reviewing a dismissal of an order dismissal a complaint of section twelve b six we're not interested in any allegations you might make as an attorney in a final jury argument we arrested in your points as to what statements were made in the complaint  mail and we state a cause of action and the first thing i'd like you to do is to tell me what cognizable interest under lupon did she alleged was invaded it is neither council or the court was able to find opinion that dealt with retaliation directed at here a father to get at their daughter for tuesday chill her first amendment rights we made those allegations in the complaint we rely on the manner see no environmental center case in the kook cases that we've cited in our previous that the district court here  ruled as it did regarding ms mail and on the basis that she did not show an actual injury to her first amendment rights part what was there at any point any allegation that ms mainland environmental issues but was not but was intimidated and therefore did not give a speech and lost an audience is there any facts which in any way allege  actual cognizable interest which has been denied her our complaint was pretty thorough and letting the facts of this maryland act activism as an environmentalist and that and now let me ask you one more question did ms mail ever allege that she was seeing intentional infliction of emotional distress at the sight of seeing her father prosecuted don't want to get back to your question though because we do clearly allege without question in the complaint that this was conduct intended to chill her first amendment political activism and that it did in fact have an impact on her  is she is not just a casual environmentalist and the complaint sets forth the twenty year history she has and that the county suing on behalf of the sierra club and being successful to where she truly is an enemy of county planning and the wine industry in napa county and she at the time of these matters in two thousand to two thousand and three she was very active in napa county said stream setback ordinance campaign and so it was contemporaneous with her activities their one act or event did she not participate in because of this chilling effect well we don't allege that it did actually show her but we argue however under mendocino environmental cent and pool that that's not the standard of this court as set forth by this court that all that need be shown is that a person of ordinary firmness would be chilled not his mail and we do not have to show that she had was in fact and i think the evidence is manifest there was an a chance here to chill her to attack her have her be on the target of her first amendment rights to back her off to retaliate against her is long as it would chill a person of ordinary further mysteries able to state a cause position you're here taking and if i had been on the ball i would have alerted you prior to oral argument on this case what i'd like to do is make sure that you have a chance both sides within the next week you want to  submit i think a two page letter brief is all you need if you care to respond to this case but i don't want to have a sort of a sneak attack that all of a sudden you see a case mentioned in the just position that you never heard of and the district judge never heard of and so on but did you get  stand the proposition that if those play that's where have been a secret redress for constitutional violations directed at third parties related to them how can it be that ms mainland here is unable to seek redress when this was clearly intended to chill her she was the target of this and it just was indirectly through her father well she might or might not of i mean obviously you've got some evidence for that that that  bottom with the exclamation marks this is her father's on so and if i may there's so much more evidence than that that memo alone besides that incredible entry on the bottom of that memo for your information bill them all in this christmas father all in capital letters with exclamation points and underlined above that is a whole paragraph all in capital that all the letters requesting criminal prosecution where the thank you in capitals we also have the amazing testimony that ed colby did this memo without getting approval of his boss patrick lynch the assistant planning director that was his testimony patrick lynch testified under oath that he didn't know about it until afterwards patrick lynch testified later that it was clear people went behind his back the whole scheme in napa county is voluntary compliance that is their policy in their practice that's what they encourage and make your best argument as to why you think this is malicious prosecution well unfortunately the district court didn't analyze it as a malicious prosecution case we did refer to malicious prosecution in our complaint it's been there from day one but it wasn't analyzed as a had was in that scheme with patrick lynch was doing what he was supposed to do and without his knowledge at colby sixty getting prosecuted climbing partner let me ask you first straight out where do you that there was a lack of probable cause for prosecution i mean there's no question that he started cutting the road without a written permit correct isn't that a a case of violation of the napa ordinance well the case well it they couldn't prove beyond a reasonable doubt they couldn't prove the necessary mental element whatever that the primary sure showing a probable cause can be defeated by showing that it was developed in bad faith and here it was mr dumb all it was doing nothing other than what was agreed with between him and the system planning director patrick lynch he was specifically told and it is clear on the record that as long as you follow the direction of true asperger in the county consultant doug next and get your russian control plan per application in there is no violation there is no no criminal violation now that his testimony was there testimony that went the other way or i don't remember the conversation i mean the this happens sometimes that what i think i heard somebody else doesn't remember that is a russian control plane application in in september and they denied it not because of the work he was doing on the road at that time which they knew about they denied it because a manufactured reason that he didn't have building plans building permits something that mr pollack concerned the record said that that was and that never happened people are allowed to put in building permits and plans later all the time so so the erosion control zimmerman testified that nobody has ever been prosecuted for work they did that was ultimately completely approved so this this probable cause was manufactured and that defeats the prim assistant planning director patrick lynch and then thereafter all he did was what was agreed upon with patrick lynch and then without patrick lynch's knowledge mr colby goes behind his back as mr lynch confirmed and refers mr damo in for criminal prosecution clearly because he wanted to poke back and retaliate at the prosecutor not to check back with lance before institute in the prosecution that appears to be the case that there really was not there was a horrible failure by the district attorney when he saw that memo and inappropriate that was the first think you should have done is to call and say what's going on here this doesn't seem kosher and you know learn the facts talk to drew ask i'm going to make sure i understand how much we know and we don't know do we know yes or no whether or not prosecutor check back with mr lamb i believe there is an e mail on the record between  and stopped that work on the road but he didn't do so he lied in wait and he let mr downer on follow what the agreement with mr lynch was to follow mr asper going to mr nix's recommendations and he did just what he was told to do what was best for that hillside only did later be prosecuted and the statistical analysis here i think feeds also not just the selective prosecution allegation but the malicious prosecution they just do not prosecute people for these things they have this voluntary compliance scheme death but it's a matter of discretion by the district attorney who has to run for office the issue here is not that the issue here is whether as a matter of law there was probable cause when there was a prime fish a violation of a local ordinance which requires a permit before you dig a road period tell me why that isn't probable cause well you might want to vote against the d next time he comes up well there is no you only solution i think i've addressed it the probable cause was manufactured in bad faith that they set him up local cause was you've got to have a permit before you dig right that she she says otherwise but mr damo and his testimony is that she was told that he didn't need any permits larry bogner told him he didn't need a grading permit let me have help me out here we're down to a minute and a half and i you probably like to save some time so let's hear from the other side and then we'll make sure you have a chance to respond thank you brief when he refers to the fact that if one is a relative close relative in this instance daughter that one is quote necessarily close quote his word not mine injured as a consequence of the distress to the father whether th evidence is not really an issue on the appeal mismanagement question is was there an allegation in her complaint that she was injured as a result and her only injury is h certainly this thing and that is that there was no old no evidence no demonstration of any kind other thing that she quote necessarily close quote what have been injured because of her perception of distress to her father enough so that if a motionless county official wants to strike back it's very easy to strike back and retaliation criteria for the injury and at the fair whatever those criteria are at least there has to be some manifestation of the injury under your your suggestion there has to be some evidence that demonstrates that there was a harm rather than merely a subjective reaction of distress if you do that timing welcome to federal tort law because as you know it will never not be for any loving relationship yeah i was distressed that dad had embezzled money from his company and he was being of questioning the district court and i'm now assuming that next question is up for grabs as indeed both of you have been incorrectly assuming but now for the moment i'm assuming that these has not been decided by the district court held as a matter of article three that there was no standing and in order for there to be no article three standing there has to be no injury in fact i think it is commonsensical and would be instantly agreed to by any of us that for most parents children relationships if i injure the father the children will be to some degree distressed whether that gives you a cause statutory question filtered through with a constitutional question there are under the first amendment a retaliation a law under things like title seven is very protective against retaliation that is to say if you don't know whether you next sort of office party i am deliberately excluded from the invitation list that's retaliation under article under title seven provided you can prove that you were in fact of the british exclude that's correct  what i'm not arguing fact as to whether this was the motivation i'm assuming that you don't need to concede that list notation at the bottom and so on of those really was done for that purpose so i'm only arguing standing on that assumption not on the proof i mean by that that could get that goes forward but if we're talking retaliation law coming out of title seven and if the allegations and his version of the facts are right this sounds like to me now there has been a showing or could be a showing if it went to trial and a jury could decide that the motivation for bringing the criminal prosecution against the father wasn't hard to retaliate against the daughter and you don't need to concede that choice but to agree with you i think there's ample precedent that allows you to make that theoretical proposition you know that's not that's my problem with this case and that's my problem with legs things go they go the other way i mean it was where you have to that eventually migrate is to the presence of the evidence what are the material facts that are applicable to this otherwise inviting theoretical situation you've got to get there right and when you get there generous there's just a plain statement short plain statement and so on i think that's sort of injury probably is fairly will then the complaint if you read it  and on a day which means ok it's up for grabs we don't know but i actually think if we treat it as a summary judgment there's evidence that goes both ways there's evidence that goes in their favor and there's evidence that goes in your it's just a statement in capital that what the from which one could readily infer that the motivation for seeking the criminal prosecution is to get after it in which case you would go i assume if not to the author you would go to the person who made the decision and determine whether or not that person was influenced after all by that statement he testified to plainly that he was not he testified people sa might remain a question of crime or fact as to retaliate actions that the district court here didn't get to because the district court just dismissed it saying there's no stand discussion it's in the briefing but in my view like judge also what's not implicated as part of the complaint assuming however that it was as we know that there was i believe this a matter of  was probable cause and we know for not only because of the factual background but also at the time of the criminal case the the defendant did have the opportunity to challenge probable cause there  the depiction of what people said and who testified as as as to what is troublesome for for napa county to the extent that it concerns you there has been reference to the fact that mr lynch testified that people went behind his back and that there is a citation given for that if you are inclined please read it that is not what he testified to he also does not testify to the fact that he disproved even later what mr colby wrote in fact his testimony it was that it was just a matter of style and he would have written it but colby did so to the extent that that these assertions are  made that there were these definitive remarks you're not going to find them in the record last example would be the reference that was made to in response to one of your questions whether or not mr down one was given a  had have written a letter but if you read the letter you'll see that it says it was his understanding and by the way if only because as a matter of courtesy one should also be reminded that the four of the criminal case was filed and by the way i don't think it has any obligation whatsoever to either contact or seek the approval of the referring department before the d a decides to file the criminal complaint it doesn't need plannings approval discussion and to the lawyers understanding about what was to be forthcoming and walk is in the record so this was not there was no backstabbing sneaky middle of the night aspect to so those remarks are at least as i say funny for me i want to have clarified otherwise i think that that if this single cause of action is to be construed as malicious prosecution and you'll note that we have not so much as alluded into this second i don't think two selective prosecution which was the source of concern in the motion it was certainly the basis of  ruling if we have moved or shifted to malicious prosecution then in my view was a matter of law there was there was probable cause here and as there was probable cause assertions i made are all supported in the record i cite directly to the testimony that supports everything we've asserted relative to statements by mr lynch and the like and judge they had to answer your question  page six line five of our complaint in the record it's page number zero zero zero six of the excerpt on record does allege motional distress somebody half of chris mailing and absolutely injury can be assumed here to ms mail and her father was attacked because of her political activism how could that not cause that's manifest to set someone back on their to upset them to be scared to think the government would do this now in this country that that's not proper they're entitled to their day in court this should been a horse race in her title to have the horse race and i tried that criminal jury that trial i was the trial attorney i know why that jury returned  we think counsel for their argument