any of the any of the pleadings or anything else in this case we don't know what i'm saying there's not a word about the initial appearance is and everything else on the card that your honor that case was disposed of on summary judgment and i understand haggard the next document order on an initial appearance and it recites all of the advice of rights that were given to mr coburn everything you can imagine glued to the right to bail know that's right i mean i'm not mentioning anything that's correct because we had to take the complaint as the complaint alleged i will say if you look at page eight of the district's decision the district court magistrate the magistrate judge's order doesn't make any mention that the magistrate judge of the order tracks the complaint which means that nothing was done between october the tenth force for four of these people well a this is what the report said it said the plaintiffs contend that no probable cause determination was made during these initial visits and one is talking about the initial visit it's talking about it says the informing arrestees of the rights and setting and so so i think it is clear that the claim here is is that the magistrates went over there to the jail they saw all these people they set on and they evaluated things like that the allegation just during that process was somebody brought about somebody brought these people before the that's right i mean that is in fact true but otherwise how would they have found out what they were charged with that's exactly true then as a matter of fact the complaints were made automatically were on  plenary hearing that's right and all the all these there's no there's also no allegation that holsten didn't actually have probable cause to arrest these people the only allegation here is that in the course of the magistrate going over to the jail and evaluating the stakes way the right to a probable cause hearing that correct if that's typically when a defendant waives the right way it's probable cause hearing that we assume probable cause is there so point of view of my having absolutely no familiarity with alabama procedure in a case like this is that i may ask a dumb question why did the magistrates and i realize it's not in the record but to the  as a matter of fact with the prisoners taken to a courthouse or something like that right so that the process the procedure at least in walker county is these magistrates go over to the jail and they look and say it was arrested within the last however many hours and then those people are brought in for the magistrate at the jail so they're not released from jail and at the time of that i understand that there was an advice of rights that included right to counsel did they in fact have counsel when the magistrate showed up least on occasion that a defendant arrested without a warrant who would the unishe will appearance is represented by counsel would demand a preliminary  we have in this cold record is we have a complaint signed by counsel under the penalties rule eleven and which there's a representation that nothing was done at all between october the ten write your answer your you didn't file the answer somebody else did that's correct the answer cracked the complaint and the court's order tracks the complaint that's right so all we have on this record is they were arrested and two other guys right there were arrested later on this back in two thousand and fourteen and weren't taken either so that's what we have for our record that's correct  generate a plymouth area hearing or whether that's a task of the executive branch now we can take judicial notice that they did file the huddleston lawsuit that's a mean you've got to have the placement come whoever has the evidence yet they have they have to be informed that there is someone that they will be hearing for but i think the real question is whether the holding the hearing and doing this of finding probable cause or not is a judicial function and the district court look at basically two principles you do a functional analysis of the functions that the supervisor is playing and then in that functional analysis you look at the functions that the supervisee is doing right so th respect to matters that are broadly fall into the category of prosecuting people exercising prosecutorial discretion and the like the claim here if there really is a claim think you're drawing too fine a line there the decision to hold the problem cause hearing it's the same judicial fight it's also a judicial function and here's an analogy but but the magistrates in a case where there's not a waiver of a probable cause don't have discretion simply to elect well i'm not going to do a probable cause hearing for this defendant they have the discretion once they have the hearing to decide it in a judicial way is not some that is that is correct but the answer of whether they have discretion or not does not address whether they will function this court doesn't have the discretion whether or not it's going to dismiss an appeal that was filed out of time you have to do it but that doesn't mean that dismissing an appeal somehow is not a judicial function and so the fact that the magistrate judge are obligated by rule to hold these hearings doesn't mean it's not but ultimately i think you've got to look at the reasoning that the supreme court can't because the reasoning that the court used applies on all fours in this case the supreme court said that basically two things invented that led to the result it said one that supervising training managing attrition requires the same sort of legal knowledge and skill that performing the function itself would so for example to know whether to hold these hearings and how to hold them and to make sure that they're being held well but we're not talking about how to hold them we're talking simply about the obligation to do it and once again i think that is also a judicial  but because what that what you're saying that the circuit court should have done then is to monitor these people below them and make sure that they were doing this thing that is required by the alabama rules of crimpers your thing that is required of them only because they're acting as a ma it's the same thing that this court would do if you were supervising a district court and making sure that the district or ruling on motions probably supervising the performance of a judicial function even if it's a non discretionary one is also a judicial function the second reason that supreme court said inventor can't that it had to come out the way it did is it said it just doesn't make any sense that you have the the subordinate have immunity to these claims a subordinate that actually is alleged to have committed the constitutional violation at the same time you have a supervisor who could be  respect mixing apples and oranges the subordinate has immunity for the substance of the probable cause determination but if the law of alabama is that there has to be a probable cause determination absent a waiver within a certain period of time and if the supervisor has taken all reasonable steps to ensure that the subordinates do that and subordinate jones just says not disingenuous was obstructing justice my judgment you know you're on the other side of should have been honest that these people were taken to a magistrate right away and that and th due respect because i know you should have put the facts in the complaint your honor the facts of the complaint allege that these plaintiffs were not provided a probable cause determin i speak for myself there be sanctions filed in this case and perhaps even from this court so i'll let you proceed your honor what the complaint alleges and the and what happened is that huddleston the deputy sheriff warrantless lee arrested these individuals some at the same time some on different occasions some of them are related arrests he then placed them in the jail and provided a a list of the statutory offense under alabama law as you say a class b felony here a class a felony here class a felony or he left a list he never he never conferred with on these facts and the facts will bear this out never conferred with the magistrates who were coming to the jail to give them any actual facts that would have allowed them to down and they're holding an initial appearance hearing they're skipping the probable cause determination and telling these folks you're charged with x y what is it what and how do you want to set your bail in this and i understand counsel that it's not in the record and conceivably it's only by one defendant i'm not sure but there is at least one waiver of a probable cause he refused and not as a matter of fact historical fact your honor there's what there is is what the initial the initial appearance form that was signed in these cases which is what i believe to show flat was showing that's not in the record in this case but they were signed in the signing of a statement saying i waive a probable cause hearing logically follow a neutral determination of probable cause does that make sense in some bizarre form of language that i'm not familiar with i think i think i think that these folks were waving rights that had already been violated in that they didn't know that they had because the magistrates were just skipping the probable cause determination because huddleston was never providing them with the information from what it termed probable cause so if your probable cause determination is first base there over here on second base telling these folks what they're charged with in sort of a summary list fashion and and yes they did they did sign and waive but but there's a difference judge in a probable cause determination and a preliminary hearing under alabama law you can request a preliminary hearing within thirty days of your arrest in writing once you've hired your attorney and that happens a good frequent bet is once a case is actually opened and assigned a case number and you have an attorney you file a request  that these individuals all signed that same form is it your position that once a case was filed they notwithstanding the signature on the form retained the right to a policeman or a hearing i think i think our position would be your honor that for for these purposes of determining this constitutional right to a prompt and neutral probable cause determination any later for women are hearing whether they have waive the preliminary hearing by signing that form and whether a court of competent jurisdiction decides that that was a waiver or gives them a what i would call a full on preliminary hearing with the right of cross examination and so forth doesn't matter to the constitutional right it is you here which is the prompt determined i asked him and i understand that's your position but i'd be grateful for  t to the question i actually did i misunderstand what i apologize perhaps so my question was i assume they all signed that waiver document and that cases had then been instituted against them would they not withstanding the signed waiver document have had a right to a probable cause determined hearing i believe at that point any subsequent hearing would not be a probable cause hearing incident to whether they were going to be released within the forty we don't have to have such a right a right to a hearing says i don't want to probable cause hearing and i have a difficult time understanding how a magistrate would know that that the matter that the constitution required a probable cause hearing right now anyway i don't know i can't conceive of a case in which the spread court would say such a thing i think that i think that the magistrate should certainly know that the right to  probable cause determination within forty eight hours is constitutionally required has been since mclachlan at least twenty years required for probable cause whatever that is but then you have you have the magistrates going down to attorney you have a right to have your own attorney but given time an opportunity to retain an attorney if you are unable to afford attorney one be appointed for you by the court if you qualify for such representation it would not be necessary for you to complete and it ended just a questionnaire under oath in order to for the court to make this determination you have a right to talk to your attorney family or friends and if that's a reasonable means will be provided in order to enable you to do so you have the right to remain silent anything you may say be used against you offense or offenses which you're charged the judge will then bind you over for the act further action by the grand jury and on and on and on it goes and that you and your client at that waive the demand for a problem cause hearing i cited the case because because under alabama rule of criminal procedure four point three a three the magistrate is required to make a probable cause determination within forty eight hours and then proceed obviated by actual release not the setting of bail and part of the problem just happened since you're from new york part of the problem here is that the clerk's office had a policy in practice and that's played in the complain of not creating a case number until the arresting officer provided the complaint paperwork that was alleged to support probable cause and in these cases sometimes months would pass before the arresting officer would submit his paperwork and they could your honor but i don't believe that that and some of them ultimately did but that was a remedy that they were only able to resort to at an expense of attorney's fees filing fees and only after the constitutional violation has occurred your honor because for a then the detention would have to be unlawful and also i believe that in terms of the munity the you are drawing the line in exactly the right place contrary to what the state is trying to say because van de camp does not teach that you get absolute immunity just because you're a prosecutor or just because you you have judicial munity the law presumes that qualified immunity is sufficient to protect people who are acting  good faith not incompetently and not in knowing in willful violation of the law you only apply absolute immunity when they prove they being the state of the magistrates and that is justified for the function in question and what i find particularly interesting is your analysis which i think is quite correct your honor that the function that we're trying to protect is the actual in prosecutorial immunity it's the actual strategic decision is the act what you're really arguing is this trick or the magistrate judge below erred in even giving qualified immunity to the magistrates correct you disagree with that decision actually what he what he said in his decision was that the fact that i am granting judicial munity to the involved magistrates who actually went to the jail should not be an indication that i would grant qualified immunity i'm forget qualified i mean to you for you to succeed here in your argument be strengthened if you could also although it's not force on appeal persuade us that the grant of judicial immunity to the magistrates was in error soon you believe that was a run yes at yes absolutely your honor and we but assuming as we must now that those folks have immunity your position becomes more difficult because now the person that as actually doing the wrong has immunity but your argument is that the person supervising them should be held liable yes your honor and it does become more difficult in your correct we did not and i think even in our brief never conceded that the involved magistrates setting the bonds were and how did you dish munity for several reasons the first being they they were doing it out what we viewed as outside of any a supervisory part you don't have much time at the band bandcamp is a problem i think for you but let me give you a hypothetical and the federal district court system we have a speedy trial act he posed to be tried within seventy days and so you have deputy clerks deputy clerks are supervised as a practical matter by district court judges so if you have a deputy clerk who fails to set a trial date within seventy days i think you would agree under this holding that that deputy clerk is the judicial function when you hold the trial when you said she would get quasi judicial and that your argument would suggest then that the district court judge would not get immunity because that judge trained the deputy clerk and therefore the judge would be a hook is that your position our position is is somewhat different and i don't know the district court judge be potentially liable as a as a poor supervisor the deputy coroner there is a there is a training and supervision element to our claims and i acknowledge that in the complaint however there is no case and van de camp nor any other case hold that a individual like  sitting back for making a policy and procedure or sitting back and just letting it happen in my live and then my hypothetical example you would say that the district judge like the supervisor here would then be would would not have qualified immunity  for merely supervising the acts of the deputy coroner and not taking any action to correct the deputy clerk's whatever whatever does the judge hav between sort of activity and in activity is just not a that and that's not a valid line for his i'm sorry you attribute to me what line the line i think i think the line that you're suggesting in your questioning is that there is some line between holding the hearing and not holding the hearing that you might be you might be it's a judicial function to hold the hearing in to make the germany calls but it might not be no i think you misunderstood my ok well let me just address that the i think we have your point