i'm adam cortez and i am proud to be representing officer scott risto after scott restos case is a civil rights case that basically centers or arises out of an arrest or a he made on september fourteenth twenty fifteen in the early morning hours of that day fortunately that arrest was captured on his dash cam video which of course the purpose of which is to protect arre allegedly accused of some criminal conduct on his part that occurred during that arrest that video has never been produced to the plaintiff appellant or even as of this date i have all the steps that we agree with you that it was completely legitimate arrest and we were not for the purposes of this argument not for ultimate decision on the facts were in that and then he should not have been told this we're trying to figure out do you make out a claim for hundred eighty three what are your nine hundred eighty three causes of action that are in your complaint ok well that's what what what makes a claim a colorable claim under nine hundred eighty three well we'll hear it your going under nine hundred three right that's correct ok and well basically what i will in my what i'm seeing here is and what we believe is that basically he was given an opportunity to be to resign but basically it was you're going to be you a just left this occurred in the police department everyone's a police officer including himself of course and so he's going to be arrested and incarcerated immediately and as i say it's immediate he's going to be threat press yes which i show up a which even the court the lower court acknowledged yes that you can be a violation there they were saying that factually i don't get there but that that's a factual inquiry which is the reason why what the opportunity to litigate it so the court recognizes that a show of authority the lower court even recognize recognized that the short of authority is you know can't be in when there's no probable cause can be done nation of the fourth amendment and that's what you know that's the really the primary focus of this particular of the constitution even if there's no precedent and that's that's kind of how i see this one i don't know if any cases where in a police officers threaten other please officers with the rest and then don't disclose the basis for that that threat of  arrest but somehow they're able to avoid any kind of litigation i don't i know of no authority all the cases that are cited in this for example even by their were cited by the police that jordan v bronzeville case that case centered on a fourth amendment violation to be threatened with arrest to be you know what the third of arrest and obviously it's imminent because he's right there and there's police officers and and to add to that even though he's not arrested that wasn't physically arrested but you never will he wasn't he well he felt that he had a choice i'm not leaving here except in handcuffs so as you know we know general law he certainly had the there was the addition of an arrest here what other  any do you believe that you correctly pled well there's some obviously the up the the issue with respect to whether or not he had a right as a kind of a due process right as a civil service protection which needs to be more fully developed the texas commission on law enforcement that does have some civil service protection we didn't get that far obviously so we didn't get to litigate that at all but i would like the opportunity to develop that long well i mean it's i'm saying that constitutionally he should have the opportunity to let us come what tenth amendment to to be able to assert that you need a federal claim federal constitutional claim or a federal saying denial of process authorized by state law setting up the parameters for the process is a federal violation i'm saying that yes that the fact that he didn't have any due process opportunity to defend himself  well i mean i went the opportunity to develop that and that's really where i feel this case where i don't think he's get been given the proper opportunity procedurally is that we don't get the opportunity to delve any further because if we don't get if the video we're looking right now to see whether you lead a federal claim you're you pleading doesn't seem to mention the fourteenth amendment as far as i can tell in that discussion paragraph  other where is it that you say that you're trying to make that claim yet that paragraph twelve of tab eleven the fourteenth amendment rights to due process include the right to be free to pursue his chosen profession well that's different than i have a right to be that's like talking about his new job we're talking about his old job that he didn't get that he had a property interest in his old job and he didn't  get fired with the process with the proper process that's what you would have to say and i don't see where you said he has a property interest in his old job under the fourteenth amendment and therefore he and he didn't know th go i'm sorry go back have something about constitutionally protected interest in pursuing a career in law enforcement but you're not talking about his being removed from his certain job you're talking more about him trying to get another job well i think well clearly i think that you can say that i will say i'm concerned about him in the future that was alleged in there but the at the obvious time to me the obvious inference from the entire pleading is that he was terminated from his position based on a false threat of arrest with no probable cause is is the long and short of the cause and so that's not this still even when you just said that since you didn't give say that's not alleging that there's a federally protected interest terminated without probable cause you still have to add the next sentence that says that and and he had a protected property or liberty interest in it has to be a property interest in his employment at this particular employment and his failure to get due process took away his right that that's the next step you have to allege well obviously in retrospect i could alleged it a little bit better but as i indicate with respect to the case law and the pleading rules that you need to make out a short and plain statement of entitle me to relief and an imperfect statement of a legal theory doesn't deny the claim of the right to  the there is a difference here there's a disparity or dispute between the districts because this case would have been much differently in the northern district of dallas where they don't have this heightened pleading standard that requires we're dealing with not even dealing with the qualified immunity part of it right now we're just talking about did you plead this on its face not did you have to anticipate the qualified i'm in immunity defense and all of that that you can that gets done in the response or in the rule seven statement so we're not dealing with hot heightened pleading right now so we're just trying to see what it is that you put so you got fourth amendment threat of arrest and you believe that's a detention yes and so and then you've got fourteenth amendment property right in loss of employment that's i mean that's what you are tending to plead that what is do you have anything else that you believe you pled in the pleading that this that there's part of there's a kind of a policy here where if you're an undesirable police officer then we'll threaten you with an arrest and or some kind of allegation and if you don't quit well then then then we're going to try to trump up some charges against you so that's a claim against the depart it against the against the city of shirts because as the as under what constitutional claim is that well i believe that that obviously is is a fourteenth amendment claim as well because you have a property right in employment and certainly certain be threatened with arrest but again i haven't developed that it through discovery because i haven't been able to get every we're trying to did you read it and i believe i did i played them as the policy makers and again i cite that groden case with respect to the pleading of a case under basically money ellen that there's there obviously in that cases as you know the light affecting your fourteenth amendment we'll see that see that's i consider that a legal issue with respect to whether or not there are other bases such as a city charter and also the texas commission on law enforcement quality and i mean texas commission on law enforcement in fact the lawyer who referred officer risto to me said that he believed he should have an opportunity that he can't just be dismissed that he does have rights with respect to basically it's a contract with the city of shirts but i didn't get to brief that issue at all but that that is what i my understanding is so that the remedy there and how i'm going to deal with it there is respect to whether or not the cut there is another avenue with respect to being able to overcome that because obviously it's certainly correct that it's an at will state it's equally correct that there are other reasons why the that he should have some due process rights we're not talking about what might be a way to create a property  told we're asking about is what's in the complaint about that it seems we paragraph fifteen is the one place where you get into the possibility of some additional rights beyond of being in employment at will is not a fair statement is that yes that is correct day in court in order to have the opportunity to determine how it is here these allegations were made against him and that there shouldn't be any pleading standard or any issues with respect to how to be able to determine had been in the northern district of dallas he would be able to have had the video produced so that we could determine if he has any kind of claim because i'll be honest with the court if i had seen it if i see anything on that video that is indifferent indicative of any kind of criminal behavior on behalf of officer risto then obviously that i would never brought the claim in the first place i'm i believe his account of what occurred and that there should have been anything that should have been any action taken against him and that i find it  extremely disturbing that officers would make a false claim about their own officer and i think it raises serious issues that need to be addressed and so that is definitely something that i think needs to be addressed because it's to extremely unfair to have this disparity in procedure simply based on where you live and so with that i'll save my rest of my time for rebuttal that good afternoon your honor is my name is charles free jury oh and i represent the apple east chief of police hansen assistant chief bane lieutenant casas of the city of shorts police department plaintiff has file claims against these individuals and i would say that they are individual claims only and not against the city of shirts itself when we filed our b six motion to dismiss and pla belied pleading is the first amended complaint and we put on notice that we were dealing with qualified immunity defenses the failed state cause of action again he did not state the city of shirts as a defendant these are he sued the chief of police the assistant chief of police and a lieutenant for their actions in finding that his call is that it right actions on the arrest of september fourteenth two thousand and fifteen fell below the standard empowered to set that policy in some situations making such an allegation would cause the government or unit to be substituted for the name within inches never with that direction but isn't there an allegation in the first human a complaint policy makers that made the policy for the city or the police department are in for that when they're certain officers would have these sort of allegations made against him in order forcing him to terminate  true but where you can make policy for the relevant governmental unit all i'm saying is that it sees me an allegation that would have supported potentially i mean if it was a sufficient allegation substituting the government body choice between unfavorable alternatives is not a detention under the fourth amendment to said go for it do what you got to do arrested then he would have this claim if he was arrested yes but he has to actually be arrested not just threatened with arrest leave so you know you have a case that says that no but i but there's no case law that i could find in the fifth circuit anywhere that just says the fact that you were threatened or given alternatives you can resign or other circumstances are going to be held against you other than that raised versus homeland security not held against you you're going to be arrested that you can resign or be arrested you're not aware i think you're not aware that they could be set for haps the moment case and you're not seems like in the context of granby connor that was the right thing to say because they were dealing with what we're dealing with the opponent has not come of a new authority to support that what happened here was sufficient but it does and it would be and improper to do that the only question is is it a fourth amendment violation only question for the all purposes right now in discussing this part of the opinion by the district judge is that constitute a fourth amendment violation if it's something else  magistrate judge decided that it fall into long in state it really found that there was no constitutional violation and that really brings us to the fourteenth amendment look the end analyzed in the procedural due process as well as substantive due process and the for the first element is because texas is an at will state is an porton because there there is no property interest the only way you can unintelligible property interest to have a contract or a specific words which was lacking in this case of the words it was a police officer for the city shirts did not have a property interest in his position he also had he was not denied if we look qualified immunity employed around it do we need that that seems to me that doesn't seem to be consistent with our law does it i don't think we don't think that's fair you agree that that's wrong and i don't i agree that the heightened pleading that we had under the other night that has been qualified by ball and into in to the extent that you did not that the plaintiff still must a legit constitutional violation but you don't have to plead around the qualified immunity defense you don't have to say and this should have been known because if you can't say that it was clearly established you don't have to show that it's clearly established and get around some anticipating some hesitate to ages eleven and twelve the fifth circuit is encouraged to require hot car harley facts specific and then it goes on and that's ok to say highly specific but then it says you must include detailed facts supporting the contention that tripoli of immunity cannot be sustained that's not required i don't believe so ok because it make you need to appreciate that is there anything about that determination that causes problems for you and i don't believe story out of because re still looking at there is no constitutional deprivation pled because there's no const there's no fourth amendment and there's no fourteenth amendment therefore it's still appropriate to twelve the sixth dismissal in our opinion and i don't believe that there was any cause of action on in this appellate the based against the city of shirts if the court were to infer that there were i don't five s when an officer is terminated you can either be honorably discharged generally discharged or dishonorably discharged and he was by their own pleadings he was honorably discharged so there was an intentional plan something to infringe on his future employment i think by the fact of his again as all pleadings typically an employer that from the very general standpoint if you have been employed it's terminated and there's an in corrie you will the only thing that an employer will substantive due process that he has rights reframes done for future employment is really lowering taxes in federal court that the texas government code or whatever this procedure that he would have been able to proceed to pursue this issue because it says if they can person files a complaint against a police officer that the police officer is entitle to have a copy of the complaint now that it evolved from the op to the individuals representing officer saying if the chief of police internally makes a cheap complaint then the chief of police must formally write out a complaint against the individual the texas supreme court has held that that is not the case that in administrator you are as the administrator as chief of police can file a complaint against you as as an officer and that is a case of colorado county versus staff which is five ten southwestern third four thirty five that's the texas supreme court case two thousand and seventeen that that held that it's in the strait of lee it would not you cannot have a separate cause of action for a chief of police or administrator if they do an internal a complaint against an officer that teachers in texas law have a property interest because they have contracts and the police officers agents that that he's unemployable no your honor not that i'm aware of under federal or state for that matter because he is employed he's right stand by the fact that the chief  did in his own pleadings it was honorable discharge but that's not defamation that's actually giving the officer the benefit of the doubt so right there what i'm saying he says that despite that they that they're going around behind his back and saying bad things i don't made police court with respect to the idea that there weren't that there were these were just a situation like in the rape versus homeland case where this was just different alternatives the facts of that case were that man cashed in his dress savings plans  to pay his lawyer for the federal indictment it was in a situation where he was being accused of fabricating the police report and it to be dating it restes so in that context i feel like this is a unique case in that we have this fall show of authority that's all and all the events are depicted on a video the video is being concealed and if that would turn that would determine the entire case i mean mr wood has what would you tell us that this video  that the arrest was legitimate yes that your point ok but how does that take you the rest of the way we were taken as a given because we except the well pleaded statements in the complaint and that part of the complaint is not being challenge that he made a legitimate arrest because that's not it seems to me where this battle is being fought but that's where you want to stay so how she can be re capable or you help me get over this barrier that i have that why does that make you case when what you really need to be showing you see to me is how is that a fourth or fourteenth minute violation not that but how does the defendant reaction to that event created a fourth or fourteenth amendment violation well i do believe that this conduct with respect to officers accusing other officers we except that is true we've got officers that falsely accusing other officers there is video evidence to show that that is a false allegation you're threatening a rest that has to be a constitutional violation of the fourth amendment or the fourteenth amendment there died deadest to me so much so speaking as someone who was a law enforcement for eight years and i have a sgt you know a very  prolonged force let this bothers me so much that you know i brought this allegation because i do believe that there is a cause of action it's true there are lots of legal hurdles with respect to what his cause of action i recognize them i don't deny them their procedural issues  arrest him and they didn't put him and you know that's what the district judge after adopting the magic judge's opinion hale so that's the gap why is that how do you bridge that gap that he was not arrested just somehow ok that yeah it's ok to threaten you with the rest when it's false as it was usually violation or no i think i consider that at a minimum the fourth amendment is the show of the story based on completely fabricated charges and then the and then the obvious concealment  leave we're not leaving here so either you hand in your resignation or you're going to want your you're going to jail immediately he was going to go to jail the da had allegedly just left and that's of the charges were being filed he was going to be arrested immediately so to me there's hardly a difference between i going to be arrested immediately and well like there's a plea put the handcuffs on you just as the whole wealth of authority with respect to that was it did it was it was i could reasonably believe that i had my freedom was restrained