counsel good morning your honor i'm joy ship from miller here on behalf of elliott hawk and who's a lifelong citizen of one more gage county nebraska down by the actress mr hawkins is a fortunate to be able to come and watch you this morning do that in fact we are in nebraska and we really appreciate the opportunity to present this to you at this time with regard to the evidence in th case this matter comes before you on a motion for summary judgment which was granted against mr hopkins and from which we appeal the matter comes before you mr hawkins being eleven and he was placed in jail with a five hundred thousand dollars bond and he was detained in jail and till his release when it became more clear that the victim had lied about what had occurred we are not here suing the bit tim and i certainly don't blame victims of rape what we are here on is whether or you then look at those conscious shots have bart here are you claiming anything that they did this intentionally that they were out to get mr hauck and we are claiming that there was an intentional element to this and we were what  what do you have to support that well the evidence is that mr hawkins in fact was a lifelong resident of why maher and one of the investigators in this mr sanders felt was also a lifelong resident of wymore cleared of these charges and the charges were dismissed investigators chavez said to him i'm not done with hugh yet so there was a vindictive ness on the part of well but he the had reason because he had lied to the officer so there's i can see where the officer could say i could pursue you for that or something so what was there any history here to where the officers you know were out because the some confrontation or or the back to history with twenty these people mr hawkins father had run for public office and had been elected and at one point i believe had been removed from public office so that i would offer up as potentially a reason but i think any person who went through with mr hopkins went through whether or not there was personal animus should be  part let me go into that first of all you did make a comment that mr hawkins had lied and i believe there were two little areas that that you could look at to say whether or not he was not as truthful as maybe one should be and those two areas were that he stated that he had dropped the victim offa at a gas station when in fact he dropped her off in a different area and there was just a slight difference in where he had had  differences i guess in his statements at the times so i just said we're getting off truck not a track on the record wrong first of all i think that there's two basic situations here that we have to look at and the first part is whether or not what they did before they drafted in the affidavit warrant affidavit that is under the fourth amendment what the you know if they did not really have probable cause to arrest him and drafted a false affidavit or left out material misstatement that would be under the fourth amendment the second part of this case is you know what they did process kline made out in these circumstances where the where no trial took place where no trial took place actually when i was preparing for my argument today there is a is one fifty two fed third five sixty four and it's the seventh circuit case but it does a good job analyzing if there is an arrest after a warrant that it falls under the and it was determined that he never did have the opportunity to they didn't present him to court and he sued the jailers actually in that case and so that's why he ended up the detained longer than he should have been and in our case the emphasis is on the people that were keeping him under these charges and not coming forward with the evidence is that a case that you've cited in your group i have not cited that in my said i it is an older case it's a nine hundred ninety eight case but i located that when i was preparing for my argument i guess my concern is this particular client you cited wins winslow in talk about the due process in this as supporting a civil action arising from this kind of a situation that we're talking about  the now of liberty interest in the sense of an interest in or a right to free or criminal proceedings before a person is that denied of his liberty and majesty in this case you didn't get that far there was no trial here i'd be interested difficult to argue when a person is placed in jail under a five hundred thousand dollars bond and then it's later reduced to two hundred fifty thousand dollars bond that he was not deprived of his liberty but isn't all that adequately covered under the fourth amendment klein well i think the reason i bring it up also entered under a due process claim i would hope that it would be but in this case the defendants claim to that they hadn't done hardly any investigation before they arrested my client and that they did do more investigation after they arrested my client and what our contention is  the the investigation that they did after his arrest was so one sided that he continued to be deprived of his rights to due process in the criminal proceedings and so i do believe that the fact that he was deprived of his liberty and jailed during that whole time does fall under the due process problem because they would argue that after you know since they they did  affidavit and arrested him that then it's turned over to the court system and they're not responsible for anything that happens after that and i think they're squaddie squad return case does address that issue because of the fact that that person was never criminally put to her didn't have to go to court they found that he was a dentist and i think the fact that they've finally conceded my client's innocen reserve the rest of my time till he has to this you know the obvious wrongdoer here as the the woman who made the false charges to she would be one of them yes is there any pending suit against her or see judgment proof i'm got to assume she's judgment proof she was actually jailed as a result of making these allegations against my client but your honor she the deputies knew that she had not submitted to a rape kit that the evidence is that she had been to the doctors or in between the time that she'd been there the one night and had refused to have anybody look at her and she had a actual  one seventy or if he has the medical records he knows that she refused to do a rape kit that night everybody knows that but in addition that she was actually examined by a doctor two days later and it he didn't know that i guess but the he also didn't put in the war at that she had not submitted to a rape kit he left that part out of the warrant and so i've outlined in detail all of the things that and i believe that there could be a dispute as to whether or not he did know that and intentionally or not we didn't get to have a trial in this case i think it should have gone to trial affidavit in this clay's specific list stadium that although he knew mr harkins he had no ill will towards them they there isn't any history there where he would have held any malice towards him that's really a non issue here there isn't any evidence substantive be processed or of the civil action under not section nine hundred eighty three based on the substantive due process theory can be made out in this kind of case where there was no there was no truong no it got to one of the points i didn't want to return to was the one you had raised there was that it is significant there was no trial in this matter mr harkins was charges after seven weeks of investigation after his arrest the cases that have held that there may be a sensitive due process violation have generally but the vast majority of them have involved cases that have had gone to trial and i think what significant there is that where there is no trial there isn't any reasonable inference that can be drawn that the officers have systematically gone after the suspect  and tried to employ kate him in a crime that he didn't commit there's not that subjective element that can be inferred there where like in this case they're there if they didn't person to try to employ kadim in the crime as soon as he was able to bond out but certainly these now who served acted as quickly as they could under the circumstances they followed through on all of the red flags that were drawn they were needing to have d center rather than the state patrol to analyze the d n a evidence at a substantially greater cost to the department doing so for the specific purpose of attaining a faster result and i think officer standards felt testified in his affidavit that he w rape victim according to the training of the officers not only that but she clearly identified mr harkins there was no question about the identity at hand as the alleged perpetrator given up their standards or sep the knowledge of him from the why more area and the unique description of the vehicle and then following the report of the until they went to the scene that she very described in some detail and try to locate the place where she claimed that that happened they found an area nearby city of water with tire tracks consistent with the unique big vehicle that she said mr harkins was driving and they found a piece of the toilet tissue present there and certain alcohol can did lie about word occurred but it was both a lie sol is that enough to lock somebody up i absolutely believe that the officers had probable cause under the circumstances here and if i were to be otherwise i think there's a danger that officers are going to be asked to category with disbelief alleged rape victims for the fact that they might not be able to they might not be willing to commit to a rape kit or they every time and i don't i don't remember anything from the record that that had anything to verify either one of their stories well there there was the physical evidence that i mentioned before that tended to support  went to the story they actually didn't speak to mr harkins until after his arrest because of the fact that they were concerned about the threat that he had allegedly made to she and her family actually were to report the crime to law enforcement and that th council in the face of his vigorous denial and the fact this miserable and to head and the prior occasions made similar false accusations in that in the not true no absolutely not it is not true that was the one to had made a false accusation against rape against someone previously the record says that she alleged that she had been raped by a correctional officer when she was in jail and at one time a couple of years previously would wind up before she's right no no the evidence says that the correction officer was convicted of sex on a confined person and content or non consent was not an element of the charge and consent or non that i guess i misunderstood some of the briefing on the on her past action but you you took a lot of time to call him the highway patrolman who was the acknowledged expert that interviewed mr hawkins on the twenty ninth and i want to end the thirtieth of november and we had brought in our office or ward and by that within four days after that he is out of lincoln and they had brought him escapade and he quickly discern the it was unlikely that they could have been that's was sort of the catalyst that brought this to an end when the well officer ward the forensic nurse who actually didn't offer any opinion about whether they then would seem self inflicted to her she was unable to offer an opinion on that there really that was that was afterwards opinion and dead her opinion then related to the timing of the injuries which i think was only discernible to her and her professional medical experience and not something that a lay person what are the necessarily seen honestly when these officers as saw the photographs of these alleged injuries and they're not medical professionals i don't think it's obvious to any lay person that they would have been talking like that i think we can all agree that it was very unusual circumstances that a victim would actually licht injuries to her genitalia to support a very detailed  false rape accusation like this so i don't think that the officers can be faulted for not have been recognized that immediately it was something that they used the expertise of other people to help them reach the conclusion constitutional rights there just isn't any evidence to cross that cross that line at most perhaps with the benefit of twenty twenty hindsight you might say that some things could have been done differently but the clear that that doesn't state a claim and there's no question that these officers are faced with a very difficult responsibility to protect the public and that's particularly manifest when they're dealing with break occupations that were i said she said she said accusations where credibility was the central issue that they needed to figure out and i don't know that it's easy for any officer to find one piece of evidence that makes or breaks someone's in people's willingness to enter into public service when they have to be in fear of a case like this and that's of course one of the rationale behind the doctrine of qualified immunity and we submit the this is the case that really highlights the importance of the qualified immunity doctrine the case law provides that due process claims are beat or to be reserved for the most rare the most egregious and the most outrageous conduct on the part of law enforcement officers and judges were had it right that none of the evidence in this case rises to that level we respectfully submit that the child court decision to grant qualified immunity to these four officers and correspondingly to the county should be a permanent its entirety and be happy to respond to any questions the court may have in my time i mean i think i may just have a minute to thank you very much thank you thank you your honor first of all with respect to whether there were coercion or a threat of mister harkins his testimony was when he was in jail that the investigators came down and said you were going to get out of jail until he was given the name of the other three persons who were involved there was coercion and threats with respect to manufacturing of the evidence the police willingly took in and these photographs injuries were likely not caused in that fashion he in his affidavit says he wasn't an expert either and that he said you know he could tell from looking at the fresh nature of those injuries that they that he had gone to the the hospital he had gotten the rape kit the rape kit bag did you have any injuries that resulted in bleeding and it says no did you have any anal intercourse and the rape kit taken by the hospital at the time says no what i'm saying is there's at least a dispute as to fact as to whether or not the investigator did know that were did he just ignore that refuse to interview anybody at the barn system bar where this woman said after she had been raped game raped by four individuals that she got in had dinner with my client at the bar mr and bar they did not go to the barnes didn't bar and even interview a person who had previously been a dispatcher for the police department to to say that this is an even handed investigation is not within the realm of possibility this was done and it was unconstitutionally done and at a minimum we should get our day in court trial one day thank you thank you they did both for your presentations and we will take it under advisement back to use as soon as possible thank you