it's court of international trade but we appreciate her coming to help us keep current with our docket like to advise appellants if you have reserved any time for rebuttal or wish to reserve any time for rebuttal i'd appreciate your letting me know at the beginning of  i come to you today representing a man who was involved in a car accident and october of two thousand and eight following the car accident he had a clue he was a comb and if the coma he went to rehab and while finishing rehab he hired me i'm afraid today i have to admit my fear of not only coming for this honorable tribunal which is always scary but i am concerned that the trial court's summary dispatching of my case for my client is powerful any time a retaliation case is brought we plaintiffs have a terrible burden to find evidence of retaliation and to do so without that smoking gun that admission of state of mind or intent oh it's a difficult burden it's a difficult job but these cases are difficult if fact george bush was involved in a case that made that observation or it's that in that case in that particular because they as i think the court in hartmann talked about and you know and regal talked about you know it's been court had the wrong bumper sticker on the car we don't look to these cases simply to get out of crime and this is a difficult thing for the bench and for the for the for the bar as well in by case my client's case charlie's case charlie was involved in a car accident in t boned by an east cleveland police officer the case was investigated by the city of cleveland because the accident actually was in cleveland correct actually in the city of cleveland as a  we have to address whether we have statutory issues bringing the charges that we've alleged the court made some observations with respect to the timing of this case being filed and what claims could or could not be tied to facts back in two thousand and eight when the crash occurred in a going forward way as counsel for charlie there was no way we could have anticipated what we found out in two thousand and nine for right after st patrick's right before st patrick's day we filed this case in two thousand and nine and following section eight ninety three litigation being even present we just issued protection and preservation orders to both the city of cleveland in the city of east cleveland to retain and preserve all the information gathered at the scene and we had no idea at that time that there was any criminal proceedings pending against charlie beyond the investigation of the crash and by the time we'd sent those that was in december of two thousand and eight we had heard nothing but so we reasonably expected that we would hear nothing to  e to all gathered that you know if we don't have a constitutional violation with killian's we don't have anything against the city didn't the city of east cleveland sue you or sue your client right is that a mistake did which city suit your client might mean there was a counter suit brought in the original filing in two thousand and nine cities cleveland and that you know this is the suit that was brought six months or whatever after your client well ok the counter suit was brought by muhammad reading from that decision temporal proximately alone may be significant enough to constitute indirect evidence of a causal connection so as to create an inference of retaliatory motive  we we are we are pointing to the fact that detective kingpins closed his file in december he closed his file for whatever reason he did not open the file or get any new information with respect to that file until after corrosion was sued and until crozier was sued also by his city and blamed by his city for this crash and thereupon a dui citation was issued to my heart when you say there are appalling though i mean in the sense that the difficulty in making some sense of this is that there's a fair amount of time between the notice to kick in this which was in december the actual filing of the suit which was in march and then kins and the prosecutor do their thing in june so it's not close to proximity in that sense granted it is after these other events now i've tried to look at kitchens as deposition because you would think that the crux here is why did you take this out of cold storage but i didn't find very much what would you point to if anything in kitchens is deposition that gives you any purchase for saying that there was anything improper about going to his own city prosecutor right it's not the east cleveland people where he be protecting corrodes skia it's his own city prosecutor where this accident happened there oh do you partner work with detective kagan's on the on that particular matter i will note at page seventy five to seventy six cerny is asked questions with respect to in iraq and in iraq a toy that was issued out to the city was someone who had ordered him to bring to you why charges against charles hunt on june tenth two thousand and nine and you have no knowledge as to who that was right no i don't answers i don't well that that's the that's not saying that anybody did you know that's a leading question and it's not an answer that anybody did i mean we have we have the the scrawled letter or document from the prosecutor but that was after he had reviewed the file obviously the crucial thing ought to be why kins take the file out of storage but it i don't see that you ever ask ins that we kids actually says he testifies to having no memory as to what he said of the prosecutor why he went to the prosecutor and specifically he had no opinions at all with in this case which i thought was an important mission about his early the the e mail exchange back in december he does say i'd prefer to do this but you know whatever you want is following so it's not  e mails don't give you any indication that he's on a witch hunt interestingly enough your honor he writes that he may know three days after he received our preservation or his his request as to what he wanted to see happen and that is part of the timeline in this case that i'd be happy direct the court's or that that was that a request to the county or the thirty at that was to the county that time ok so that's to the county correct and the k ok and we know the county filed at the close am are you planning on presenting on the intoxicated motorist do we know what triggered that because this is from the prosecutor as though as though the prosecutor is the first person i mean a wrap up on his investigation does he have an investigation report that he submits to anybody else not that he's missing but yes he does say of course in december seventeenth the fateful words that we believe shows he had no basis to go further and that good afternoon to the panel court staff colleagues in the room and everybody else my name is john bass vice if you meet me socially please feel free to call me jack i'm representing the city of cleveland an officer killed and this is my crash there was a person who was very intoxicated and had cocaine and marijuana in his system and as a police officer he brought that to a prosecutor eventually a city of cleveland prosecutor made the vias code state law the county independent of anybody at the city has a policy and i don't know if that policy goes to the current county prosecutor the formal how far back goes but it's their policy that they require some level of some type of certification from a hospital for their blood results if they're going to use that as evidence in a prosecution that's not a legal requirement that's their policy determination why they made it i can't speak to it i haven't  we don't have the same policy there's no law that ours was to have such a policy so when it was brought to city prosecutors they were i i assume because i can't speak for the prosecutor but i assume they believe that the hospital's blood test was good enough for them there was no reason for the doubt that he had the blood alcohol level over the legal limit that he had cocaine system and that he had marijuana in his system as a result the prosecutor determined hey that looks like a crime to me i think i'm going to do your honor i can't really speak to that other than to say it's really a relevant you know when so until a crime has been solved or until a statute has run the police can always continue to investigate i can tell you we have an extremely busy department and they do have to prioritize things i don't know why there was the delay between going to the county prosecutor and going to the city prosecutor but i can tell you that there's nothing in the rocker that would support that the reason was anything illegal unlawful or that would violate mr hunt's rights obviously it's not it's not your place to make the other side's case but what in the deposition or anything else is there anything that discusses you know what happened with the file between no but interestingly i think that the fact that officer kittens really didn't have a lot of drug knowledge speaks to his underlying motivation in this case which is none other than doing his job he investigates accidents he does this all the time this is day to day for so he was found out two years later about an accident he investigated of course he doesn't remember it was routine he went out he did his job he went home he had dinner you want to sleep he went on dead the next day that was it there was nothing particularly memorable about this until years later a lawsuit was brought against officer higgins personal important for the court to realize that there are two separate events being alleged in the amended complaint that was filed in two thousand and eleven we're dealing with the car accident that happened in october of two thousand and eight and then a criminal prosecution by the city of cleveland that occurred in june of two thousand and nine you've already heard some oral arguments today at no point has there been any argument testimony or citation to the record that anyone from east cleveland or east cleveland themselves had anything to do with any events that transpired after the crash that occurred in two thousand and eight judge nugent's order granting summary judgment that was far entered in june of two thousand and thirteen spoke to three specific federal claims there are two plaintiffs in this case but the only federal claims belong to mr hunt there are no federal claims belonging to mr conrad the specific federal claims of by the court are those of a first amendment retaliation claim a fourth amendment malicious prosecution claim and a standard mo now claim when you say that none of your people had anything to do after the crash what about mayor brewer's conversation  saying that there was a conversation with spots and he says i'm not going to i'm not going to help them do any of that crap as i read it from brewer's deposition did i get that wrong you did that your honor or was the former mayor that was addressed by judge nugent in his opinion where he discussed the fact that even taking into account a bare accusation made by mr brewer there was no evidence that a jury could possibly look to that there was any influence exerted by east cleveland on the prosecutor and attack that is an event after the crash that is your your defense to that part can't be purely the statute of limitations i believe that is an a vent that is alleged by a former marriage ok i mean but but my right that you can't get rid of that of that part soley based on the statute of limitations i would agree  whether or not there's anything contained in the testimony of the former america mr brewer that could fulfill any of the elements i don't believe that exists that he of east cleveland qua city never did anything other than defend itself i guess in the lawsuit that as i grow charges were brought by them east cleveland never brought new charges none of these clinton employees brought the charges none of the cleveland employees or the city influenced their record make some reference to corrupt being fired but then reinstated as director we know why he was reinstated i believe the record does not speak to that your honor ok it's it's difficult as counsel for east cleveland i'm i'm trying to get the point across that there is no evidence regarding any type of retaliation than the east cleveland did not have anything to do with those events no clip no cases ever clean the waters tend to get in this particular case i'm having to deal with at the time this happened the former mayor was subsequently boarded out of office and there was quite a scandal surrounding it and there were some bitter feelings the former law director was unhappy after she laughed there's there's a lot that was going on but we i get that feeling from the transcript and there is it his mr burris deposition was quite heated but i would just like to point the court's attention the fact that although he made statements such as well maybe this happened or maybe that he never gave any facts or is nothing if a jury can look to and judge was very clear when he wrote about the fact that mr brewer never discussed for purposes of no now a custom practice or policy between two cities for trying to extinguish claims or go after people it was just the former mayor making the statement of well i think the police trying to cover stuff up and nothing more that is nowhere near fulfilling the elements of a custom practice or policy that exhibits the liberal indifference leading to a constitutional violation the record makes reference to the there being a suit that was filed fairly timely and then that was voluntarily dismissed and then filed again for about a year do you know anything about you know why that happened was that any interaction with the defendants i'm sorry the that as i understood it they originally filed suit in march of two thousand  and then voluntarily dismissed that suit in may of two thousand and ten and then refiled in may of two thousand and eleven just part of what leads to their statute of limitations problems i just wondered whether that original dismissal there was anything indicating how or why that happened i don't think there's anything substantial in the record excited for perhaps in the depositions of some of the east cleveland employees discussing the financial state of east cleveland i simply put there were no federal claims initially in that first complaint we're dealing with a car accident against east cleveland which is the poorest city i believe in the state of ohio east cleveland can't spend money unless the state auditor comes in and authorizes it i think later federal claims are added and the federal claims are stated mainly against the city of cleveland which has money to pay a judgment which east cleveland simply does not but i can't speak to anything other than that your honor ok as i was saying the east cleveland involvement in these events does not extend beyond the crash of two thousand and eight we would ask that this court affirm the june twentieth two thousand and thirteen order entered by  judge nugent dismissing the federal claims both the first the moment the fourth amendment and the moan all claims against all of the east cleveland defendants if there is no other questions i have nothing further thank you counsel  the cello you have five minutes for rebuttal you might weave into your argument to two questions i have one is this dismissal and refiling issue is or anything to that the second is you cited the mohammad case with regard to temp go ahead with respect to the dismissal we were fighting the dui charge at that time we had as we had to stop the case because but for the allegation of mr hunt being dui we would voluntarily dismiss your complaint until after the charges were dismissed you know that we we had well we stayed the case with state your honor she's now i'm sorry the case was stayed by operation of a stay that w client for filing a lawsuit against a city of east cleveland police officer our firm belief in the stronger is that it was because they wanted to spoil the lawsuit against the city's cleveland's office they were helping each other evil and wanted to do that the tech to kick in specifically yes doesn't that make your your argument a little tougher yes this it does it's two different cures yes it does indeed make it tougher i hate to depress you on this but your brief it page nine says on april twenty two twenty ten the prosecutor's office dismissed the charges against mr hood the court's district court's opinion says on may and ten plaintiffs voluntarily dismissed their original complaint without prejudice there's something wrong with the older of those i misspoke or there was a stay in place there was no activity on the civil case at all by operation t the dismissal you had at least the bones of your retaliation argument right we didn't do anything that dismissed the case we're innocent they brought it that's our her well that and kind of why you then waited a year i was a little puzzled that was all it but if there read answer go on to other law then if there isn't some clever answer just go on to the rest of your argument there wasn't thank you and as far as the obligation under the administrative code for certified labs i would counsel for the city actually have ministry of code requires that before the blood results be submitted as evidence in any court proceeding where those results would be used to establish alcohol content they have to be through a certified lab that to that section of the books for some time now and detective certainly testified about you said the ohio administrative code is that a statutory code is regulatory statutory ok well the state legislature has passed a law saying you can't admit things unless they're from a certified lab director are ok and and furthermore you have a citation for that i do not have the actual the actual number but i can certainly bring that up the the fact is  certain testified about that to his deposition where he talked about how it was that they were not allowed to use those papers to bring charges back in two thousand and eight when kittens would have relied upon them in two thousand nine hundred the same thing as a result of a that the city department had said to itself due to case law and litigation on that very issue i don't know how that the certified lap thing really relates to the drugs in the  system well your honor the v would be probable cause for this case would be that there was no reason to shoot to bring the dui against charlie hunt because he had drugs and alcohol in his system counsel me that allegation earlier the fact the matter is that was a blood screen that was done at the surgical lab as much as we can tell and whether it was accurately done or the procedures by which it was done we were completely at a loss to explain or had information that ordinance or administrate of law you were talking about yes that applies to alcohol tests that are used dabblers the the per se influence level correct around for alcohol alcohol and drugs to the testing of blood blood plasma breath all has to be done through the lab