having met with this court many times i want to just jump to one of the arguments i'm not going to address the arguments about how the trial worked out after a motion or some education unless you ask me to i want to point to if you read that what you will find is that the jury had to make all of the finding find fall of following findings not just the one that cited on page fifteen of their brief it says at the very beginning of the jury instruction  that there is a claim that marcy very good in the other defendants violated his forward hardwick's rights and that they must prove all of the following and one of those the very first one they can't even get to the third one about that has the word privacy in it which is i believe the only mention of privacy you will find in the jury instructions they had to get past the intentional acts causing the removal and the detention of the plaintiff's children so i think the they're trying to create there's an ambiguity argument but there is not this court in hardwick one didn't see that ambiguity this court itself cited briefed this fully we have shown the court that collateral stop under california law would require this very decision that the california court of appeal saw it this way that it was a case about lying and deception i wish to say to the court that at that time in history we didn't have quite the full development of this perjury and lying in juvenile the penalty cases that we have now part of one in fact fleshed it out even further but it wasn't until last year that california itself came up with a jury instruction that directly addresses this kind of of conduct but there's no smoke and mirrors here as to what happened just what the complaint was in both cases what the events were and when the facts are the same in the facts are decided it doesn't matter what your cause of action or claim for relief is after and example i would like to give is a polluter was pouring some hazardous substance into a creek and a local governing authority brought suit against them for some violation of their local ordinances later a landowner down the road might bring a claim because his dumping that hazardous substance into that water chilled his cattle well those are going to be two completely different claims for release but the fact was established in the first case that he poured that hazardous substance into the creek the second plaintiff is going to have the benefit of collateral stop all what was the foundation constitutional claim that you were seeking to vindicate in this case the violation of her fourth amendment and familial association rights the law and wallace for suspense or talks about them being subsumed but that doesn't mean that th  it runs both ways kind of makes sense that it would say yes it is the same right the parents have a little bit there right a little bit different as well there's this phrase in the term of care custody and control but in order to have a right of care cus have someone who reads the benefit of that care custody and control and that's going to be your children so it is a reciprocal right in the laws pretty we think clear on that you can't do one without the other the fact that the child is physically seized under our you know long president of of the law is of course a fourth amendment violation they are literally taken somewhere in there where they don't want to be and they can't go anywhere else but that doesn't change the fact that they're also separated from their parent at the same parent that has rights under wallace to be spencer to be at their medical appointments make decisions even in the juvenile dependency law system a parent retains until a court takes it away even if they take in the child they retain that right to decide what's going to happen with them medically those and we didn't even get into that in our case but there were things rights like that they were also violated so it's a reciprocal right it's a very important right and has been so long before we had laws being written on books wealthy ok you got to help me here maybe i'm not remembering it right but i thought the jury instruction in the superior court case now so in theory could the jury in the first case of found be and therefore is not necessary that they found a way and  help me understand that piece of it ok i i don't know how quickly you can see fifteen thirty four of the defendants are pelleas excerpts of record in volume six that has the whole jury instruction the preface to any of those propositions a b or c as you used the term there one two three in the destruction require that they must prove all of the following so then i take you back to the fact that you have a copy of that hard copy right there and i can find that  you have to find a or b i don't ok that right that's sort of right it says that you first have to find it by something that they did their words or conduct and i don't think anyone is disputing that that was the claimed even this court understood and bay is i'll just quote it that marcy very can buy her words i'm sorry marcy reconned and the other defendants by her words are conduct intentionally removed and or cause the removal and or detention of plaintiff children from plaintiff custody or otherwise interfered with her rights as a parent all right so that's one thing there's another that requires say the removal of the child from the parent's custody right yes child has a right to cut the child has a right to companionship no ok well yes but it's the parent who has a right to have custody of the child that minor children were talking about right there's no doubt the parents have a right to have custody of children right i'm questioning and so if the jury finds that that right was violated that's a violation of the parents right that correct that's correct now but that wouldn't necessarily mean that there was a violation of the child's right if that's the only finding the jury made does it it's not the only finding that the jury mean i'm saying if that's the only finding a jury made that doesn't necessarily involve a violation of the child's right and i'm telling you yes if yes how does the parents being deprived of the child custody deprive the child of a constitutional right because it is the fourteenth amendment right of familial association and it's a reciprocal right it is a reciprocal right i mean you have to have a child now so my question i say the child certainly has a right to companionship behalf of the child is there not when phrased as the parent's right right that well that is one of the that is part of the parents you know constitutional right under the contest right t custody custody of my children right if that's the only violation that the jury found and that it didn't necessarily find a violation of the child's right that it it much like your decision in pike versus tester it implicitly found that the child's right had been violated both the child's fourth amendment right which it owns separate apart from the parent's rights and you can't have if i'm a single man which i am at the moment i don't have a familial social my children are all grown i don't have a familial association right but once i have a child we are a family and we have a familial association right and we have set forth the case law on the rest of prosody of those rights for a moment there your honor i believe was i don't see the term buying into this smith vs on tanna argument but as we pointed out that was a derivative liability claim and i submit to you it wasn't quite genuinely portrayed to you and we tend to do address that fully in our brief there is also the very simple fact that collateral stoppel is about issue preclusion and that's one of the other name for it right and that has to do with factual events the complaint in both cases was the same the events in both cases are the same the players in both cases are the same with the exception of now it's presley as the plaintiff once you decide that one of the defendants ac we filed on was the most for some education for that conduct that having lied to the court to achieve the separation of the child from the parent and this court hardwick one saw it that way exactly it's on page seventeen of our brief  of our opening brief you will see some time for yes apparently have three minutes left i would like to have that thank you instructions in this case and he original case i've gone through i don't know how many boxes i've studied this case from beginning to and hand  just a reading the two instructions points out in stark relief how these cases are no not even close the original case brought by that the defendants the same as the feller's here violated her civil rights she must prove all of the following first marci of reagan and the other defendants intentionally by or words or contact removed and or cause the removal and or detention of plaintiff's children from point of custody or otherwise interfered with her rights as a parent now those are just jumped of thoughts but moving on that's element number one element number two such defendant was acting or purporting to act in the performance over official duties i think there's there's no question about that mind required finding number three that defendants conduct violated hardwick's right of familial association including her right to the care and custody of her two minor children kennedy kendall and presley hard work or violated her right of privacy now i'm asked the court to keep that in its mind and and now i'm going to read the burden of proof instruction in the case that was tried below in order to prevail and her on her nine hundred eighty three claims against the same to finance a plaintive must prove each of the following elements against each defendant by a preponderance of the omissions that were deliberate falsehood or demonstrated a reckless disregard for the truth and three that but for the dishonesty there would be there would not have been the juvenile court order removing the pointer from her mother's custody in almost thirty years of litigation that this family has tragically been through twenty plus for sure this is the first time and only time any jury has been asked if my client's a lie now it's true that there are references and quoted language in the court of appeal opinion in the california court of appeal opinion in the first case that seems to say that doesn't without that language has been picked up universally and this is the first time any jury got to pass on the question and unanimously rejected the claims of the point now there's no question that through the jury in the mother's case you decide if the defendant interfered with parental rights that's what social workers do rightly or wrongly that's what they do whatever else can be said and i'm not that ship has sailed on that first case but that's not this case and the plaintiff is asking that this court that they must be liars because that was what was intended to be proved below notwithstanding these instructions i think it's  very clear that these are not the same cases i've had and although i didn't cry the first case i'm very familiar with that record i'm out there with this record obviously but unless the court has any questions say you have one question on that you read the words privacy and i did look at these special verdict form in the state court and it seemed to me that in the state court the pla win showing either a or b and b was right of privacy that's correct and then being violated so let's so theoretically the jury could have said ok the right to privacy was violated we don't have to make any other findings plaintiff wins on that point so but in the federal case there was no right of privacy doesn't figure into the instructions that i write about that  yorker ok so the so that's one of your main points is that that there's no match there's no necessary identity between the elements that were found by the state court jury versus what the federal jury had  what you say to that point that i just heard which is that we just heard that the jury in the first case could have one could rule for the plaintiff on the privacy theory but the privacy theory does not apply in the case that went the federal jury so what's rancid to that i return to what is replete in the record which is that number one all these claims are based on the exact same events if you read the complaints of the two cases in the record they are identical except for its if you will from the viewpoint of the then six year old but the facts are exactly the same that was what was presented to the jury that's what this court has going to the finding of privacy or not finding i go back to my example of a man pouring hazardous waste in a river when you've had that factual determination even if just implied although i think it's a pretty strong implication when the state appellate court agrees and it's in their opinion it's in our brief i think that you have established what you need to to now have your trial on damages because you've established the violation of your fourth amendment rights i just was looking again at the reciprocity language in smith  for judge to see ms prior questioning about the reciprocal rights they called fibers wallace talks about the fiber of the family to be together it i think that the privacy argument is a red herring because dump either chemical a or chemical b into the stream the jury says government wins so it's either a or b and then later a farmer downstream says you don't chemical b into the stream and kill my cattle why judge why that wouldn't be collateral stoppel because it could have been a that the jury found in the first case you will find be in the jury instructions you won't find it was in there he just read it i heard the word privacy you will not find a single explication of privacy in the jury instructions above below that citation you will not find it out on the the verdict for us all in it's written this it's written that same way but the point is we presume a jury on myself this morning it's a green or violation of the right of privacy i agree but we presume a jury reads and understands the jury instructions in the jury instructions they could not have understood privacy because it isn't in there there is a word on this scrawled jury instruction with someone threw in privacy on the get to why somebody threw that  i do know that there is a thread in the law that looks at possibly the first amendment privacy rights are implicated by these wrongful removals of children from parents and it just hasn't grown to fruition it just hasn't  defendant had lied to the court they had lied to the court claiming that deanna had said something to the children that deanna the mother who's also here had interfered with visitation with the father  and and that's exactly what the state appellate court said no that not that's what they did they lied they convince the court based on lies and the court has to presume i submit that the appella court the later body doing the more thorough investigation of that record is the decision that needs to be given weight and if you read their language quoted in our brief it's very clear that they saw this is a