s supreme court case of loz men versus city of rivera the site is one thirty eight supreme court one nine hundred forty five decision was rendered on june eighteenth two thousand eighteen the holding of that case was that the existence of probable cause does not bar of first amendment retaliatory arrest claim under the facts of that case so i want to talk a little bit about billows m which i do believe bears on the instant case because we do have a free speech retaliation claim the case involved an outspoken critic of the city  council with respect to an eminent domain case he was at a city council meeting he was told to actually instruction was given by council person to a police officer to carry him out because he had been speaking out critically and there was a finding that there was probable cause for the arrest and the supreme court looking at the situation determined that the probable cause finding was not going to be a bar to this situation and on the facts of the case what was impressing the u s supreme court was the fact it was number one the first amendment the right to petition the right to speak but secondly that the place where the decision was coming from was coming from on high and so it on the back of the case they determined that there was a policy in practice which was behind the arrests and so i wanted to read briefly from the case and this is particular he alleges that the city through its legislatures formed a premeditated planned to intimidate him in retaliation for his criticisms of city officials in his open meeting meetings lawsuit and he asserts that the city itself through the same high officers executed that plan by ordering his arrest at the november two thousand and six city council meeting the fact that lowe's men must prove the existence in a forced win of an official policy motivated by retaliation separates loz men's claim from the typical retaliatory arrest claim an official retaliatory policy is a particularly troubling and potent form of retaliation for a policy can be long term and pervasive on like an ad hoc on the spot decision by an individual officer an official policy also can be difficult to dislodge a citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service but there may be little practical recourse when the government itself orchestrates orchestrates the retaliation for these reasons when retaliation against protected speech is elevated to the level of official policy there is a compelling need for adequate avenue of redress in court so i think what this was authored by justice kennedy i think what the court was concerned about was that distinct from many cases that are filed that have to do with a state actor at a lower level and there are cases where there there is a charge that this is a retaliatory arrest the court was making a distinction and i believe that in our case that because we are alleging that the chief policymaker in this case walter reed had a hand in the actions that were taken against the plaintiff roger mcgee that that case i think the supreme court would also have the same response that in that case because it's coming from on high fact as as the court is aware in the motel  cases can be established by a pattern and practice it can be established which is expressed practice and policy or something that's implied or if the chief policymaker has an involvement so in this case we do allege the chief policymaker the district attorney for st tammany parish in washington parishes walter reed was involved in the retaliatory conduct the next thing i wanted to touch upon had to do with some dots that we presented to this court in the briefing but i don't think we may have sufficiently connected those dots with respect to any statute of limitations argument that has been raised by  rry wayne cox and so i wanted to invite the court's attention to the u s supreme court case of the lead better versus good year l e d t t e r at this site as one twenty seven supreme court twenty one sixty two to two thousand and seven case and i believe in our case we we brief this but we talked about speech that occurred in two thousand and twelve with gerry wayne cox at the head of costal church in north little rock where allegedly certain threats were made that if roger mcgee would step into the state of louisiana that walter would handle him he then comes to louisiana and there are actions that we allege that were taken and the primary actions are the denial of bail through what was called a what is known as a da hold and we'll get to get to that a minute and then afterwards after roger mcgee is released he alleges that he got a phone call from the daughter of cox and she asked the question are you interested in still proceeding so those three actions the speech act of the threat the action that we allege was taken in denying the bail and then the third act the speech can be viewed as a single wrong under the continuing violation doctrine and so for the statute of limitations purposes though that wasn't briefed with the court below it wasn't mentioned in the decision of the district court below but it's an issue that was raised by gerry wade cox i wanted to  to touch on that kaplan jumping back to the to the heck issue yes can you isolate for me and just try to be precise about the source of these free speech and false imprisonment claims is the source of those claims the initial arrest or is it the bail decision later it's  the bail and that and that's the important thing i want it's a good question because there are a number of cases where a plaintiff alleges a false imprisonment and that necessarily followed from the arrest and so i think there's there's an argument that is not available to that individual because of the heck doctrine but in this case i for example i don't think roger mcguinn is going to be able to complain about three days up until the seventy two hour hearing because i think that flows from the arrest and because of his plea he has a problem under hack but then i think there's a break in the chain of causation because something else happens which doesn't flow necessarily flow from the arrest it's interesting because it says resisting an officer and it says you have seven hundred fifty dollars signature signature and it says attachment charge unknown nobody on this matter so why is the charge i know so what's interesting is that in the court's decision the court decision is different from the evidence because what the court said and this is where hearing a bond amount was set on one charge and the second charge was based on the body attachment for alleged failure to pay child support and no bond was set but that's a problem because when the court stated that that was the basis for the second charge where did that come from because the document says charge on no and so i think actually this supports another it's another support for the theory that the plaintiff has that there was something strange going on with the fact that he was detained for three months it from a due process standpoint if you don't know what the charges how can you confront that charge obviously with due process central concept is confrontation confrontation with respect to witnesses and cross examining but  fundamental thing is one of my charged with so why is this document so charge i know so this is a another reason why is the court is aware we felt that we should have an opportunity to conduct some discovery i don't know if there is a court reporter transcript with respect to this at this hearing i believe there is a court transcript for the thirty day period following that where we have evidence that there is and it assistant d a present which is why we feel that there is causation and we can show that there was involved in it by the district attorney's office but this document which is the only doc uteri evidence that was submitted by the defendant the motion for summary judgment or the twenty six motion in the alternative mo several judgment i think raises far more questions than it answers when when we were dealing with it with the court below the focus that i had was that it didn't provide any evidence of noninvolvement by the d a s office but perhaps this document may be a reasonable inference is that there was an involvement we don't know so that's the reason why with the court below i said we should have an opportunity to conduct discovery speech retaliation which i believe is properly whether it chills a person of ordinary firmness from conducting a particular activity i believe the court below erred when it it applied a test which i don't think is political in the circuit and i don't think it's a political in a circuit that i'm aware of where the court said there was no undercurrent of violence and if you look if we look at the king addictive but if we look at the three examples that the court offered in that case one was a county board withheld legal godas advertising the second example was release of confidential information regarding a rape investigation and third the denial of the land use permit i mean that's i mean is this your question because yes well you saw the times just kind of going through the documents as opposed to sort of you're pleadings sufficiently tell us succinctly is right out of me how we plead keeps you in court i think we have adequately pled a false imprisonment due process claim we have adequately pled a free speech retaliation claim i think our first amended complaint satisfies those two claims and that's really what's before the court is the free speech retaliation is may please the court my name is carrie menard i'm in a system district attorney in the district attorney's office in the twenty second judicial district and i represent walter reed in his official capacity only in this matter  we intend to rely upon our briefing and the court is aware there are many many issues brought before this court i would suggest that i will address two primary issues and certainly answer any questions of the court may have a key point number one a district attorney cannot hold a defendant in jail and prevent the setting of bail under any circumstances setting a bail released from jail is purely a function of the judiciary and in this case mr reed in any capacity would be incapable of doing that secondly other than bald allegations which are not substantiated by facts there is absolutely no evidence in the record or otherwise that mr reid allegedly participated in mr biggie being held in jail for one hundred one days nor in any way interfered with mr reed's i'm sorry with mr biggie's right to free speech if the court reviews and i know the court has it is mere speculation  having to do with any connection between cox read the sheriff and the detention and the ongoing detention of mr mcgee with regard to the sheriff it's interesting to note that in the original petition as well as the argument at the district court level the sheriff in this case was allegedly a coconspirator in all of the alleged actions however at this point the sheriff is not before this court he was dismissed on a twelve b six motion and was not appealed his participation or his alleged participation was in no way appealed by mr m it's not as though your honor that he sat in jail for one hundred one days and was not before an impartial magistrate quite the contrary mr mcgee within seventy two hours of his initial arrest was brought to a bond hearing that is not in dispute on march thirty first within thirty days of his arrest approximately he was brought to an arraignment and that is the minute entry which counsel has referred to  d it's also interesting that mr caplan my colleague mentioned that there is nothing other than the minute entry to say what happened on that day are what charges were being brought against mr appellate himself admitted that that was the reason he was originally arrested and subsequently incarcerated our point is your honor that in addition to being brought up for an arraignment on the felony charges of failure to pay child support he appeared at other hearings other arraignment with counsel finally it would be wholly inconsistent to allow the one nine hundred eighty three action to move forward based upon the pleas of guilty to the felony failure to pay child support as well as the misdemeanor resisting arrest appellant appeared  secondly berge was a case that was based upon mono claims and was a case involving the withholding of brady material and the adequacy of evidence presented at the trial is at the trial court level obviously the facts in this case are different and as i get once again we are relying upon excuse me ambler and  the reason stated which will be six at no point to the district court say that it was converted to a summary judgment we have argued in the alternative that should this court find that the trial court did in fact convert propellent said that there was no undercurrent of violence and that was the reason why the district court dismissed in fact there were two reasons the second reason was that the court found that there was absolutely no causation applies however the difference in language and facts regarding a lowe's one case cited there is a requirement of probable cause well of no finding a problem cause for the claim is seed for a plate in this he pled guilty to the very charges that he was arrested for the failure to pay the child support therefore there is probable cause and as such a first amendment claim to pursue it with mesa must fail no matter how clearly that speech may be protected by did pleadings furthermore the attempts to modify the claim to be from the arrest and confinement as being the basis versus the actual threats being the retaliation in the motion  daughter no proof no allegation of any conspiracy between the parties has been alleged or provided pursuit with allowing for the private actor to be joined in joint activity with the state actor pursui little be absent there must be an agreement between the state actor and private actor to deprive the plaintiff of constitutional right to resign just hypothetically radically if your client had conspired  with reid to deny mr mcgee a right to bail do you even agree that would have been an illegal act no because it don't see how jerry wayne cox has any authority or ability to facilitate the withholding of bonds dale has that is specifically in this limited to the judiciary and the commissioner in the twenty second j d c to set that even again hypothetically but i even if mr cox had sort of conspired in some way that would not have been an illegal act in your view because he had no lawful authority to carry it out on your hypothetical if there is some ability of cox and reid to facilitate the lack of bail neither of those individuals have the authority to make any decision or influence any decision with regards to that so talking about doing something and actually having the ability to do it i think would be two  t matters and i don't think we can get there to say that just talking about it would get us there we would have to have commissioner for oil or a name to judge that would be part of a conspiracy there's no allegations of any of that in the amended pleading or the original pleading and having fact that i'm sure extensive discovery went through regarding sheriff seal no evidence came up above about him being part and parcel of this alleged conspiracy all the what would be the merit of us wading into the in the first instance right as opposed to sending it back to the lower court to tackle well the main reason i raise this specific one regards to prescription is the first time it was raised was in the decision i followed it the day it was allowed to be filed and they were injured their decision that day based upon the breadth of evidence that the decision was appropriate we would ask that you know clearly that those decisions are valid on their cox is a private actor which is still somewhat reserved in the fact that we're arguing that he's alleviated from any liability regardless under hat as a public bar and state actor but we don't even get to the you start having discovery in these type of based on these type of allegations you're going to open up a floodgate of of allegations based on hearsay that the disk attorney said something because that's where we are at this point  i just asked for additional time over and above mr bernard because i think it is a lot of confusion with regard to the criminal case which i lived through you have to keep in mind if they're asking  for you to consider by request for judicial notice the criminal case i also suggest if you look at the time this case was brought on the civil side in twenty fourteen mr reed was indicted in april the twenty fifteen instead of answering the more definitive statement request the first one the complaint was filed fifteen days later at that point you cherry pick certain comments from the indictment to the indicated to some massive conspiracy  brief of the plaintiff they said the representation by mr up on reading personal injury cases without a written agreement was sort of the essence of the criminal case that's not what the criminal case was about the criminal case was about his use of campaign funds in connection with with pentecostals if you're in washington parish you know that that's a huge political base my client was reelected many times based on the political base he's got support from these people  in fact in the in the criminal case he's put twenty five thousand of his campaign into a gymnasium and given bond pending appeal because fallon said this is not unusual for a case i mean the point is he he uses days after the indictment suddenly you cherry picking things from a criminal case which has nothing to do with this ma in connection with the criminal defense we are suggesting that in the criminal case that there can be a dual purpose in other words if you spend money for for the purpose of a political base and perhaps a second consequence would be a development of playing a practice that's not a violation of state campaign law and that was what the issue was here the main thing is that walter reed in his private or individual capacity official capacity his nobility effect the bomb and mr menards made that point and i think that when you look at that there is no basis for indicating reprisal or any participation by mr reed in connection with this ma of believe that it would be a serious mistake and open up the floodgates to further discovery of cases like this where somebody says it's almost like double hearsay they're saying that mr cox said that somehow he's related or said something on behalf of the da or are quoting the da where he can get some uprising that's there's nothing in the record well to reset anything they're talking about what cox mr c and i think he's a private citizen in a lot of times private citizens even if something like that happened and he said something like they sometimes try to use it somebody is neat that happens a lot i know so and so but if we're going to start having open up discovery dates based on this type of information i think if you look at the basis for a qualified immunity it's based on the concept that da's and people public office if they have to defend themselves on these six quoting from the decision quote because neither defendant nor any employees of the district attorney's office office or its as were involved in the plaintiff's allegedly not being permitted to post bail defended is not c didn't say that those things were not alleged it comes out and says that the district attorney's office says officer whether it's a mistake was were not involved and were yet neither defend nor any employees of the district attorney's office or were involved in the plaintiffs allegedly not being permitted to stay so i believe it's true it's clear from the record that's what the court did and in the face of that there is evidence from  from marion farmer who is the former district attorney who submitted a declaration say that he contacted both the sheriff's office and the district attorney's office and that he was told that there was a quote da hold and quote imposed and that put roger made he would not be able to bail out and that's coming from the former district attorney and he said it's not a term that i used but just because something ought not to be done doesn't mean it wasn't done in this case with respect to the seventy two hour hearing i don't believe that was in a rain meant counsel for walter reed in his official capacity made a statement to the court which i believe is a misrepresentation i don't believe was intentional but he said that there were other hearings where counsel were present there is no evidence of that that is a that is a misrepresentation to the court there is evidence of a hearing thirty days later and our evidence the plaintiff's evidence is that lee and wall and assistant district attorney was present and two witnesses roger made he and his aunt ruby believe that assistant district attorney walt made a statement to the court that there was a da hold with respect to absolutely no unity believe the palestra when it comes to walter reed his official capacity absolute immunity is not a bar we didn't go into it but i believe that if the court looks at the individual capacity claims against walter reed i believe that under the functionality t with the jury way in cox in north little rock arkansas why was walter reed there his political base is not in arkansas he was the district attorney for for her boyfriend this was a investigator who i believe was working with walter reed so the notion that the d a s office never puts its head on the scales with respect to bail i believe is not the case