mr daniel and i know we've divided up our time so mr angeleno can address some of the issues unrelated to fair trial daniel's case was dismissed in its entirety that means he can that means he's allowed to proceed with a fair trial claim on the due process clause and mcdonough presents no barrier to that claim this is not a malicious prosecution claim and mcdonough cannot be interpreted to appoint the elements of the militias prosecution claim into a fair trial claim  nothing has changed post mcdonough mcdonough is a statute of limitations case it's not a case involving the elements as mr rubin pointed out the supreme court repeatedly notes that it's not addressing the substance of elements of their trial claim the nd circuit law is still good law on this issue the only difference is that mcdonough applies heck and we have to correct what we're in this lawsuit that we don't have parallel civil and criminal litigation and we avoid the possibility of conflicting civil and criminal judgments me the concern is implicated here there was no ongoing criminal case with mr daniel and there's no conviction whatsoever his case was dismissed under the a c d statute quote ultimate  prior to his arrest and prosecution almost as if the arrest never happened is no barrier for daniel to bring a case like this and language that the city's relying upon to require a malicious prosecution  purposes of determining when the fabrication claim cruise but they didn't otherwise address the substantive elements and as mr rubin pointed out fair trial crime and malicious prosecution claims attacked entirely separate constitutional problems and you can have a fair trial claim even if there's probable cause against the defendant and that's not true i don't think with malicious prosecution claims so the language the city the line upon i arise the individual panel can hold the entire circuit and decide whether this is an acceptable way to proceed and if not you deliver again has the opportunity to petition for an on but that that's the usual standard however in extraordinary circumstances the court can agree among its own that this preceden are overruled or just don't apply anymore then the original decision no longer stands and it was the case before boss talk at least that a court could start with legislative history and look at what congress really intended but those reasons are are essentially no longer authorized insofar as you would not start with the plain read the text and i don't mean to suggest that that legislative history is we can see has been abrogated no no no no no and let me clarify i didn't mean to suggest that all legislative history is a method of statutory construction and it has its purposes however you don't start there you start with the text and you know if the texas clear you for all the text and you don't want to render certain words in a text as new retore or not having any  basis in law and fact just last week the court found in a case involving s b a we do not lightly assume that congress has admitted from its adopted text requirement so there and there is a as a deprivation of liberty and having to report to a court which might take away his liberty so i wasn't prepared to argue fair trial but that is what the case law shows was f deprivation of liberty is concerned so again i don't suggest that legislative history is not a method of statutory construction and it will be but to read a statute  prosecution intents them which is the only basis for his alleged constitutional injury and one after this court's decision of frost such pretrial evidence fabrication may not arise in the th amendment the identity of interest identified by the supreme court for both claims means there's not a principle basis to distinguish between them in the pretrial context for purposes of determining expandable terminations because the constitutional injuries in instances where the allegedly fabricated evidence is never presented at trial are the same as the injuries and militias prosecution  repeatedly noted that both types of clients into the actual proceedings the process where we're not talking about some that's going to trial and implicate in the evidence the fair trial considerations there were only talking pre it is challenging it's a probation that's pretrial and so therefore there by including the prosecution you would have to show a lack of probable cause do you think you would need to show this you know i don't think so i don't think me going to requires that i  think that it does not hold true for the element of favorable terminations there's no way to use to square to say that well nothing has changed except now nor to have to show favorable terminations that that is a change and it's a  change as to what the plaintiffs required to show you can't proceed without showing a favorable transmission to the question just what does that require and so on that while the general contours of the right may be different for others avocational says prosecution the that is even more true in this case than it was in mcdonough in the gun or the case actually did proceed to trial here there was no trial because it was resolved entirely before trial and so the the liberty the liberty deprivation then i guess i see your argument that that the standards for pretrial deprivation should be the same and you know i could see the argument that says well if there was probable cause and he was detained pretrial then it i violation but you just said and i think our president say that one could nevertheless proceed on a fair trial fabrication of evidence clean for pretrial deprivation even if there's probable the deprivation of liberty here is the evidence that he is alleging was fabricated and so any distinction between where there's probably cause and one aspect but it doesn't you know that it may not matter because other evidence was argue in the brief the fact that it uses legislative history i have to say i'm i have trouble following the argument raised by plaintiffs he says that the fact that it used legislative history is not itself to disqualify and rather seems you're saying that the fact that look the legislative history st is a problem not exactly sure what to make of that argument moreover as we argue in the grief there is the text of the statutes does support our position and  points to make a number one the city just argued that you can't have a fair trial claim if the evidence wasn't introduced at trial but this court and frost said the opposite page twenty nine  number to the point that it looks a lot more like a malicious prosecution clean when you're only challenging your detention pretrial the evidence was never used pretrial because you're challenging the deprivation associated with bringing the from an act of police misconduct if you make out the elements and we make out the elements under a longstanding nd circuit precedent the the favorable terminations language and mcdonough is entirely in the context of determining the reply brief when i examined the union bank procedure a little bit more but you you have to make that decision and i would suggest that you can make that decision now because i did not say that legislative history could never be used merely that it can't start a legislative history and then perhaps rendered nugatory or modified language in the statute and that is what