for united states citizen to get a federal court to enforce a federal law and it appears that that effort has been frustrated by state court procedure of sealing a criminal af did you week last well we did a request for production of documents asking for the affidavit and that is in the transcript of page one ten of the palance excerpts of record volume one and the response we received from detective bressler was an indication of a privilege based upon the ceiling of the search warrant affidavit and that was contained in the record at page one fourteen and actually you see in the very beginning of this case if you read the motion to dismiss we offered the other side and i had reached an agreement to stipulate the stay in the affidavit the sealed affidavit to the district court and let the district court do hobbs type hearing to see if there was a basis for either sustaining or throwing out the causes of action and judge issue in his memorandum decision mentioned that in footnote one i don't know if you recall it but he specifically said that he was uninterested in that type of procedure so when and he also said very clearly in his motion in ruling on the motion to dismiss that he did not believe he had the authority to do anything with the state court sealed affidavit then they will be the case but if you is what procedure is you any questions having to do with the affidavit you know i've been on this where i kind of stuck here because you're basically saying one of quandary we don't know how to get this court you take it upon yourself to get it in the meantime deny the motion to this mass i think you're correct in that way does it isn't it isn't the burden on the party to produce evidence that i think we did produce evidence that there was a sealed off the we tried to unseal it the request to unseal it was the night the discovery rights that you had to try to get the court to do something about that you left it for the court to figure it out for itself no we did we requested an in camera hearing which was the nine that's right you proposed a procedure which is our the docs and i confess i hadn't heard of in this context before the court said i'm not interested in that and you elected not to proceed with either discovery techniques that might have made the document or the information available well i mean that's the case you might have a complaint if you got denied discovery rights but you didn't try i think to exercise discovery rights so your argument here today is you know i didn't get this document and i should've and so the motion should have been granted well that's actually not what i'm asking for i'm actually saying that there should have to get information that you have to go out there and figure out how to unseal that affidavit on your own it just doesn't work that way the privilege is going to stop us every step of the way that is why at the very end when the magistrate in the state court refused to unseal the warrant even after the statute of limitations had passed for filing of any criminal charges even after it was known that there was no informant involved at least that's what  in the records he when responding to the request for production said we really don't have a confidential informant in this case but it would jeopardize our investigation and that's i paid one nineteen do you see her view of that decision within the state court system no we did not because i had no reason to believe it was wrong so why did or if you're telling me it's wrong you're telling me there's no confidential informant from what you're supposed to infer that there's no reason to keep it secret you tell me the statute of limitations has passed everything in your argument suggesting there's no reason for me to keep it back and we asked what did you pursue that issue in the state court system he said well there's no reason to  is wrong i mean isn't there a conflict there i don't think there really is i don't think it matters if we just stop for a second and think about this doesn't really matter whether the state court magistrate is correct on protecting an informant should that the nih the citizen the right to bring the forty two u s c nine hundred eighty three cause of action if they have been damaged the magistrate can be right so that's why i don't see that as being an answer it's not like i have to exhaust all state remedies no matter what the cost in order to try to get due process in the federal court and i think this is going to be a common problem that's going to happen more and more and all we need is a situation some procedure you know if my client was charged with a crime he'd have due process but because he wasn't charged with a crime because he didn't do anything wrong he can't get due process that's what i think is really the issue here that the law abiding citizen is asking a federal court to use its power to decide a federal issue well well i think that you are kind of your in the need for some comedy between state and federal courts and then you need to pursue your appropriate remedy in the court that is wrong when you when you didn't  well when the matter when i was initially told and the offer to produce the affidavit in the federal district court for in camera examination was rejected by the district judge i mean i don't know where i'm going after that point from the very beginning it was no authority i'm not going to do it and in this memorandum of decision he said the same thing and and so his position didn't change the judge indicated he needed some authority to do something well  issue a subpoena to that state court is that going to be the authority because certainly that was available but the judge had already indicated he didn't want to get involved with the state court affidavit unless there was some authority and a court of appeal is an appropriate authority for a district court to give guidance on what to do in these situations you know a large number of affidavits are now being sealed as a matter of course to protect informants investigations it seems to be the norm not the exception so i would think that this issue is going to keep reoccurring and some comedy has to be achieved between the state and federal court or else there are three main points that i think address all the issues the first being i think we're in the wrong court of appeal i think this should have been taken up the state court judgment decision to refuse to unseal that affidavit should have been taken up in the state court appellant's never took that that course of action and that's why we're here today so i think we're in the wrong court of appeal to be honest with you the merits of the unsealing of the affidavit there is just no authority that would allow the that let to this point was properly granted by judges initially the plaintiffs basically did not have any evidence to oppose the motion they never took the deposition of the investigator basically the only discovery was thank you viking just respond to this issue of going up in the state court we thought about this we looked into it the standard is an abuse of discretion so i would have to go up into the third district scuse me fifth district court of appeal and explain to them how the magistrate in sealing this affidavit abused their discretion when i have no idea what's in the affidavit and there's a procedure there's a presumption in criminal law that when the a sealed you get past your frank substantial pulmonary showing type of situation to at least have an income or examination so i don't see how i would win in the court of appeal in assuming i went up there in the court of appeal said no the magistrate did not abuse her discretion in sealing the affidavit and refusing to open it does that still mean there hasn't been a wrong and see that's why i don't see that he's saying the filing of  federal lawsuit should trump any interest the state has and keeping it sealed and you want to change the decision maker from the state court to a federal judge who has no investment in our involvement in the original decision and that's that's what confuses me here how is it you think the judge is any better position to make that decision well because i know i'm not asking to one single you see that's that you're asking for him to look at it and make the decision that's right i think you are asking to unseal like you're asking him to give it to you well i'm asking the court to review it and see if the district court judge looks at it and says you know what this thing is sealed and you don't have a cause of action there's got to be an hop's type procedure to do that and then the citizen says ok i've had a federal judge look at it and tell me there's  no cause of action here if on the other hand the federal judge looks at it and sees that there is an issue then they're going to have to design a way to deal with that otherwise the citizen doesn't have any rights i am not asking to  federal court and i'm asking for an encampment hearing and a balancing of the rights of the parties to be done by the district judge and that's different than unsealing and that's what i think the cases i cited said federal courts are empower to do and the last thing i want to mention is you know in federal habeas corpus proceedings state judges are required to not only bring in sealed affidavits they're required to come in sometimes and testify so if in a criminal case you can require a state court judge to provide information to provide affidavits to provide explanations why can't it be done in a civil rights case so thank you very much casey just