oh let me just say in the case of petite we are aware and we thought about it that the supreme court will be deciding this one way or the other but we thought that since we had him void in a judge from another city we might as well hear you get ourselves into this and then obviously to the supreme court we are disappointed that neither of you what to our attention the fact that this very issue was before the court we can expect you to do that in all the cases in all the circuit courts just ours and the supreme court having said that we're now off the record so we'll go on the record ok immunity arising from the false statements made by his or her grand jury testimony problem in this case there is little question that the complaining witness is scott sadness a detective from the  to begin with he misidentified my client a mistake mistook or intentionally mistook my client as her seventeen year old daughter but that was corrected later in granger was not really corrected  very end when the grand jurors were allowed to ask questions it was not fully clarified now we didn't depose we never got to the point of deposing a detective sammis but you know based on the person that's in the record that is in the grand jury transcript ok is that right these are libert knowing yes judge yes yes  this is our position that this detective would say anything to secure an indictment against my client and that's that well at their decision and the answer to your question i think i think with the daughter i think there could have been a bonafide mistake but i don't think that there were you know i think one of the issues that we want to get across is that there should be some consequence that that you know mentally said you should get it right you should think twice before you swear  same thing i mean this is not not a knowing full well that's that's the that's the first part is the misidentification of the mix of the daughter up with with the mother but i say to you that that the mouth of the standard is well you should think twice a complaining witness should think twice before submitting it swearing out an affidavit so if this officer if this law enforcement officer is mixing up the daughter and the mother which leads to her incarceration for six months that's not really thinking twice that's not taking a good hard look at your case before going in without it without cross examination without a presiding judge from a grand jury again no this was not a mistake this was false there's no basis there's nothing in the record that suggests in any way that prior to that day she was the target of of any kind of drug operation that she was affiliated with the target of this undercover investigation at all this is just say say what you have to he said there was a confidential informant who provided that information the split there was no come there was no there's no record anywhere of any confidential informant talking about tying the team until after the fact until after the loss husband and essentially my fine as well were the owners of the house and question the both of the case against and it was constructive possession theory and if type of teeth and eugene perty are the principal renters they're the ones who are responsible for running the show and they were arrested because they live at the house constructive possession theory she was first no contraband found on her or in her purse and your claim is  and i haven't the amended complaint would describe this as a as a knowing or should i mean that that one appears in the pleading and if i had to do over again i probably would have put in no one but the truth is i think that well it was assumed by the district court at least that this was a deliberate falsehood in the still immunity from grant you what has the district judge immunity which i didn't even not know about that until until that was found that there was such a thing i was absolutely absolutely need only for the prosecutor but i'm saying i also know about the other cases with say that there's a card that if you're an investigator or even a witness so you know i believe is entitle to qualified immunity that's i think that's you know that's my reading of of the case law so then the standard is it reasonable law enforcement officer which provides that is one who has a qualified immunity to give it's qualified immunity based on a reason a law enforcement officers standards so you would argue that he's not entitled to qualified immunity at best best this case is a qualified immunity case and you would argue that it doesn't rise to that level he he can't meet the threshold for qualified immunity that's correct and i'm sorry for sorry for misunderstand your questions my kids complain about that and my wife  focuses upon the absence of absolute munity common law for an action based on malicious prosecution here the amended complaint does not set forth in one thousand nine hundred three action based on malicious prosecution rather count two alleges stopping and detaining without probable cause false arrest illegal search false imprisonment and the denial of various rights in fact the term malicious prosecution is not claim based upon malicious prosecution even if the supreme court were to agree with petitioners argument in raipur the district court's decision with regard to absolute munity for grand jury testimony should be affirmed furthermore should be affirmed on other grounds or should be affirmed on absolute immunity because in raber they're saying they're carving out an exception for absolute immunity only based on malicious prosecution because their argument is at common law what constitutional right of the plaintiff is violated by complaining witnesses deliberately false testimony to a grand jury with this circuit has recognized that there is a fourth amendment violation based on malicious prosecution where you said much of prosecutions not in this case but that's not so if mr prosecution is not allege then then what constitutional violation occurs or is there you know what are we talking fourth portion of the court's opinion has not been appealed so a grand jury testimony leads to an indictment yes and if the test if the testimony is deliberately false to the grand jury there could be a malicious prosecution claim is that what you're saying there could be there could be malicious prosecution prosecution claim regardless of whether the individual testifies before the grand jury so so here we're just trying to figure out what constitutional tort or peg we hang on to when we're talking about deliberately false testimony and there is no malicious prosecution claim there would be no constitutional in that instance that is correct and common law they distinguish between the tort of defamation and malicious prosecution however absolute immunity was applied in the case of a defamation claim and they did not distinguish between complaining malicious prosecution and the supreme court agrees with petitioners argument of rape or detective sammis is still entitled to qualified immunity one of the prime facie elements of a malicious prosecution claim is lack of probable cause and here the trial court concluded that probable cause existed to arrest plaintiff on a theory of constructive possession based on the following facts is that there was a large quantity of drugs found throughout the house in plain confirmed that the record indicates that she confirmed that the fact of sam's when they pull up or when she pulled up they asked whether they lived at this residence that was confirmed and at that point that she was arrested along with eugene petite and it's very significant that pellant did not appeal the trial court's holding with respect to probable cause to arrest point a thorny theory a conviction of constructive possession and furthermore none of the alleged false statements are materially related due to the elements necessary to establish probable cause for constructive possession for example the reference to appellant as for juvenile daughter who was in possession of drugs at the the incident is immaterial as constructive possession does not require appellant to be in possession of drugs at the time of the incident likewise testimony that drugs were found throughout the house but not in a that the drugs were located in the kitchen on top of a freezer there in the living room in a bedroom upstairs and it said it was throughout the throughout the house and in plain view also testimony  owner or principal renner of the property is immaterial again it was confirmed that appellant was living at this residence by detective sammis was all of the testimony that she was a lookout it just doesn't require that element and finally the alleged testimony that hell is married to her cousin has no bearing on any prob cause finding with respect to constructive possession with the remainder of my time i will address why a that the indictment was dismissed and that appellant pled guilty to believe his conspiracy for agger aggravated assault which was unrelated to this incident so she pled guilty to that and then they dismissed this charge know understand i mean she was in jail for six months that's correct i won the drug possession charge yes and then they came to an agreement based on his testimony the supreme court has adopted a functional approach under which official witnesses a criminal trial are absolutely mune from civil damages based on their testimony in th and declined to interpret mally as overriding a broad witness protection didn't hear what you yes and trying to interpret to interpret malet yeah as overriding the problem is protection it was announced in briscoe in williams th  court expressly disagree with other circuits that did not extend absolute immunity testimony before a grand jury found that the considerations underlying absolute immunity at trial are fully a political in the grand jury context a grand jury witness peers future litigation might be reluctant to come forward and testify and also where witness does testify there's your distinction between a complaining witness and the ordinary witness for purposes immunity analysis this court has rejected that distinction as well in in cold wiki and determined that briscoe did not make any such distinction when you look at briscoe and mally basically they reflect  case i've presided over perjury trials involving grand jury testimony but not as complaining witnesses you know somebody else was called before the grand jury a complaining witness exception would require the trial court to determine whether a particular witness's testimony could be said to have been the primary cause for the grand jury decision to indict by its nature such a determination is speculative absent testimony from the grand jurors themselves for example in this case it would be necessary to determine whether the grand jury indicted because one there was a large quantity of drugs and arrests in the residence no one at the residence took responsibility for the drugs and a pellet confirmed that she resided at the residence or on the other hand did the grand jury indict because of one or more of the alleged full false testimony such a determination is imprecise without testimony from the grand jurors and such testimony would completely undermine the secrecy that took grand jury proceedings have historically been accorded rule of absolute immunity for grand jury testimony eliminates the need for courts to probe the decision making process use of the grand jury and eliminates the risk that witnesses will see their testimony for fear of any monetary liability unless it unless the court has any further questions talking too much into it the aggravated assault was totally unrelated and i think you know what you may have been thinking as well wasn't she represented by a public defender or something like that when the deal was made and she was but but there is no we have no evidence no information that she knowledge probable cause and certainly there was plenty of opportunity to provide that to us so it's not like she waved her personally and not me i mean  on the aggravated assault my understanding is that the drug charges were administratively dismissed and i don't know if it was a quid i don't think it was yeah i'm not i can't for several months by the county prosecutor's office and that's not the answer she's the owner of the house georgina tyler she was in or eighty s and she's the one that gave a consent to search the house separately evony  is my client's sister in law who as a drug kingpin would go from place to place and that day she happened to be queen yes like  renter she was not an owner that's the distinction i'm not trying to misrepresent she lived there she had a room there but she was not a primary is that the indictment was administer cases i believe so you know that said in the uk the other thing is that every week the target she's spending hard time in jail in new jersey so you know so far as constructive possession goes maybe at the time of the arrest nobody caught to it but ebony teeth the then she she she pled to a pled guilty to owning distributing and she's serving i think a fifteen year sentence so all the officers involved as i know it were state police you know local police and it was i'm sure that there was the da or the f b i was probably notified about it but it was essen a state prosecution i mean it was a state prosecution like what's the constitutional right that's implicated by the alleged false testimony to the grand jury well thank you judge the nine hundred eighty three claim is a sense you know if i had if i had to do over again i may have clarified some things like knowingly false and nine hundred eighty three malicious prosecution but i think back in eighty three is very broad so i don't know that you necessarily need to put malicious prosecution in there it's kind of implied that i said before the memon interest that's implicated here or you know it's got to be a constitutional right what's the constant to put amendment against unreasonable searches and seizures what's the what's the how to kind of yeah