i would appreciate being able to reserve five minutes of rebuttal time you may please proceed please the court last year in the case of webb versus united states this court held that a reasonable jury could conclude that influencing lucas to testify falsely before the grand jury and by influence of the prosecutor to bring charges in this particular case at bar the defendants but calf mayor and face all participated in producing false reports more often than in the case of well many more instances are set forth in our brief of acts that were committed by the those defendants that aid in the bet it in the indictment prosecution of the appellant's in this discretion but not allowing or not permitted additional discovery on the issue of qualified immunity all those issues were decided in web or similar to what was decided in art are similar to those case to those issues in this case was it the judgment favor of the defendants was in two thousand and twelve i believe the first decision was in january two thousand and twelve less i think was in october two thousand and twelve or thirteen a cave remember the dates anymore but well before the web decision yet we still have misunderstand web it didn't look at probable cause with respect to each defendant didn't analyze it at all it really just said that there was a question of fact whether lucas lied in his grand jury testimony regarding the existence of probable cause yes i want to make sure we're not overgeneralizing because it's easy to paint with a broad brush and then everybody is liable i get that but that isn't what a rule is here so if i am right in reading web that there that there isn't any discussion as to attach in liability to individual defendants it they're just all grouped together and then they're connected lucas that's not the way we analyze things you are  rewrite i think our brief zero points out specific acts that were committed by each of the defendants in this case showing what their participation was with respect to god that you've said you've told us what you think they did in your brief  questioning and i think this is kind of what judge white was going to do you start right out basically saying this is webb you won in webb and so therefore you win in this case and i don't see that you want to talk about what he actually did find i get but i i'm just trying to ask you why this case is governed by web i don't think this case is governed by what your honor i think of the web i think of the fact that the court in well came to the conclusions that it did with respect to what the defendant to the other defendants on the other hand we don't know what evidence was before the court with respect to those other defendants and web and web is a different case and we're not trying to say that well webb controls this case you raised it i didn't raise it so you want us to look more closely at army each one do that makes them that removes them from qualified immunity well your honor that's a very good question and it's a very difficult question for us to answer not this trial either and it has different defendants in it and therefore the what what we gather from the information to look at trial what is new is is not necessarily relevant to what the defendants did in this case we have in our brief your hon we have lots of examples of not examples we have we have evidence of what the defendants did in this case in both with respect to both france prosecution and the bell or prosecution as well as what they did all also with respect to a number of the other suspects in the operation turn around the the if we were permitted to conduct more discovery on that issue of qualified immunity we would have been able to take the depositions of the defendants in this case we would have been able to ask questions such as be did you just did you just did anybody report for example to sheriff showed him that there was a secret compartment carve where he hid by money where he had drugs illegal drugs was it reported did you have knowledge of it and what did you have knowledge of it we would be able to talk more to the disco discover more from the metric people who met with the  without any procedures in place without any policies in place allowed him to be able to fabricate evidence change things they lost control over him let's loop back for just a second as i understand the senate sequence of things here and i won't get it all correct but the summary judgment was filed is i understand it you didn't even request to depose metcalf meyer or faith until almost a year after you filed your opposition to summary judgment  you are we well we asked for the abilities that writer i know what we it wasn't that we didn't ask to be able to do discovery on them specifically we have to do discovery and at the time you recall the what we have is we have to appellants here are trying to take years weeping generalized statements and narrow it down to what at least i think i need to decide this case and i'm asking you the specific question  did you wait over a year to reach to specifically asked to depose metcalf myer faith after you filed your opposition to summary judgment here are i can't answer that question because i was not involved in the case at that point time my understanding of what happened was that judge nugent stayed discovery in this case almost immediately and only said he was going to provide limited discovery as the as the case progressed because there was a prosecution of lee lucas going on at the time and let's not even entirely correct either i don't think i thought in reading this that he stayed discovery because there was a deal j investigation ongoing they were waiting to see what the result of that was so the question really was because we're looking at this as an abuse of discretion question so the question is what did he abused his discretion in waiting for the result of the d o j investigation and the lucas trial and then the question became did the information that was contained in those to satisfy whatever your particular eyes need was for additional discovery and i am trying to figure out why is that an abuse of discretion well because your honor it didn't satisfy our need for additional discovery the issue of qualified immunity required us to get into understanding more about what these defendants knew when they knew it what they did and what they didn't do when they had that knowledge and we were prohibited from having that conduct in the discovery going to all the way through this we thought we were going to be able to obtain discovery and and judge nugent continued to say that we would have status conferences where we would decide that as he went down we were surprised whe when the state of discovery was lifted the state of discovery was only list lifted in a qualified manner we were provided limited discovery on the issue of qualified immunity and that was never lifted other than for the purposes of providing the discovery from the the the lucas trial ok but taking med tests step relates to qualified immunity but we didn't get to take my cast death qualified immunity i just think you do so much better if you would just answer the questions were you was this did you asked to take the debt and was there a time when you would have been permitted to take that debt you know you're out of the the answer the question the second question is there was not a time we were permitted to take the debt the answer of the first question is i don't believe we asked take the dept of detective metcalf specifically we asked for the ability to do does additional discovery judge newton said you can do this much discovery in this much discovery only figure out who you want to take the depositions of because you only get six depositions and even that was after he'd already ruled on the issue of qualified immunity so the answer your first question is we never specifically never made a request specifically for the definition of an individual we only in the number of gaps or you could depose you live in initially with qualified immunity we took the first deposition and he did not permit any further deposition discovery after that and we we never did get to lost on the issue of qualified immunity followed his motion for summary judgment on the merits at that point in time we were permitted additional discovery we were allowed to take six depositions and the six depositions that we took we had to then figure out who were the best to take depositions of in order to be able to stab each member we had the menow claims at that point sign that was all that was left we took three thirty six depositions to be able to establish what the policies were originally county which took a deposition of  investigator in the federal case of lee lucas for the purposes of authenticating the records in the in this case we took two other depositions they don't come to mind curious the decision of the why did to take the depositions that we took your honor was based upon the strategic decisions that were made by the trial counsel at the time based upon the limited they had six depositions that you used half of that time so all we were doing is now dealing with a time when you had even asked to take the depositions well your honor your we we were asking to be able to do discovery to be able to conduct discovery we were asking to be able to conduct limited discovery we didn't ask for the ability to be able to take a deposition of just one person we don't if you just say i want discovery and you don't say what you want it's kind of hard then to say a limitation is an abuse of discretion well you are we have status conferences  of what happened with that that's that's a tough one also your honor the girl bray in july of two thousand and twelve gave testimony in the form of a declaration where he came clean basically with everything that happened and coming clean caused him to make contradictory statements to the things that he had done before that were dishonest that were lies and that was a part of testimony that he had provided in the league lucas trial i mean he came clean three times apparently but we don't know how many times he came clean your honor and we'll never know because unfortunately passed away his estate remains and remains as a defendant this case i believe actually this case was dismissed well our claims against gerald bray remained pending and and we don't understand that because there was never been any determination with respect to our claims against general barry an agent by the way of the county but but the declaration that he provided in july of two thousand and twelve was contradicted prior testimony that he'd given in the in the lucas case it was it was against his interest as a defendant in this case it was not an affidavit that a declaration that was submitted for us to be able to defeat a motion for summary judgment we had not provided any testimony that we were contradicting this was the testimony of a defendant an opponent in this sorry who took the declaration we got the declaration from from mr bray through his attorney we met with mr bray at the prison he was now serving prison time and i believe indiana and with the assistance of his attorney we met at the time that was being given and and so the sham the sham affidavit doctrine just doesn't it just not applicable in this case it's inappropriate to use and it's appropriate to use it when a party who summary judgment is attempted to be obtained but they do cite that third circuit case where they did it there is a case out there that you could read differently run a bit of read all the other cases those of those cases right think you did not run this way i'm sorry thank you you'll have your rebuttal but thank you ira may please the court down the on behalf of captain face sergeant mayer richland county chair sheldon if i may your honors i may be able to clarify some of the discovery issues that you spoke about earlier with opposing counsel i think if you note in judge nugent second decision regarding the middel issues he expressed some amazement at the decisions made as to who to depose and noted i think that plaintiffs chose not to depose any of the officers who were essentially involved in operation turnaround in their capacities they did do three thirty six depositions i would note they never sought the deposition of sh permitted six depositions i think there were two hours or three hours limited and i think one of the reasons or justification for that was because those particular vice were not the focus of the lucas criminal trial or the record is firmly established and frankly the fact that plaintiff did not seek their depositions when he was permitted to do so i think well how do you say six depositions when there's also a mono claim there and bureau they could ask him questions about policies or procedures the reality is all that was covered in the affidavits and in the extensive record created by the d o j their investigation and in the subsequent criminal trial realistically we know what they did what they did not do and carry out the investigation there's extensive record that you know they made phone calls they followed pray they searched and they searched his car they went to and from the buys and they try to maintain eye contact on him when they left all that stuff is record this argument that there's some discovery out there that they're unaware of to me is a false argument that their underwear but look there's there's evidence that all of these people in different circumstances i disagree with that oh ok well firmly disagree with that i don't think there's any evidence of that mayor's ever live or the captain faces ever lied or that your children and several other faith admit that he lied about following know he that he did not admit that he lied about following to us i think the testimony from caps of faith which just came about six months ago the weather price case because he was deposed captain faith observed we thought was ron davis and me he did not follow them to the buy in the reason it's pretty clear there were two other undercover officers who were present at that time who would not be made as being local law enforcement of the did he say he followed them he wrote it in an affidavit which we believe that he copied from a da six report at the time that they were doing a warrant to go in and arrest people say something that wasn't true he wrote something down the affidavit that wasn't accurate i agree with that he did not lie and he will deal with trial ok but that's those are questions for a jury but what i'm saying is that we don't have a situation where this is out of you know whole car it's like all made up we have something where we know that some things were look at what the sixth circuit has done with these particular cases and what their extensive precedent holds you have to have an underlying constitutional violation involving these folks we do not have that and as you listen for ten minutes he did not share that with you there is no through the d a in september of two thousand and five he handled the prosecutions he made decisions with loss run of the records clearly plus ron the a u s a who have this case relied upon lucas not upon anybody from richland county there is a shred of evidence to share show that had any involvement in these specific particular buys and i think through the course the entire investigation he did a drive around somebody on one of the buys that's the only thing he had to do with it and so when you look at the extensive briefing and the extensive record that's been created this a longer answer your are a number he gets your specific answer they were attempting to solve a murder issue know from all these other cases an extensive record they were trying to solve a murder similar started in december of two thousand and four they believe it was drug related they started doing buys i richland county to see if they could uncover information trail brae had proved himself to be reliable prior to this investigation and frankly throughout up until the d n a involvement they used drill bray to try me by not even thinking that they were going to necessarily prosecute these folks they wanted information the decision to prosecute folks prior to the involvement was ultimately made by blah serrano and i would note that under the investigation they found that fifty to sixteen b pled guilty to the two buys involving the the r c s so it away they targeted people to try and uncover information regarding this murder that's how targets were chosen geneva france was not a target of the investigation ron davis was he was believed to be from her he identified her at trial the prosecution was based upon his identification trial the only thing the search of mayor did with respect to that was try to uncover a photograph because they couldn't quote one from the b m v he actually did good detective work in trying to look at a photograph that all sweetly lucas believed was her and it you know so when you talk about the investigation to target people yes richland county decisions about who was targeted in the investigation but every other of us every other decision that was bade was essentially made by lucas and boss ron and the record is clear on that and with respect to this case you know you had robredo you asked a question about the affidavit i can read example in the weapon price case there were prior bray the court found that his trial testimony was actually subsequent to his initial statements where he failed three polygraphs and said a number of things that weren't accurate i think that the ok they saw who they believed to be ron davis at a corner driving he could make a right turn as a right only they kept going because they did not want to be made as law enforcement officers they did not follow him that's the testimony from captain faith they said they did the records it's in carry out the search warrant of the warrant to arrest ron davis that was created by kept the faith and there's extensive testimony in the record on this he made a mistake in creating  i used to see a lot of drug cases get the wires and you know here's the problem cause i have never seen anything like this i mean there's a way that you do a controlled there's just there's a way you handle a c i and it's like nobody bothered well you again your honor i would disagree that nobody bothered and i do think that if you're rich and can you have the d a in a federal task force coming into your county because you know the resources to really carry out this investigation you have every reason to believe that they're going to do things properly i would know to you that prior to the involvement tro pray would go somebody who went to see them and said you've got a problem in the way you're handling this person john brown is a richland county deputy who was assigned to metric metrics signed up to rubber is well signed him up earlier in the year in two thousand and five my understanding is they use the ma by i think this role brain thom browne did not have a great relationship she had difficulty controlling him there were discussions that were had back and forth regarding that i'd know too that a federal prosecutor was aware of many many things are going t spiers so the idea that richland county should have known that robredo was somehow setting up innocent people i think is flawed and if you look at the westerfield case which is the only case involving anybody prior to d involvement where it was determined that by the day of the by not a shred of evidence twice a month investigation in testimony at trial nothing said to the allied she that he was involved at it yet we have this affidavit that was provided literally after bush's for some reason or file after discovery took place two weeks before mr bray passed away an affidavit saying that no it was not near there but there was a video and that the video show that she could ability to frisk you in a car it's absolutely ridiculous to suggest that that would be evidence that a gate keeper should permit to a jury to come to a determination as to whether or not that mayor was involved in the buy wasn't the first statement that he said that the agents knew i think the first statement he said was the lucas and jamal and sorry you i don't believe that he said that russia can be operatives knew more importantly unless he said it his oh i g investigation which he did not that matt mayer and larry faith were involved involved in videotaping the geneva france by that somy is a post inconsistent statement following his testimony trial and i would note the sixth circuit has recognized especially in thomas report regarding this investigation it has used it in evidence to determine whether or not there's a question of fact regarding lee lucas to me if that's the case it would be wise for this court to recognize that this twenty seven month federal investigation uncovered no such wrongdoing and was satisfied the troll bray had testified truthfully at the lucas criminal trial but for a testify to bret's the ridiculous to suggest a tro break from the grave can testify gets a bad mayor on a bike he did not attend respond the shame affidavit i'm sorry the business about testifying from the grave has nothing to do with this we're talking about whether the court properly struck the the declaration it has nothing to do with testifying from the grid he was alive at that point and one of the decision your honor he passed away two weeks after the affidavit was was filed i attempted to be with mr bray at a point during the course of this case he would not be with me he is a party to this lawsuit he did in my view execute a self serving affidavit i do not wish to get into his head to determine why he chose to lie in the manner of the did at the end of his life but realistically there are key keeping mechanisms in place to prevent this sort of polluted testimony from affecting other folks in the context of a trial as counsel i think the fact that  which i think needs to be evaluated in sort of a multilayer way the real question isn't is a sham or not a sham affidavit but does it have evidentiary value when you look at the context in the content of the affidavit the first thing you find is that a lot of what is in there is summary conclusory type statements which have no basis in personal observation and as we all know in order to support or oppose a motion for summary judgment you have to submit affidavits that have evidentiary value and would have content that is admissible at trial so in acting as the gate keeper in determining whether or not the affidavit is a an acceptable affidavit what the court should look to first of all is the timing of the affidavit is it after the sworn statements that were subject to cross examination and as i've stated in my brief what we in the legal jargon have typically talked about is indicia of reliability this particular affidavit lacks those indicia of reliability and this court has determined in a criminal setting that there is an inherent unreliability where one defendant attacks another and that's cited it lily versus virginia decided in my  context for that but what we're looking at here is essentially a who is unreliable in one hundred different ways as a witness and bray submitting this affidavit at the request of the plaintiff in a self serving way for the specific purpose of creating a material issue of fact and it's not a genuine material issue a fact and for that reason the trial court was proper in deciding that this has no eviden can be excluded as a sham affidavit and should not be considered if you can do that after a trial when someone is bringing forth three canting evidence or sometimes in a dram shop after somebody is settled but we don't usually excluded evidence prospectively so if if the defendant gives testimony and then later gives conflicting testimony the plaintiff doesn't say you know to the judge oh don't let them give the second version because they already gave a different version i mean it's it's impeachments and as your honor point as mr downey pointed out your honor that might be a an approach to take of mr brady was still alive at the time of decision and was available to testify at trial and be cross examined on the content of this affidavit but under these circumstances in this case the decision to exclude an affidavit that had no evidentiary value based upon the content of the entire case the judge made the right decision ok but the big issue and  i think we need to it i'm not saying they're not related but i think we need to separate what would be admissible at trial from what is a permissible consideration and summary judgment and again your honor i think when you look at it the rules of civil procedure they require that those matters in support or in opposition to a motion for summary judgment must be the types of things that would be admissible at trial in other words based upon personal observations a lot of what mr bray says is conclusory speculative the content of the affidavit itself is of little value and for that reason again your honor if we look at what value the affidavit or the declaration has in this context it's virtually zero plaintiff never asked to depose your client that's correct and the reason for that your honor is known only to them is what is known only to them but you know detective metcalf is in the area he's a resident of richland county state and attended some of the other depositions that were taken and just in the petitions on the depositions were imposed in this case apparently this six deposition rule was discussed was there an in person meeting with either the judge of the magistrate judge in connection with that requirement your honor i don't recall that specific limitation so i don't know that i'm in the best position to speak to that you could not speak to the question then whether at that point somebody said look six isn't enough because we get to do three for the thirty six and we need eight or nine or whatever it is your honor as you as you stated in your dialogue with opposing counsel the arguments that were made the types of position that were taken were i think you describe them as sweeping generalized statements the trial court was dealing with the same thing there was this constant attempt to bring in matters that were not relevant to these particular cases to  provide some sort of discovery and i sweeping conspiracy theory that would allow the basically unbridled discovery was what they were seeking and as we all know in qualify there is a discussion about a particularized need for more than six and i think you're saying you don't know what i'm saying your honor is that there was discussion about discovery in general terms there was no specific acquiescence to any of limitation the plaintiffs counsel in the case was seeking unbridled discovery and the court because we were in a qualified immunity situation said that will not be accepted if do your but your client didn't get qualified in the very correct he did for for certain portions of the case but not with respect to ever else i mean why should we look at this in a vacuum i understand that you have to look at the particular conduct of the particular defendant with respect to the particular claim but there's also surrounding evidence are you saying that your client did not do was not listed in any of this what i've been with respect to other he pled guilty as to a violation of the civil rights of the way neighbors and indicating that he testified on truthfully at mr nabors trial and if you look at the testimony from the lucas criminal trial what he said was he was in unfamiliar surroundings not accustomed to testifying in federal court and that he regurgitated what had been written in the d a s six report beyond that your honor what i would contend is that detective metcalf and others at richmond county were looking for additional assistance and resources from the federal government when the da came down operational control was turned over to agent lucas and detective metcalf became sort of a secondary player and so he didn't do report writing he didn't do those kinds of things if you look in this case in particular he offered no in court identification of either of these people and so i would say he was not the bad actor perhaps that he's trying to be portrayed as well he doesn't have to be the leader but i mean at their phone calls being made supposedly to particular person as part of an investigation is like you you know that you identify the phone number and then you see them dialing it mean in this case your honor detective metcalf has testified that the people involved in this particular drug circle were frequently using throwaway phones they were what they called burn phones they would buy them at a convenience store use them for a while throw them away and that many of the numbers were braced speed dial he would you know he would dial and they would have somebodies name and so i think that we have to distinguish between what might be considered negligent investigation versus a constitutional violation were you identified the targets car and you you know you hear ok know there's something that connects the person in the drug deal to with particular person there's some piece of information and that it's completely in this case your honor again as mr downey indicated they were trying to solve a murder and a lot of the connection to these people was simply the targets were simply their connection to one another and their connection to my right that is to these two plaintiffs lucas testified that he observed and in transactions that's correct your honor he was in the car at the time that he he conducted the by with geneva france and he was in an adjacent parking lot i believe next to easy caterers and he was in the car at the time he conducted the the by which you needed for him yes he was in as i understand that transaction your honour's agent lucas and geneva france were in the same car with euro you're saying geneva france sold them drugs agent lucas has testified the geneva france sold him drugs ok would that's not what you just said you said he was in the car with geneva lucas when she sold him drugs that's what you said that is his testimony on what we know that's not true i don't know that that's i don't know that there's agreement on that point your honor i believe that agent lucas if he were to testify today would still say geneva france was the person in that car or maybe you shouldn't say i simply you're going your honor saying that there was a hand to hand transaction and agent lucas was the person who observed it ok maybe you shouldn't say what you just said maybe you should leave her name out of it under the circumstances are crimes have never occurred these people were not involved in the crimes because the crimes never occurred well we don't know whether the crimes occurred but these people didn't do it rhymes never occurred because the people that were involved in doing the sales and doing the deliveries were people that were employed by brian lucas to bring the drugs to drop the drugs off they were hired by the people who work for the county or work for the da and therefore they were all part this was a stage transaction there wasn't really a drug transaction that took place either in ballard's case orange anita francis case and yet they want to say the chief of france was the person who dropped the drugs offer that ballard is the person who sold the drugs there was no transactions this is this is like framing somebody for a murder we're not talking about there being a body there were to put the gun in the wrong person see it's there is nobody the murder never occurred we've got that person in hiding and we're framing this person anyway for the murder the point is what of the transaction metcalf was in control of the phone calls that were and were supposed to monitor i'm supposed to look him up and he knows that the phone calls that were went into the report was a different phone number than what ballard actually he he knows that he put in the billing theory here that they knew that lucas was setting these people up because of all of that or simply that they should have known you know your honor by the time we should have known could be back in february or my by the time you're in in september and october they knew that they had just two days earlier they had they had what they need they knew that there was a fabrication and line and stand ins being used by bray and lucas just two days earlier with respect to the transaction that no mob was supposedly driving up to detroit to buy thirty six thousand dollars with a cocaine what brady did not know was that the using stand is friend please tell us exactly what the evidence was that they knew that that they were using stand well again your honor in the mob case in no ma case just two days earlier the when the police pulled that car over and expected to find mot in spears in that car drive a new york they found two stand ins trance all and crystal dillard and when they found that this was nothing that brady had told them was going to take place they prepare testified to the fact that all of them participated in preparing reports all reports did not get prepared by one person all reports and all these transactions were a collective effort of all of the parties were all the reports well so did all the reports show that brady was messing around did not answer whether all of them report we in our brief we've set forth a number of reports that were false and in fact the ballard report was fawcett contained of a false and phone number that was ballard's phone number it was not the phone number that was caught mayor is operating the video mayor sees this person arrive who luke who looks nothing like ballard by the way ballard is known to may or may be a bit west of bell or his mother for the police department in mansfield and the police and law enforcement personnel up there know the ballard family and and the person who rise to do the seo in the ballard transaction looks nothing not even closely resembles the mayor's videotape second in just illustrates very briefly what the problem is and following she say his mother worked for this police department a different police department so therefore everybody must know and it doesn't  are we talking about mayor here if i'm talking about mayor operating the video so is there evidence that mayor knew him rather we we didn't get to take matters deposition he answers no the answer is that mayor mayor is family new ballard's family testified that i ask you a question specific question you answer in the broadest possible terms your honor i've certainly what i know is what is the evidence that mayor himself knew what this guy looked like we were not permitted to take discovery we don't know what the mayor knew you're out of this i don't mean to be the answer is there isn't an evidence but the but it's because you didn't get to take his or circumstantial evidence your honor ok thank you the the going back  geneva's case also i want to point out that not only did was metcalf and faith involved in the surveillance of that but subsequent to that they in order to identify geneva they they they did the photo all right and mayer is the one who put together a one photo photo ray with geneva france's name label on the photograph of her picture from sixth grade and gave that to lucas and brainy to ask them to identify is this the person now at the time the day of the of the supposed drug but she even dyed her hair blond and had been a blonde for a while a blond black woman looked nothing like the people in the  that said that she was low s the second thing is that there was a spares of phone conversation that took place to me is you answering the question no i'm not talking about red lights going on for a bit so it is i'm so sorry honor it to all right thank you it's a confusing case needless to say we'll go back and try to sort this out and will do the due consideration submitted think you please call the next case