think your honor may please the court my name is jim pickle i'm representing the appellant john quinn in this case and every complex case with multiple layers i find there's usually one fundamental seminal error that leads to all the other errors in the case such as the case here the similar in this when the state district court before removal dismissed the intentional tort claims against the police that error led to federal district court after we met after we all to find that the police were totally out of the case like as if they had never been and then when quinn clarified his pleadings to add the one nine hundred eighty s reaction and officially the court found steps limitations already expired did not apply the relation back doctrine because according to the federal court those police officers were out of the case completely and so relation are under the act not made against an individual government employee in fact the supreme court in garcia was very clear to point out that we are not to let we are not talking about the intentional tort claims made against mr dyer the individual in that case we're not talking about that we're only talking about intentional tort claims made against the government and in that case the school district so this election that you're talking about in that garcia talks about is actually not a political in this case because intentional tort claims were made against the individual police officers the texas tort claims act does not allow those to be dismissed if they did it would violate due process in the open courts provision and no supreme court cases out of texas have ever held that that's the case but we don't have to we can wait until the end of the case if we want to retake you back to garcia the claim in garcia was against a government entity and an individual in the claim was intentional infliction of emotional distress defamation and some negative claims of the individuals were dismissed the court says that tort claims against the individual so not negligence varies or nonetheless presumed to be under the to claims that's not what that means or on what that means is the election that is made under the texas tort claims act the actual election that other cases have talked about including garcia mentioned it is if you but if there is a claim made under the act which is acting in the course and scope but you just told us that the outcome of the case was didn't apply because dyer wasn't dismissed and i'm telling you the di the court specifically said that had the district moved again to dire  then that would have been dismissed also if they had it was dicta at that point because no briefing had been done on the case well i'm sorry we that we you know we don't we regard texas supreme court dicta pretty  dick that wasn't briefed in that case were dictated better than our irrigators when you think i think that what i suggest in my brief was if you're not clear about this you can always certify the question to the texas supreme court and you make this exact issue the certified question and that exact issue would be if an entity and employer both sued in the same case and the employee is only sued for intentional torts does the city have the right to have the intentional tort claims dismissed against that employee just because they happen to be brought in the same case with claims made against the entity if you ask that case that question said to the supreme court they will not answer yes they will answer no because otherwise what that means is every time a government worker commits an intentional tort while at work intentional tort he gets out what's your best case army what is your best case in support of this theory i guess case is actually garcia and talking about the fact that it what is your next best  case i didn't prepare for the next best well they are well that means there isn't one and not all the cases that we found i mean we look pretty hard all the cases that we found basically did create a catch twenty two for many people to set the case up this way representing the plane if you didn't want to be in federal court because i suspect you knew about qualified immunity but so you deliberately pled state claims you're going on a very novel theory of state law and therefore when you had when you were forced to replete and assert nine hundred eighty three was a little bit late in the game but that to mean you say the open c provision is violated but clearly there's a remedy under the constitution i'm not sure that's a question well i guess i'm saying you saying you're making your open court argument but i i'm not sure whether the texas supreme court would say that the courts are closed when you could have sued under nine hundred eighty three i think the texas supreme court's going to say that i have texas state law remedies if i want to bring them in i did what's your best case out give me one case that involves alleged you know excesses search earth search outside the search and seizure outside of provisions of a warrant or excessive force in which a texas this kind of suit to proceed i'll be happy to spile supplemental brief i've never had that question raised ever so i haven't researched it well i mean in which case you have not found the claims bard either against the individuals or against the entity i found cases where the claims been barred against both yes the claims are barred against the individual if it's a negligence based claim that the city is already liable for those are barred their barred against the city unless they fall under the texas tort claims there's lots of cases brought about bars both ways but the problem is that the cases also say when you're talking about police and when you're talking about excessive force you excessive force is construed not as an inten intentional towards when they are taken in the scope of the employees duty solely to get around the tort claims act you're talking now about whether you know you cleverly craft an intentional or negligence claim is intentional there's to you in my view well they were assaulted my client that's assault that's an intentional tort there's no clever pleading about that but if you sell to every policeman who handcuff say a suspect commits an assault which is an unwanted touching but if he does it within the confines of his job it is it is not you can't sue under the tort claims act i've never seen a case a sense of a police officer commit detainees children brought action against city for detainees death which occurred after police officers repeatedly shot him with the sponge negligence claims arose out of officers excessive use of force which alleged intentional toward announce violation that's not that's not foreclose that's a fourth amendment violation which the city by the way has per pretty much admitted happened there were no exit circumstances the swat leader at the scene officer guerrero testified under oath there were no exit circumstances he did not have been altered announced warrant or a no knock warrant they didn't knock they didn't announce they violated the fourth amendment under richard vs wisconsin and wilson vs arkansas and this court had reversed and render on that constitutional violation and should because there is no evidence or or argument otherwise so that claim must go back to the state to the trial court for for an imposition of the damage trial maybe or imposition of damages and attorneys fees because that's basically admitted in this case that there was a knock and announce violations that under nine hundred eighty three or under the texas it's under ninety three and it's against the it's against the police officers i know but that's part by limitations right it isn't if we go back and fix the first error if we fix the first error that they can't dismiss we pled different claims against the city and against the individual officers in this case the only claims we played against the city were for failure to train and supervise  only claims we filed against the police officers were in for intentional towards because of the little part of the texas tort claims act that says if instead of those being intentional torts the jury actually finds that they were negligence in the city's vicariously liable but we never sue the city for negligence and we never sue the cops for negligence because we don't know whether it was negligence or intentional tore at this point you can't nobody knows it's unknowable gough's or guerrero himself to testify that he doesn't know whether he shot accidentally or in on him on purpose he says that right in the record so i mean i  don't understand why i'm required to make some kind of a guess as to what the claim is going to be when i don't have any idea and the facts support either way i mean that seems like a due process violation if i'm required to guess and if i guessed wrong on out may please the court i represent the city of mckenney and the individual city police officers in this case i believe that the court has a proper understanding of the garcia and the way that  election remedies works in state court and i believe the court also was a proper understanding of the of bailable remedy remedy under the fourth amendment or any alleged illegal search and seizure excessive force the allegations in here are pretty serious and the upshot as of now is that there is no room before that  seems to me the primary position your brief is taking is if there were claims it was against the individuals that had to be timely filed under nine hundred eighty through yes it did have to be filed against  to to the parties in the state court at the time was a special exception we filed special exceptions to figure out is he pleading a federal claim because most of the time these cases are brought as fourth amendment cases and so there was an opportunity very clearly for mr quinn to plead to say oh no i am pleading a federal claim here and the fact that was discussed specifically i brought that up to the judge rush in the state court said most of the time i see these cases they come a come as a fourth amendment case we need to be filing a special exception here your honor because we don't see a well pleaded fourth amendment claim here now the question the specific question you ask judge software has to do with appeal ability and it is my understanding although i'm not fully prepared to answer that question with the with any definitiveness but his mind was standing that there would have been an appellate remedy for mr quinn at that point immediately as opposed to review later at the end of the case yes and and is there any case rather was said it would not have been reviewable at the end of the case i'm not aware of any result of mandatory at that time you have to use in those interlocutory appeals you have to do it with them fairly quick period of time is denied immunity not if he's dismissed and granted immunity you i believe that's correct that it's in your briefs just let me see how it's mentioned the rights even though the texas supreme court only was talking about it and i'll in fact so i'm i will agree with opposing counsel that it's unclear but it does seem to me the better reading  although this is there would have been a right to appeal at least as of that time what concerns me is it clear that there's not a right to say that issue to bring up in the ultimate appeal of a final judgment i think you' if the put we are sort of the one the one point one of the six the statue a look as to above as well but we brought it to to the benefit of the officers through the it actually is structured in such ways the city has to bring it up and then the officer is dismissed and if that had been denied then we could have explored the possibility of taking the pill at that time but i think what we what we we did doing two things at the same time we were trying to get some clarity about what pleadings were here did we have a federal claim here that's why the special exceptions were file and then we also filed the true the other side does either suppose you're in federal court plaintiff sees three police officers district court grants qualified immunity and dismisses two and one remains in the case no appeal was taken just standard eventually let's say against the plaintiff the plaintiff appeals and he says oh by the way not only should it be reverse as the one i went to trial against but it should be reversed as for the other to believe i understand what you're saying federal court in federal court that appeal would be properly preserved yes yes so i think the question is here why would it not  properly preserved in texas and i don't know that answer except that i suppose it would follow along the same lines as the federal court but i'm not sure if you dismiss them i'm so out sure you can the federal court can come in and revive a stale claim by just allowing a new new suit to be filed i guess that's a slightly different question but i mean there's no question that the appeal of the dismissal of those officers is properly before us right yes it's subject to the statute of limitations which is the issue right and that raises limitations yeah right the and the limitations issue is i understand what you're saying this is serious allegations in this case should south we can understand that we have course on the on the merits we claim a very different version of  events however the perceived unfairness of the state court remedies provision all has to be understood in the context of what was available to the play to the plate a very easily had available to him the fourth amendment such ninety three claim that could have been brought before the state judge judge rush dismissed with prejudice all the claims what that it was a are anything more and a start of the clock ticking but it was announced and it was in open court that i said it to judge rush these are typically brought his fourth amendment claims i'm surprised he hasn't brought one i don't know why he hasn't brought one but i want to have the special exception to make sure he's not claiming to have brought on and lo and behold now later we're looking back and the plate of the mr quinn is claiming oh i did have this policy of the police department is there no way to sue an individual or excessive force intentional action by an officer and also sue the governmental body for some portion of the responsibility for an injury the answer to that broad question is yes if you're asking specifically how do you do it under the broadway broad view of it is what was the vailable to that played to in terms of remedies section one hundred eighty three fourth amendment was available to the the person so that the thought that the state of texas as structure of its tort law in such a way as to force plaintiffs to make  happened was he wanted to try to get a round in the removal and you can see because what he did was he pled the term excessive force but it wasn't under a cause of action that's why we specially accepted say what are you bringing here what he could have done and should have done was to bring a claim a section nine hundred eighty three claim in state court if that's where he wanted to to be then if i didn't remove it within thirty days it would have stayed there and we would have gone up the ladder through trial and all the way up presumably on a section one hundred eighty three claim in state court state courts which the courts of general jurisdiction and they have the ability to hear such nine hundred eighty three claims it's just that typically the defendants when sued in one thousand eight three claim will take them and remove them to federal court because the federal courts are more familiar with that jurisprudence but it doesn't mean that they can't do that than fact they can and should do that they should if they have a legitimate claim under fourth amendment they should bring it and if they also want to bring a battery claim bring that to but that battery claim is going to be dismissed if they file a suit against also against the city as well so there is no overarching unfairness of about this actuation it is a situation which remedies were available those remedies were not available and that in a timely manner and the district court looked at it and  blown the statute of limitations and that that was dismissed so there is there is a remedy it just wasn't used it wasn't used properly the the other issues if you will if you look through the there's the remainder i think the remained there was no objections made to the magistrate's recommendation on that and so that's a plain error review and i think that the district court think it is such an easy issue to deal with that i want to talk about it because it illustrates something about the pleadings and the briefing in the case everyone knows the city of newport versus fact concerts that he is entitle to punitive damages under one thousand and three against a municipality citing no case law but that's precisely what's been going on throughout the rest of it when you when you talk about one a one zero six the state election of remedies provision then you get the reading that you have heard of the garcia case it's that sort of reading that is completely off of the normal texas courts understand it's law and the same thing with as we go through when you look at the mo now issue as well the manelli issue on with regard to the city it has been has been clear  tat chances to amend it and he did not bring his his any facts which would have indicated that this incident was caused by a policy custom or practice of the city of mckinney so what you have here is a proper dismissal of the claims against the city as well  would i don't want to unnecessarily take up the court's time and i will yield the rest of my time to the court but with just with closing briefly to say that the remand was i mean the removal was proper decision not to remand it was correct your understanding of section one hundred one is the correct understanding from the texas supreme court garcia case he had an opportunity to plead a fourth  claim within the period of limitations he didn't do that it's a straightforward application of the statue of limitations the he hasn't played a proper mon el claim of the policy customer practice and of course the defendants in this case haven't even answered yet we haven't been able to do any discovery what they're saying is i haven't played policies procedures historical facts patterns of conduct but all of that information is uniquely within their knowledge i have named doing yet i have to be able to do discovery every supreme court case so far there's been a dismissal on these facts has been after discoveries occurred everyone there's like six of them well i was sort of concerned about that but at the same time if this was a search under a warrant what's his name and it seems to me we we did have a case once coming out of fort worth where they said well we know that the police they had  some they got maybe that was on discovery i thought it was two of the six use of force claimed to get through the police but you know how can you how do you have any issue how do you even have a good faith belief under rule eleven that this is a policy or pattern or practice of the municipality and i don't mean to be flippant but it's recip saw that with these people who are not punished at all for what they did they went in shot a geyser a closed door during a botched swat raid where they disciplined a they were not disciplined they were acting and in the course and scope of exactly how this police department wasn't released into what cases we haven't and cases for a long long time and because the supreme court ruled differently than normal you cannot infer a policy from one acting like that's my new discovery i want to be able to find out with the unique knowledge they have that i can bring that to the court and i can say look at this pattern of conduct look at these actual customs and practices that everybody in the swat team agrees are true plead out of those cases now i need to lash them out with discovery and i haven't been able to do that yet i will be able to do that if there's no there there i'll just miss the claims but right now it looks like they're probably acting under the regular course and scope of their real customs and practices as opposed to their their pristine written policies check southwick fifty one zero fourteen you read it yourself a person may appeal not must not shall right but you have the right to appeal so you could have reviewed never being able to appeal that would be the shall statute if it shall appeal that i do it now or never but it may i mean that's the same mean even though somebody is dismissed from the case a statute of limitations remain told that's a good question i don't know the time of the answer ok good question but on that issue you know the lower court never considered the equitable tolling statue limitations argument that a brief or the identity of interest doctrine never mentioned it never intentional tort claim against one of the our state workers you can't bring in you got to go and you have to go to federal court that's not the law there's no case to say that the state law never forces players to federal court never does and on the remained issue i understand that this circuit holds to the minority opinion or minority view that untimely removal when there are federal claims plaid is just a procedural and all jurisdictional issue but the supreme court has spoken on that also the city admits that we played plenty of facts to allow them to have removed the case under our regional petition they'd missed that they admit the facts were there and i cited i think fifteen cases in my brief where other the minority and the need to actually refer to nine hundred eighty three it seems to me we are still looking at the general rule in and out of minority of specific specific group that you must be able to see in the face of the quality of the complaint that you have a federal claim and i'm i