i'd be able to argue the first twenty minutes on the issues regarding equitable tolling and mr aaron argue for minutes on the underlying claims and hopefully we can retain two minutes for rebuttal this case is about a cruel and equitable tolling in order to improper source of information that was put into the second search warrant that was in the midst of the third trial i thought it was the second trial where he admitted that he had obtained information with regard to where the gentleman lived by looking at his personnel file then confirmed by doing the license record do i have that wrong factually factually from our review of the record that occurred on april ninth of two thousand and nine when sergeant powers made that statement that was during the third trial so he didn't say anything during the second trial in two thousand and five to the fact that he had gotten this information by looking at these personnel records that's your position yes you additionally his civil rights claims that he brings now could have been used to collaterally attack the underlying criminal conviction and under heavy humphrey a cruel day would be you don't have a copy of your own brief you came to court without a copy of your own brief is this your honor i was under the understanding that we brought a copy of the opening brief i apologize if we did not you came to court yes you're arguing that there's equitable polling on all of the causes of action your point is pursuing or at least some of them your honor if you find the these are cruel dates to be  unpersuasive we also argue that equitable tolling would preserve the conspiracy the a lawful search and seizure claims what's the ground on which you claim equitable tolling and for exactly what periods of time oh the grounds towing the facts would be your honor that out of the same set of facts in the same actions of the name defendants arose multiple avenues of remedy and then mr pointis diligently pursued two of the available avenues meanwhile his federal claims would be told under the doctrine of equitable tolling would you agree that if we take two thousand and five as the kickoff to the date when he knew or should have known that he had these cause of action it really is no theory of equitable tolling that would be enough to eat up the six years between two thousand and five and two thousand and eleven we have to get to two thousand and nine in order for the equitable tolling argument to have any traction is correct no your honor in fact because mr point has was diligently pursuing the available avenues of remedy from two thousand and three when the criminal charges as well as employment proceedings were first launched against him and he diligently pursued those through exhaustion respectively the employment proceedings in two thousand and nine and the criminal proceedings in february of two thousand and eleven that that entire period would afford hanne equitable tolling of his federal claims i also see that i am well over the time that i had planned with  permission of the court i would be happy to answer any other questions or turn the time over to my fellow student  thank you your honors for this opportunity my name is harry aaron a law student mr pointis applause of all cognizable claims against the name defendants for their violations of his due process rights we asked the court to reverse or  mand for two reasons first there was a conspiracy to deny mr pointis a fair terminations appeal process second the vindictive prosecution claim i first wish to address the conspiracy charge and i see i only have a minute so i just want to make these points quickly clear under loudermilk mr poynter as this case is guaranteed a fair terminations proceeding that's fair from being that's free from being tainted here mr prentice was denied that right under open the tab ten actually tap nine my mistake your honor and we go to page eighty four i believe i'm sorry for this your honor or for i'm wasting my time seven ok so what's there in there mr point has claims that his fourteenth amendment due process right which is mandated has been violated and this is a procedural claim on but that's not enough  violation do you understand the question yes your honor ok just answer the question don't the for you know the bush what is and what facts do you allege that suggests something wrong with the hearing his lack of knowledge of the fourth amendment violations did not give him the ability to see all evidence levied against him and that taint the procedure i'm so you're lying on his lack of knowledge as a due process violation the lack of knowledge that mr tarsus and sergeant powers would not grant him because they can't continue to hide the ball against them so the way they continue to hide the fact that they illegally searched this file and then use this illegal search to as the basis of a falsified warrant your the illegal search of my home by my supervisor was ordered bike so this is legal search regarding and it's incorporating your honor we're talking about the here i think we're talking about the hearing yes your honor under our contention i us to reverse the district judge based on the fact that you're standing there telling us that's what anchor is on the complaint for your theory where where can we say look at this  didn't he know that he was injured in two thousand and three i mean he stated that he knew that he couldn't his home address from his license but because his license would not give somebody access to the permission and second in the california courts deal with this completely and us going to second guess the california courts in a way that's clearly a robber your honor first to address your first question there is california has the police officers bill of peace officers bill of rights and under california everything they had done was was kosher and by saying stating that he knew upon two thousand and three would be inserting that mr point has had and we're allowing mr poynter as in saying it is right that you had no faith in the system and about the process of the terminations not the actual underlying claims of determination your honor thank you thank you good morning honors deputy county council marcy berkman for the defendants how are you thank you the first question the court asked of plaint the parents council was regarding the cruel and the court is correct that the first time that sergeant sergeant powers testified on the stand that he obtained the information the address from the personnel file was indeed during the second  vs humphry argument with regard to the fourth amendment search and seizure claims and thus never preserve that argument for appeal and that even if they had made that argument that with respect to the fourth amendment search and seizure claims those claims would only be barred by hack if it would have been if the underlying case the criminal case would have been necessarily invalidated by half or says humphrey argument however in the first amended complaint and in the entire evidentiary record there is no evidence that anything seized during the allegedly invalid searches was used in the current or in the criminal complaint the only facts the only arguments that plaintiff ever makes is that a deed printout which can be obtained from the public records and in fact was was used in the terminations packet and photographs that the supervisor took of the house were used in the termination packet there is no allegations anywhere that anything during the allegedly invalid  due used in the criminal complaint and therefore even if the pilots had properly preserve their head vs humphrey argument and made that argument before the reply brief distance or just because there's a factual issue two thousand and nine you say wrong or you're just reading the record wrong in two thousand and five he did admit on the stand at the second not the third trial that he had made use of the personnel file and  knew that in two thousand and five six years part of is that your position that's correct in fact he admitted at both that the second trial and the third trial the second trial and the date of the transcript is a page fifty six of the original excerpts of record and the testimony itself is page fifty eight of the original excerpts of record i believe those page numbers are to the hard copy the page numbers from the electronic copy that appellant filed are slightly different thank you whether or not in the second time evidence from the search might be presented until the case is over until the criminal prosecution is over why wouldn't the defendants have still ongoing criminal prosecution and therefore it's premature to bring the claim until the committed charges have been dismissed it just seems to me the fact that ultimately this evidence is not actually used in the criminal is the information that would have necessarily invalidated the criminal case here that you don't know until until the criminal process is over you don't know what toles the case where the constitutional argument would necessarily invalidate the criminal argument i think the policy persists in that your honor is a spouse saying is that perhaps one might have i don't think does this but that maybe there is a case to be argued that no civil cases ever be brought into all criminal cases and the appeals are finished because only after that can people know exactly what happened in their criminal trials that as a possible policy ar my understanding of hack is the argument if you can make if you were defending that lawsuit i couldn't make it based on half i think if i were arguing for an extension of the law i might try and argue that as a policy argument if i wanted to argue what you're on are suggesting that no constitutional nine hundred eighty three cases can be brought while criminal appeals are pending but i don't believe that the current state of the law under the hack heck decision holds that i have only told the accrual of the case if the constitutional issue would necessarily invalidate the conviction and in the current case there's no arguments that any evidence was even used in the criminal trial at all at all focuses on the germination proceedings right in your position if i understood it earlier is that the only argument where they preserved the hack argument is the vindictive prosecution argument there is no they did not even offer the hike argument in and there is no mention of a two thousand and five of a two thousand and mr sergeant powers admitting on the stand the second criminal trial we have the transcript of powers testimony this is your honor if you look at ted ted and the transcript from sergeant powers testimony on the last page in tab ten it says that it's from april thirteenth two thousand and nine at nine am it does not say two thousand and five your honor and we ask you to find that the mr pyne says was put on notice in two thousand and nine and not two thousand and five of the claims that mr powers had illegally search this file and that sergeant powers a legally searches file and this falsified war we asked you to reverse remand for further proceedings thank you very much your honors and thank you for this opportunity is mentioned is limited prosecution so do you have ahead of us humphrey arguments on appeal yes your honor if you look at the underlying public policy of why the supreme court initiate the role of hackett's so that it's not used as a sword by criminal defendant