release officer van arsdale actions seeking a warrant from judge kitchener after being denied in open court by judge stone as a decision to file rather than the false actions of a complaining witness in granting him absolute by judge stone absent a motion affidavit in order to basically constituted what the cruise case which court relied on was his stepping outside his role and into the role of a witness when he personally attested to the how do you get around that the issue here is your honor that asic his decision to file was exhausted when he first properly filed a motion affidavit in order for an arrest warrant before judge stone when he went back door to judge titian or xbox or have you and submitted a blank search warrant for signature that took him out of the role of prosecutor exercising their their decision to file or exercising their prosecutorial duties as intrusted to them by the state of oregon no reasonable prosecutor or state official would hire an attorney or in this case a prosecutor to go and do an end run for a motion affidavit in order for a search warrant when one judge denied it and then he would go in take a blank search warrants to a friendly judge of his to have it sign to arrest the same person on the same facts and i think i get that and i'm no great fan of the application of the absolute immunity rule for prosecutorial behavior now we see a lot of bad prosecutorial behavior that's protected by that so i have to say i don't start out as a great fan of his application from time to time but for no three and cruz says the decision to file is protected and since it's absolutely munity of absolute immunity why is it can be in bad faith it can be lying it can be all kinds of terrible things but nonetheless protected so this is a filing within the meaning of three because you're under a footnote three implied that the release officer van arsdale followed facts supporting the propriety of the search warrant and that was done once there is no case law to suggest that prosecutors are released officers make multiple bites at the apple the fact of the matter is had he gone in open court to another judge and told the other judge this was signed and denied i have new facts or i have reason to believe it's wrong will you sign another motion affidavit in order for search warrant and he the judge signed it and he was arrested then he would be completely protected by fulfilling the proper role no actually he would not be hypothetically just gave me he gave some testimony as a witness and that is not protected by absolute immunity right but we would argue that he gave testimony the absence of his motion affidavit in order the absence of any facts and presenting to a third party judge ex parte for him to sign is the equivalent of false testimony the absence the omission of the truth is equivalent of false testimony and for the judge to sign a arrest warrant for a civilian and a citizen there must be some basis for him to have a reason to believe that it is a valid in appropriate order motion affidavit in order and search warrant and in this case there is absolutely nothing presented to the judge except the blank search warrant which gets signed which would behavior here was not in any way a part of the traditional function correct your honor thank you yes that is not the traditional function and prosecutorial duty to take a matching search warrant without any haven't even or after it's been denied by one judge and backdoor presented to another charge ex parte with the plaintiff in this case and the defendant in the criminal case having no opportunity to appear or answer or defend herself as doing an end run from an actual adversarial process and a hearing but actually going and trying to get the result he wanted after denied by a jurist in his jurisdiction so this was absent all jurisdiction when he presented this search warrant and whether or not the court wants evidence of bad faith or or motivation which the court case doesn't require we present evidence that mr van are still his concern when notified about this was i'm concerned that  judge stone will think that i was doing something improper not that he was arresting incarcerating an innocent woman who was not supposed to be in in custody so therefore he had some sense that he had the appearance of impropriety and we would argue he had the actual act of impropriety and the result resulted in a net loss of freedom to ms patterson that was not there berman yes i'm understanding judge fletcher's question in a slightly different way than i'm understanding his question not to be was this not a traditional prosecutorial function because the way in which it was performed was so outside the norms of what we would expect from someone doing that function i'm understanding his question to be isn't this more like things that we have opportunity to address that i would argue that this is exactly what you're saying your honor and this is analogous to my understanding of the case law is that prosecutorial immunity is so they have the freedom to make argument in open court and in theory to slander a defendant and have and not be fearful of record you shouldn't or any civil liability or any sanctions however this is the equivalent of a prosecutor goes onto the courthouse course but he is not part of his paid duties to do that neither is this any of his pay duties to go outside the court outside the judge that ruled on this matter and go to another courthouse or another courtroom and present another judge good morning may it please the court counsel i name is cecil run if smith and i represent the defendant james van arsdale and judge fletcher and judge tiger i'd like to go straight to that last question about trying to whether there's a way to distinguish that three and crews from what happened in this case as whether what happened in this case did not count as a traditional prosecutorial function and judge fletcher the way i understood your question was that cruz states in that footnote that filing a motion to revoke bail is a traditional prosecutorial function so that that's something that this court has already held and motion is a traditional prosecutorial function it doesn't say the filing says the decision to file now i'm not sure that that's so carefully chosen by the court to route that does not also mean that the filing is a traditional but it only says the decision it does say that but then it goes on to cite the second circuit in pino that notes that actions in connection actions in connection with a bail application are best understood as previously in front of a different judge that contains affidavit from mr venter or a still that is of course not protected because it's got his own testimony and it's only qualified immunity correct so for one the same page so far but let me because that's not the that's not the motion that's at issue here but that's the first one that was denied right and i'm just i'm checking for the affidavit just to to see this is part of the forehead it was fined signed by him and it's a firearm and the affidavit says the date the release agreement was signed the type of release it was and the condition that was pertinent to the motion and the fact showing a violation of the release right and this all that was there has been no contention i'm just trying to set it up here so first first want to round there's some as it were testimony by him so the first one that was filed that's not a dish you hear it's only qualified immunity because there's just some testimonial evidence provided by m believe that is correct so the second we he now for files a just a piece of paper that's without any testimony by him he probably drops it off in the box or maybe even handed to his wife who's the judicial assistant of this judge and gets signed putting to one side for the moment whether that's protected by absolute qualified immunity that's a pretty outrageous thing to do if that is what occurred if he were misled and that's best the unchallenged allegation right we're assuming that for the purposes of this motion that that's what occurred all we really know is that judge kitchener got a warrant and signed it would assuming that for all purposes what we really know really know is that he submitted this either through his wife drop or off to a box is we do also know for purposes of this that his wife is the judicial assistant to the judge this is highly irregular  the court made a mistake by filing that without having the accompanying motion an affidavit is another question and it's also in the court's protected by judicial immunity that so what we have is the presentation of a warrant and the signing of a warrant and was that outrageous was it outside the way we do things i will agree it was but that's what prosecutorial immunity and again i i don't think anyone is a huge fan of immunity when it's applied to these outrageous kinds of cases to prosecutors except possums but nevertheless it does apply one of the questions i think that came up in terms of is does it count as traditional if they do it the wrong way if they do it in this out righteous way is that somehow outside the realm of traditional prosecutorial immunity i can speak from personal experience before this court that there has been cases where you have prosecutors who proceed within and proceed with a prosecution even after a grand jury has refused to issue a true bill i think we would all agree that that's pretty outrageous yet to be honest i really don't have much more to say on the issue besides what's in my brief i'm happy to entertain this court's questions because i do understand that this is this case is not quite like all the other  would not be protected so the only way he's possibly protected even on your argument is the didn't fill out the form had to fill it out properly he wouldn't be protected  that correct well if he had presented to the court the warrant and the motion both of which under supreme court case law and this court's case law are covered and then he submitted an affidavit and there was nothing that was false in that affidavit then i would argue that he is still protected the problem with the hypothetical were true but he omitted to state that the summer application had already been denied with that omission be the same thing as though he had actually made an affirmative false statement for these i'm not ready to concede that but i think that that is an open question and but don't all these things go hand in hand with the duty of candor to the court yes but court is something for which he the prosecutor or the release officer can be disciplined in other forms and that's the thing to keep in mind with all of these prosecutorial immunity cases is with the truly outrageous actions there are other forms of discipline that are available but the supreme court determined that the prosecutorial function needs to be protected even if that means preventing plaintiff from recovering damages based on truly outrageous actions unless the court has any other questions i will rest on my brief thank you honor i believe that you are on to the right line of questioning here i believe the decision to file was extinguished when he went before the first judge stone followed the proper channels in open court a motion af t in order for a search warrant he was denied and as the court has acknowledged here not telling the second judge no legitimate judge that learns that another judge denied a motion is going to overturn or or sign one that that status for mr van arsdale here if if it was suspended and it was still an open question of this the court says i'll take it under advisement and it's hanging in abeyance and then he goes to another judge before there's a ruling and he presented presents a motion af lying by omission to the court and getting something signed that left lead to a draconian outcome of arrest and false incarceration would be would beat ultimately i would say quantum era with four bad actors it would be  they would they would get a windfall and be allowed to omit things and say well i didn't actively deceive the court i just didn't give them all the information so they could make an informed decision of whether the arrest warrant was was should be signed and had he done so it would