those things came up before the jury then the jury still believed that the defendant was the rapist and that the jury can convict by beyond a reasonable doubt very difficult for me to see how there wasn't this low bar probable cause so you're going to fury grits some of that evidence not all of it with respect to forensics but  that's what i asked that's why i asked the jury here and you didn't really answer what i'm getting at was the defendant kept from telling the jury certain facts or did for example with the d n a the defendant elected not to sample tested so that's not really the government's problem our fault and if all of this was presented to the jury that the defendant could have presented and maybe didn't maybe chose not to then the lower standard of probably cause which you know it's not friends in standard and have them testifying you have them in the same area and any other evidence that came in that's not probable flawed from the beginning and contradicts her own statement initially on the scene to the officers and then within the next twenty four hours after the incident and without  to be clear as the years go on and the prosecution you know the incarceration of mr bowser the thing is the probable cause standard goes down even further but probably because of the low standard but it doesn't mean nothing and i come back to it said i'll give you i'll give you a little more time here but wouldn't the problem cause a terminate determination being an objective standard for the court for this panel whether there was you know objective way enough you know i'm not quite sure your case would look like you see the nd trial prosecutors but wouldn't why wouldn't there be qualified immunity here on the nd prong that it wasn't clearly established that a reasonable prosecutor could have relied on victim identification in choosing to proceed to trial even if even if it was a losing trial well your honor for qualified immunity i would really direct the court's attention to taylor versus  the substance of it ok i miss and then going going back in time a little bit prosecutors that interviewed him at the jail you know it looked to me like the most reasonable explanation of where absolute immunity would be applicable but i guess if you disagree with me that you're hoping that perhaps but i think again this is the st time they're going out to see him after they've received statements it should it seems like it suggests you're not aware of a case one way or the other that says thirty five c proceedings are however the complaint alleges discussions occurred between the prosecution mr moses hill's defense attorney in the court regarding that and there was a note made in the file which mr hosty didn't see you look only at the date of the evidence when you wri misconduct which would make it clear to any official that what they were doing was unlawful not the grey areas that we're talking about here so for the reasons stated in the brief we've asked for you the court to affirm the dismissal of the claims assessment would be the probable cause would have to be one thousand nine hundred and eighty eight based on the claims against mr haas detective hof and dr brown cross all the probable cause analysis for the  standard is a low standard and it's important for the court to recollect that standard as the facts in the light most favorable to probable cause and when you prove when you take it through that eye witness testimony even if as mr johnson says she wants to make it incredible it isn't incredible it is eyewitness testimony and the eyewitness testimony is something that has to be credited and there was probable cause it's important for the court to remember that the case went to a jury the nd time as well as the st time and miss johnson was the defense lawyer in the case and i know that she did a motion for judgment as of acquittal at the end of the prosecution's case and that means that when it went to the jury as all of the court knows it is the judge that deborah district court judge decided that there was sufficient evidence to prove beyond a reasonable doubt that mr mozilo was the perpetrator of this crime the jury acquitted him which is obviously their right to do but that doesn't vitiate the probable cause or the other purposes of this one hundred eighty three  question two ways one it's subjective it's just like a franks analysis your honor it has to be an objective determination about whether or not there's probable cause to proceed it's not a jury question it can't be a jury question and then the nd thing and one of the things that we rely on in our brief that i think is important and judge simply to just question highlighted it for me earlier it's important to understand that moses was acquitted in the nd trial the malicious prosecution claim the fairness claim all of these claims don't have a basis because a fair trial the th circuit in the and the rd circuit i reached similar conclusions in the supplemental authority that ms johnson submitted a few days before the oral argument as with this last weekend she relies on a nd circuit decision a frost decision and that decision suggests in the context of a police case that there may be a broader fair trial right but this court has never said that and the united states supreme court has never set that and that means there cannot be clearly established law what you have here is prosecutors who made the prosecutorial judgment that they had sufficient probable cause to retry mr moses all occurred at trial correct the howard statement yeah so the wesley howard statement was a trial statement that's right where he where he essentially bolsters the victim's identification of mr rose by saying that she said even under the under the jacket standard because when you take the facts in the light most favorable to the probable cause the victim's identification in and of itself a stab which is probable cause there's no case that i'm aware of that sad as you can't have probable cause when a victim identify somebody well if you think she's lying well because it's a credibility assessment i mean it's not about you know you don't you know  cause based on the facts taken in the white sample to the prosecution and the support of probable cause there is no analysis that gets into the mind of the d a about whether they should have done something as miss lewis ad should have is a negligence standard and what the district court's analysis with respect to the district attorney defendant's relies on causation on the one hand and the lack of our gauges of malice on the other hand and those two prongs that are required on all of these claims fall apart on the causation analysis to the extent that there was any error that occurred or any misconduct that occurred related to the preview we trial proceedings and the trial proceedings the fact of the acquittal is dispositive there cannot be a claim under the constitution under these circumstances no court has ever recognized that claim no court has ever recognized the claim in the original prosecution in one thousand and eighty eight you know it's that the way that these facts are set up and the way that the facts are alleged the complaint when you peel them back and when you look at the well from a temporal perspective and a personal for to suppression perspective and then in court versus out of court perspective and a causation perspective the claims fail under the analysis of twelve b sex regardless of this court prosecution says you have to be convinced that there are no malicious prosecution climbs when the person is acquitted because if the person is acquitted they don't suffer an injury of constitutional dimension or constitutional magnitude that's the that's the whole point all of the malicious prosecution claims because of the requirement of the favorable terminations it's when a conviction is i'm done for whatever reason that's what exists but what we have here is the convictions and for which none of my clients participated and then there's a retrial resulting in acquitted and acquittal which means that you cannot have the causation require under nine hundred and eighty three dollars which has a causation acquirement you know that's the that's a fundamental requirement of the statute because of the acquittal there is no causation of a violation of mr moses constitutional rights he may have a stately claim your honor but that's of appeal that's right because there would be either absolute immunity for that conduct that happened during the retrial or the thirty five dollars c or there would be qualified immunity because not only is there not a constitutional violation but even if this court thinks that there's can be alicia's prosecution claim when the when the criminal defendant is acquitted there is no case that whole a bat from the united states supreme court or this court that means qualified immunity hasta apply as a matter of law are you aware of any case that holds that thirty five c proceeding would enable the the government absolute immunity i'm not but it has all the hallmarks of it it's an adversar proceeding in front of a judge where counsel exists and witnesses under oath and everything all of the bells and whistles if you will of the criminal trial of thirty five dollars c hearing is exactly the same that it would be no element i think my friend across the aisle is respectfully i think mistaken on that to be sure the fact that mr moses sealed was acquitted at the nd trial is going to affect the amount of damage but it doesn't go to the liability and finally i would just like to remind the court