good afternoon your honors please the court i am john parker counsel for the plaintiff below the opponent here patterson this case is an appeal of a grant of a motion for summary judgment entered and their motion papers in their motion itself they said that the first fifth and sixth cause of action should be dismissed based on the collateral estoppel doctrine based on findings from mr patterson's prior criminal proceedings  we believe that is the case in front of the court of appeals today we believe that collateral stoppel should not attach which causes of action are you still trying to pursue here well we believe that the district court did not only basis that the defendants offered on that particular issue of the first and fifth cause of action as collateral stoppel and so it's our position that to the extent we defeat collateral stoppel we win not just as to false arrest and imprisonment but also that argument as to the first and fourth based on the motion itself that was filed by the defendants there's no separation between fourth amendment claim and i e d claim as to whether or not collaterals something other than collateral esto judge in this circumstance can't resolve questions of credibility credibility or conflict of the evidence sure they do well here the mr patterson's defense counsel explicitly made a tactical choice if the sergeant prepared the police report but the sergeant got up there and testifies to whatever what he had learned and then he was vigorously cross examined and then the prosecutor the d a called another witness who was actually there and he was vigorously cross examined the question here though there was some discrepancy on whether or whether the officers were able to how the officers were able to observe your client as he was as he was at the in the doorway right and that that was the issue that was pursued to some extent at the preliminary hearing as well as the section one one one eight motions filed to dismiss the case in the criminal proceeding but here you know under smedley and under this tactical  exception that mccutcheon would apply even if we're if we're in the world of mccutcheon rather than spend one if you've got a situation where one makes a tactical choice not to call witnesses to contradict testimony which is exactly what  mr santana did in the criminal proceeding by not calling mr patterson by not calling witnesses to contradict i'm going to check because i don't know a defense attorney that would at a bloomin or hearing that would call their client well i mean that apply and have the ninth circuit affirmed today that effect effectively you can never ever bring a claim for false arrest even if ultimately a jury acquits you simply because there's a political hearing where you can't testify it would be foolish for you to testify and where you're not actually out there litigating the functional question of whether or not you in this case you raised the gun at these officers here there's a load of evidence we presented a genuine fact under rule fifty six that despite the general dispute i mean the genuine dispute is mr patterson testifies that he never raised his gun that genuine dispute is one of the officers testified that she didn't see a gun then she later said well i must have seen a proceedings the other piece of circumstantial evidence is that unlike his fiance who was shot and killed in her doorway naked holding a shotgun without having exit the building she was killed mr patterson was not i'd submit that if these as well by the fact that you know we have specifically alleged that the that the officers were lying at the preliminary hearing which puts us in the bad faith exception you would agree would you if the issue has been resolved by the who are to disagree with you or eighty six it specifically says if the arresting officer lied or fabricated evidence if the plaintiff pleads that pleads a lie we're in the world of bad faith and an exception to collateral sto good afternoon john whitesides for apple e city of yuba city the first question that you asked the posing counsel was did you contest these other claims the first in the fifth in the district court and his answer was well not directly but by implication because we're making this argument collateral stoppel and if that argument works it works across the board that's actually contrary to what happened in the district court in the district court there was no opposition to the first or fifth because the only argument that was made was that probable cause was irrelevant to false arrest and therefore false arrest was distinguish the other two claims so that was the only argument that they made to the district court so it's not the case that those other claims are still in play what happened is when the district court's order comes out and points out the direct statutory ground for why probable cause does negate false arrest liability they then switched gears and now we've got a whole new argument that collateral stoppel shouldn't apply because there's a split in authority and you should follow schmidle inverses mccutcheon and that there's a fabrication exception because of lying and there's a tactical choice exception none of these arguments were made in the district court now if we based on that based on the polls the rest of the searchers something else i'm sorry what was your question was the i e d claim based on what facts the false arrest facts the search there was no search so it was the false arrest that was the only thing that was involved was his arrest when then what was the first cause of action i thought that was a search claim  take the position that under state law it was irrelevant so that's why they didn't file any opposition on the one thousand nine hundred three claim or the other tort claim because they were distinguishing them from their understand that i'm required to follow california law and i got a choice between mccutcheon and middle which middle and says in the circumstances of a preliminary hearing the defendant basically is never going to testify you're going to get testifying from the government witnesses yeah based on that testimony the judge will find probable cause or not the ordinary parentless it for collateral estoppel is actually litigated and decided or a full and fair opportunity to present all answered the philosophy part of your question first and then do that the presidential part of the philosophy of collateral stoppel isn't whether or not you actually argue a point it's whether you have the ability to know it is under the sea united states supreme court and the california supreme court it is the opportunity to present evidence to cross examine and as was pointed out the only witnesses who are appearing are the state's witnesses and there is really a lot to reason for the other percipient witness that is to say the potential criminal defendant is now the civil plaintiff not to testify i mean if if a criminal defense lawyer tells his client to testify at a preliminary hearing he's got rocks in his head i understand that but he can still call other witnesses and in this case who are those going to be they could have called other officers at the scene the other officers were not there to  witness the other witness was the was the girlfriend who was killed by the officer no no no that the two witnesses were the sergeant and the officer who arrested him those were the two witnesses and we got that it would use that they've got other witnesses who were there there were three other officers there and where were they at the time where the yes right there that went right down the doorway yes no the one was the one who knocked on the door who said to the sergeant he pointed the gun at me that was officer a last straw so she was there could've called her and then they had another officer who was on off to the side who didn't see the gun but but the point remains that all of those officers are going to be testifying on behalf of the state it would be absurd to think that i'm going to get contra testimony when we have two officers saying that the real witness who's going to contradict is never going to testify well it's ironic that you say that your honor because that was exactly the argument they made a trial was that the officers had contradicted each other yes but but the point remains that the primary percipient witness is the person did he have the gun he says i either did or didn't either raise the gun or i did and he and he's prevented effectively prevented from testifying well i mean he's not prevented by any rule of law he's of them one is incorrect evidence being submitted at the preliminary hearing which is claimed here in terms of what officer lester said and one is a tactical reason for not presenting evidence at the prior proceeding which might be the tactical reason that one doesn't put one's client on the stand at a preliminary hearing in a criminal case by that logic though then from what judge fletcher said we would never have collateral stoppel come out of a prelim because  intermediate decisions that are favoring the view of hopped and the other thing that we have that is significant is that this case is unusual it doesn't just involve the  involves the two motions for acquittal at trial that are made based upon conflicting or insufficient evidence that are denied and certainly there's no tactical reason to not put on a vigorous defense a trial so that's another thing that separates this case from the garden variety case where there's only a prelim is that you have the trial judge twice finding there is sufficient alba since to go to the jury could you talk about this the  exception that incorrect evidence has been presented at the preliminary hearing in the light of i think it's officer lester who said at one occasion that he patterson didn't have a gun and then later it was discovered i think after prelim that she said he must have had a gun because i saw his arm go up and down yes it was officer williams ok officer williams did not testify at the prelim nor did either of the witnesses who did v i understand what you're saying that she could have been called that gets back to my original point then the defendant mr patterson could have called her well that's for that sole but torrealba my question i'm not sure it was known at that time maybe you can tell me if the record review yes whether he knew that at that whether patterson knew at the time of the prelim that williams had made those and consist yes he had access to the district attorney interviews so those existed and were disclose material because he admitted he had a gun in his hand he admitted he had a gun pointing downward but the officer says he was pointing it at them no williams didn't say that that was the last straw what williams said was  see a gun in his hand but he admits he had a gun in his hand so her statement really isn't relevant because he's admitting he has the gun in his hand the issue was did he draw it and point it or did he keep it down she didn't make a statement about that one way or the other here's this occurs to me we've got three california court of green it seems to certify this to the california supreme court i mean this is an important question you must suppress its musing about prelims was completely irrelevant to its decision which didn't involve a prelim so i don't think you truly have a split in authority in california you have to publish decisions that are following a ninth circuit decision and all the district court decisions as we pointed out in our brief an in the rule twenty eight jail letter both published an unpublished have followed mccutcheon not one has foll now i realize you're not worried about what other district courts do but it's significant because it shows a that they tend to view this as dick get be that they don't view it as persuasive when trying to figure out a course in their jobs or try figure out what is the long fornia and the intermediate court of appeal can give us a pretty good idea but they're incapable of really giving it to us we need to hear from that's been going to california and it just strikes me as wrong  motion for essentially a directed verdict a motion to acquit things different though the then what happened what happens in a blue and it is and that's my point it's different because you can't have a tactical  opposition excuse for what happens a trial and then twice the trial judge denies these motions and says no there is sufficient evidence to go to a jury where those final yes there are people one was hung and the other he was as i mentioned earlier you know specifically says if you plead that the arresting officer line which clearly mr patterson has done here collateral stoppel doesn't attach that's the way you get out from the years different from saying something that's not true miss i guess you could make that distinction here we've got not just officer wolf arresting saying that he saw a gun we've got some sort of mixture of the stories as to whether or  not officer alastor a slips and falls why did she do that she said it was because of the gun could have been because of the incline of the grade we've got officer williams changing her story a d you know i want to know too that at the preliminary hearing if you look at record x or page one ninety five the trial court said for the better it said we're not going to let you attack the credibility or intent of the officers at this poem and her hearing so if we can attack the credibility or and the intent of the officers regardless of what's happening and how can we say that this issue has been finally decided at the preliminary hearing with the backup argument that we've got findings at trial well judge i  perjury versus city yuba city submitted for decision the next case united states versus combs a