all right it's a great honor to be before you all the day i appreciate every moment of your time just as a roadmap i'd like to start off with issues of waiver second i'm a good move on to the palace claims they survive the statute of limitations regardless of r c w four point six zero two zero zero i'd like to distinguish boston and then if there's time i'd like to decide that discuss why boston was understandably but wrongly decided and if i may reserve seven minutes for a bottle council if you'll just keep an eye on the clock well i'll try to help you but you're responsible for your own time so just keep the little clock there does it ticks down so when you have seven minutes if you want to sit down and save your about time please do thank your honor first off with the issue of waiver probably made no similar argument to boston users of the trial court were on their answer brief on appeal in fact both conceded to the trial court that four point nine six zero two zero four applies to section one hundred eighty three actions explicitly o i'm not sure i understand the question the complaint alleges malicious prosecution claims against the prosecutor defended haven't the players waived their malicious prosecution claims against the other defendants i would say as to the federal claim on malicious prosecution under the fifth amendment i'll concede that point as to other under the fourteenth amendment i would say no and i think it's well briefed also it's point to remind the court that in militias prosecution cases the police officers themselves may be subject to prosecution so if it was waived to as to the prosecutor it was not waived as to the police officers in question since we're going to i know i realize you're trying to get to the other way for argument but since you're on malicious prosecution could i just ask you why doesn't lacey versus america county take care of that claim a lie in the briefing on that on that well let me ask you this and if i could innocence just because they are allied on the exclusionary rule does not mean that they cannot bring them with malicious prosecution claim folks so here's my question did they plead that they were actually innocent yes  i understand i didn't handle the criminal case but you think i can find that in the complaint i think you can find what's in the complaint you can find i mean your time is ticking sell tell you that i  at the trial court and on appeal parents would have concentrated their arguments on the malfeasance well after the washington state report was such as the misrepresentation of the withholding of evidence in the cover up that extended all the way tell the government misconduct hearing that was in the summer of two thousand and twelve he does understand joe's bircher at this hearing itself evidence was being ordered to be provided at the hearing itself there were no public records requests going on between the filing of the motion for government misconduct hearing and tell the hearing itself now under moreover the police officers themselves chose versa rule that were at the hearing testifying with a reckless disregard for the truth he found their argue their testimony about evidence appearing at the scene it didn't make any sense layman's terms there they were not telling the truth and that's what the fakers now gary corman's interesting because he really didn't have any understanding of what was going on in the case and tell the faders put all this effort forward in the government misconduct hearing in the motions in the public requests and the motions to compel and so he really had no true understanding of the facts and if you look at the state of the morrow you have to concentrate on the malfeasance of the defendants not on what their knowledge was a mor answer the district court here held that the figures and carmen failed to plead malicious prosecution because they didn't show post arraignment seizures or favorable terminations there proceedings are court as held in such cases a pla must demonstrate a fourth amendment seizure and indicate the seizure came as a result of the prosecution but we haven't made it explicit that a plain a ledge a one hundred eighty three malicious prosecution fame under the fourth amendment that they must a post arraignment deprivation of liberty stemming from the allegedly malicious prosecution other courts have held that because malicious prosecution permits damages for deprivation of liberty the planet as a consequence of the legal proceeding which is the better approach and why and all that kind of a complicated question but we have an clear law here side like you view different position than the fakers and he didn't understand why at the same time i don't understand why that would be well if you go back in time the earliest point that anybody can argue and what th actually did argue is that in our coburn in november of two thousand and eleven is when that that requisite knowledge occurred i would argue it's in a fager says that that knowledge was actually later because they were still filing motions to compel they were still filing public records requests testimony was still coming in in august of two thousand and twelve so all of this knowledge although the russian state patrol was a piece of the puzzle gary coleman was not a part of that particular misconduct hearing right the faders work but gary coleman was not as that information came in and in piecemeal some of that information would filter down from the figures to gary corman however under morrow when the police officers are actually still testifying with a reckless disregard of the truth they're still withholding evidence they're still judge brochure is ruling that but the fact that evidence showed up at the scene and their stories don't make any sense he's saying they planted evidence that's what he's saying in those hearings so i would say that that is when those claims are crewed so specifically then what's the time summer of two thousand and twelve thousand and one two thousand and twelve that's when the misconduct hearing actually occurred the government had actually moved for continuance after continuance during this time around five forty eight all your time if you want i just i'm not going to use all my time i'm going to move on to distinguish the other thing is that when it comes to the way very head the r c w been an issue and not conceded now you read this complaint this complaint says conspiracy all over it now there's a four your statute of limitations on there we're looking at a twelve b six motion now rules are when justice requires you can amend a complaint had this gone on we could have amended our complaint we could have brought a conspiracy claim and the r t w would not have been an issue so as to prejudice  extremely prejudiced by the fact that a pelleas can now raise this argument for the first time moving on to distinguishing the case at hand ted to braise understanding the facts now his facts i would say do come in around november of two thousand and eleven that's when he got the washing state report that's when he understood the true facts of what was withheld from him and he's the earliest i would say steve in favor kathleen wheeler cynthia fager those are later in time very corman he's only he's piggybacking on the vagaries he figuring out everything now at the hearing itself prosecution is pounding it's something we don't want to this is not the gary coleman case but the whole point is as the continuing violations o objections everything's coming at the same time you're seeing a policies and practices that are unconstitutional or for the consul true that the kids here doing violation stockton has never been applied in the fourth and then the context it has been applied in other constitutional context i think it be a pie in the fourth amendment contacts continuing violations doctrine has to do with large organizations and the larger the organization is the easier it is for  cover up these discrete acts now this is more akin to a hostile work environment than anything else you've got a government system my costs for instance he's the prosecutor i mean he is he was mr baker's defense attorney he is now the prosecutor and comment he ran and got paid the boat on this case this is a large systematic corruption and yes it should come under both due process and the fourth amendment under continuing violations i can't put a single point  make up the law basically on that one it's been applied in other areas i don't see a reason why it can't be extended that area but yes i am asking you to expand  morning good morning your honour's daniel crown or for the a pelleas clown county at all in this case just briefly i'd like to discuss the issue here i believe that we're talking about a discrete act and what we're talking about here is we're talking about the unlawful search or seizure arrested occurred in two thousand and eight in two thousand and nine when those violations occurred that's when the the claim accrued was in two thousand and eight two thousand and nine so for taking a look at gary corman when when the arrests and when the search and seizure happened that was in two thousand and eight the three year statute of limitations would have run in two thousand and eleven when we're talking about steven fager and timothy fager and the others again we're talking about two thousand and nine we're talking about a three year statute of limitations that would have run in two thousand and twelve and so we're looking at discreet acts therefore and to answer the question about the continuing violation doctrine that has not been applied to fourth amendment cases and not only that but even if it were to apply to this case and this court were to make a new law the continuing violation doctrine does not apply to discrete acts that have occurred outside of the statute of limitations and so when we take a look then back at these specific discreet acts of the code in two thousand and eight in two thousand and nine the continuing violation doctrine cannot even say that either as far as a malicious prosecution claim i think it's fairly obvious given the complaints and what  judge brian found below is that those claims were based again on the unlawful search and seizure and arrest that occurred in two thousand and eight in two thousand and nine they were specifically played for that they did not plead any other type of malicious prosecution that the police officers would have been involved in doing so is that a concession that they made a malicious prosecution claim against non prosecutor defendant no they did not your honor well he just talked about allegations against police officers so now wondering as far as the malicious prosecution claim that was specifically against the prosecutors and that was with difficulty against the names prosecutors here that was not claims against any of the names of police officers and so in their capacity the prosecutors have immunity from these claims for the malicious prosecution and i guess to answer opposing counsel's claims here that you were just speaking a minute ago about the militia pot malicious prosecution claims against the police officers council so what  you mean what that means correct when trying to distinguish here is that again we're taking a look at discreet acts here and when counsel is trying to claim here that there was a conspiracy or something else that kept going on after this fact again what they've alleged as far as a malicious prosecution claim is based on those discrete acts that occurred excuse me for interrupting i'm sorry i didn't mean to sorry i think your first point is that all of the acts occurred outside the three year window right ok so that's the first point i get that  to just be clear that your position is that those claims the malicious prosecution claims were only alleged against the two prosecutors and they failed for qualified immunity correct i've got that right correct and your position as to the other non prosecutor is is that they never alleged malicious prosecution against them ok was there ever a question in the complaint i'm not aware your honor of that point i don't believe there was ok thank you and i think the other in the other issue here as far as even taking a look at judge ryan's explanation here is if we take a look at this equitable tolling and of course the other side counsel here is claiming that these claims didn't accrue until two thousand and twelve when they when they knew and had knowledge of these issues but again what judge brian found was that as in the vendor fourteenth two thousand and eleven that's when they knew and when they filed a motion to suppress so even as of that time they would have known whether or not their claims had accrued and i think it comes back to again if we take a look here these were discrete acts that occurred in either two thousand and eight or two thousand and nine depending on if we're talking about mr cormann or the fakers and if we're talking about mr corman again that would have expired the three year statute of limitations before he would have filed a motion to suppress or the fakers motion to suppress if we're taking a look again at two thousand and twelve even at that point they had an opportunity to file their motion suppress before the three year statute of limitations expired in two thousand and twelve and there's been no explanation here for why this x equitable doctrine somehow should start the statue of limitations over and what they're basically arguing here is that in two thousand and eleven or two thousand and twelve the statue of limitations should have restarted at that point there's no case law to say that it should restart or that it should begin a new when they find out of these claims exposed to long full policy after december two thousand and eleven no your honor i don't believe they have because again what the issues there go to is whether or not there was an unlawful search and seizure that occurred and the facts of that go to whether or not the police officers have probable cause and what their investigation was and what evidence they were relying on as part of that and again what we take a look at here is we're looking at discre acts that occurred and even as far as the due process claim again what the united states supreme court has said is where there's a specific factual specific amendment that applies we are applying that specific amendment to these claims and these facts of the factual claims that arise here they arise out of again the unlawful search and seizure and arrest that were discrete acts and again it's fairly well it's well settled case law that again as the time of when there's an unlawful search or seizure that the claim accrues as of that point the constitutional violation has occurred at that point and therefore that person knows whether or not they have a claim that is accrued at that point ask your opponent as a policy matter whether our court or we really ever tied down or other courts are correct in holding that malicious prosecution claims in those that the plaintiff must show that this he or she has suffered a seizure as a consequence of a legal proceeding do you have any comment on that which is the better approach four represents a tolling provision here which would save some of the claims your position the boston versus county disposes of that or is there anything more that's left of it yes you subsection four does apply and that is correct but briefly before even discussing that i think we get to the issue here was if even taking a look even assuming whether or not this statute is a tolling statute even if  this court takes a look at judge brian's opinion down below judge brian did not discuss whether or not this tolling statute applied or did not in reaching the merits of the claims here and i think again it comes back to that particular issue is important because again we're talking about the discrete acts and that's what judge brian focused on here in his opinion is that the discrete acts that occurred in two thousand and eight or two thousand and nine the statute of limitations for three years would have run by two thousand and eleven or two thousand twelve and so regardless of whether or not there's a sixty day extension or whether we look at this statute tolling statute or not their claims their underlying claims are based on those acts in two thousand and eight and two thousand  would have been time barred because of lack of diligence on the at least on the equitable tolling aspect well i don't even believe your honor on the there was a lack of i don't think that was the particular issue again i think if you take a look at when they allege that they knew of these violations are claiming at the time that they filed a motion to suppress which was in two thousand and eleven clearly at that time in two thousand and eleven the statute of limitations still had another year before it even ran and there's been no authority to say again that a that the clock would stop if there was some event that caused tolling but you wouldn't restart the whole period right that's correct and i could see in this case for instance an equitable tolling of let's say if they didn't find out until two thousand and eleven six months or maybe a year but again that's still within the timeframe of the statue of limitations that we're talking about equitable tolling for three or four years from two thousand and eleven until two thousand and fourteen or two thousand and fifteen that's just not just not a correct understand how that word motion to suppress laid out all of the facts if you will the conditions precedent for the claim that was done in two thousand and eleven they still have another roughly year to file they didn't do so there's no basis for any equitable tolling correct correct your honor and so that leads me to the next point is again our position here is that the opinion in boston versus kits have county from this court that was a correct decision because again looking at the statute it basically adds sixty days onto the statue and so it's not a tolling statute but it's a special statute of limitations and again our point though is even if we look at that then by the time that they can file their complaint in two thousand and fourteen whether  we're in two thousand and fourteen plus or minus sixty days we're already two three years past when the statute of limitations would have run for these discrete acts and then just real quickly  card just in fairness opposing counsel was trying valiantly to get to his waiver argument and we kept peppering him with questions you're not going to get another chance to come what is your response to his argument and you thought it's in his a supplemental pretty thing that your team has and so also i think it's important to take a look even at judge brian's own opinions in taking a look back at two thousand and ten case tracy and as early as two thousand and ten even judge brian noted that the binding authority regarding this statute of limitations and this tolling statute was vague he noted that there was disagreement even among the district courts in western washington and so a couple of courts had applied it a couple of courts had not appl it and then also we've got the issue where we've got the court of appeals from washington in southwick also saying that it's a special statue of limitations not a particular tolling statue so i think at this point the authority as of the time when the brief was written it was a little bit vague of whether or not it did apply or did not so i don't believe that either one it was a false statement or two that it was a waiver of that argument thank your perspective it doesn't matter perspective following up on my colleague's common way was making a difference if you wave you didn't wave the clock is wrong correct i believe that and again i would just point out i believe that we did not wave based on the authority that was out there at the time that again it was conflicting authority as far as whether or not the statute could could apply or did not apply and not only that i believe is conflicting authority from the western district courts themselves on this issue  again i think the other thing that comes to here is again i want to harp on the on the fact here that we're really looking at discreet acts and taking a look at these other claims that they've put out here that malicious prosecution claims whether or not there was a due process claim again they're trying to recast these clips there are specific discrete acts trying to recast them in a different manner we've got the continuing violation doctrine which we already discussed should not apply in this case especially to these  acts and we've already discussed the equitable tolling as well so what this leads me to basically here is that the only way that the appellant in this case can really get over this bar is one by attacking this court's prior opinion in boston have county and by collaterally attacking that and we believe that that opinion is good bra and should be applied and that again the statue of limitations has barred the appellate claims in this case we would ask this in the hearing itself there were so much evidence coming forth that a lot of the things were just mere suspicious pacifically what what survives what what was pled medicine what was not pled we didn't know that claim but the police were acting with reckless disregard for the truth in that we had no idea that the police were lying until we put them on the stand and then you could actually find out what they said compared to something else and then impeach them and that's what you're going on off of there but you're but your claim if i understand it correctly is that you want your malicious prosecution claim to survive which is quite different than what you're talking about now in terms of what the counties practices and procedures where i do process crack ok so what i'm again i'm looking for a specific allegations specific facts that could be relied upon to save your causes of action that were not alleged at the suppression motion but you allege them in two thousand and eleven you can't have it both ways your honor this is a twelve b six motion if i if i may continue just answer the question sure the whole point of supercargo mail in a couple other cases talk about how these claims exist because of evidence outside the pleadings now if i had to list every single thing in that pleading i'd have a hundred page complaint now the fact that they raised a few allegations when the court records the transcript i could have brought all of that in and  are relying on ted i'm versus movie where the to direct is provided scope torrie evidence and made affirm that misrepresentations during the criminal investigation they are the charges were dismissed and the plaintiff brought a federal lawsuit under the fourteenth amendment so yeah i think you can call procedural and subset of procedural and substance that's an unusual beast well i'll rely on the briefing there it's put me on the top question i'll be candid about