a question that the court has directed us to focus on i simply wanted to attempt to answer those questions and in an effort to move quickly i thought i would do it in reverse order because have to be an acquittal that it did not matter so much even whether there could be a reprosecute and that is a reinstitution of charges that so long as that case had terminated the defendants favor that's good enough for this element of malicious prosecution did you find anything one way or another about that so i found several jurisdictions that support what you just described  found in georgia a case that basically was saying you know the acquittal of an indictment because the prosecuting party does not appear would still be suffici in massachusetts also had a similar conclusion so but you're right there were a number of cases is that it had to it had to be ended and then it seems to me that there was reasonable support in the case thought maybe for the position that determination just needed to not being consistent with  doesn't really make sense if if one of the elements you have to prove is the absence of probable cause for the prosecution it seems to me that we're asking too much of  but it's not clear to me you've brought a client under the th amendment you did not bring a supplemental claim under georgia law for malicious prosecution i'm not sure why but you didn't so this has to statements but also later and indictment it's not clear to me which produced the seizure it looks to me like it's the arrest warrant where maybe there was a perp walk or something like that that would support a th amendment seizure claim but it was not clear to me whether the and i meant actually lead to a seizure of your client's person was a th amendment seizure for which there was no probable cause that is correct your honor and that it is that the only seizure of his part well he was he was arrested at a later date being a seizure i mean again the problem with this complaint is how many seizures are we talking about and which one which ones are the basis for a th amendment  of property i mean this was an extensive one that went to not just his personal family and professional an office but the ickle who labs is different offices that georgia tech there was according to dr lasker on september twenty four and mr yellen you know when his arrest was process he was there for an entire day and once again in television cameras were invited and investigation they went to mr her to request that a certain cost overruns be undertaken and what was really of concern to miss carden at the time was that states that all the information was provided directly to her by still heard it was the director of audit at georgia tech and who was the person who miss carden point and then another paragraph there is a reference to a perp walk but we don't know is when did this arrest occur in somebody else provide information that led to this arrest we could assume that the prosecutor ha not recognize a continuing to tension absent a significant deprivation of liberty for pretrial release conditions and we don't know anything about that either we don't know how long the arrest was we don't know anything about a bond we don't know do respectfully disagree there was searching and i thought there was an allegation of an arrest is persons are you saying that if i go through this e execution of those warrants occurred no be correct i don't have a medical plate proud of me but even if that's even if it was alleged that i was represented to the court by mr daly the arrest of this person occurred four months later and we don't know the circumstances of that arrest he very clearly if if if if if the ledge that he that he was arrested pursuant to a warrant for which there was not probable cause it seems to me that just as a pleading matter he's alleged to not know i would disagree because we need more facts regarding what my or did not do with respect to the actual rest with that gap of time you have causation issues we don't know you know it might qualify them in the sense i cite parts st and joiner about intervening factors which would release say clearly that somebody is counsel are you telling me that when you look at the commonwealth cases from the scare you found a consensus of common law court that not only did determination  have to end the prosecution but it had to be an acquittal because i can tell you i can i can cite you numerous cases that don't say that i believe that there was a split but if you look has had some bear some bearing on his on the innocence or guilt of the plaintiff so i believe that yes you can find cases that talk about simply a terminations of the case that  let me ask you something i mean it seems to me st of all do you agree that there's not a clear consensus as to the count the common law and whether it's an indication of innocence needs to be it has to be in order to be a favorable terminations nothing short of an acquittal would allow you to move forward with a pick well i don't think that case says that but that that it holds that anything less than an acquit doesn't satisfy the favorable terminations requirement are you saying the case stands for that proposition anything less than acquittal that the case holds that that with not satisf does that answer in light of the fact that we want the element of determination have to mean something different than the element of probable cause and also the fact that the whole idea behind a malicious prosecution action is to prevent prosecutors and law enforcement i guess from maliciously prosecuting someone when there is no real case there i mean why wouldn't rosenbaum question which is why isn't that the better rule i mean you already have the plaintiff already has to prove the absence of probable cause that seems to me to do all the work necessary on this issue  why would you also require that the favorable terminations requirement go even further and and be based on some indication of  say it's a split it's a split down the middle why doesn't it make more sense to read it as a requirement that the determination not be inconsistent with innocence as opposed to be based that is the way well out of a lot of other circuits have looked at modern common wrong and look at modern restatements and the supreme court's codice that's not what we're supposed to be looking at so i don't know instituted against the plaintiffs has failed but its failure has never been held to be evidence of either malice or want to toss the probable cause or its institution much less that it is conclusive of those we decide this question and even though you know in our my presentation we started talking about cases that you had found your honor i did have other cases from kansas louisiana north carolina michigan new jersey texas in illinois they all support the concept that the term the nation of the action is what the court is trying to ensure so that there won't be any chance of conflicting or competing resolutions and that the malicious prosecution case can then proceed in that manner with respect to the question about the complaint the amended complaint reference to the a malicious prosecution claim would be under stay cool and and if you could complain about it at the common law and stay on georgia you know you can refer to principles of georgia law at the beginning of the amended complaint then you can equally complain about it under the th amendment and that's just not true you know then you have to cut the complaint has to be focused on a particular eighty eight and those attorneys might have something to do with this but you know i also have an objective standard under the several construct which i think in the context of these people making this it's it's un focused and appears to be based at least in part on a misunderstanding of the way the law works in this area you hear what i'm saying i hear exactly what you're saying and that's why i'm prepared today to say and i don't know where they get you something under the th amendment if it is old it is seizure were modestly doesn't it just simply provide evidence that this was also in that lee seizure leading to and part of a criminal prosecution i don't think a prosecution in and of itself means a person has been see i hear you i'm not trying to argue that you're all right