county over the state of arizona a successful prosecution of him on twenty eight counts of felony murder for an arson fire that occurred in downtown tucson arizona in december of one nine hundred seventy the issues before this court are whether the eleventh amendment bars taylor's claims against the county and whether this court has jurisdiction over the appeal the answer to both of those questions is yes i will start with the jurisdictional issue first this court does have jurisdiction to decide whether the eleventh use me how do you distinguish solar city which distinguishes between community from suit and immunity from liability and it appears that emphasized in your reply proof that you are not talking about anything other than a bar to substantive liability yes how is this how is this any different from solar sending this situation is very different from solar city first solar city did not involve in hundred three cause of action nor did it involve assertion of eleven the minimum unity rather solar city and volved an affirmative defense otherwise known as the parker doctrine it's also called state action immunity and they're the defendant it to do a unilateral appeal without any certification by the district court trying to assert that the parker doctrine was like absolute immunity was light qualified immunity and it clearly is not  eleven the minimum unity like absolute immunity and qualified immunity is an immunity from suit it's an immunity from having to go through the burdens of litigation actually having the but that's not what you see that's not what you said in your reply roof you were very very clear it seemed to me that you are not claiming that a bar to the federal courts ability to hear robert you are asserting a marked a liability i mean you specifically say in the county did not assert that the district court jurisdiction but you're serving a march eleventh yes your honor and i think that those statements i think you're elevating form over substance it's very clear when you look at the actual motion to dismiss when you look at the court's order regarding the denial of the motion to dismiss as well as the other aspects of what occurred at the district court that all pima county was saying was that of course the district court had jurisdiction to decide whether the eleventh them and i mean  arguments were made in response to taylor's position that the county had waived eleventh amendment immunity by not objecting to the city of tucson removal of the case to federal court and so what the county is clearly saying is the district court had jurisdiction to decide whether the eleventh amendment immunity applied nothing more and nothing less given a pima county as expressed assertion of eleventh amendment immunity before the district court this court would effectively have to overrule the decision in court has to a find appellate jurisdiction lacking this is important because cortez which is a two thousand and two decision out of the circuit found that eleventh amendment was appropriate for  no your honor it's not and i'll tell you why the decision that control is not that controls is not supplant the decision that controls is the one thousand nine hundred three supreme court decision in puerto rico aqua ducked the swint case involved  asserted eleven the minimum unity tried to tack their final policymaker claim on to the individual defendant's assertion of a qualified immunity that is not the situation in this case here pima county clearly asserted eleventh situation than existed in either so went and the solar city cases so this court when it initially accepted jurisdiction in the fall of last year properly relied on the supreme court decision in puerto rico aqua docked as well as this circuit to find that the eleventh amendment bars taylor's claims against the county even though taylor couches his claims in terms of mondello ability he is specifically complaining about the alleged misconduct of the state prosecutor he attempts to tie the misconduct consisting of the decision to prosecute him as well as decisions made during the course of the prosecution the use of certain witnesses as well as a measure of failure to disclose the brady material as a basis for the mono claim because of the manner in which he is asserting now liability and because the mondale liability would be depended upon the conduct of the state actor the eleventh amendment immunity applies the cases that support this proposition are the winner of the san diego cases out of this circuit and two thousand the can and be polk county district attorney's office which is a two thousand and twelve decision out of the circuit as well as the two thousand and fourteen decision in jackson  bars an additional case would be cotton v county of san bernardino it was actually affirmed by this circuit on different grounds but in that case the district court had found that the eleventh amendment bar claims against the county because the conduct of the prosecutor was the result of prosecutorial policies for which the county could not be liable i would like to reserve a few minutes for questions so therefore if there is none at this time i will save the rest of my if court good morning john leader for louis taylor the court's most recent order is correct on jurisdictional issues and i think what matters most is that although the district court certified several issues  to be on september seventeenth or september thirteenth of seventeen this court denied to exercise that discretion therefore it's no longer a discretionary interlocutory appeal and you have jurisdiction unless barred by swinton solar city and i think the court's correct that if you're not accepting discretionary review the jurisdiction is lacking on the eleventh amended immunity claim i think it's pretty straightforward i also believe as addressed in my brief that the co lisle there was only one conviction and the plaintiff could not prove that the conviction edition had been favorably terminated so while changes nothing for the case that matters is jackson versus barnes and in that case when there's two convictions in the plan of challenges only the first is not a bar jackson is directly on point and cannot be reconciled with the district court's ruling it is a significant issue and more than anything else it poses a huge practical problem for m taylor if the court declines jurisdiction and we go back to trial we do two years a discovery we try the case the jury supposedly doesn't know he did forty two years in prison and as instructed he can't claim damages for that but assuming there's a verdict either whoever loses is going to appeal and i believe when the court ultimately addresses the heck yes you will rule that his claim is not hackbart but to get explained to me i'm a little confused of what is left of the damages are barred the district court addressed that in it's i think it said doc eighty one and it ruled that taylor can kill can still claim emotional distress related to it and certainly the fact that he it took forty two years of him knowing that these constitutional violations occurred i think that's a tenable and a viable claim but it's not the real claim this man did forty two years in prison for reprehensible conduct by the county attorney in this case that that's what this is about well this is a tragic case but how do we have jurisdiction over the head if we don't have jurisdiction over the  know locked into ways i believe that the heck issue itself is jurisdictional and i believe this court can always take jurisdiction over issues that themselves are jurisdictional and the court also has the ability and the power to revisit its september two thousand and seventeen decision denying twelve ninety to be discretionary review i think that's the way to do it if pm a county needs another chance to brief the issue of city of tucson does let them do it but i think it's the fair thing to do for this man who has been through don't appear to be any thank you thank you i need to point out mr taylor's argument was predominant excuse me mr leader's argument was predominantly geared towards his claim on an issue that this court has not even accepted for into law kotori appeal there's been no substantive briefing of the issue pima county there's certainly been no briefing of the issue by the codefendant sente of tucson it's not appropriate for the court at this particular junction to consider whether it has jurisdiction over the issue and in fact in the fall of two thousand and seventeen this court court expressly declined to accept that jurisdiction what this is really about is eleven the minimum unity that claim runs soley to the county the county has not waived eleventh amendment immunity throughout the briefing it was clear that the eleventh amendment was a suit as asserted as a bar for the district court to go beyond a motion to dismiss it precludes litigation on the matter it precludes discovery it precludes trial i think that's a very consistent when all of the briefing is read when it's put in its proper context every assertion of that amendment eleven the minimum on any was tied to the fact that it was state action that was it issue and if it state action the cause of action is it's barred regardless of whether had been filed in federal court or whether it had been filed in state court and some we'd asked at the court reverse the decision of the district court and remand with instructions to enter a motion to dismiss