good morning of may it please the court damon and yours for the case you tyler the hearing officer violated tyler's constitutional rights in three ways st the officer found that there was some evidence that tyler committed the eighteen offense when in fact there was no evidence in violation of hill nd the officer refused to allow tyler to present documentary evidence namely a video from the chapel in violation of wolf in rd the officer if used to explain why tyler himself cannot view the evidence for each for tyra's conviction to comport with due process st time must have made a false allegation against a staff member tyler must know that the allegation is false in rd time must know that the allegation i true could subject the guard to criminal liability and all start with knowledge of the allegation was false even if the hearing officer with all the evidence and concluded that the allegation was false and i put a pin in that now because we can test that conclusion there is not some evidence that tyler knew the allegation was false and not take about the state's failure to address any of the supreme court decisions we cited regarding knowingly in a statute and those are false or that he knew the accusation was false and would subject the prison guard to criminal liability seems like to me there's a stin there i think those are two separate elements he must both know that it was false and separately know that it's objects to guard to criminal liability and this is what forced the giro did a walk through the statutes in the cases and examples  we identified those in our opening riff says knowingly applies to each element of the offense after that and again the state did not address that at all d in fact they cited five cases to say that knowledge of the law is sufficient each of the five cases deals with an  the closest analogue we have to decide ministry of defense effectively which can you know a lengthy new sentence is a statute so yes knowingly should operate the same in this offense which lengthens the offense as it would in a statute which would impose a sentence into the elements i thought your argument really was that you cited no evidence to support what they did they get he said he had no knowledge said basically they'll prove the case unit manager said it was unfounded and the video was recorded neither help nor hurt so the question is not some evidence and i'm happy to walk through each of them but that's exactly argument that the state  i gave you the full summary of what the record showed for the evidence they relied on and we don't disagree that the statements are neutral or bastien certainly don't point to tyler's guilt or make him incriminating credit your argument it would be unnecessary to up some definition of some of the screen there is no i think some evidence is what the supreme court says some evidence but yes if there's no evidence when there has to be even asked is there any need in this case if we were to agree with you as to what some evidence is just no evidence is not some of us yes zero does not react to be the person to actually view the evidence when the charging officer has said it's not relevant in other words the state's baseline for due process is deference to the charging officer and this is something that is pretty concerning distinctly wrong when the investigator is also the charging officer and also the defacto fact finder this is not akin to juan foresman collecting the evidence the da or the u that again documentary evidence comes in fact set a number of cases where it sort of tried to distance itself from so all that that you have to look at here  supported the guilt so again when near says these principles reflect existing in controlling supreme court case law not to publish decision from this circuit looking back at what the principles reflect its supreme court case law and what the state is saying is that the judge essentially can outsource its duties to the hearing officer again the hearing officer or the investigating officer in this case both conduct of the investigation charge mr tyler in also was a de facto fact finder at the hearing because the prison judge just a further look we recognize tyler does not have an absolute right himself to view the video but if the request for access is denied as here then that determination must be made by the impartial trial of facts not the charging officer as the rd circuit recognized in the burns case which is almost a decade old the right to present evidence is quote no right at all if the hearing officer can decide not to view it based on the prosecuting officers description of this is the same in the howard case where the evidence was deemed needlessly cumulative by the charging officer and the court said how do we know it's needlessly cumulative in till someone reviews it which is exactly the case here the senate it's neither confirmed nor denied but the impartial trial or of fact has to be the individual to make that determination objectively reasonable decisions by state courts under desisting supreme court precedent must be a pail of on federal hate this review and in this case the state court the scotland counties theory or court had in front of it two cases out of its own district that are virtually thumbprints of this case in which the district court held that there was no due process obligation on the part of the d h o to personally review the surveillance video and that the that the d h o could rely on the investigating officers written summary of that video and in one of those cases this court even dismissed the appeal found no substantial constitutional so your your point there i take it is it as of the time this construe officer gatti statement as a denial it was a common sense denial that wasn't written well if you just look at who who who testified what evidence  particular charges onder stand was not that the inmate filed a false report to prison officer maybe that's a separate offense and disciplinary infraction but it was a false report that the inmate knew would subject the prison employee to a criminal penalty so what's your best evidence that there is evidence of that entire string of necessary points and nature of the charge itself if you look on the other side of the coin of that if they saw if he had actually committed a sexual assault on this inmate it would be absurd to say that the inmate didn't know that that would subject the officer to criminal liability this man knew he knew obviously that this kind of allegation could result in criminal liability to the officer involved and it's also what an objectively reasonable earth could arrive at that conclusion it's not whether this court on its own intentionally so these are not attorneys your honor i think and sense reading try to answer that question yes yes it is it is unfounded that i don't see any evidence has my problem under no i'm and maybe that is evidence of your argument i guess is what somebody says i have no knowledge of that incident is it because he didn't remember it strong evidence that it objectively reasonable for the state court to determine that that was a denial and that there wasn't it was objectively reasonable for the state court to determine that there was some evidence here and that's proven by the fact that the magistrate judge in the district court judge that d h oh and the stake ordered cell all for determining that that statement was tantamount to a denial well that's along the same lines what should she mark was talking now we've got two questions we have the initial complaint filed by the inmate right about the sexual assault what sexual assault and there's evidence there that may not have assuming not that there was potential criminal liability and i guess my struggle is yeah there's probably some evidence that the underlying incident happened that's not really what we're talking about here today we're talking about is there some evidence to support the stripping away that he would know but does there have to be something in the record that we can rely on and say well there there it is there is the some of us know it mates ever going to get mean it they say oh yeah i knew this was a criminal offense i mean it's the nature of the offense the nature of it didn't occur yes and then infer from the fact it didn't occur therefore when he filed a statement he knew it was false yes because it could not have made a mistake or he could not  sexual assault where is the other officer says it's just hot and so one of the russian is if they disagree about that then what are the consequences when the officer i mean the inmate files a charge and they both agree with the facts so that the end of the officer says i was patted down that's our normal procedure and the other inmate says no he's touchy that's about what the accusation is here i i'm no knowledge of and let's just assume my hypothetical is that he he's putting everybody down and there may be some accidental touching here and there and for his point of view i don't know if the my what he's wo people had different interpretations of what occurred and in this kind of violation this is where he was raped for disrobed use being patted down and touched and the penalties i think we may don't disagree or really don't agree that there's some evidence that where we draw that line i mean there are there's all manner of obscure criminal statutes out there that side out the lawyers in the room can tell you whether something's cromwell a given day but if it's in a regular statute somewhere where do we draw the line here we have a bright line i think but what if it's something less well known that you should do this in your subject  l you have to take each case on the individual individual basis again i think the nature of the plants is critical this have been something you know i don't know like some other kind of offense that wouldn't be so patently obvious that it would subject the alleged perpetrator to criminal liability then yeah it would be a problem so it would be a problem but here this is a very sexual allegations against officers are very serious matters and this in may knew he knew that that allegation could potentially subject the officer to criminal liability and it's just absurd to suggest otherwise on these kids backs in this case and certainly the state or determination of that was objectively reasonable whether this court might disagree on that point or thank you your honor i want to back to a question judge a g asked about do we have to say how much evidence is some evidence and i think the answer is no hope because here there is no evidence of any of the three elements of the eighteen and let alone all three of those elements i want i want to return to the guard statement my putting the counsel said you know it's just it's a card statement is not a lawyer the form the guard was asked to fill out this is on a three asked the guard to quote give a factual account of the events witnessed of particular importance information as to what was observed where and when it occurred who was involved in any factual information relevant to possible reasons for misconduct so the guard had the platform to say at an assault m i didn't do this it only says it is i don't know what he's talking about and we're not looking to to require guards to say magic words here but it is odd phrasing given the ask on the form given the question that always has is i have no knowledge of the quote disciplinary issue which again as we're going to brief isn't even the assault it's the report of the assault as a disciplinary issue here as to the  knowledge of the criminal i've judged you'd said well it's probably presumed a couple things in response there are a lot of the statutes one thousand nine hundred and eighty three comes to mind a civil liability statute where prisoners might know hey if the guard does x y or z a consumer under nine hundred and eighty three dollars that's not a criminal liability statute priya that's mentioned the prison rape elimination act is not a liability statute pre established a commission and has a policy objective in principles reflect existing supreme court case law but even setting that aside on the evidence here issue on the other reason there is no deference is that if there is an unreasonable determination of facts in light of the evidence on that is the case here that the the court says or the president is used to the state court said the hearing officer was correct to say the state was false he knew it was false he knew it was becoming a viable and there just are no facts that address that i'd also like to point out that you know tyler said one thing and the guard said another thing and in this case the magistrate judge noted that petitioner stated under penalty of perjury that he was sexually assaulted by the guard and so there's nothing to it there's no adverse credibility findings he says under oath assaulted by the guard and the th circuit said  the johnson defeating case because johnson has sworn under oath that he made timely request forms of it and the district court could not properly assume the state's perspective is the right one so even if there is a factual dispute as to whether it happen not evidence that he knew it to be false and i would just leave the court i'd ask the court to step out of the prison context here and to think about regular police investigation where local police are running the investigation they charge the defendant and local police tells the judge in this is regarding the video no it's fine i looked at the evidence is good and the judge says ok great defender you're guilty i don't think anyone in this room would say that is due process in the united states in the state wants to say because it's in the prison context it's difference we officers made the statement that they need their help that was the charging officer who was in investigating officer so you've got the again the investigating officer looking into the allegation also is the person bringing the charges and also is the person that the hearing officer defers to the person has three roles now and most importantly the de facto fact finder which again even even with reduced due process in the prison system it has to mean something and this is that notion predates even