real key question here today is whether this panel should create a circuit split by rejecting the blue the reasoning of the blue opinion from the th circuit well that's an interesting way to phrase the question brief was devoted to arguing that this panel was bound by a lobby and that it would take it on banca panel to to to adopt the logic of blue i would say that's not the case what we had in a wab the was a passing dick the statement that did not reflect consideration of the issue not before the court in a while was whether  was whether a state court rules such as the man roe rule from georgia or the interim adverse judgment rule in california could be applied to simply bar a party from arguing that they thousand and sixty seven in california as in virtually every other jurisdiction wong standing principle of common law citing case after case including from california and siding with can how do you get out of that  that they were that they were looking to california law they look to california law along with national treatises and along with nd circuit law so they looked at law from a variety of places sort of created a federal rule and came to the conclusion that it was good economic probably not the gritty i really appreciate if you look at the case with me and tell me what paragraph you're citing from because i don't see the argument at all the argument is that they looked at laws from all over the country so i'm looking at the case i don't think that your description of the case matches the paragraphs that i am looking at what was stated because they are i would appreciate if you could if you could point to the paragraph and the page where you think it supports your argument because i do the point is that the statement is there i do not question that the statement is there my point is that the holding was for was to reinstate so that makes it and that the court relied upon law from all over the country including the nd circuit and i think that's what's important and with regard to with the other point i wanted to emphasize in his so so i don't think no i don't think the court's hands are tied i don't think the court is in a position where we are really are you are you aware even if it were a where the question was where the question was the question that was whether or not the the ribs presumption was rebuttable or error about a ball that was the question and that panel held for the plaintiff and reinstated the case it did not have the situation that you had for example in blue where the case had been dismissed based on a state court rule and the question was could the state court rule matter what because her conviction was up help her conviction is different of course she prevailed with respect to five counts and was convicted on one i would i would say that the one which was convicted was not as serious but it was a felony so as to any malicious prosecution claim yes that would she that she has she's not asserting one because she has just started it would be doomed not true with respect to now as to those that were reversed you agree that none of them were reversed based on you know factual innocence they were reversed for legal basically th was i would not adopt that characterization what's important about the ones that were reversed is that the very filing of those charges violated the supremacy clause of the united states constitution and they were void advocacy zero which means that they were brought without probable cause you can't have a count that's fraught with probable cause when filing it injures the department of health and human services a federal department and the filing is unconstitutional as a concept is it violates the constitution unto itself you know you have it's related if we were to remain on this case to the district court to the district court make a separate determination as to whether the california court of appeal decision is correct the fascinating question that i that i have not considered because they seem to be i don't  that i when i read the california court of appeal decision i thought it was interesting it wasn't immediately apparent to me that it was correct but i thought it was certainly plausible but it's for like to think about it a lot more but it also struck me that this was the california court appeal was this was a novel question this is a question that had not been resolved and i don't know how the da was opposed to a bigger does out if nobody else had figured this out until it got up on appeal  interesting question and i don't think there's anything wrong and thinking about it i don't suppose that the district court is bound to have to think about that there's some collateral estoppel of factor or the fact that  the the fact that the losing parties in the california st district court of appeal never filed the petition for review i mean it's interesting i need to look and see whether some of the procedural district court is in ballot as a matter of law by the conclusions of the state court although she seemed to think that she had to import the entire law the state of california but i i don't know about that i think that the st district court of appeal was correct i have no doubt about that they went off on the idea of obstacle for clues and they felt that the problem was that the that the prosecutor in alameda county had interfered with the federal department i thought there were some some of the suppose some be even better theories for this but in any event there are a lot of different kinds of supremacy clause arguments one can make it's an interesting question whether the whether the federal judge should get out should get a bite of that wine and then if it has to come back up here in this court can look at the supremacy clause argument then it well but that's that's it that's an interesting question and i'd be very very interesting to see what actually happened you know because because we never got any discovery we don't know what they actually did and that sort of brings us back to the park the thompson case we never we never they have all the information they're obviously very nervous about it because they were you know they were immediately looking for as some kind of a in order preventing the public from finding out what happened when we had discovery but i think we need to see what they actually did you know in the in the norm in these cases the norm in all cases is you allege something and if what you allege is legally sufficient then you that some discovery and i think we need to find out what they actually did i mean we one of the defendant operating under political pressure let's see what actually happened appellants excuse me are asking the court to do is actually pretty extraordinary at its core i believe the argument is that the court should disregard the presumption of regularity that attaches to the judgment and training of the deputy district attorney and that attorney's superiors and managers and colleagues and the determination of the jury and instead based on generalized allegations of political pressure and some sensational accusations about unrelated claims of misdeeds determine that a state court case prosecuted nine years ago lacked probable cause and in arguing for that result appellants are asking the court to do two things that i don't believe the th circuit has ever done before the st being to decide that when a state conviction is overturned on  on federal preemption grounds that that preemption determination renders the conviction voided in a manner that invests rates the presumption of probable cause and attack and attaches to a circuit case that isn't even on all fours with the facts of this case in fact in order for a balance to prevail they not only have to persuade the court of all of that they also have to clear a number of additional hurdles they need to demonstrate that mr daniels case favorably terminated in its entirety that he lacked that his lack of alleging his that he exercised his  amendment rights isn't a problem for the complaint they have to address the time are problem that they have with the retaliatory prosecution case and they need to address the lack of municipal liability under menow can't clear any of those hurdles let alone all of them and for that he has to proceed they need to clear all of them i'd like to address just a couple of questions that came out and items that came up in terms of actual innocence i believe judge nelson asked about that question i think that the law of the circuit is settled that factual innocence must be demonstrated and not just a reversal based on preemption rounds and in addition the question that judge finally had about whether we need to consider whether the da would have known ahead of time that his case was preempted i think that that is a problem and that there is no way that the d h would have known that it was a very complicated federal ramsden issue i think that there is a chance that the court of appeal may not have gotten that right but they certainly sent dozens of pages talking about it and figuring it was go look at it not a factual issue though as to what what the mr attorney who would have known or should have known i may well be as difficult as you suggest maybe novel but it seems like for us to say as a matter of law you couldn't have known that was probably beyond what we can do it seems like would be for whom that may be right your honor and indeed the question is whether there was probable cause at the initiation of the prosecution and if you look at the charging document which is summarized in the court of appeal decision there are facts there that that support each of the counts and so i do not think that you need to get into a factual determination because probable cause is something that the court can decide at this stage is and the prosecutor decides to bring the same case you know gives you new defendants would would he still have probable cause or would the position there be no we should have been situation district attorney nevertheless went forward i st of all think that would be litigated i mean front of the court but i think that you would have a very different situation because at that point there would be a long record it would not be a would fit a violation of california law which it seems like this did because they were convicted is preemption by another sovereign and affirmative defen qaida is an element of the crime that the prosecutor would have to have somehow addressed preemption or is that really an affirmative defense because the facts certainly made a violation of california law so there's not any question about that it's just that we find out that it's preempted but that seems i mean it least conceptually it seems like an affirmative defense not at the end of the day this question of probable cause is an important question but it is also only one of the questions and as i said before there are multiple hurdles that you need to enter in order the prosecutor but is the the mental state that i can certainly see a detective going out and arresting someone based upon the allegations of against the fence in this case is there a different although we're talking about the same words probable cause it's not necessarily the same standard and i think that in this situation we're going to talking about probable cause in a malicious prosecution scheme  nation was racially as you address the portion of the district court's opinion that the allegations of wrongdoing by individuals was insufficient and if if you think that your allegations of wrongdoing by the individual offenders differs from one offender to the other that some of them you think it may not be sufficient but for others it may be sufficient cause it seems like a small lump together with the district court went through and sort of named individual defendants as to where they found that happened and as for miley he had a very strong very strong reasons to go after my client my client and discovered that he had taken public funds and moved them around and entire history of my client with these defendants in the reasons why these these defendants would wish to retaliate so yes all of that is in the complaint but the judge from that a lot of those general allegations w identified and that somehow whatever that mode of communication was it induced the local police to charge the person he was supposed to become a witness who therefore took the th if this trial they're definitely more specific than the allegations and park and and the court this court and park remanded and said you can make these allegations on information and belief you can say that the person who made the critical phone call was maybe a doubt was  unidentified and you still get your discovery to find out what happened with the facts so i would say that under par they are certainly sufficient and and we also have the statement by the direct statement by the deputy district attorney that they were going forward reluctantly in response to political pressure so i think that is sufficient couple of other things i'd like to mention the preemption issue was was raised in the trial   the the trial judge i guess he was maybe in a frame of mind really expected to go forward him if he rejected it without any real without any extensive discussion and it was a mistake and the i just like to make a couple of points very briefly one of them is that this is been this is been discussed as if it were qualified immunity with the police that the quote as if the issue was whether the district attorney who isn't even a defendant here should have known that there was a problem with preemption and that that really has nothing to do with it's not qualified immunity it's not with the district attorney should have no it's simply whether or in the criminal trial it was they had no business to bring these had no business to bring these charges because because there was federal preemption and we shouldn't just soon that is a factual matter they knew nothing because the district attorney did need to go to presumably contacted the federal department of health and human services and it was explained to them that under the civil revel regulations which were violated nobody was prosecuted nobody was held liable so you're out of