good morning your honour's the only question that was left open by the earlier panel in the earlier appeal in this case is whether or not defendant johnson may be entitled to qualified immunity because he was reckless or deliberate including false statements in material emissions from his arrest warrant affidavit for richard when that is the question on which the earlier panel of remanded for additional discovery and that additional discovery reveals the defendant johnson is not entitled to qualified immunity and that there's a genuine dispute of material fact that is the only issue of course today correct your honor in this case so your position is that the district court could not have granted summary judgment on any other reason for any other reason and that he was barred by that yes your honor even if the dish will discovery told other things as well i thought the court  opinion makes the point that this is the preliminary ruling and we're discoveries needed but it's not meant to be binding for all time for everything except perhaps perhaps you can help me on that the pri did say that on remand the district court could consider you know reconsider whatever believe was necessary for additional discovery why didn't that give him freedom the court freedom to then look at everything additional discovery was performed the court didn't look at anything else and what it considered were two things the two things that are relevant to the coffin munity inquiry first whether or not johnson's actions were reckless or intentional and second whether taking out the falsehoods in the material missions whether or not there was probable cause under the inquiry that this court has use for assessing frank's claim and so and the district court actually found that defendant johnson's omissions and false notes were in fact at least reckless but it's grant a summary judgment on it was the idea that there was probable cause regardless of those things and that was because of the subsequent prosecution or want the reason well the district court reconstructed the affidavit in the way that this court has instructed in terms of how to do a frank's inquiry that is it took you know it put in the false and it took out the  falsehoods and it included the material missions but the district court found that there was probable cause regardless and it's a little bit difficult to understand how there could have been probable cause regardless because without the falsehoods and you know putting them tear omissions in there inconsistencies were at the as the part of panel held clearly material and there were major inconsistency s it included not only that you know campbell claimed that senior said at first that the kids let him into murray burrs house but then he said later that it was a cousin to let him into marine first house of course johnson only put the inculpatory version of campbell statement into his arrest warrant affidavit and not the exculpatory one if in fact richard winfrey sr had told campbell that it was a cousin then the kids weren't involved at all and the plaintiffs in this case are you know richard for jr and meg winfrey so that was a very important inconsistency the second inconsistency that pertains to campbell is you know there were things that he said that were not just inconsistent with between his two different statements but they were inconsistent with what johnson knew about the crime scene for instance campbell claimed that senior told him that mary burke had been shot did not in fact been shot campbell said that senior said that had been mutilated and his general area that was also inconsistent with crime scene in johnson knew of campbells and consistencies because he interviewed he was the one who interviewed david kimball both times so he knew what his first statement was he knew what his second statement was j knew that what campbell was saying was inconsistent with the crime scene because he had received the autopsy report which described you know the manner in which murray berhad died and what his injuries were and it also described and johnson had are also been to the crime scene ok what ok but the district court said that just the relationship between megan and burr that her desire for hidden money and the president of the sense which he believes that he was not on notice at the time of the district court that you know that given what he knew he just took it at that time and campbell statements that senior murdered byrd with the help of megan and jr would have told a magistrate that that would be probable cause that those facts alone you said we don't know what facts he said would be enough and one thing about this district court is that he writes in plain language and just states the things in very short news so you can see exactly what he's doing so that's what he says is enough why isn't that enough it's not enough because both defendants and both rogers and johnson didn't think that was enough neither of them sought search or arrest warrants in this case until campbell came forward so the drop trail and the start line ups were conducted well let's recall that the murder occurred in august in the beginning of august to us before the pike it came in and did the drug trade on the scent lineups on august twenty fourth two thousand and four nothing happened after that the teacher statements about meghan you know sit saying to bird in the hallway at school that you know she wanted him to take her  campbell came forward in june and july of two thousand and six and johnson himself acknowledged in the search warrant affidavits for the father and the son that he believed it was the drop trail in campbell's and consisten that gave him enough probable cause to get the search warrants and so from from the perspective of what the defendant believed himself he himself believed that there was not sufficient probable cause to get an arrest warrant for richard win jr until campbell came forward well it says campbell statement that senior murdered byrd with the help of macon and junior that is the last of the things so that's why isn't that part of it from the district court opinion i'm reading from the district court opinion maybe i'm reading the wrong thing i'm reading page thirteen of twenty two of the district court opinion the last paragraph johnson protected by qualified immunity maybe  in the wrong place and because this is a complicated case and you can instruct me and correct me so what what johnson wrote two reports recounting what his interviews with campbell and in those reports in the first one in june of two thousand and six campbell reported that senior told him that the kids let him into the house that's what johnson or johnson's report from june two thousand and six said and that's in the record in the july two thousand and six interview campbell told johnson that it was a cousin who let him into the house and so the point is that by the time of the second interview campbell was not even saying that the kids had any role in in the crime at all he was saying that it was a cousin and johnson knew that because he had interviewed him the first time as well and he chose to put only the inculpatory version into the arrest into the arrest warrant affidavit officer known at that time that he could not be couldn't just put inculpatory materials in a rest warrant was that clearly established i know we can't put false things but can he not just put the  illegal what about the timeliness point that the district court what's going on with that well richard winfrey jr's claim is a claim for unlawful detention without probable cause he was arrested pursuant to legal process that is a warrant that is what instituted the prosecution and then he was detained from that time until his acquittal in june of two thousand and nine he has claimed did not accrue until the favorable terms of proceedings so we have the intervening case that says that that's not true anymore that if i thought that used to be the law that the new law is that that's not accurate that the claim  accrues once they know about it and it may have to be told because of hack the humphrey but that's it doesn't have its doesn't affect the cruel once the knowledge comes in am i wrong on that there is no intervening case that that changes that change that rule if what you're thinking about maybe wallace versus cato so let me back up for a moment this court in its on block decision castellano it here to the favorable terminations and castano there is a footnote in which the court specifically refers to an earlier case called brahman versus campbell decided i think back in the eighty's which said that for a fourth amendment claim of this type it does not accrue until favorable terminations so then cases according to humphrey heck for some for require delayed accrual for the plaintiff challenges to either a conviction or confinement and the reason for that is for reasons of federal state comedy you can have a federal suit that would call into question whether a state court false arrest claim and recall that in cato or in wallace the court was considering a fourth amendment false arrest claim there was an arrest without a warrant it was a warrantless and rest and so the closest common law toward analogy in that case was false arrest because there was no state criminal proceeding at the time that could be challenged or called into question by federal suit the supreme court said that you could file a section one hundred three suits and the cruel data is is what normally applies but in a case like this where there is an arrest pursuant to a warrant legal process has issued and so the closest one analogy is malicious prosecution not false arrest that's what the court held in case in heck that's what the court held in wallace and this court has appeared to those roles in subsequent years at the at this is where it gets confusing if we're talking about malicious prosecution and did you have a fourth amendment claim not a due process claim what claim do you have in law is it malicious analogous to malicious prosecution i am not sure that you have due process claim frankly can you help me with this what is the constitutional right that you believe was not these facts it is a fourth amendment claim for seizure unlawful seizure without probable cause and the reason that it is analogous to malicious prosecution is because it was an arrest with a warrant  was arrest pursuant to legal process and so what the supreme court has said is that detention after issuance of legal process such as a warrant permits damages for confinement in imposed pursuant to legal process so it is a fo minute claim let's recall the fourth amendment has many different types of claims there's under the fourth amendment you could allege a false arrest claim you could allege with a word you could allege and arrest claim pursuant to war or to lawful you could allege an  unlawful seizure claim there's different types of fourth amendment claims that have different accrual rules and in this case the supreme court has clearly held that a fourth amendment claim that involves an arrest pursuant to legal process does not accrue until favorable terminations and not only and when was it brought bay twenty six twenty ten ok but let's go back to the complaint and i'm trying to find where your where you assert it girl where junior asserted his complaint i believe the original complaint label any of his claims a fourth amendment claim but that the grab a man of his complaint is that he was arrested without probable cause and that he was just detained without public cause and at this point in that we use or it's a lot of things that are state law claims and some of that might fall under there i'm trying to figure out where given even a liberal construction of the complaint it asserts a fourth amendment claim well words fourth amendment but the grab a man of his complaint has always been that in the factual assertions which is which is all that all the supreme court has required in terms of notice pleading has always asserted that his arrest was unlawful and that the  s used to tame his arrest were unlawful and at this point in the proceedings after we've had a prior appeal and the prior appeal said that mr winfrey had a fourth amendment claim in that what it was remaining for discovery was this issue about the war they're not saying the fourth man wasn't i'm saying that we didn't use the words forth ok but assuming that if you don't use the word fourth amendment and assuming that you didn't alleged fourth amendment what did you allege as a constitutional violation  campbell statements and allegations concerning it so what you're hearing you say that you are alleged facts support a fourth amendment claim unlawful seizure without probable cause where does the the prior opinion higher court to change his opinion say that this is a fourth amendment or does it use that terminology  says even if there is a cop violation of a clearly established constitutional right a plaintiff must still prove the objective and reasonable this of the complaint ok says fourth return to fourth amendment principles right so they're turning to fourth amendment principles to the to help analyze that claim right ok but ok but i don't think that they're saying that they've alleged a fourth amendment or anything like that and they're saying because these are most these are analogous they're going to use these  analyzing i don't think the court says you have a fourth amendment claim ever and so i misunderstood what you were saying about what the disk with the prior pin in our court did it never says this is you plan a viable fourth amendment claim or anything of the sort right i mean i think it does because it goes on after it says that it's turning to fourth amendment principles it goes on to analyze in great detail the issue regarding that the warrants that were used the first time you were on it so the district court decided to rule on that that's i mean so it's not just an argument that they made that failed to make of tin and i think we're talking about forfeiture not waiver here is not intentional relinquish that johnson was reckless and that is wrong because the warrant would not have established public cause without the falsehoods in the material missions and i mean the only thing that was in there  were there any other factors that he looked at and granting qualified immunity that you think he was wrong but he also referenced an issue concerning shawn johnson you know whether johnson was reckless and in not including certain inconsistency of david campbell and in particular you know the district court said well there were these two interviews with the johnson had with david campbell and the first one was just not complete and based on notes and the second one was the complete full interview but that's not supported by the record there's johnson documented his interview both interviews with campbell in typed up police reports and he in fact started his deposition there were no notes ever produced by the way as to this issue of there being notes that there was nothing in the record concerning notes but johnson did testify in his deposition that if he had taken notes of his interviews with campbell he would have reported them verbatim into his typed police reports and so the district court sort of waved away the inconsistency in campbell statements by relying on something that wasn't in the record instance for the second full opening where you going to argue and thing about the district judge if we decided to remain on this issue twenty time this is the second trip that this case has made to this court and in our view the dischord did not follow the mandate on remand and i think that in order for us to get this case going to move it along i think that's not a basis though for your taking away from a judge i mean i've made mistakes as a district judge me i'd hate for that to be the standard meaning is there anything about the underlying conduct that we're not getting from the sense of reading the briefs well if you have the stuff in the record in terms of his in his hearings that he conducted in the case and if you if you read some of the transcripts of the prior hearings that he conducted in the case he was clearly not  press it particularly strongly i think that the merits of the appeal are or will be pressed most most strongly here i have a question sure to clarify  you said earlier and i think your knowledge the only thing from your point of view the only thing that is before us and will let me say on it is understand what the district court warrant supported the arrest that was made pursuant to the warning correct right so there was no violation of any fourth amendment right in the in the judge's view on the but that has never been reached in this case have been issued correct correct so we are only to decide the legal issues of the district court whether this search that's when the due process clause applies is when you know the fourth amendment applies to the pretrial detention part and then in cost of honor the court said that if the prosecution continues beyond the initial seizure and it didn't exactly pinpoint what time period from seizure to trial but if the prosecution continues beyond the initial seizure you can have a fourteenth amendment claim well i've wondered about that i mean i seems to me that if you may be wrong about this but if but i guess it would have to be damages arising from violation of the fourth amendment to satisfy the injury and so he would just have the period of time of injury from the time that he was actually arrested year that the fourth amendment covers damages for the entire period of pretrial detention so winfrey was detained from the time of his arrest with the warrants until the time that he sat through trial and squid so covers that entire period second but i don't know if i think that's an issue in the case or remove the wrong it's been i mean they did raise it in this brief but didn't and they didn't raise it in the prior appeal and if they have i mean the as we said in our in our priest it's been weight and it's also law of the case because they could have raised it in the earlier summary judgment in the earlier appeal and there's no reason that we should allow this part a sudden prior pinions that we should not allow parties to come you know raised you know issues that they should have raised to an earlier panel can i can i ask in the future do you have any more well maybe i just want to make sure that i have a kind of a roadmap of how i would have to the issues i would have to we would have to decide i want to just make sure i have it the first issue that we would have to decide is is there a fourth amendment claim before us was it was in was addressed before is there a fourth amendment claim before us the second issue would have to address is is it time barred if it is before us the third issue would have to address is whether the  was probable cause independent in the after the probable cause for the arrest and detention independent of the omissions in falsehoods assuming there are and a side issue that may or may not be forfeited or way is whether there's an intervening cause that's a side issue of how he would and that's that i'm putting that to the one side but a bit kind of off of probable cause then the next question you have to not just negligent right and then you have to establish that clearly established law would tell a reasonable officer that these were reckless and not just negligent and if you get to all of th then you get to go to the jury and and i think that's the progression of the analysis and you may or may not have some side claim also in freestanding due process fabrication of evidence which i'm going to put to one side also is does that accurately reflect what you believe the analysis is in this case ok thank you good morning to please the court i had my outline but i think i'm going to use judge all right actually i think that it does i concur that it fairly characterizes the issues before the court and i would say at the outset that in response to the question judge all right goes to appellants counsel it cannot reasonably be said that the prior opinion in this case somehow constrains the district court consideration of the legal and factual questions presented in the lawsuit because the prior opinion specifically concerned itself with the district courts narrow focus initially on questions that the district judge believed allowed him to make dispositive rulings many of which were system that were upheld by this court on appeal in the prior opinions but as i think already implied in her question this court should not find itself any more constrained then did the district court in not only it's a military but i would respectfully submit its obligations well and that's the point is that while that certainly can be argued the problem with that argument is that again the district judge set out a roadmap that he considered appropriate as to what he thought was necessary to determine the questions of fact in law on both liability questions and immunity questions in the early stages of the case so the district judge neither permitted discovery in that issue nor invited summary judgment on that issue and while one could reasonably argue it could have been asserted it was not the focus that the district court commanded in this court observe that great man and the  as to those not us now that africa would have to fall into those matters and which she was denied discovery and it seems to me that if you go beyond that you go beyond the remain and i certainly consideration but even if the allegations were reckless if there were if the affidavit could be revised to remove those things that is still support probable cause critics would say there's no constitutional violation but i wanted to answer your question judge  i also want to point out that that is really it respectfully a red herring in this appeal because of the issues that your honor outlined as more paramount and so let me speak to those if i need intervening cause because you think there's probable cause in the weren't already well there is but if i could return to your honor's sequence let me speak to that if i may and judge rodriguez asked this question in a i want to be sure that the court gets the answer there is nothing in the complaint that alleges in the rest without probable cause that i can find your honor and i think you'll find that the allegation is that we're talking about here are  enforcement officers engaged in a pattern of misrepresentations deliberate intentional miss representations and withholding of material evidence in the search for the affidavit the first question judge alright posed i think the first question the court has to answer is did mr winfrey jr in this case alleged a claim that he was arrested without probable cause the answer to that question is no he did not because in his complaint what he says is that the out investigation set in motion a malicious prosecution that he has an alleged that he was not falsely arrested but yet he alleges that the arrest warrant itself was fox how to how does that reason and work well he actually doesn't explicitly point indeed a stipulation that i think resolves judge overrides first question in the negative that is no no such claim was ever pled but even if it were plenty of pages twenty seven twelve through twenty seven sixteen of the record the court will find that mr winfrey stipulated that he was not suing for an arrest without probable cause specifically ms w said and i am quoting now he is not pressing neither of them because we were talking about both ms winfrey and both meghan winfrey and winfrey jr at the time ms wing said quote he is not pressing neither of them are pressing a false arrest claim they're pressing a malicious prosecution claim and she's making these statements where to the district court to a different court in a hearing prior to this submission of the summary judgment of the i said in response quote i will accept that stipulation that's certainly not how i have been defending the case with all this evidence because i understood as judge jolly has suggested that the claims against mr johnson could only be for the arrest because the undisputed evidence is he played no role itself lish prosecution is not just not state violation of federal constitution can't be more specific i mean there are certain elements of malicious prosecution that can be carved out to constitution only going to do malicious prosecution ms wang responds that is the fourteenth amendment due process claim malicious prosecution the court says the fourteenth amendment claim is a fourteenth amendment claim the facts that make up the fourteenth amendment claim may be a prosecution without due process of law ms weighing says yes so the answer to judge bell rods first question and judge rodriguez to your paragraphs i've been looking for work she has on the winfrey junior has on paragraphs forty one forty two that original complaint docket number one plant it was wrongfully arrested but i'm still having claim under the fourth amendment now that brings me to judge all right second question if there is and i think that this court would be far too liberal in his reading of the record if you're on it if the court finds that there was alternative then i'll let you go through the list right that the district judge did not address that but of course as this court has held in the supreme court has held in reviewing a summary judgment the court must consider any grounds that were submitted that were played or argued that would support the summary judgment and this of course was asserted in light of the stipulation that occurred before the district court so then if i may move into the court second question which is is the claim then time barred the answer is absolutely even if this court finds that there was a fourth amendment claim for an arrest without probable cause asserted against johnson it is time bar and the answer to that question does not depend upon as opposing counsel suggested any consideration of hec vs humphrey because as the court knows what concerned itself with the timing of the prosecution of a civil rights claim in the face of a criminal conviction we don't have that here and moreover after heck was decided by the supreme court and answered the question of the a cruel of a cause of action for arrest without probable cause directly in wallace versus cato well let me s here assuming this so he gets arrested when no seven if so he gets rest until seven if he is found this lawsuit in zero eight what would have happened in the district court when did this your court either have dismissed or state well let me let me expand your question if i may to answer if he had sued johnson for what johnson did because the record is undisputed that johnson did investigative work and then with the assistance and at the direction of the district attorney prepared and submitted an affidavit for the arrest warrant but at that point johnson's conduct ended johnson's role in the prosecution ended if you'd sue johnson he would have had a complete cause of action according to wallace versus kato because he would have been arrested he claims without probable cause so he knows that he has a cause of action at that and most courts have said well i don't want to get in the middle of this i'm going to wait and  see time after the trial yes run it well so that's the second part of my answer to your honor to judge every this is question which is if he had brought a lawsuit that also sued as he ultimately did rain the rangers  to it the sheriff who did participate in the grand jury proceedings and testified at trial the district court as wallace has explained would have had the authority to stay the lawsuit to allow those things to conclude because of course there may have been a precludes of effect as judge all rights point through a criminal conviction however that doesn't matter for consideration or the answer to judge all right second question which is is the claim time barred because your honor the the answer in the came from wallace is the sum of the lawsuit still has to be filed it is a crude and limitations is running limitations because he or she would have stayed just how our late from your point of view how much of late was this lawsuit if i can take a look at my brief i can tell you  to have sued within two years of the actual arrest and i think i have it here  was arrested on february eighth two thousand and seven and in helton versus clements this court said a cause of action accrues i'm quoting the moment the plaintiff becomes aware he suffered an injury no i don't think one could reasonably argue that and so when did he thought of the loss or he filed the lawsuit on may twenty sixth twenty ten that is a little bit more than three years after his arrest when does he become aware affidavit that well he would have been aware of the affidavit at the time that he was arrested because the warrant included the affidavit information but even if that weren't the  case i mean how he would known at that point of the snitch jailhouse snitch in the in me he could have possibly known that at that point yes and in fact in answer to your question judge  the arrest warrant and that's that record three one seven one two three one hundred eight and this is on page fifty three and fifty four of the brief and so that was october fifteenth two thousand and seven again lawyer in these matters for law for some a qualified immunity and these appear because it is somewhat problematic that these were not raised the fourth amendment claim that it's not pled or that it stipulated in the some why are we going through all these really parsing recklessness versus negligence if there are these straight up defenses that this is really problematic well first of all  lot coming from you the answer to your first question is no i was not involved until after the remains but that notwithstanding that this court as judge jolly pointed out criticized the trial court judge relatively narrow focus on resolution of this case and while i often appreciate it from this district judge i appreciate that approach in many instances and i think that this particular district judge of braces the mandate of the cost and delay and reduction act and rule six teams management responsibilities for a district judge this court is observed in this case and in some others it sometimes leads to a too narrow focus and so the answer to your question is i well i can't tell you why my predecessor did not raise some of these issues i think it's clear from this court's prior opinion that those issues were not really welcome or invited at the moment that the court or the district court decided the original summary judgment but it's not an argument that we should assign to another judge to join district judge focused on the issues initially that he thought were important to be read saw and he set a roadmap for the parties to follow that course to allow him to make the resolution of those specific issues i don't think my predecessor was intimidated by the district court i think my predecessor thought that ensuring the district judges specific questions was appropriate at the time now to the broader question of whether the district judge should not continue to preside over this case let me say first i can't see how this case gets back to the district judge with all due respect but if it does there is simply no basis for switching judges because the pla doesn't like the way the case is going which is exactly what's being assertive here keep in mind if i may that we are now down to one claim against one defendant and everything else the district judge did in this case found favor before this court and was affirmed by this court so the suggestion an unpublished opinion which is not presidential by the way well but but my point judge is in answer to your question of the suitability of this particular district judge to this particular case he's he's that in about nine hundred right now on this case so this exhaustion that he's doing anything that any district judge would not have done i think is is most unfair but i don't again i don't think you get back there because if i could return to the outline and i know you'll stop me when you when you think it's appropriate but i don't part so that if i could get back thank you your honor if i could get back to judge overrides outline the third question was did probable cause exist once the court does a frank's analysis and the important point there is that's a question of law not a question of fact the appellate range this is the idea that the jury could decide whether the revised affidavit would be one that would support probable cause but in davis versus strain which is cited in the briefing heart procedure bryan and i believe versus maybe all cases from this court and the supreme court's opinion in frank's it's quite clear that the question of whether the revised affidavit under frank's analysis would support probable cause is a question of law but not only does the court have the ability to make that independent legal judgment and of course this court reviews that under no reviews that to no go on appeal but we also have a significant amount of evidence in the record that demonstrates the accuracy of that assertion and it is in both the october pretrial challenges to this evidence before the criminal district court in which the questions of campbell's testimony his statements were raised efforts to preclude him from testifying at the criminal trial were asserted as were the allegations involving pike it's sent drop and by the way let me say the record is undisputed that johnson did not know of problems with the cent drop until after the criminal trial problematic about this informant and it's you make it seem like it's a homerun and it's not really at all and it's got all sorts of problems and is that misleading such to an officer should be liable for that but no for two reasons judge it the what the one that i was just saying which is let me back up and say she johnson's affidavit was again the undisputed record shows largely crafted by the district attorney and his reliance on the district attorney is certainly reasonable but regardless as i said these questions he's very questions that your honor were raised before the presiding state district judge on motions to suppress this evidence at before the criminal trial on october seventeenth i don't think it's analogous to the fact that they're going to still let him testify to me doesn't tell whether or not a reasonable officer should be omitting major things that make what he's putting in there seem unreliable but i don't i don't think it's analogous to the you ultimately let this person find probable cause to exist for the prosecution so the question here you're question number three is under frank's analysis just probable cause exist one the district court correctly found and i believe this court will find on review that yes under frank's analysis as a matter of law this court would find that affidavit would support an arrest but but beyond that the district the state district judge having considered including testimony much more develop record than the affidavit the exclusion of pike it and the exclusion of campbell still found probable cause to exist for the arrest and to put a fine point on it at the conclusion of the prosecution case in chief the district judge still denied a motion for directed verdict finding that there was sufficient evidence to support a conviction which we know is significantly more robust ok want to shove on time and again in college if you're going whole question of just that's all i want ok but may i say judge that's because the whole question of the of the probable cause analysis and immunity were raised in a broader sense on remand it's all part of the same question if you get that we get this far and you get to argue intervening cause you still have a problem with a few days or weeks don't you i'm sorry you still have a problem with a few days or weeks because the arrest took place for a two thousand and seven so you would still have damages arguably until the grand jury issued its indictment except that the grangers indictment insulates the claim because if they independently found probable cause so we know then that probable cause existed at the time of the arrest and this significant fact there in answer to judge all right to question is johnson had nothing to do with the grand jury's indictment he did not appear before the grand jury and there is no information that any evidence that he collected or reported was used before the person and he knew him and he hates in that sort of thing absolutely no evidence of that whatsoever the evidences as as his counsel for appellate pointed out the teachers at the school told johnson that meghan had a relationship with the the c didn't and that they were seen quarrelling and then independent information came from different sources including campbell that seem to keep pointing back to the winfrey so the answer to your next question right or wrong and we really don't know but right or wrong johnson and rogers i think and huff and ranger doffed and the prosecutor honestly believe that the winfrey's committed the crime respectfully submit is quite adequate to make community clear one is clearly established law there's simply no clearly established law that would have told johnson that his affidavit that frank's beginning with franks and certainly through the development of the cases cited in the brief the complete accuracy in the affidavit is not what the constitution stands by that secondly would be the question of whether the plaintiff has demonstrated as is the pla burden that no reasonable officer could have believed that affidavit to have been constitutionally permissible or constitutionally firm and the answer the question is not only has the appellate failed to present any evidence to disprove that as is his burden the undisputed evidence in the record is again that ranger ok i mean i'm sorry you're getting a little long winded now even for me if you'd like me to sit down  was sure rogers as well as the district attorney all believed that that affidavit was appropriate so the only evidence that the court has on the question of whether reasonable officer couldn't believe the affidavit was appropriate is that it i want to turn to your attention to the fourth amendment whether exist or not i mean what are the stipulations before the district court yes what i said what i said in the hearing for the district court in this is on our way twenty seven twelve to thirteen i for for some under the fourth amendment for arrest using legal process such as a warrant without probable cause in a custom lynell this court said that the plaintiffs had both a fourth amendment claim and  fourteenth amendment claim now in that case that guy was convicted after trial on this conviction was overturned but this court said in remain ending in saying that he could retry his fourth amendment in fourteenth amendment claims it said that the fourth amendment covers pretrial detention without probable cause the fourteenth amendment covers what happened after he was convicted and was incarcerated pursuant to a conviction and notably in cost a lot of this court said his fourth amendment claim and his fortune to mclean the the fourth amendment claim is timely because it did not accrue until favorable terminations and that so we're conflating different issues here at this point so let's stop on just the fourth amendment claim so you the problem i see it are restating the wall accurately from what i can recall but the promise you didn't it's not played in the complaint and so is your argument then there was tried by consent by all of the parties is that your argument to get around the pleading than remaindered for discovery on this specific issue and then we conduct discovery on this issue and the first time this this argument was ever raised was in the summary judgment briefing on remained and the district district i mean they raised this in front of the so right so so where did that get us so everybody understood what this claim was everybody understood what this claim was in the prior appeal everybody certainly understood what the claim was after the opinion by the prior panel and we did discovery on this and it was tried by consent yes ok so then we get to now the limitations argument can you address what we heard from opposing counsel or about limitations so the limitations issue it's  been decided by this court mr winfrey's claim did not accrue until favorable terminations when you say been decided by this court you mean in this case now you mean end up  what we have previously held about when these claims crew and what the court had previously held going back to the eighty's about when the claim accrues is that it accrues at favorable terminations was this post wallace i forgot post wallace two thousand and three jr have brought a claim against johnson in the federal court while he was still being prosecuted no under heck versus with us so it is true that we still have a problem between the time of the rest of the grand jury but let me tell you about the evidence that we have that shows that there was take the evidence of taint is that defendant johnson is still claiming today to not have known about pike its report and we know that that is not true because he himself admitted that he had all of the reports and that he looked at them in drafting the affidavits and that he put specific very detailed information include false inculpatory information about the truck trail and to it and to not have the exculpatory information has had some reports tell you whether he knew that it was problematic i thought that it's his claim is that he did not know that there was a problem with it the report i could report itself said that it was him and sent that was used and so that's the whole issue i mean that he's that deep into it and he'd realize oh my goodness this is a problem that's heat that doesn't tell you that winfrey jr son so what explains why he put in richard branson jr in the drop trail i asked him that at his deposition and what he said was i don't know that was his answer to everything when i asked him about the inconsistency using campbell statements why he put in stuff that when you know that campbell adds had satter didn't say he kept saying i don't know i mean he had no explanation and the reasonable so in reasonable inference from this record is that he knew the going back to the intervening cause my point about it is that to this day campbell or johnson is claiming that he he you know he is denying that he knew about pikachu port and so given that it's inconceivable that that's that that that that the hit that he told the grand jury otherwise richard went for junior's trial which and so the inference from that is that he did testify in front of the grand jury and regardless of whether johnson himself i mean even putting that issue to the side regardless of whether johnson himself testified for the grand jury the question about the grand jury is whether or not they had all of the evidence and all the facts before them and what we know on that record is that they could not possibly have found probable cause without campbell statements and without the false drop trail and even if it works for and there's nothing by the way that shows that rogers testified before the grand jury but even if that were true we know that rogers also part things in his affidavits in the search warrant and the arrest warrants i mean that was discussed in the prior panel and so the point is that the grand jury could not have had probable was done using hammond's scent but does a degree injury have to do consistencies i mean can't you just put your best foot forward i'm not saying that before the grand jury do you have to show all of that is that have indeed that's true but in this context i think the question when the court has looked at the grand jury is whether or not it had all the facts before it that would have a cause and if it didn't and we say that the record here conclude that concludes the argument in that particular case but i would like to compliment both lawyers in the sense that you have been helpful and assist in the court in the trying to understand the case you both