tape recordings and that was important to me because it is the policy he was acting according to the policy although it turns out that i think that the tape are not in the strike it's important also to note that aljunied clear while person might have a constitutional right not to be charged with or as in this case convicted of a crime based on false evidence that the kid by the government that person doesn't have a constitutional right to a perfect questioning technique of witnesses especially children sexual abuse victims and therefore the court requires that a plaintiff make out a showing of the dishonesty of fabrication of evidence by either one in such an abusive coercive manner that they knew or should have known that it was going to yield only fast testimony those facts aren't present in the record basically the court holds those standards because it's recognized and  and on that basis the first thing we have to do is to decide whether there is a constitutional right that is at issue right right and i believe that the only constitutional plane here which i think then that claimed constitutional rights being violated by plaintiffs or the plaintiffs claim is that the questioning in the conduct during the interviews is a constitutional rights violation and i would submit that it is not but that is not a clear  constitutional right at that at that point in time if even now substantiated in the record again based on interviewing techniques which were the law was not clear as to what conduct would or would not violate a person's right and time again i don't think that he has think that again because it was so unclear as to how far an interviewer could go that i don't think they were on clear notice ok time that may be correct but as of today is that or is that not a violation of the constitutional right i'm not sure that's even clear today your honor while there have been some kind of you know what's going to make it clear it takes one stroke of a pan we walk off the bench to say it is a constant it violates the constitution hour to an hour and a half long the plaintiff is also requested that the court look at interviews with other children involving these particular defendants and infer that they are for the interviews with carla joe were probably the same whether you know it's another step as to whether or not interviewing somebody else makes a difference because i think i gather your argument is well it was a pattern if he did it that's the way he did it that's correct your honor we  apply and no one use that false test perjured testimony from pile whatever pliers but you've also got a sheriff's deputy and you've got a social worker children into slavery or a social worker would do something like that would not be regarded as violating the law even though no one's ever done it before i mean it's this is very unusual this is not an interviewing technique of believing that because could not have to do with driving on a child pressing the child repeatedly questioning the child threatening the child offering favors to the child inducements promises and very serious threats the kind of coercive question mean place court right name is lawrence from the sun i'd like to speak to the issues of absolute immunity and to state actor and to the requisite state of mind and more particularly like what is the jagels and there certainly are parties in claims that are still left out there aren't there there was a judgment there was a judgment entered as to jackal's because he was granted summary judgment and i believe  supreme court decided against us and ruled differently and i'd like to offer my views and so my that result result should have pain here the starting point for the whole state actor inquiry is the supreme court was a policymaker and the only question was that those single acts that were charged there by the policymaker himself was he a policymaker for the county or the state and the two  facts that i think the there was a complex analysis of all alabama state law constitutional law statutory law and the case law and the two key facts that i would like the court to focus on that emerged in the mcmillian case was that number one the court found that the county had no authority to make policy in the area of law enforcement the district court found that to be true the eleventh circuit found that to be true and the supreme court although the supreme court in mammalian never said we agree with that analysis it mentioned it in its own analysis and i think the only conclusion one can draw is that the supreme court of the majority agreed with that analysis namely in that case the count the actor who was the focus namely the share of could not make policy for the county and indeed the part of the county itself could not make law enforcement policy now the pits court here in california never made a comparable finding with respect to district attorneys there is absolutely no finding and in view there is no law that i'm aware of pits court put relied upon to the effect that a district that a district attorney and by inference the county has no authority to make policy in the area of prosecutions so that's one key fact that i think needs to be kept in mind the other really important fact in mcmillian was that the court found that under alabama law and it was the parker ca happens who pays or who is lott who may be liable when the sheriff acts torturously and the alabama supreme court said that when the sheriff is sued for tortious conduct independent of the issue of whether or not the happened well first of all i think both of those key facts which were key facts and million were were not even discussed in pits justice brown didn't even address them and what i think happened in  that correctly recognizing that there were two very old california supreme court cases which held that a district attorney when personally preparing to prosecute him prosecuting asked for the state but that was used to bootstrap kinds of conduct that were challenging which is policymaking within the office and supervising and training of both lawyers and non lawyers in the district attorney's office that the notion that the district attorney when fulfilling one particular role personally is clearly stoush by how when supreme court president means that the district attorney is a state actor with respect to virtually everything else he does just doesn't follow you know the court had difficulty setting logically they have to follow but the truth is they don't and it's not arbitrary to draw that distinction between the district attorney's acting being a state actor which we're but when the district attorney is doing those things that locally that involve the running of his office his or her office the managing of the people the supervising or not supervising the people and those kinds of things are the kinds of things for which there really is no support in mcmillian for finding that the california district attorney is representing only the state that i think is a tough issue for you but i think the analysis is correct if you focus more time the other tough issue here i i personally don't feel as if the absolute immunity is a tough issue here it's an absolute immunity is that the facts it was the other side we didn't have the burden of what don't have the burden of that defense history established historical precedent they just didn't do it i mean unless this court steps in and does its own legal research in historic research which i don't think would be appropriate to find some historical basis is really the most concise i can provide to you are now but i'm happy to answer any questions you may have i think of me and i think if you put before the district court of the report by the attorney general that is how do we have to cope with that do we have to rule on all the evidence three issues that are or do we just take your allegations and then have faith value and decide whether or not there is  munity or how do we approach that that we have to resolve the admissibility of all of that no because i think the i think the ground rule is that you have to assume the facts favorable to the plan and what did it add them to the case that all the havoc there it added it added for a number of defendants and it shows first of all how the sheriff's department in particular defendants kleiber and brad darling were responsible on a pretty massive scale for it's not training and supervising their people including but not limited to dissenting erikson in this case and that's the only evidence you have of it is coming from the absolutely no part no that report has an element of hearsay written all over it doesn't it and you say you say we have to resolve something  respect and that in order to know the practices and tactics now i'm saying that you do not need to resolve them as you just ignore the thing but what you lose if we were just to ignoring the thing it would be the strength of the it would not it would not remove the sole evidence supporting anything that we've argued for it would remove what we believe is some powerful evidence supporting other facts supporting the arguments that we're making but if you choose to ignore it altogether it's not going to result in the elimination of the only evidence supporting any one of our any issue for us now we still have to decide every issue that you say is before correct and i'm just trying to figure out whether whether we can ignore it safely or we have come to grips with it  r to decide your case i think you only need to focus on the selected portions that we've put before you plus the interview the underlying interview reports of the special agents of the california justice which were authenticated by special agent ball back who ran that whole investigation right mike but you're right you're right justice levy there's there's a hearsay element there but but again that you know at this evidence in another case even the extent that it is another case is somewhat questionable based upon the fact that these are not verbatim interviews these are conclusions by people who are not available to us at this point