excerpts we may not of her read the entire record fact we haven't before we've come here and so we appreciate record citations when those are available please take note of our traffic lights system when the yellow light comes on you have two minutes when the red light signals you need to conclude your argument unless you're addressing an argument and a question of counsel and what else do i have to say i don't think i can remember i don't paul on qualified immunity there are two related points that i want to try to get through arguing and my short time the first one is that based upon the ma report and recommendation which was adopted by the trial judge that the law of the case is that the plaintiff did not plead sufficient operative facts  o show that the probable cause affidavit submitted by deputy phillips was tainted and thus when the magistrate said tello issued the warrant for the arrest the broken causation rule applies and insulate philips and more and which is what the trial court found from liability but that same logic also insulate conclusions without supporting facts and the court doesn't accept formulaic legal recitation of the calls of action and that's what and that's argument well first of all i know i'm going to ask you a completely extraneous question how did judge peoples get involved in the state proceedings how to judge peoples get involved judge people's not involved there were there were two other lawsuits besides this lawsuit that involved mr shaw a wife ice and that was a state court and judge people's was involved in that case that was one of the lawsuits there was another lawsuit as well  in state court i just wondered i went to law school with him right well and that really brings this judge to to another part of the of our argument is that the the plaintive as he says in his in his complaint in his amended complaint he has had two other lawsuits he's taken depositions in those other lawsuits he's made public information requests he's gathered all sorts of documents and still when he gets down to the point of alleging that my client the sheriff and the chief deputy knew that the mutts affidavit was false all he can do is allege on information and belief he doesn't he doesn't have any operative facts isn't there some allegation or some facts about the sure if in his chief deputy conspired it's two and two t happened when he was picking up his granddaughter and and the and the affidavit for the warrant but there is the separate claim that the sheriff and the and the chief deputy can see fired to create that some specific opportunity for what about the allegation well first of all i have to ask you about the magistrate judge report because it was not it didn't say what you say it said it it  off deputy philips and that other deputy off the hook finding that they just relied on the affidavit of months it does not stop its touch your client dept the sheriff and the deputy sheriff so it really doesn't address the involvement of the sheriff and the deputy sheriff judge it does to the extent that the plaintiffs both in his amended complaint and in his only way that he even says it's still in his brief today that the three of them can spot them maybe he should have appealed to philip's being let off i don't see how that helps you you see what about saying the way that i how he knew or any evidence that alleges was given a direct order to obtain an arrest warrant based on the complaint mots was the former sheriff right much was a plumber sheriff then rector on also a political opponent of mrs shah and months as someone who supposedly wasn't even there at the school on the day of the event in question and your honor i think for purposes of this appeal the court should accept the plaintiffs well pled facts that mudd says affidavit is false i think you accept that he has pled that much as affidavit is false and he has said i know it's false because i wouldn't even there those are specific operative facts i think that's and give us something else where somebody communicated on their radio we're going to get em right your honor and that was that an excellent example that was officer think think he had to hire jerry goldstein's firm to represent him i don't know that you are well he's a pretty hot shot criminal defense lawyer right out of practice criminal law judge but i assume conspired with well if you're going to allow that type of a vague conclusory pleadings that we knew then you you consume qualified immunity every time there are multiple law enforcement defendants involved in a case all you have to use plead conspiracy and salminen it's not as if carnes county has the biggest sheriff's department in the world that it's not as if karnes county has the biggest sheriff to correct you on a night my dad was from sentence correct you're on the right program but but again there is no allegation there's no factual operative factual allegation that facts the operative facts because he acknowledges that you know with i've got to plead operative facts i can't plead mere conclusions i don't get them there and so is first operative fact this is on page six of the magistrate's report that's not near enough to support a claim of a conspiracy or that there was an agreement the next thing is he says as a result of animosity the plaintiff wife filed a lawsuit against them the way his friend and political supporter sued that would provide perhaps a motive to retaliate that might but but what the case law has said that motive of ill will malice none of those are sufficient to sever the broken causation rule if there's a good faith belief that that what much puts in as in this case what what's put in his affidavit is reasonable for the law enforcement person to rely on the next thing he says is that the pla assassination of shall judge shall what judge show had been the judge for eight months by the time this arrest takes place and on top of that the fact that my client only my client though in the way even a member of the ground current county patriots the fact that that bill in the way of it is a member of a group like you is a member of a political party and a political party has an agenda maybe the republicans have an agenda of pro life and maybe there was a fire at an abortion clinic well that doesn't mean you get to just allege well they conspired and you know they're republicans and they're pro life so that at least gets me to over the twelve b six hurt that's what's happened here  and then really you can see that this government between i'm sorry judge really you can see the difference between the sheriff belonging to the republican party or whatever party belonged to and belonging to this current county patriots just on the surface i think they're both protected by the first amendment right of way of aviation that may well be but surely you can see the distinction as far as the facts of this case and judge again i agree that there is a big media but how about summarizing or outlining for us the well played it back you think show conspiracy the walkley to facts that show conspiracy set forth in a twenty four page complaint your honor and they date back  year as the events move forward barbershop and wins the primary against who wins the general election to become county judge in the years twenty ten twenty eleven twenty twelve twenty thirteen a number of issues were presented to the county that caused to speak publicly involving the jail the jail that share the in whether i was responsible for running you'll see attached to the complaint a new stories in and recorder running it and this is what he says it's that trucks fault because it belongs to the county judge i know it's their fault f them any way you can an ethical go ahead get to that yes if we move forward the lawsuit is filed march of two thousand and fourteen this is one of the lawsuits that that barbara saw filed in response to these cars county patriots you mentioned the  about the distinction this is a group of people that just the vile comments that they spread on the internet and in the community in my name is indicative of a common view month before moods made this false complaint depositions were taken in particular moves his wife so when you place the moves coming in the context of this litigation they're going back and forth with all sorts of very very serious accusations against each other how how short what period of time elapses between the minutes as deposition and this alleged incident with sh with moves the former sheriff collaborated they colluded they conspired to fabricate this complaint because they're involved in the middle of a lawsuit in which all of their e mails are being exposed  frankly resting on this old harassment incident isn't going to shut anybody up right well and talking to my client spending seven hours in jail and then having police officers tell you in the weeks and months afterwards does  one's position remind didn't stop or last seen you know we did not stop this this lawsuit but let me just i mean go ahead and tell us your facts because then i have a question about what the magistrate judge  case after case in which this circular addresses that stay hidden and built into that is the assumption the acceptance of everything that has to stop leans as being true and every inference is indulge in his favor ok state that is signed and notarized by philips he basically says i pull into the into the school i see this show on a truck with the window cracked i can't hear him say anything and he makes this at one seventeen we identify the justice of the peace who signed that that flawed and in maliciously propagated after arrest or as a member of the car's  parks sales i asked you about allegations of conspiracy and mainly what we have is allegations of bad blood whether anything ties to these events is except for this business that he told philips to doctor the affidavit it's hard for me to understand what i also don't understand is why the magistrate judge didn't state any reasons for denying qualified immunity from the deputy he didn't explain that he just said here's why i'm granting qualified immunity to philips and murrin murrin murrin but he didn't say here's why i'm denying it to the standard that this court will apply and he makes references judge bent read makes references to the fact that we must take these pleadings as truth and when the plaintiffs in this case mr shaw outlines this longstanding political rivalry in which law enforcement officers take the law into their own hands in fabricate false affidavits we must take that as as true the six stage and i think justice jones you are the one that mentioned earlier this is not a summary judgment issue so the standards are at least for pleading purposes or in my penny more permissive the fact there's a case cited  do not over rule rule fifty six right they don't so so yeah but there's another case i was in the cloying of the mclean versus our case in which this court acknowledged that there are inherent differences in analyzing the fourth amendment wrongful arrest claim at the twelve b six stage in fact there are notes in that opinion in which the court stated we are reluctant to dismiss claims if there are sufficient facts pled at twelve b six stage and i think that that case is particularly applicable to mr shaw was position before the court no because of what's going on in courts i don't think that makes any difference the only point i wanted to make is that the special prosecutor resubmitted the case to the grand jury which i thought was interesting given that the position of the county was that that the arrest warrant was basically valid or switching to that it wasn't but it was submitted to the grand jury again now i haven't conducted a discovery and i haven't had a chance to pose the prosecutor find out why he did that but we know at record number one fifty seven that brian powers appointed prosecutor and paul canalis was appointed a special visiting judge on march twenty first two thousand and fifteen at page one fifty six of the record could the minimalists construction that is that they realized my moods had filed a false affidavit and of course you couldn't go forward i would agree with that one hundred percent now it's hard to say what your client damages are but anyway you know so he did prevail but again that doesn't all the circumstance it reeks of something foul as one of our judges put it many years ago but it doesn't necessarily come up to the level of facts supporting a conspiracy an agreement to violate this fellow's fourth amendment right well i would respectfully disagree but i think that the the twenty four page complaint along with the the exhibits that show that the probable cause was ultimately invalid it was found to exist at all by the grand jury so a couple cases i think that the court cited in our brief should take a look at there's the handy gary case and in that case this court and then ceded the rule that an official who maliciously seeks to obtain a facially valid warrant should not be absolved of liability because he succeeded ok and i think that's the issue here in this case in the in the reason that found or supported in the record or in the complaint again referring to them to the mclean versus our case i can't restate the importance in the applicability of that case to the the facts and into the law in this case again the court this court in did the mclean the mcclinton plaintiff it is that he surrendered voluntarily to the sheriff's department and the court found that it wasn't clearly established at the time of his surrender that that was a seizure but it did hold up until that point that pleading a conspiracy pleading that in an affidavit is false and procured for the purpose of malicious prosecution different the different and the mclean case it seems to me is that that fellow sued council members who had sworn out false affidavits against him and the officers who investigated and searched his house and i i think the comparison your honour's that mr shaw has done the sane but he doesn't have conspiracy it was my understanding that he did but he did it was my understanding he sued the case involved mr m an making online comments about all of the members of the council in implying that they were engaged in the corrupt a corrupt exhaustion and misuse of funds and all of that there are three or four council members filed complaints against him now there was some discussion as to whether that statute was in permissibly veg and whether there was free speculation but i think when you get to the fourth amendment analysis the court was spot on right on point in saying he pled clearly and concisely that these affidavits were false to procure they were supported by testimony rendered in the perjury penalty of perjury was being foreclosed and he's approached by deputy modine and basically try around put your hands behind your back and he was held in jail for seven hours so a very different case i think looking at the two p test of the qualified immunity analysis he has stated that officers violated a constitutional right which is to be free from wrongful arrest and that at the time of his arrest it was clearly eight sixty six a third at six ninety five we conclude that mcclelland complaint adequately alleges an unreasonable seizure because the defendant could not have believed they had probable cause to arrest him those are the arresting officers and the they said they met and conspired to create falsified affidavit do you think you come up to that level i think they're right on point i think they're almost too quickly to give those claims ok i think for that reason just a shot should be allowed to proceed with this case ok thank you thank you anderson first i want to say that the counsel's reference to the chief deputy making the statement about that's the judge's husband go after him that is not chief deputy a broom that is a former chief deputy heard all this are on your opening argument but let me ask you this procedurally it is not unusual for a case like this for the judge to say will will conduct discovery related to qualified immunity so the fact that you have not if you don't get qualified immunity on the pleadings you can still get it on rule fifty six right your honor your right narrowly tailored discovery as to the issue of qualified immunity that did that possible possibility come up i do not believe that the plaintiff's pleadings rise to the level of plausibility required in tuam will and required in ashcroft if they rose to the level of plausibility as opposed to possibility that yes your honor i agree with you one hundred percent he would be entitled to the limited tailored narrowly tailored discovery mr sanchez did not ask for the taylor discovery he has not at this time and in the other part your honor of this to his plaintiff's counsel continued to talk about phillips and phillips of being involved in this conspiracy and philip's doctoring two while mr shaw agrees with the ultimate result reach by both the united states magistrate and the united states district judge this on page twenty two of his brief he says he agrees with them so if he agrees that his pleading was to conclusory and was only a possibility and not applause not plausible as to philip's that same legal analysis applies to the allegations against the waiver and a really really applies to ebooks as as is jed's asked earlier with the difference between the republican party in the and the cons county patriots sure there is but but eeprom is not even a member of the current county patriots he doesn't even allege anywhere in his complaint that each broom is even a member of the current county patriots and the magistrates factual determination of what operative facts are out there if you read those factual the operative facts he relies on which i believe only show malice he brings name is not mentioned anywhere there either there are no facts alleged against evil him anywhere in the complaint or just for purposes of this hearing that much as affidavit is false than even is intitled to the same qualified immunity based upon the same break in the chain of causation that philipson more and more this case is the result of childish political and personal views and these people ought to be taken care of their community and stead of wastin judicial time effort and money in fighting with each other nor do you two to kiss in