it's morning your honor is through justice for the appellant matthew howell and i'll reserve three minutes for rebuttal if i can say it please the court today i was going to focus on the fourth amendment issue because one that's the issue that actually liberty as a consequence of a legal proceeding when he among other things had to stay in jail for fifteen days on charges that the defendant officer joe cox brought against him that fourth amendment prohibits unreasonable seizures and as the supreme court has held most recently in manual the city of joliet a seizure from a from a prosecution that who's without probable cause or where the probable cause is based on lies is an unreasonable seizure this court's there or this circuit has created a cause a back ssion as of about eight years ago if not longer where as a consequence of that proceeding you suffered a deprivation of liberty a deprivation of liberty as contemplated by the fourth amendment such as jail time probation strenuous bond conditions things of now in this case plaintiff howell was held as a consequence of of a false charge brought by the defendant isn't that the difficulty here threading through from the initial seizure to the l to mind incarceration what is sure best case that that you can make that connection i don't know that i have a best case in the sense of i don't know of any case that's directly dealt with this specific issue other than i feel like cites to be anderson the reasoning i guess i would say cites me anderson is the best case because cites of the anderson says that an officer is supposed to be held accountable for all consequences that are reasonably for see how do you deal with powers powers ours is where chief judge cole said that the actions of a judge may sever the chain of causation between a plaintiff soon jury and a defendant's wrongdoing in this case that was the public defender case powers be hamilton county public defenders and in you recall that case i'm sorry yes i remember that from another kid i don't think it was cited in this one but i do remember that case so here's here's the problem in this case is the initial deprivation he just cited him for public intoxication ticket and let him go right in that  night and the he doesn't appear and the reason he doesn't appear is because the court doesn't notify him and so there's an independent warrant that results in his arrest because in fact as we both know public intoxication is usually a fifty dollar ticket in tennessee it can result in up to thirty days in jail but the reality is that he was intended to show him a ticket he let him go that night he could have thrown him in jail and then some crazy event happens where they issue this notice but never deliver it he doesn't appear and so they arrest him on it that that seems like the intervening cause the judge cole was talking about in powers well i would say i guess the the what they say is that if the the the whole reason the whole reason for holding a defendant in jail is the probable cause that an officer has made up then the officer here but that in manual right the officers allegations contributed to holding him whereas here he was held because of a warrant issued for failure to appear not or the public intoxication for failure to appear see that's legally legally that's not really correct i do disagree that public intoxication is normally a fifty dollars fine only it's right it's up to thirty days in jail or fifty dollars fine up to thirty days in jail or thirty days probation or some combination of jail and probation plus a thirty dollars fine the reason why i mention that is because one people frequently get jail time for public intoxication but two even if they don't get jail time they almost always get thirty days probation or two days jail twenty eight days probation so now i'm reading from a manual to go back to your case it says and that detention was unreasonable the clamp light continues because it was based solely and they used the word solely on the false savants correct and i would say that this this isn't solely based on any out anything to do with the public intoxication well it really is because the plaintiff was not held on any other charges he wasn't held on can get him out of court let's say he got into an accident on the way to court and that's the reason he didn't appear but the judge didn't know it judge issued a warrant he spends fifteen days in jail is that related to the public intoxication i would say that that he's being held on i mean as a matter of law  tennessee he is being held on the public intoxication unless there are some other charges such as it was suggested in the motion for summary judgment there is no other charge in my hypothetical if there is no other charge i would say that yes he's being held on the podium willfully fails to appear if you will fully fails to appear other charge if you will fully fails to appear then the defendant would at least have an argument that his willful conduct is intentional wrongdoing was itself a superseding a superseding offense of sometimes and so if the defendant at the trial of this case wants to argue that he can but he won't get anywhere because we've got the judge on record it meeting that but they didn't notify the pointer  and so i would suggest the struggle don't you think you have to make some connection between the initial seizure or your allegations against the officer and the ultimate incarceration and that court the issues a keg peanuts for him you're going to be able to say connex back i thought what you would be looking for or arguing would be that something occurred in the first trial some evidence kind in this judge would not have otherwise issued the k p s but then you're going to have to convince us that that's not standard procedure for a nutshe you see you see where i'm coming from and how you meant how you thread that needle to show that the actions of this officer in fact were the basis of the each she wants the k b s i just don't see that yet so with a crime that carries thirty days in jail or thirty days probation or some combination either one of those is a deprivation of liberty so deprivation of liberty was intended all along i don't think it makes any sense for the officer to say he didn't foresee a deprivation of liberty when that was his intent from from the beginning if that weren't already enough and that's true for any arrest on any crime ever right so anything that results in a deprivation of liberty down the road can be tied to the initial arrest no matter what it is i would suggest that there may be some exceptions if there is intentional wrongdoing by the plaintiffs that that could all my intentional run in doing breaks the mean powers of his was our selective lawyer i didn't there's also action on proximate cause to remember when they're talking about indigency and who has the obligation to inform the defendant that there's an end see exception i would say that this officer had an obligation to to notify the court from the very beginning that his probable cause was made up but even arrested him for disorderly conduct no  that disrupts a public activity one of those going to say is not only do the officer foresee this deprivation of liberty because he planned it from the beginning but in this particular case he's the one that mr howell so that he not only foresee it but he really did actually saw would he turn him over to the sheriff's he i mean he was in his affidavit he tries to pass the buck and say i only detained him whether you call it an arrest matter if he has a valid warrant he warrant if that officer knows that it's not based on probable cause and that's cited in my in my reply brief roberts and the lucas from twenty four team from the circuit so i would say that was that was essentially a false arrest say i would just say he foresaw all the deprivation of liberty from the beginning and it was his intent he actually saw the deprivation of liberty when he participated in the rearrest which was itself a false arrest and then he and legally as a matter of wall in tennessee the plaintiff was held as a consequence of his legal proceeding which he falsely initiated so for those reasons i would say there was a malicious prosecution and the judgment should be reversed immediately go into this fourth amendment issue about the deprivation of liberty apart from the initial seizure i think the court recognizes the difficulty with satisfying this third element of malicious prosecution which is the only element that's at issue and that element is that as a consequence of the legal proceeding the plaintiffs suffered a deprivation apart from the initial seizure in this case the initial seizure was in fact the day officer cox arrested or detained the plaintive for memory for purposes of this motion if it is with al probable cause in one weekend for purposes of the motion an appeal say it was that would be the rest when you watch the video it looks like the reason you arrested him is you didn't like the language he was using i i don't disagree with any hear you say you don't like what i'm doing challenge it in court and i think he even said argue your first amendment rights to the court and i believe that's what he said so yes but is there sufficient proof to show that maybe better rest was based on first amendment yes but we admit that for purposes of this motion that the rest would have created a false arrest claim and the plaintive had one year from that day to file that on us again it may have been there but he didn't he didn't bring it within the mind here so when he doesn't bring after he dismisses the charges he can't bring false arrest that claim is gone so you bring malicious prosecution it runs from the date the charges are dismissed that's why these claims are did are different they're different aliments faster arrest covers the initial seizure malicious prosecution covers the proceeding and this additional element of a deprivation of liberty the young the initial seizure so in a lot it became a way to argue this from the opponent's side from friends side on the other side  is well i never would have been deprived of my liberty but for the whole arrest and since the a rich initial arrest was problematic that resulted in the deprivation of my liberty and i and i think that that is the argument the plaintiffs is attempting to make this sort of broad sweeping but for causation but the broad broad sweeping but because  it's weeping because that's the practical reality well head not been arrested in appropriately to begin with he wouldn't of fallen into the system mean that's the argument so and we all have to admit  think what the plaintiff has failed to recognize in his brief and apply is this simple proximate cause ation here tonight not like he didn't argue that he's up there saying it was reasonably forseeable that's kind of the standard way you determine whether some and in his brief he does mention he gives mention to normal causation principles so  legally he is saying the proximate car reasonable for c ability but then when you apply it when you look at the facts and how he's making the argument he's not applying reasonable reasonable for here is to issue a b s or is that within the judge's discretion whether to i assume that would be within the judge's discretion and being really i mean the judge can issue it if she wants or if so it has so but you had the beginning of another trial you had some testimony from officer cox is there some three relating to that testimony that is employed by the judge in the issuance of the  there a reasonable forsee ability through all of those issues that would show this wouldn't have happened if officer cox had not lot on the stand or said something in the earlier trial i do not think it is reasonably foreseeable that let's assume for purposes of this officer cox gave fosli procured our gave a citation based upon false information let's assume officer cox testified falsely at trial the first trial ended in a mistrial but when officer cox had nothing to do with the court court's a separate entity it's not a city of fairview actor it's a williamson county actor totally separate actor date actors she only the only issue here is that there are cases there are cases in which a judge who is an independent actor issues or take some action based predicated on the misrepresentation or omission of material facts and if the judge does that that liability threads through that so you can't just say it was a judge it was a separate person employed by  you've got to show or he's got to show that there was a thread or you've got to show that there was not so what is your best case or argument for why this does not fit within the predicated on officer cox deprivation of liberty was a direct result of fast testimony by the officer such as opposites are provides false information warrant get issued the person is arrested on that charge some of the other cases that are cited from the six circuit the person actually gets convicted as a result of the criminal charge so this subsequent incarceration is absolutely reasonably foreseeable from the officers false testimony or false information in our case the fact that mr howell failed to show up at a case review conference has nothing to do with the charges for public intoxication that officer cox initially cited him for it is that a super it's back to sort of traditional tort principles in my mind but for cars nation isn't enough just because a citation was issued everything that happens down the road until the charges get dismissed don't automatically time back to the officers actions i think the perfect example was what if mr howell had had a rag on the way to court to get hospitalized doesn't show up the court issues a pinch warrant great k p s because he fails to share with the case review conference he gets arrested old for the underlying charge i wonder if that would work under common law to work i mean there's cases where you get injured by by a car accident and then in the been an ambulance to takes you to the hospital and there's the ambulance has a further accident and you can recover for the whole thing i guess that sort of  things that lend themselves to the risk when you when you you could argue that it's part of the risk of arresting somebody that they'll be a screw up and you'll actually serve some time caves had nothing to do with the case review that was completely issued by the court there was no false testimony false evidence nothing our officer did that's their hearts in the court to issue cause precedents towards where you look at what not it what is definitely going to happen but what is within that group of things that you risk we don't risk you know lightning striking  but you do you do risk certain kinds of things that happen when you do this kind of tortuous activity and they don't have to be more probable than they just have to be things that are with reason have been the risk you know our going to get to you have to go to the hospital and when you're at torpedoes or for the injuries that actually occur and the some people are going to say no obviously you can't because because no one would foresee that if you go into the hospital doctors will be careless but people see that all the time we can ten and if we think the district court was correct in that issuing citation to someone for public intoxication that is not  plead that individual officer we did not see to the office during the vigil i mean he didn't say he didn't say i understand individual less than perfect employee i'll give you that yes but i said and then w fact this is now an individual capacity klein we reserve the right to bring up qualified immunity but then the judge dismissed the case on our motion if the case should go back down we absent now that we know he is attempting to plead individual capacity claim we would have to file a motion to him in and to assert that defense but at this point we read the complaint to be an official capacity climbing and just he didn't mention the first amendment but i think the only thing i would say about that is statutes run and then very similar he had one year his entire cause of action accrued and was present in that one year or on the date of his arrest this court does not recognize the continuing violation doctrine for those types of claims only in the employment cases takings things the crew overtime for why did you bring a false arrest we didn't bring a false arrest claim because by the time i got on this case it was well after the original original rest and not only that but the original rest was not that big of a deal he was only held for a short period of time so that would probably not even really be worth suing over anyway it was more than just the ongoing nature of it especially the fifteen days in jail but just the stress of him having to defend himself over almost certainly a false a always worth suing over well i guess but i'm just saying i didn't he didn't even come to me and told ok so that up until after he'd been acquitted in terms of the qualified immunity i would just suggest that that would have very little to do with this case anyway because it's very well known that that officers aren't supposed to just make up make up false accusations against people and the damages element to the incarceration has essentially nothing to do with  case in the case on page six zero nine they did so even if an intervening third party is the immediate trigger for the plaintiffs injury the defendant may still be proximately liable provided the third party's actions were first see that's where that's where if i lied to a judge and then get a warrant then of course that is but if you look at the gregory case which no one's mentioned i mean the gregory case is pretty clear right there any judge moore talks insights about the gregory case and she says the conclusion and this is where the officers fabricated their notes and the fabricated notes or what created the cause of arrest but then they want relied upon in the detention hearing and she says that conclusion not only did the consequences of the officers actions must be recently foreseeable but also that the officers action must have influenced the continued detention is consistent with other circuits that have confronted similar cases and then she goes through all the other circuits in in very similar situations to this where they do something wrong at the outset but the detention is unrelated to that outfit but the whole reason the crime occurred in the first place is because of the officers bad conduct in all of those cases so you would ask us to create a split with all the circuits honest correct and our own case which is gregory i would submit that if the judge did rely on officer cox's false accusations when she issued the tape just because she wouldn't have  authority or grounds for jail is true in every one of these cases is there any evidence that when she issued the k b s she did so for the public intoxication and not because the defendant failed to appear she would have had  and then the judge holds me independent of that fabrication that's true because i fabricated the crime to start the case i do can i do kind of agree with your honor that that i don't agree i guess with with the ruling in the in the gregory case that's fair and i would just say in terms that it's specifically talks about the third that the defendant can be held accountable if a judicial act if it's if th but is based on material omissions or false representations that's also in the powers case in this case the material missions were one the initial charge in general sessions to the first trial he where officer cox testified and then three the initial the initial the rearrest at any of those three points officer cox could have told the truth and it none of them did he tell the truth and so he's liable for the for the jail that