before we turn to our next cases we want to welcome the garland walker in of course members who are here with us and also of course welcome the members of the public in council in party thank you very much we're about to hear case number two thousand and eighteen for zero four nine one courtney morgan versus mary chapman and john point the question of whether a plaintive may pursue a malicious prosecution theory under section one thousand nine hundred three has been a point of contention and confusion in the federal courts for decades but in twenty zero three this court brought clarity to that subject and it's on both decision and cost them ya know vs for gozo and in that case the court explained that a plaintiff who wants to proceed on that type of theory just has to allege and prove constitutional violations and that the malicious prosecution label only invites confusion now of course a couple is a label just in fighting confusion here because really what's being alleged here are regular fourth amendment claims under as part of the militia so maybe it's the label that's causing the briefing and confusion well it's certainly there are not any longer freestanding fourth amendment claims in this case and if i could point the court to page four of four of the record this is morgan's response to chapman's motion to dismiss the operative complaint he says that the plaintiff made claims for nine hundred eighty three malicious prosecution grounded in fourth amendment violation but contrary to defendants characterization of plaintiff's cla did not make a separate independent claim for unreasonable search and seizure once again isn't that a labeling issue the claims are grounded in the fourth amendment but they're related to hi prosecution much like the winfrey case the fourth no i would say there are no longer free standing claims as the district court recognized in this order the only claims that were left were malicious prosecution and premises searches and property seizures and if there's one thing that's clear in the law of malicious prosecution it's that only a seizure of the person in a detention can be relevant to that type of theory so the district courts focus on premises searches is beside the point we have to look at the complaints allegations if any of seizures of the person that could be relevant and there are two contenders the first is the allegation that during one of the premises searches morgan was detained in an exam room for over forty minutes the problem with that claim is that it predated the start of legal process and under wallace versus cato that means it's a false arrest claim and it's time barred for the same reasons the initial freestanding fourth amendment claims are time now we can't consider time bar we that's correct your honor and you don't need to all you need to recognize is that allegation because it predates the start of legal process could only go to or could only support a false arrest claim ok what about the detention that a rose because he's arrested based upon the alleged falsified materials that could miss chapman gave to the officer right that's the other contender the allegation that morgan was physically arrested after the indictment issued that's after the start of legal process the problem with that is that morgan doesn't allege that that arrest violated the information that she knew was false about the quantities of the drugs and that sort of thing it in that part of the my making this uppers that that am i correct that that's what he says that's not a fourth amendment violation of fourth  taking someone into custody right so he she caused him to be taken into custody based upon false she presented falsified information to the to the law enforcement in order to egg them here the constitutional violation doesn't fit that theory well is it more accurate correct me if i'm wrong is it more accurate to say that cuss to be honest so there is no fourth amendment malicious prosecution claim per se there is no such thing i think that's part of fabricated evidence well i think i think it left open the possibility of a free standing constitutional claim i'm whatever source the question would be was that it's time to file claims it rejected the overlay of honor has a den of fide some tension within this court's precedent both both before and unfortunately after costs and ya know there are panel pinions of this court so for the for example rodriguez versus writer that came out years after cost and ya know it cited a precaution yano opinion saying to bring a malicious prosecution claim under nine hundred eighty three you have to look to the state court elements well that's flatly contrary to what the court yaddo that was a marker that laid down the law for previous four for subsequent panels to follow and it controls under the rule of orderliness well so you're trying to say in a roundabout way that you think that winfrey doesn't follow the rule of orderliness and we can't follow it here yes if we have to follow world winfrey because we think it's within the rule of orderliness and we are trying to follow the rule of law really yes ourselves when do you lose today i i don't know i would have to look at winfrey again i guess but to see if it could be distinguished in our view it is contrary to cost in the auto and that on bank opinion controls ok so what if there is  evidence claim can be brought under the due process clause but in this case that didn't happen there's been never there's never been a suggestion that there is a fourteenth amendment due process claim until this appeal and the only references in the operative complaint to the fourteenth amendment are tired directly to the fourth indicating that the fourteenth amendment is cited here only because defendants are state officials and the fourteenth amendment is the vehicle through which the protections of the fourth are incorporated against state i mean is this just a rose is a rose by any other name because they do cite the fourth and the fourteenth and they do cite the factual basis for the claims that there's a fossil evidence and whether or not you consider that free standing forth or you consider it tucked under malicious prosecution as part of due process it's still the claim that they falsified evidence to lead to the arrest and that if it's it's you know we have to look at the the actual allegations and not their labels don't we throw in the plenty of sites cases about notice pleading that it's one thing to have a complaint that cites facts and doesn't specifically tie it to a legal theory or cite ninety three expressly it's a it's it's very different when they decided not to eighty three expressly and the fourth and the fourteenth what i'm saying is what they did was they didn't have a complaint that merely put forth facts and said under some legal theory when they specified the legal theories and they said from the very outset of the case at that at the outset it was forced many claims that were freestanding then those were dropped in response to a limitations defense it was never any suggestion that there was a fourteenth amendment thing and let me ask you about the very specifically about part of their second i'm in a complaint that's the operative complaint right that's correct so paragraph seventy of the factual recitations says this this is three twenty five of the record chapman was the lead investigator in morgan's t m b case she knowingly and deliberately compiled in an accurate report tabulating all prescriptions issued for controlled substances by morgan ecce and then knowingly and deliberately did not consider include those portions of the records in her report i read that as saying that there is at least alleged some kind of fabrication of evidence component to their claim now i agree with you and in terms of this complaint never says this is a fabricated evidence due process claim or the fourth amendment doesn't say that or all doesn't even suggest it but that allegation is in there so what are we to do with that if there had been a fourteenth amendment claim it and also the district court ordered never says the words to process the complaint ever says those words but if there had been and i think we would have responded differently we would have addressed that claim head on and under qualified immunity we we would have raised the circuit split on whether a fabrication of evidence to process claim requires the criminal defendant to have been convicted one of the cases several cases that say without a conviction there is no such claim so i mean i guess what i hear you saying is that the briefing below that led to the court's denial of a motion to dismiss on qualified immunity grounds didn't even sort of join issue on this point that's right what we said i believe in chapman's motion to dismiss was based on the allegations this is a fourth amendment claim and under graham versus conner you can't the substantive due process framework to displace that more specific constitutional right and that's of course what we're saying here we were holding the plaintiff to what he alleged if you had something different we would have responded differently but the district court gave the plaintiff plenty of opportunity to amend and on the last instance he said ok one more time one more complaint no new claims no new parties and so it's not as though the plaintiffs didn't have an opportunity to develop a claim that it could have put in the complaint did we probably need to talk about abuse of process don't you think abuse of process thank your honor so on the on cognize ability of  constitutional dimension the court didn't specify what constitutional dimension that was other circuits have reached a whole spectrum of results on this from saying that all you have to do is show the state law toward elements all the way to no no there's no such thing under ninety three is abuse of process the eleventh circuit in harvey vs harvey read this court's decision in beaker to say that there is no such claim but even assuming that that's not a dispositive problem for morgan on that claim the allegations don't fit with that theory the theory of abuse of process is that process was legitimately initiated but then later misuse so for example someone is lawfully arrested but a prosecutor detains that person in jail and tries to extort money from them those are the allegations here the allegations are that all of the process was  process i think we would be hard pressed to argue that given the factual similarities between this case and say the versus robinson and the panel opinion the could that's correct but again those those allegations of the premises searches can't go to the theories that were alleged here they could go if in the freestanding forth that that's still viable if the if the complaint had retained a freestanding fourth amendment claim they could well maybe it does make because it still has everything that's in there and you said that we are confusing people about our arab militias prosecution jurisprudence by saying you know by winfrey and that sort of thing is winfrey really about a freestanding fourth amendment claim your honor i i i think that in this case on this record it's absolutely clear that the plaintiff drop the freestanding fourth amendment claims and that's that's made most clear by page four a for the record the why would they drop their most viable claims as their time barred the amount would they all be time barred all of the free standing fourth amendment claims i think i mean as your honor recognized timely this is not within this court's jurisdiction here but i'm not aware of a claim for that type of violation that would be well i don't i think we should give you each five more minutes because you haven't even talked about immunity yet so each side gets five more minutes thank you roger i mean i thought that it was the time bar issue about why the repack is their claim frankly because the freestanding for any free standing fourth amendment claim women that have accru well if we're talking about the premises searches it would have accrued roughly three years before the original complaint so barred so but then and went winfrey says there's a different cruel date for a different kind of right claim right winfrey reaches back into the pre cost and you know law on which this prosecution and says yeah you get the benefit of the state law tort a cruel period but that doesn't survive cost problem and it's consistent with it and so it doesn't control and there are opinions after crossing out of that get it right and so all we're saying is that the courts should follow the rules or you don't actually have the power to do what you're asking us to do we can't say that our opinion is inconsistent with our other opinion and therefore we're not going to follow it unless we're sitting on bob can we will know your honor to the rule early this is designed for this if there are frequently that there are in consistencies in panel opinions and the court looks to the earliest opinion number we don't we don't enforce against others if there's any possible and we would that's not our job to enforce against other pa falsified information or that keep you know and i'm thinking about it's certainly not absolute immunity under who grotz and where the da is on the premises directing the seizure of th writes this stuff if if we were in that position initiation of prosecution is a prosecutor or a function we've held in her gripes and then if you're doing an investigation in gathering the information and leaving the really grapple with these immunity issues should we perhaps remain the case to the district court for the district court if it the case survives for the district court to grapple with these issues in the first instance no your hon this conduct presumably violated clearly established state and federal law see piron state court findings and conclusions closed that's a you said it for me but that seems to me that we would say you were we choir you know under new rules and things that they're supposed to get articulate reasons and then we ask them to articulate reasons and then we'll have a proper record to review that on after everybody gives their best argument there on the i'm sorry my isn't that the right answer in this case because morgan is has chance to allege claims that are viable in the operative complaint and you've responded with motions dismiss raising all of the years that i've discussed today burton was it to show qualified immunity once you raised it well it's morgan's burden to show clearly established law and here that has to be malicious has been established and probably nine hundred fifty nine fabrication of evidence is clearly did you plead this did you play a major case that it was a file a sin of due process in pursuing argument a we agree with you that it's a violation of due process to fabricate evidence is that in your pleading perfect legal arc it's now our our legal arguments are not perfect but we but under a twill be six motion our burden is to produce enough evidence to show our client if the factual evidence is true is entitled to relate i'm not going to set an argue that our theories were perfectly expressed they were not let me however we did plead the morgan's fourth amendment rights were violated the way they were violated was when he was physically arrested based on no probable cause because the affidavit was fabricated there's no no argument that they didn't fabricate the af a they fabricate the report mr mr davis was pretty adamant and emphatic he said quote there are no longer any free standing the claims in this case and then he said it is absolutely clear the players have dropped their freestanding fourth amendment claims but i would obviously i would disagree with that if first  in a complaint initially that said we're bringing quit bringing these allegations under the fourth and fourteenth amendment then there's hundreds of so factual allegations factual is if you from the start believe july the eighteenth two thousand and thirteen when they came in to dr morgan's office clearly violated just fourth amendment rocks no question about that court threw this out the the criminal proceedings and did it make finding that that these things had actually occurred up i know that it it determined that it did all that that the searches were all bad and that the laws had been violated but there are there findings that that she fabricated or any of that sort of i don't i don't think you don't have to have that twelve b i don't think there was a specific finding that she had she it fabricated the report i don't believe that it was sort of a general of general allegations of mischief and was not reliable and the judge was incensed over what and how just so i understand it would you answer the question is no i don't like the least my memory in my memory i don't think there was a specific finding of  just blockquote i don't know if it was all of them but it's like four pages of the state court findings and that's the only basis that i can see for the district court's qualified immunity ruling you follow me yes yes that's what we're talking about o and so i think what judge all right is asking and i'll ask it even if he's not which is is there any finding of fabrication of evidence in those state court findings i don't believe so ok what do we do with the fact that there is not a robust discussion of the qualified immunity issue in the district court normally the district court would have to blame what the violation was and then how it was clearly extend would give all that do you do you have cases today that tell us that this was clearly established or are you saying you need to go back to the district court or what is your situation on that the qualified immunity ome fabrication of evidence is the qualified immunity own coming into an office and in forcing a administrative subpoena is clearly  do you think that you're well it seems that your problem here today might be whether or not you conceded away all of your fourth amendment claims that might be a problem you have here today but would you like to address that i wouldn't agree i wouldn't agree with that because under the under the twelve b six motion in repeating myself all we are always required to do so have factual allegations that would indicate we could s they the complaint the second amended complaint says they bringing that bringing this calls under the fourth and fourteenth amendment i know that they they did not there with each factual allegation from that op where they would say ok we had the arrest we had fabricated evidence no probable cause of fourth amendment they didn't do that our fabrication of evidence violation and fourteenth amendment they didn't they didn't specifically in doing the complaint say that but i would say under johnson versus city of shelby mississippi for relief but we're here on a qualified immunity question right yes on denial of a motion to dismiss based on qualified immunity now i guess in light me on the briefing on that motion to dismiss whether or not the case should be dismissed on qualified immunity did the briefing discuss you know whether a prosecution based on fabricated evidence was clearly established a case a believe was quoted in brown versus miller  been challenge as violating because it's truly in a ministry of subpoena and it there's it's not a closely regulated industry in all of that so are they are they doing in min statute the new rules i believe they're going forward with them in some cases and i'm not aware of a child ok but you understand what i mean by a challenge because if if there are truly administrative subpoenas they can't be instanter because it's question about the seizure of the person the people were seized at the at the site right they were put in the in a closet or something while this search was going on is that right now the elegant let me just room and then his family which is not part of the subpoena is taken from him there is an allegation that things are not part that were not part of the  subpoena were also sees just like him and some of these other cases where there's these allegations that they're seizing far more than what they're supposed to be seizing and you're where of that right those are the allegations ok why wouldn't his phone be a thing of value under the abuse of process the idea that you take something t they took things that they wouldn't be allowed to have otherwise even with the proper process and why wouldn't that be abuse of process well as i understand the torrent of abuse of process it goes to process meeting after the a warrant has issued and the legal case underway process is misused at that point so the extortion example that i gave earlier i wouldn't understand the tort to go to that type of factual scenario i would think that would be a straight up fourth amendment cl and so even if they seize other things of value and take them unless they're taking them to pocket them then it wouldn't be abuse of process issue i'm not aware of case law that would put it in that framework ok near times going to run and that by the way is a malicious prosecution claim petitioner has not made one the titian or did not include such a claim in his complaint in fact abandon a state law malicious prosecution claim and stated in opposition to motion for summary judgment that plaintiff does not seek to raise a malicious prosecution claim under knight section one thousand nine hundred three that's exactly the type of analysis we're asking this court to apply look to what they complain alleges and hold the plaintiff to those claims that's the only approach that would be fair to the defendants and allow them to present at the appropriate defense are the defendant similarly situated well one of them is a ford agent and one of them is a d p s officer right the board agent the one who allegedly did all of the bad acts right in the d p s agent took the materials to do what they normally would do cording to that i'm just curious why they're similarly situated well you represent them both so i'm just that's right it's the allegations are they they both were bad actors here course and we take those allegations as what i bad at the of as i remember the complaint alligator complaints allegations as to copaxone it was taking the investigative file and sending it on to the district attorney bystander but obviously if a court were to take that view of the complaint that kovacs would not be liable as to whether there was a free standing fourth amendment claim i would again point the court to page four of four of the record and the history of the amendments of the complaints ending with the operative complaint it didn't address that and the arrest allegation is is stands out when you compare it to the other allegations the allegation of a physical arrest doesn't say that that arrest violated the constitution and every other allegation that  the plaintiff has pointed to as as to the property premises searches has alleged a fourth amendment violation and one possibility we don't know from the complaint because it doesn't explain is that morgan voluntarily surrendered to the arrest warrant and we know from this court's decision last year in mclean vs ard that the law wasn't clearly established until last year that voluntary surrender to an arrest warrant  violated the fourth amendment a quick question on your absolute immunity argument i asked him as chapman opposing counsel says that it sure seems that she was acting more in an investigative function  prosecutorial function and therefore munity is misplaced and why is he wrong well as as i mentioned before the absolute immunity argument would be at the end of the analysis right everything you're saying that's not your best argument that's right it's not a go in and i don't think it's a complete argument because it goes to functions within the judicial process right and so it doesn't cover investigat work and the question is whether a valid claim was alleged as to that investigatory conduct and it wasn't for the reasons that i've already noted one other thing just to highlight on page this goes to qualified immunity goes to the abuse of process allegations do you agree that the law was clearly established under fourteenth amendment due process that you couldn't falsify reports at the time as long as that resulted in a conviction yes i think if you take out the conviction piece of it you're in a circu if there are no further questions does it but not just held in custody because if you're held in custody as for do you have to have a conviction if you're held well there's no allegation that he was held in custody except for with respect to the anything but voluntarily surrender to that the only detention allegation is on the day of the search is forty minutes in the exam room that's a false of resco false arrest going thank you that's helpful thank you