that the applicable agency in charge of investigating the nurses conduct the department occasion had found that the nurses committed not only no crime but no professional misconduct and no moral misconduct the suffolk county da had already known how do you get around absolute immunity with respect to the actions of presenting to the grand jury which is i think the bulk of the allegations regarding wrongful we argue that the investigation itself which qualified immunity was also wrongful but we also argue that this presents of the rare exception to absolute immunity because the suffolk county da had no jurisdiction and they had no dura stiction because the nd department  correctly decided that this prosecution was unconstitutional of an issue oh in granting them the rare rid of prohibition the nd department said that there was never a crime they didn't even need to read the grand jury minutes they read the indictment they saw the documentary evidence they heard what the nurses were accused of doing which is quitting their job and worse that the suffolk county d a then went and investigated and indicted an attorney for giving legal advice so with respect to our client felix when luhan there was never any opportunity to say he committed the crime let's what happens if we if we create with bring this prosecution what what what happens yes i would say that there's no need to reach the qualified immunity argument because everything they did was on cars now that's my question is do we need to requalify community you're saying no not if you prosecution the actual bringing up an indictment the well then the court would look at as far as the investigation phase underqualified i mean if that's the of the position the court takes what we're arguing however is that quickly almost immediately at the start of the investigation the da knew or should have known through any reasonable application of the law that there was no basis to even investigate the clients the investigation had already been done by the department of education by the state department of health and even by the this suffolk county police department all of whom neglect decided not to act and more pointed a part of education had already affirmatively ruled that  the nurses acted lawfully professionally and without any moral misconduct and as a matter of fact the record shows the d a spota testified that he wanted to wait until a part of education ruled before he began even the the full  that the county of suffolk should be liable for the actions of leonard ledo acting at the behest and with the cooperation of thomas spota because they constituted official actions of the county of suffolk taken by the chief law enforcement officer the actions of valve the policy formulated by the person in charge of the office to abuse the powers of the office for the benefit of those who are either politically connected or whom the district attorney for whatever reason determined should be advantaged by the powers of his office in this case the prosecution which was without basis in law or fact was undertaken solely to intimidate those who would oppose a politically powerful nursing home chains abuse of immigrant nurses as such it was critical that the attorney and the nurses be indicted and they were but the indictment was based upon knowingly perjured testimony evidence created out of whole cloth and a charge on the law which had nothing whatsoever to do with the law and those things don't matter if absolute immunity implies no because this is a different issue than absolute immunity this is the one that's what i'm asking is if absolute immunity applies the motivations don't matter and that's exactly what  we held in the bernard case i think that i'm arguing for mono liability which is based upon based upon the issue that the office as a county  city was abusing its powers and that when you find that in the motel context as in the the context of the book of the a's office which was not giving out brady material that  the question of absolute immunity basically doesn't come into play this is a completely different issue the mon el issue and it's not prosecutorial immunity it's failure to supervise  employees of the line on the policy that there is a policy because a high ranking official is involved here a high ranking official directed at a high ranking official used it and there is more than one instance in which this took place indeed it culminated in the conviction of mr spota for another instance of the abuse of the powers of the office in the same basically the same kind of manner which was to fabricate evidence suppress evidence etc for the for the use of the politically powerful so i don't think you have to i think even if you found that absolute immunity applied you could still find liability under the mon el standard as to the counting as to the count yes and in addition if you reach qualify immunity because there is an aspect of this which was non prosecutorial in terms of the creation out of whole cloth a good deal of the evidence that was presented to the grand jury i think the qualified immunity would not apply that this is not a prosecutorial function and it is there is no question that being indicted under evidence that is perjured or made up out of whole cloth would be a violation of  appellant's constitutional rights and i think you have some time to just want to make sure because a little confused are you saying that if we were to disagree with the argument that both of the individuals are not entitled or are not entitled to any form of immunity there would still be no no there could still be mono liability if they were not entitled to is on the issue about about solar munity it's our position that in the plaintiff's opening brief they raised an argument that absolute immunity although it applies that this court should make an exception and carve out a new extension for when absolute immunity should not apply and our position is that that organ was never raised in the court of law and scorch or not even entertain i'm i don't know that that's a great argument to create a new category but our new exception but but i think what what does concern me is the the set the nd department's decision finds that there was no jurisdiction to prosecute for these crimes and that seems to fit precisely within the definition set forth and bernard where he where if there is no jurisdiction the absolute immunity is lost but you're out of the language so it's used by by the federal courts is that the immunity you want to apply in a situation where there's a x exceptional cases there could have been a crime here and factually they say essentially because after the nurses had resigned the nursing home was able to get coverage that is in danger the children proceeding without jurisdiction or in excess of jurisdiction they said that's that's you're on then it goes ahead and grants the writ which shows that if fan that the officers here were acting with immunity would not apply and from there maybe i just want to address two other points boyce i have some time on that the argument the actual argument of whether there was a constitutional violation vs city new york limited that but basically said immunity will still apply the prosecutor rather will be acting as a state actor if he's involved in the decision when and how excess of power and those two things are very very different it was actually i actually asked the question but at one part of the opinion the nd department writes that the writ of probation can apply  if an officer acts without or in excess of jersey actions that's two different problems and then he goes ahead and grants the rep now it's possible that it's just an excess but you know we'd have to read the and what and is a list of cases in fact i cite five cases in my brief from various jurisdictions that addressed the theory that absolute absolute immunity does not boris to put damages the performance of advocacy functions when a prosecutor initiate a prosecution in violation of plato's constitutional rights has been considered and rejected by this court and other courts as well i say those cases some of those justice bianco in the lower court decision that set these special appendix between pages twenty three and twenty six and the pallant never acknowledged those cases they don't address those cases they mention one thing in their reply brief that  we meaning the county and mr spota give short shrift judy rid of probation in fact i wrote two or three pages concerning it citing five or six cases that the a with this very issue and i believe the  already issued decisions similar to this but getting back to your comment judge chen i believe that the decision by the by the upheld in nd department actually used the words in excess of power i've actually with the private entities that were involved in this case that also how to remedy against the district attorney's office but as judge bianco found they were able to provide sufficient facts in order to gain that  then in a non monetary way they also obtain relief through later prohibition with the appellate division by then not being prosecuted so i will leave you with that and if there's any other questions  three to answer those questions and more here in the rebuttal your honor in regard to the nd department decision i think that the pelleas are misreading that decision i believe that the court found that the district attorney acted without jurisdiction the fact that the court said basically addicted that if there were different facts a prosecution could  sustained in this instance doesn't have anything to the to do with the fact that there were more and different facts here my question is that set aside for a moment the appellate division decision what we have required in order to trigger this exception that you're trying to rightly take advantage of in the context of absolute unity is that the prosecution was not clearly beyond the prosecutor jurisdiction either as a matter of aslam unity and as i indicated it's a really or questions perhaps also in the context of qualified immunity and given the fact that you know just it in the upholds the vision decision that's a long decision bell thought out but given the fact that it comes afterwards and it's it's analyzing the situation how can we say that this was clearly at the time the prosecutor's jurisdiction this wave may go back to my cough an immunity question your honor it's always afterwards that the court rules on whether there's jurisdiction or not because it would never be before the court until the prosecutor acted in excess of jurisdiction but i think if you look at it objectively if you look at the facts as they presented themselves to the prosecutor at the time which was that the the agency for supervising the nurses had already found that they are conduct did not violate the statute that they were indicted under and that the attorney who was indicted was simply giving an exceptional legal advice to a client i think that if the appellate division had been asked and could have ruled prior to them undertaking this prosecution how clear the law was with respect to jurisdiction prior to what happened here prior to prosecution i believe that the law was crystal clear with the time of prosecut the ethical duty of nurses to their patients and i don't know what you could look at that would make the giving of an exceptional advice by an attorney to a client regarding contracts would create a crime out of that i can't even imagine it but in terms of the clear laws of whether the nurses violated any duty that they had to any of their patients it was absolutely crystal clear at the time of this grand jury presentation that i had not and in fact the department of education had so