does not affect the crime so if the state violates it or the sheriff's whoever violates it the judge is not going to dismiss the claims or or take any adverse action to the underlying criminal proceeding and that the rights either hevia scorpius if you haven't had your would you mind looking at age eleven you know your are we argue that it was released where did it come from you know i do not know where that came from your honor it's a person i've seen that now we are arguing i think very clearly we were arguing that they had to release him and that it was his liberty interest constitution respondent was indeed deprived of his liberty for a period of days but it was pursuant to a warrant conforming for the purposes of our decision to the requirements of the fourth and then the last that paragraph but we are quite certain that of detention of three days over a new year's weekend does not and could not amount to such a deprivation would you comment on that tell us whether we have to  follow i don't think baker has any precedent valuers a completely different statute in a completely different situation you have a series of eight law statutes that create the right to a hearing in twenty four hours and i believe in this one it was the supreme court ruled the senate hearing had to be twenty four hours those cases all the way i've read those cases is that the liberty interest is the right to a hearing what procedures are appropriate is determined by federal constitutional principles and in those situations we're talking about three days four days you know the cases are all over the place pending on the facts of the case and circumstances we're not talking about a statute that we're talking about a statute requires release requires action what is the officers to do th mojave county and this is what they said in mojave coconino and you have apply in other sparsely populated counties local law enforcement officers will have to decide in each case of a weekend arrest whether to transport the accused to the nearest magistrate on duty they can clearly the law is not changed state courts state statutes can create a constitutional right if there's one of those if you're right your guy suffered i presume nothing more than nominal damage is that right well that's that's the issue that i think we get to hack about because we can go forward even to have situation or nominal damage to challenge the procedure i argue that there is more damage than just nominal damages are you going to argue before the judge you've got a guy who is going to get out three days early but ten years older instead of being with his morning may please the court my name is jim zealous and then i represent mojave county the appellant's in this case robert craig is currently serving a ten year sentence for attempted child molestation and he's currently house in the department of corrections this case center centers around his request for money damages for the first two to three days that he spent in jail on those charges mr craig was arrested pursuant to a grand jury arrest warrant based on probable cause he doesn't challenge that mr craig was seen by a magistrate the monday after his his arrest which occurred on a friday and not just a magistrate but a spirit court judge judge kohn that's a you dispute the should have been released within twenty four hours i don't dispute the rule i understand why he wasn't released within twenty four hours our argument was that that was based on a policy no mojave county but of the mojave county superior court ok that's that's a separate question right i believe that it is a separate question do you agree that the state can create a liberty interest not under these facts and i don't agree with al but in general after standen i think that that is a questionable proposition i'm not sure that the state can create  a liberty interest simply under its own rules i think stanton has moved the analysis away from that and has required the courts to ask themselves that whatever the state procedural rule that may exist or may have been violated what the what the courts need to do is determine whether there is a separate federal constitutional right that's been violated as it's defined either by the expressed terms of the constitution itself or the interpretation given to the constitution by the supreme court or the ninth circuit or the various other courts i don't think after sandy and you can look at a simple supreme a simple state court rule creates a constitutionally protected and jurist he says that it's not just a simple rule it's that's what distinguishes this case from the new york case it doesn't just say you get a hearing you get a hearing if you don't get the hearing you have to be released from confinement what distinguishes this case from the other cases i agree that the the the rule of criminal procedure that we're dealing with in arizona is very absolute it requires release as opposed to requiring a process but i think that we we need to do is take that analysis further let's say that the law enforcement agency doesn't follow the rule and doesn't release the person what is that person then entitled to from a federal constitutional standpoint because when we look at the fourth amendment fourteenth amendment and the due process clause it doesn't say that the government can't deprive a person of property or liberty certainly they can do that what it says as they tend to deprive that person of property or liberty without due process the baker case has defined what federally appropriate due process is and a situation like that and it so happens that in this case mr craig did see a judge within the timeframe that's clearly indicated by the baker baker's a fascinating and interesting case as it applies to these tracks for a number of reasons first is because the facts are so incredibly similar between the two particularly the t imeframes and the fact that the arrest started with a valid warrant based on probable cause but also on the analysis of the difference between the constitutional violation and a potential state tort law violation rules are different though right the rule in baker didn't require mandatory release i agree that the rule here is different than it is and baker and the rules are different than it is here in that it wasn't and in watson even the second circuit case that followed fight but going back to the point so if this person is deprived of their liberty because they're not released in twenty four hours let's go ahead and say that that's the case what is what are they entitled to what they're entitled to is a hearing to address that deprivation of liberty and whether it was appropriate or not the hearing that's required under under the supreme court's decision is in baker is to get to a magistrate around a three day timeframe at least that was what was acceptable in that case that's what happened with mr craig he was he was incarcerated on the friday he was not released on saturday after twenty four hours he did not see him magistrate on saturday but he did see a mean if it was a week i'd look at some other cases i suppose i was pretty satisfied with baker because of the similarity i know there are some cases that analyze different time frames and we know one hundred fourteen days isn't going to do it and i think fifty days isn't going to do it i don't even think eighteen days because it but i know three days is good enough because baker tells me that he can also bring a lawsuit under state law he has a pending lawsuit when in state court how does that figure into whether or not he has also a federal clik the analysis i think is completely different the fact is he does have another remedy to my question is the fact that he has a state remedy does that affect whether he has a federal federal remedy  i'd like to comment about that the heck vs humphrey decision as well because this case i think is perhaps a lot simpler than the standard type of liberty interest analysis because if this court determines that this case is barred under the dr in effect versus humphrey then you don't have to go to any of these other areas this man serving a ten year sentence he was given pretrial credit which was made part of that ten year sentence and that happens to include that first weekend that he was in jail not only that in the recent a can't this there was an actual dialogue between mr craig and his counsel and the judge on the fact that he was going to be getting pretty trial credit and mr craig fully accepted that pretrial credit that's when your conviction with the pretrial credit incorporated into it was never challenged was never overturned it wasn't even an arizona criminal procedure rule thirty two petition offered on it on that on the sentence and now he comes into court and he wants damages claiming that two or three days of that confinement is unlawful i think this falls squarely under hector's as humphrey can't have it both ways you can accept pretrial credit have it woven into a lawful sentence and then come into court trying to claim that you you are entitled to money damages because somehow a part of that lawful sentence is now unlawful that's that is precisely what hecht versus humphrey prohibits and there are certainly as the implication between the two cases is inconsistent then that's what it takes for a case to be heck barred this is a unique case but like i said i think it falls hackett five twelve u s forty six is quote unquote now but if the legal conviction or sentence isn't challenge then quote the complaint must be dismissed hundred five and changed the way we analyzed situations like this tells us that simply relying on a state rule doesn't cut it if mr craig was given the due process required by the us constitution and the interpretation of that constitution then he does not have a nine hundred eighty three claim even if he might have a separate state tort law  that they're looking at the substance now what is the law they're not looking at whether a challenge mandates anymore and if you look at those cases they focus one on one thing post judgment trial procedure tail procedures supreme court doesn't want