i am charles leach i am here on behalf of marc and chelsea linguist with regard to the aims versus linguist in pierce county matters at this particular time i would like to reserve five minutes for rebuttal this case has a variety of components to it as i'm sure are assisting in the records fairly extensive  in particular for our position in this case there are three prongs essentially that i would wish to review with you the first is the issue of the sufficiency of the pleadings in the matter as were here on appeals related to a twelve b six motion the second component would be the discussion of absolute immunity and the third being qualified immunity though i'm sure that at some point we will jumble them up a little bit during the course of our discussion because the nature of the pleading this case was heard on a twelve b six motion primarily focused on the record of the second amended complaint or the sac as we've been referring to it in our pleading this case arises from primarily the actions alleged actions of mark lindquist related to his position as the elected prosecutor of pierce county  the primary fact pattern that is at issue we would submit is the designation of potential impeachment evidence as a result of civil actions that were either in a court of law related to actions brought against mark lindquist and or pierce county but also specific to internal investigative matters coopersmith report as well as various other reports that were generated you're only an image that could be focused a little bit here it's been a long week but you're talking about is substantive due process argument now no i'm talking about the sufficiency of the substantive due process going no actually we're seeking basically the decision that i'm sorry i'm getting confused here i'm a busy marking quist and we're seeking the application of absolute immunity or qualified immunity particular argument is focusing on the designation of party which is in title one of the brady and it's progeny a lot of deference obviously for for this isn't happening to this didn't happen in a criminal case right prep but i believe the authority  i understand the allegation to be that these affidavits by these four four members of the office three members two affidavits from one person ok told whatever for affidavits whatever they were were submitted in the civil case that mr ames had brought against the county and superior court correct that right correct which we believe under flood as well as fraud and of right of the cases that we've cited falls within under the under the first amendment there was a determination that it was sufficient to surpass the twelve the six motion right but he did but the district court said no no no absolute immunity for m because i understood it mr lin quist he was a defendant in the case but nonetheless he was the can he was the county prosecutor which covered both civil and criminal and then he retained this patterson f to defend the county against lindquist against amess suit in superior court the civil suit right so what did link was how was lindquist acting as a lawyer for this county when i was a defendant he's a defendant but your honor is if you're as i believe you're aware of all aware that prosecutors get sued and they are often sued in their representative capacity which is what occurred here and the case law but did he do anything more in that litigation other than to hire the patterson firm to represent the county not not not technically the non thinking why does he get absolute immunity well i would say just based on your question because he is a sitting prosecuting attorney it's within his right to get absolute immunity and it is based on function a functional analysis well it is you have to view it in context certainly and in this particular case so what is the function that he was performing that entitles him to absolute immunity well he was acting within the role of managing litigation and defending the county there's nothing in the record that says that he was managing this litigation and he hired  well i guess i guess to flip it around judge is that according to that fact pattern how would he not have absolute immunity because he wasn't involved litigation there's been no connection between him and the declarations that were submitted so if according to this case they're drawing a nexus between his well that's another that's that's another issue but the question here is absolute immunity looks based on a functional analysis and he well may be entitle to absolute immunity but there's no this is decided on a not on a summary judgment record twelve b six and you can't really tell what he was doing in this case he just hot what we know is they allege that he fired the telling them what to do and what not to do you know get these affidavits and you know that he's acting like he's an advocate but all we know is that you with an administrator here and this firm representing the county i don't know that when you look at it functionally i don't know how he entitle to absolute immunity in the context of absolute immunity he is i would say i would submit to you that regardless of whether he was actively involved in the defense of the county in that lawsuit or whether he was a person who was distant and not involved we would submit that absolute immunity applies because those fall within the prosecutorial administration of litigation not just him like hiring decisions and everything else related to that so i think first and foremost on the analysis for absolute immunity that that would apply if absolute immunity does not apply at this point clearly under the case law in just a criminal context and it's been applied to tax actions it's been applied to no it was across the board correct except if in fact going to get correct correct and so in this particular case the allegations in the complaint now we're going to your argument or disturb your position on i don't have any pleading as to exactly that issue which under the kid cases there's a certain half as we know that has to be applied there but it's your burden to establish your entire to submit a variety of the components are what are the clearly established rights that link wist if in if indeed taking the evidence in the light most favorable to the plaintiff was involved in some fashion in these declarations or other decisions what would he have known or reasonably known was a violation of a constitutional right of the plaintiff and in the record that we have before us we submit that's not clear there's allegations it's quite a large complaint with a large  facts yes it certainly goes on forever correct there's certain certain aspects of it where you have the statement to the press where ames is not particularly mentioned there is the internal investigative functions conducted by pierce county human resources which my client the link was don't have necessarily involvement in because he was working for a different agency and was involved in different specific what do you understand to be the retaliatory alleged retaliatory conduct on the part of district judge made that comment and as i understood that the protected activity was filing the lawsuit against the county ins verses with the we would be wrongful yes i would believe that we wrongful however i think under him bill are there still an analysis of even whether absolute immunity would apply in that context i think secondly in the record looking at the sufficien pleadings i don't believe it's clear even based on a common sense analysis that that has been alleged with sufficient have to in part because of the drawing of link christoffel the obligations of producing potential impeachment evidence so we believe that there certainly are competing rights involved here but in this particular case the absolute immunity afforded the prosecutor attorney to go ahead and draw the conclusions as to the existence of pai he had that point has no choice and the declarations that were submitted were not submitted in the evidence looking at it than thank your honour's my name is john bell i'm appearing on behalf of detective michael ams i would like to reserve seven minutes for rebuttal were here before the court asking the firm the immunity decision by the district court or asking the court to reverse as to due process and reinstate those claims as to each pierce county and mark lindquist to help add clarity the overarching scheme here as to immunity detective ins would describe lindquist misconduct as a pervasive interference with his ability to perform perform his investigative functions by way of that we have a series of specific case examples where detective ames was simply trying to do his job but yet the prosecutor linguist was motivated by a personal desire to have for whatever reasons these cases going to particular direction and had his office and he individually took action to course an outcome that was contrary to detectives and detective ames was investigatory function you're talking about the criminal cases i'm talking about nissen i'm talking about copa chalk and i'm talking about it's it's not easy to follow and in the end the district court said well looks like we've first amendment claim the rest are vives correct and some related state law claims correct right immunity get him out of the case and the judge said no ok so my question to you you know just because it's a absolutely many applies not only in criminal cases but applies in civil cases well when the state attorney or the government attorney is working as an advocate closely related to the court right now but we know you allege that they he hired the patterson firm right correct now what's my question is the other side as we don't county right correct well now if ames was actively i mean if lindquist was actively involved in that litigation supervising the firm that he retained acting as a you know counsel for the county why wouldn't he be entitled to absolute immunity well that's a supposition that would be impractical and impossible as a matter of law because  hired an outside law firm so there would have been a conflict of interest from acting in that role and as a matter of fact we don't have an acting in that role because he's not that clarence he's in the background doing his nefarious deeds to course  particular outcome that's disparaging to ames link was continually gets outside of his lane he doesn't pick a lane and stand and he doesn't stay in it within his prosecutorial role so the question as to whether or not he would be entitled to it is one he wouldn't be entitled to because that wasn't his role and we don't know that yet we were in this case this comes to us on the pleadings and all that in the pleadings as we know is that he was alleged to have hired the paterson for that's what we know and the allegations are that he was not in an advocacy role so the district court was correct so we prevail on that issue so then he now he's alleging well if i don't get absolute immunity i should get fighting well why would you get qualified immunity when the law's been well established time and you know we lawyers don't get to the law i and we lawyers don't get to tromp on the  and and decide how far rose going to go to patella or go to the less controlling authority barrett so you get down to this nitty gritty discussion about what is the conduct at issue and the mark lindquist continues to try to narrowly say well this was a declaration on the prosecutor this is a declaration on the prosecutor the conduct is expansive in the declaration in the complaint because the conduct was not just the filing of the declaration or just the placement of the declaration on the list there is a fundamental dishonesty issue that drives the discussions as to what what in fact dishonest the rule of dishonesty has in this but there's also several publications that go beyond the a purely prosecutorial role in in the coppa check case when detective ames investigates a when when we get to the dulce in case similarly we have prosecutor link with us and his deputies pomo gating testimony that's dishonest and then publishing it in the media publishing it on facebook and and liking it on facebook and disseminating broadly and i wanted to give a specific example if we look just at the retaliatory or the vindictive lawsuit filed and dull sing that was initiated by a probable cause statement by jarrett oss or that's a document forty six page forty four thirty i've got copies here that i can but anyway the testimony in there it's a probable cause statement we know exactly from clean i think clean is very important case we know from cleaner that a prosecutor can't set forth to statement of probable cause describing a bunch of conduct that's his or her own testimony and then have absolute immunity for that in this particular probable cause statement the d p goes beyond the bounds in the four corners of what's contained in in in any investigative reports and starts describing things only he could know so he's testifying based on his personal knowledge well what happens with this probable cause statement not only is it published in the criminal case no it is taken by lindqvist an os or are put on facebook and disseminated broadly as a criticism of ames performance there are actually blaming aims in this probable cause statement for lindahl say not being charged for child pornography it's wholly erroneous that is completely untrue but it's the is clearly established under o'brien that you can't retaliate that's the whole reason for doing this so if you have to try to describe let's assume that you have protection for dissemination of brady material but how does a law enforcement officer challenge the credibility of testimony or declarations false statements by the prosecutor's office itself ordinarily and by policy pierce county is obligated when a detective's truthfulness is challenge to give them an eye a hearing and process to be heard that wasn't afforded him here because it was generated by the prosecutor's office and they controlled whether or not they were going to give them a name clearing hearing they did not he asked they refused we go to court to get it they say you don't have the proper vehicle for doing it that leaves us this court that leaves us a constitutional promise that due process exists for somebody whose name has been disparage who loses his job because he can't continue to perform so we have t law enforcement investigations and the unfettered discretion given to link was to continue to do that in the future no matter what he did if it bit him if it got in the crosshairs political motivations he would be challenged question defamed disparaged told he wasn't doing his job right in a very public way so the moment that he said i cannot do this anymore was the moment that judge hole ruled against him in the name or in the in the names of the person can a case and pierce county throughout those proceedings along direction had refused him name clear in hearing opportunities was trying to sanction him to to ruin him so that he for asking for a name clearing hearing for seeking it if i judicial remedy he has no other alternative remedy but there house to be a way when somebody with that much power declares you to be the county a defendant here the county is a defendant in the county is up on appeal with regard to the cross appeal i don't know about the whole title and i my error have not caught it earlier before filing my cover page on my brief but the counter appeal is as to all defending parties the order was brought in that manner somehow the caption got parsed out in a way that doesn't make sense to me so there was another due process claim procedural due i mean the substantive due prices substantive due process is when there's no substantive basis for about not being able to get it to pursue his chosen career as  offer a trial and that the way we played it is that's not going to happen there are there's plenty of content within that pleading that says i'm forever for for going to law enforcement career is he giving it up or  so it's not an option once you break the listing is blacklisting i think this court needs to preserve brady list as a blacklist it is one thirty four does that mean i'm out of my reserve time or what does that mean  i'll step down and reserve whatever i got left thank you honors with regard to the characterization in the record which i think it's very important that the record is significant there's quite a number of pages that are in it but i think review of the record in specific will eliminate some of the insufficiencies and we would respectfully disagree with the characterizations that have been offered before you by mr ames once the  designation of potential impeachment evidence is made doesn't mean automatically there's a blacklist it doesn't mean automatically that that person is definitively barred from working doesn't mean they're specifically to be called as a witness what does that mean in practice that means that if you're a prosecutor you know that you have mr ains is your correct as an investigating officer is investigating they're going to take the stand and you have this information about his credibility you have to provide to the other side what you have to give it to the defense right correct correct to preserve the rights of the defendant or the constitution and then they make the you know you have these prosecutors who you know want to win although they're supposed to do it's not supposed to be there well there are officers of the court right they're sworn to uphold the constitution i would want to give because that's their job that's part of the administrative function of being a prosecutor turny well then you know the police can just they will give this case to another police officer so you will certainly under the under the case law they're allowed the prosecutors under the under absolute immunity they're allowed to go ahead and say ok we don't want to work with that person anymore now or the cases get far afield and where there is not absolute immunity or two times when the wind basically is when they go ahead and act like in the studio case where they specifically go ahead and engage in some level of targeting sabotage as to a particular individuals  working for a particular individual once that somebody is designated as potential that's the key word here potential impeachment evidence it's not a blacklist it's not like the laurie list that's in the new hampshire cases that have been cited it's not like the california case where someone's put on a child abuse registry and there's an issue of whether there's absolute immunity or qualified immunity if they're part of that this is an action and the underlying court cases specifically found designed to preserve the rights of criminal defendants to a fair trial there is no discretion here on the part of prosecutor linguist or his deputies in this regard and with regard to the application of pi i think on the record  to seventy two and three zero one to the pi letters that given the opportunity to respond briefly with regard to the due process allegations he was not deprived of a name clearing hearing in that he was allowed to go ahead and continue to react to the evidence he was given notice in letters that pi was going to be offered he was not afforded a louder mill because he resigned his position he was the one who voluntary gave gone to really gave up his position and one thing to note just factually and i'll stop in a moment is that he did not work for a linguist he worked for a separate agency his resignation letter specifically was directed to the sheriff link list is just far afield and he was trying to fulfill his brady obligations in the civil case where he learns that the tory evidence that he had that he had turned over had not been turned over the prosecutor richmond silences him during his deposition that's a protected activity under burns giving of legal advice is not a protective activity so once he's silenced in that regard and he seeks to have it investigated administratively in a whistleblower complaint who takes control over the investigation well that's the same legal office let's have the prosecutor's office control investigation pick mr cooper smith who i do not fame in any way i know who he is and he's a good attorney and  engaged in the process but all of the witness testimony was controlled by linguists office lindquist was dishonest about how his conduct to mr cooper smith and we intend to prove that the findings were consistent with the allegations that mr ames had alleged although the scope of what they investigated was limited they didn't even investigate his complaints about dahl's ng so the kind of conduct we're talking about is not just for declarations it's the whole systemic approach where link was is not playing by the rules he's acting in an administrative capacity in control and on whistle blower investigation he's he's got people in directing people to testify which is excluded under cleena false statements should be protected anyway we have the administrative duties about trying to interfere with his employment etc so it's it's this whole it's the lane change problem that's the best way i can explain it and there's a series of cases that allow us to parse through the conduct that there of it from the prosecutor's lane and take corrective action i read it as both ok as to both to us to both linguists and the counting thank you you know your honors we would ask that you affirm the absence of immunity both sides of this case and the ames case shall now be submitted it will take a fifteen minute recess thank you