free from criminal charges on the basis of false evidence that was deliberately for advocated under the fourteenth amendment let me briefly outline was what happened  prosecutor did interview witnesses he took some statements he took some recorded statements he took notes he followed some leads that the witnesses gave him he concluded that there was probable cause to file criminal district court to file a charging document we call that a criminal information in montana the district court must pass on probable cause and the prosecuting attorney must present and affidavit a sworn affidavit to establish probable cause the court granted permission to file all of those charges in the second criminal information was filed and it was filed tobar five the police chief in town and county was concerned and by letter dated october thirty ordered the special prosecutor john house and the county attorney john huntley and he has full authority under montana lot to do so as the attorney general for the state of montana he ordered speak so i'd like to give you the structure of our position here with respect to both of my defendants john hatley the county attorney and mr house the special prosecutor i want to explore what they did that may be covered by and general and i think they are inadequate to overcome the defendant's motion but let's talk about the few in general franks he said and this is from my post brief he talked to the witnesses he passed on that information to mr house he conferred with house about the case there isn't any detail on the substance of those conferences but there is testimony from both gentlemen that they talk they talk on the phone like lawyers do about the case and  i do i certainly agree that investigating facts and talking to witnesses is a police type function and outside the role of the prosecutor i think there's some gray area but i will concede that there is an area from these activities the probably gets into buck allegation that he did anything wrong talking to people at the fair and passing the names and stories on his own house the special prosecutor if he did then we would have a qualified in community question for m if we look at a qualified immunity issue restraint make that i think that the and really i want to talk a little and in the time i got about fourth amendment claim versus the fabricated evidence claim the two constitutional the fourth amendment claim based on the restrictions that were imposed on him i will tell you that in one nine hundred ninety seven one circuit in the east had found a restriction on interstate travel like that to be a speech or i think somebody watching too in check but i don't want to record their own that i don't recall that being explained in the record i guess like when when i wrote my brief to the court i looked at her statement i thought it was clear that she felt offended and threatened by the police  behavior took her into a private room she was fifteen years old talked to her for fifteen minutes had its hands on her upper thigh made her very uncomfortable now and i guess my point is why did he had in her he s have departed from the statements that are in the record the statements are all in the record the affidavits in the record it's tedious that in my brief i tried to say here's the affidavit here's the statement i think much of it has to do with the prosecutor interpret offense but i don't think he went beyond interpretation of the offense all the way in to deliberate fabrication evidence and i also think that if you read through the the kind of the interest in some young gals around town so there were some sparking complaints we have a stash in montana criminal stalking statute following someone can be criminal one of the elements is that the person being stocks feel substantial emotional deliberate fabrication in a methodical by the numbers approach and when such approach is employed here is far far sufficient reason to sustain magistrate judge prosecution by itself has not been recognised in this circuit as giving rise to a section one hundred eighty three claim however for more than twenty years it has been recognized that a malicious prosecution claim which court here held that a malicious prosecution conducted with the intent of denying a person equal protection or otherwise subject a person to a denial of constitutional rights gives rise to a section one hundred eighty three twenty years ago more than that and significantly and it will become obvious in a minute why it's significant incline to the that statement was made in the context of where finds interesting liberty was fourth amendment rather than the due process clause of the fourteenth amendment in a concurring opinion justice kennedy joined with joined by justice thomas sawyer greets all six of the supreme court justices held hundred eighty three action under a fourth amendment question all right now let's keep going on this particular case a fourth amendment seizure occurs when there is a governmental  in skipping here those are that you stay in weekly contact with your attorney give your attorney of telephone number an address where you can be reached at all times also that you are not to leave the state of montana without prior written permission of the now is in this case and that is those restrictions on russell spring to wrestle spin that we contend constitute a seizure and i think you have to go back to look at the value of the right to interstate travel in our society it makes it so important here for decades the u s supreme court has recognized the right to interstate travel has long been recognized as a fundamental right the constitutional right to travel from one state to another occupies a position fundamental to the concept of her federal union in the saints versus roe case here in one thousand nine hundred nine the court noted and i think this is significant that interstate travel embraces three different components the right of a citizen of one state to enter to and leave another state second the right to be treated as a welcome visitor rather than an unfriendly alien one temporarily present in the second city and thirdly for those travelers who like to become permanent residents the right to be treated like other citizens of that street i don't want to interrupt your very thought because it's interesting but the question  is no absolute immunity here first of all the expert opinion that is part of the excerpts of record which i have submitted stinnett submitted so yes that's the work that was done by not complete immunity you only get complete immunity when you are working on activities intimately associated with the judicial phase of the criminal process but that mr i understand what  them informed as to what information he had and what he was doing house provided copies of documents to huntley and kept company informed as to what he was doing what they told how to talk to particular witnesses who could give them information they confer something a reasonable officer or with them a government official wouldn't with know was violating a constitutional right well i realize it isn't that you set out to violate got some points like that without but i'll see what you've got like that with huntley well you go back to the investigation that i was just referring to where they were talking the witnesses were house who says himself we the evidence is sufficient to support a finding that particular conduct occurred and judge anderson a magistrate judge anderson said when he reviewed all of the facts huntley acted hand in glove with the house in conducting the investigation that led to criminal charges against him that's one extra record eight forty seven so if you're now going to talk about sufficiency of evidence i don't believe that's properly before this court an appellate an appeal from qualified immunity house in conducting the investigation that led to the criminal charges against him so you've got those two at least in the court's view when looking at all of the pfaff's and the record that was before him said hand in glove these two work now i need to go back because i hadn't bothered quite candidly about the idea you want to the discussion about evidence and evidence and it is important and i just pulled out judge lay's opinion because of course i caught my attention with the make up of this animal but the fact remains that when you are discussing whether or not to sufficient evidence to say that an event occurred or didn't occur in determining qualified immunity that that is not something that you can appeal from if for example it was agreed these are the facts so that the issue of qualified immunity then becomes in a sense a question of law that's when qualified immunity is appealed and and you cannot discuss that house really mean it when he wrote up or inner thigh versus upper thigh you know what he mean it's not in the record and you start talking about well was a terrorist drafting that's not before this court that's not appropriate because that's not an issue here that is for a matter for trial  rural communities where everybody knows everybody and it feels uncomfortable he talked to a man named john connor who later give become involved on corners and invest in an attorney with fact conner said you know we're too busy hire them which would be the closest thing to a state police force but what we do have something similar which is what i'm trying to say the attorney general has an apartment where they can send people out to are only one thing and if you used an additional police officer you and they would