americans cherish number one freedom number two no one is above the law and number three god given constitutional and even more rights so let me tell you briefly the story of how the depend absolute immunity she relied on the concepts that a officer testifying before a grand jury has blanket absolute immunity where she error is failing to understand that there is no absolute immunity so so so to follow your point on that essentially what you're saying is yes if the test if the allegations rely upon testimony given at the grand jury or troubling grand jury as absolute immunity but you  is there are allegations here that fall outside and you don't need to set testimony to make that allegation what specific ones are you speaking to that i do not lie upon the grand percent yes different chattels conduct before and after the grand jury conceal from the disc attorney the fact that there was one an economic development committee and committee and therefore all of the expenditure is that had been allocated or the economic development committee were fraudulent and without any kind of receipts supporting those expenditures she trying to create a kids and then hide the evidence to to convict an innocent person and we always say what did she fabricate what did she fabricated that there was no supporting evidence and that the economic committee didn't exist and therefore the charges yes i'm sorry to interrupt you just as your question about the record the district court said that it was undisputed that chapman had turned over in her investigative files which included a lot of conflicting evidence of the sort you're describing some people thought there was an economic development committee some people thought there wasn't and the district court said it is undisputed that she turned over those investigative files to the prosecutors she emailed it to one of them and the other one was c c d or something like that did you in fact dispute that it was the district court wrong about that being undisputed the court is absolutely wrong and if you look  repeatedly told her we've given you all the documents there's no more documents and there's no such thing as an economic development committee i'm sorry those are those are sort of two different things i do understand that it's alleged that after turning over those files she said i don't have anything else and that's a separate point but you don't dispute right they have the e mails that the that the files were some portion of evidence suggesting that there was no economic my only other question can what is the constitutional cause of action in this case that is a th amendment violation that you're alleging it's a th amendment violation to prop deprivation of of freedom and it was all ordered to surrender and as i understand it she went to the courthouse and was fingerprinted and released is that right but that's the seizure incident by check she was arrested by chapman and had to be fingerprinted so her liberty was restricted her freedom was at risk she had to surrender it's a period court mentioned there was an initial appearance in court and she was fingerprinted defendant had her finger printed and released but so that's the seizure right that deep i understood and so my question is it sounds at least from this as though it was the prosecutor evans who ordered that she be brought to the courthouse for an arraignment and so i am concerned you know we've held in some other cases that even if an investigative officer misleads a grand jury to get an indictment if there's an intervening cause between that indictment and the actual seizure because the prosecutor orders someone arrested or order someone to surrender that kind of breaks the causal chain for purposes of your th amendment claim about the seizure and i was i just want to make sure i understood the record and see if  i was wrong to be concerned about that what would you know you're not wrong to be concerned about it but the conclusion is is is has to be analyzed here that was no probable cause to arrest mr oakes at all so everything that occurred there after wa had to turn over this file they claim oh we didn't know anything about the spread sheet we didn't create it and we never saw all those files with the economic development committee and with the the receipts with the business purpose written on the back of the not going anywhere with that because you didn't go to trial on it brady claims are pretty much not allowed in that and the need to walk into that but i'm i'm just trying to understand what your allegations are here they trial judge granted absolute immunity because he says she says well these come out of the grand jury testimony and if you look at the fabrication and go back today allegations there they nearly all the st reference to grand jury testimony recklessly fail to show the grand  instance in one of the in the st amendment complaint or testified before the grand jury there's no question that those of us from grand jury testimony but i want you to focus on the concealment which we didn't get to talk about it and the reason i bring that up is because you do have an allegation of what you said from july two thousand and twelve to the present which seem to indicate there's something outside the grand jury's testimony of that would support the preparing her case that they misled her about the existence of the economic development committee she said this repeatedly and she relied on those representations and they knew they were relying on her and  time that the economic development committee didn't exist and l g c then tries to block a subpoena to review the records in their office which montana never saw and when montana finally saw the records on the eve of the criminal trial she said she was quote there why didn't they tell her this sooner and she said this sooner she saw those documents quote there goes my case so you know and she said also that not only with their credibility issues about these elated documents but they were  have produced these records in a timely way but that really resolve issues of their intent she says well the buying of documents from the l t c offices was overwhelming at the office was in disarray and disorganized and there was no inventory of documents that may be true but that's not the only reason a jury can find it these documents when are produced and you assume he's a governmental officials their professional they know how to run an office and there might be another reason they didn't produce these records besides you know managerial but there was evidence that other people said it didn't exist correct correct all right so who will be willing to unseal for purposes of grand jury all we look for probable cause so let's assume that that was you put all of those things and would it still be probable cause to go forward with the one to have to instead it didn't exist he said emson it very seldom does a prosecutor put all defense evidence would it still be probable calls to go fall based on the half that said it didn't exist no for a couple of reasons number one as soon as months on a saw the documents and so it was in those boxes she immediately realizes there's no case here the people who told the prosecutor that the d c didn't exist with the people who knew that the economic development committee didn't exist those are the people who controlled the towns finances they had all the towns records and they're in their offices they knew there was such a committee and when they told one tanya that the committee didn't exist the jury is allowed to find that they were intentionally concealing the truth and if that's the case then why can a jury to find that there was no have to appeal to the district court found there is no probable cause then the probable cause exist you can't just come up here and start i mean it's an interesting argument and i'd like to be a little bit more focused a human being with legal issues here as a lot of stuff you could you could argue here you can go on and on but you know there's some central issues here and i want to i was just tell you if you don't deal directly with the issues you may think you advancing something but what you advancing is is some nice things to say case withholding records that orsi believes ault's and her arrest when they knew there wasn't enough evidence to arrest and you can have evidence of a tacit understanding you don't need to wreck evidence of motive to conspire against the plaintiff but that's the one of the thank you your honor and good morning may please the court order to make it special deputy attorney general with the north carolina department of justice i'm arguing today on behalf of the defendant least and before i jump into my argument i just wanted to clarify judge when it asked about who are the remaining defendants in this case specifically that would be would  chapman who was the f b i agent and then the three individuals who were staff to the local government commission that call them in amman and edmonson and mr bonner had referred course is a central d issue in this case and then the stringent burden for proving a civil conspiracy under section one thousand nine hundred and three is the other issue in this case but what is the agree with what you suggest the judge when i do not see a fabrication i don't see any evidence or any allegations really of fabrication of evidence here i think that what we're talking about  think their claim really is a concealment of evidence they have a fabrication but the fabrication is is from the evidence that arose from the grand jury which is why a judge the judge in this case said it was absolute question goes to the concealment because allegations also say that it points to two thousand and twelve that's not grand jury so that's where you get into the concealment from my view and yes you're on the that's that's absolutely struggling for someone in this case to tell me what is the cause of action what's the claim it looks like a malicious prosecution claim under the th amendment but the district court said it can't be a malicious prosecution claim i'm not sure that was right but it hasn't been appealed so what what are we even talking about what is the claim what are the elements that you're going to argue are not here assuming we're under the th amendment and you said in your that might also be a due process claim but i don't see how that can possibly be true after the supreme court's decision in menu well were said no intil trial it's the th amendment or nothing and they specifically said that includes claims that a grand jury  tainted by falsity so let's assume it's the th amendment what's the cause of action legs it's the th amendment and what yes your honor i have to confess that i may be as puzzled as you i've i've lived with this case for a long time and i find it difficult to put my finger on what the specific claim is they've said repeatedly and really the only constitutional claim they put forward is this th amendment claim based on what they say is concealment and fabrication of evidence and what i would say my response is i believe on the on both of those issues concealment and fabrication of evidence those are only claims against defendant chapman and i think that the raber case rules the day here as the district court recognized because i think that those claims are both tied to the grand jury testimony as as judge when said i think that's absolutely clear with respect fabrication claim i believe that is also clear with respect to the concealment claim and the reason is that the court in rayburn set out what the scope of that absolute immunity is right and it is not just strictly what a grand jury witness says in front of the grand jury it also goes to claims of conspiracy which there obviously is here and also to preparatory activity that occurs especially between the grand jury witness in the prosecution and so i would argue st of all that to the extent they have made a claim there the absolute immunity from raber the scope of that is broad enough to cover all of the allegations that they've made with respect to defendant chapman and the the problem becomes for them aside from their difficulties of you know articulating a clear claim in this case the difficulty becomes that that is then dispositive on the conspiracy claim as well because in order to have a section nine conspiracy claim that claim is not a free standing claim the law is clear on that you have to have some underlying deprivation of constitutional right and so if the flame against chapman's the two claims against didn't your honor i don't know that my reading is that they have relied on the th amendment throughout d mr bonner that the record is is large here and there are lots of free file filed at different points in this claim and perhaps i'm not going to doubt mr bonner if he has somewhere in his argument where he has pointed to that but i'm not i'm not acquainted with that but i don't know that that would affect the grand jury immunity and hope you can come and go maybe i will i believe if i understand correctly and i'm sorry you're a little quiet judge gregory so it so it's a little bit harder to hear you but you know my understanding is that against all the defendants yes they've stated this conspiracy claim so their claim is that all these defendants have conspired together to deprive  deprive ms everett of her constitutional rights and they have mentioned at least here today that argument you know several rights that they believe were deprived from her i do not think that they've articulated and argument  and i don't see that in their brief based on anything other than this th amendment seizure claim and if if you're on a reads the the order from the district core what the district court allowed them to proceed on specifically was against chapman the concealment and seizure fabrication and seizure that's the way that those claims were characterized so those are the only legal claims that they have remaining in these in this case aside from this conspiracy claim and that the conspiracy claim specifically that they articulate is that all these defendants conspired to make or to cause defendant chapman to fabricate evidence before the grand jury or to conceal evidence from the grand jury those are my understanding of the technical claims that they have in this allowed to go forward on and then their amended complaint which is styled the st amended complaint although it's actually they had amended the complaint once before so it's it's it functionally it's the nd amended complaint that they styled as the st minute complaint honor i believe that what they are alleging there is that the conspiracy was to cause offended chapman to fabricate and conceal evidence and so i think that those are the technical ringback issues in the case however even if this court were to give a broader reading to their conspiracy claim i think st of all they still need to allege with the underlying constitutional deprivation is and i think they have a problem if absolute bit of a brain twister from your position is that if chapman is absolutely a mulan as to the concealment and fabrication charges then that means that so are all the alleged basically because it's not if she's a new and we're not saying there wasn't a constitutional violation we're saying sort of there's nothing actionable there's no actionable constitutional violation maybe she lied to the grand jury maybe she didn't we can't even get into that but you think that that kind of a holding rather than the district court's alternative holding there's no evidence of concealment or fabrication but the immunity holding itself would be enough to take care of the conspiracy charge as well there's no such thing as conspiring to do something for which chapman was immune is your position yes your honor that is our position and i also think again because of the way that i technically understand their claims i think that has to be the case because i think the conspiracy claim is knowledge just that there was some freestanding i understand it was a conspire conspiracy i read the district court said here's what you can go forward on your claim that you can spy or to make chapman lie to the grand jury that's your claim and you that they conspired to cause her to concede or fabricate evidence and they cannot move forward on a claim that chapman can see over fabricated evidence yes it's our position that then the conspiracy falls with it however i would like to briefly if i may address in the last few minutes that i have some of the facts of this case which i think are salient because it you know it is a fact intensive case and i think the most important thing  that you judge harris pointed out earlier is the issue of whether this entire f b i file was given over to the prosecutor in this case because it is undisputed in the evidence  think there is a specific bad faith state of mind but intentionally i guess could be bad faith maliciously or reckless disregard if i may your honor i think less as the than maybe young brady but i'm trying to understand at least if that is a violation if they intentionally do conceal is one thing but to do it conceal it with a purpose of doing the ceiling alone doesn't mean a thing other than maybe they just didn't like them i don't know what it is i mean why would you can see zero evidence in a case like this and not that you and i don't understand and as the whole con what and in the midst of that file what would what the facts if you are talking facts what the what makes it really great does it sound like something is wrong in the midst of those files you've been saying this woman may or is is dealing with economic develop nt doesn't exist and he would have some evidence of it right here in those files then you say she didn't have receipts right in the midst of the evidence you find on those some of the receipts a lot of receipts they wish frustrates the prosecutor i don't know who bird it is but you've got this agent who's supposed to be doing his job of a fine is out and you bring an allegation against a public official she loses everything including the election the whole bit and it in if this is what we're going to smash the charges and that's  acts quickly i would appreciate the opportunity to do that but you know i think st of all the records were in disarray from the start and that's what the independent audit at the town received showed and so i'm not talking here about the state auditor's office i'm not talking beth wood d and her office i'm talking prior to that there was an auditing agency every eunice ality in north carolina as been in independent annual audit and said there was a company that way and mills did the audit for the town and what that audit found was that the records were in the red and so the you just make an indictment your honor i think i think it's important to understand the different functions of the different agencies that were involved here the local government commission took over the records because of  that i don't want to and i don't i'm the city you can answer these questions i'm just saying when you look at the totality of the situation here in the functions i know to functions of this agency and i know to problems with princeville in terms of finances but i'm sitting to be able to in  to indict now whether they've properly advanced this and not this definitely something wrong with it isn't that your honor i believe that the local government commission and the defendants there were focused on the financial circumstances and the time they did not request that and that the mayor be prosecuted or that an indictment that is not it out on something totally different it was totally different she had them as actually  determine where we go from here again and thank you all very much we would ask that you uphold the district court's decision thank you thank you can i stop you there because for a long time it was very unclear in the law whether in a case like this involving criminal proceedings you could bring a due process generalized liberty claim about what happens in the pretrial phase of the criminal proceedings but then the supreme court very recently decided this case manual and they said we're going to clear this all up until the day you go to trial it's all about the th amendment when your trial starts the th amendment kicks in but anything that happens in the course of a criminal proceeding pretrial you've got one claim and it's a th amendment claim so i don't understand how there can be a th amendment claim in this case and i will say related late i didn't see the district court let you go forward on a th amendment claim that the disappoint initially grants all the motions to dismiss as there is nothing here come back with an amended complaint but don't include malicious prosecution and so you guys came back with your complaint which looks like it's a th amendment not just we didn't disclose but this was willful intention to conceal it now getting back to judge whims factual issue about the big large boxes of documents here did two files that we need it were not with th of which was the business purpose this was an innocent person ferguson in the beginning they knew she was innocent it was more than failure to disclose this was active intentional concealment that took away her right to a constitutional rights of everybody it's time to and this case should be reversed and let these issues of motive go to trial we don't have to explain why they want to shut her up about this twenty six million dollars that today has not been disclosed we don't have to prove a mot