in a criminal prosecution from that process being distorted by the potential risk of future civil liability in a later action brought by degrees from the defendant a prosecutor must be free to make the decision of what evidence to present a criminal people bringing the prosecutor information or the prosecutor developing his or her own information i think there's some aspects of both of that are certainly the prosecutor has his own role as to independently decide whether or not there is a basis to bring charges whether proceed but also the prosecutor especially in a small jurisdiction as we have here in jefferson county kansas there is buying this by i think by just a matter of fact exchange of information at times at the various stages of police officers may ask the county attorney hey what should we do in this situation we've got a complex criminal investigation that is beginning and they nail it down the point of if a police officer comes to your client and says we're beginning a complex prosecutor or investigation performing and if we in if we were to conclude that the complaint alleges the prosecutor participated in traditionally detective investigative function under because the damages appeared issue at issue there were damages are rising during the investigative phase not necessarily from the from the criminal from the trial phase of the procedure buckley also as well did not  mr blood flow and went out and got his brother to change is testimony and to point the finger at mr bledsoe and then all of a sudden they decided they were going to do anything with  and when he used the fabricated evidence at trial he suddenly had absolute immunity to  certainly an argument could be made that the the that fabrication of testimony during investigative phase could lead to damages at some later point in a criminal proceeding however it is difficult is difficult to reconcile that approach was with the very clear cases also says that a prosecutor can put forward even perjured testimony and still shielded by absolute immunity so i think the way the stably shows are instances where the prosecutor did not participate in the traditional investigative process that the police typically those cases are it's you said you focus on function those are cases where maybe even prosecutor knows that the evidence that's been delivered to him as my colleague pointed out when evidence is delivered is not is not truthful and uses it in any way you're right absolutely unity because we're in the traditional prosecutorial function that the allegations in this complaint are about participation in the detective's investigation and that's why i think the difficulty is in this case because adopting that point in the investigative got more than that here or there you've got you've got the allegation being that i mean your client directed the change in story and the fingering of mr bledsoe i mean that's more than was saying was if you look at this the injury flows from again taking allegations of the complaint as true we have no idea if they can prove that the damage flows from the to keep my mouth shut those are tom bledsoe's words made in his suicide note those were jim vanderbilt actions before probable cause those were jim vanderbilt actions police he provided the police with the location of where her body was buried and private details about where she'd been shot in the back of her has he provided the police with the murder weapon which was his own gun he was arrested  was jailed over the next five days according to the complaint which this court must take is true at this stage of the proceedings vanderbilt's and the jefferson county police and some k v i a of agents conspired song to falsely implicate floyd for the crime and five days later that's exactly what happened tom pointed the finger at floyd floyd was incarcerated tom was convicted at the time he was a twenty three year old man with no prior criminal convictions and he was in prison and let's not compound that tragedy by misapplying the law here because the pan the court is correct buckley controls here and i just wan fitzsimons was also one of the defendants but night was a respondent he was a trial prosecutor he introduced the evidence the grand jury he introduced the evidence that showed that matter to us well it matters because the exact same thing happens here we're vanderbilt is now saying that yes even if i could ever get evidence before probable cause attached things are different here because i was the trial prosecutor who introduced the evidence and thus i am absolutely mean the supreme you know what about what about the idea that he small town prosecutor that they don't have enough i'm i'm i'm mixed i'm adding facts but i think this was the gist of the argument that they don't have enough resources so the prosecutor has to maybe get  chance dirty in some investigation to what about that argument i think the opposite is true what will first i mean there's two responses one burns says it doesn't matter if you're doing what the police are doing you're liable if the police are liable for following your office you may have one prosecutor who develops parakeets the evidence and then hands off to an unsuspecting colleague to prosecute and in that circumstance the fabricator is liable but in a small department which may have only one prosecutor in the whole place if the prosecutor's involved in the fabrication but then it's the same person who tries the case that person is not liable under venable tool and that doesn't seem right and in particular step further let's s buckley addressed this exact issue by saying we look at the functional approach and we look then to see what is the foreseeable consequences of the constitutional wrong because since  this conspiracy to fabricate evidence and put the blame on your client on if we look at it your alternative allegation very likely at her immunity would  immunity i don't think that question before the court you know i think that has to be ruled upon the first instance by the district court in the district court hasn't addressed what would happen if spencer built was not part of the conspiracy and if he was not acting i well the district court didn't didn't distinguish between the two theories the district court just said he's he's doesn't have absolute immunity only have qualified immunity so i mean you know i think before the court i would my response is that i agree that if vanderbilt's under the facts so either a summary judgment or trial is determined not to have been part of the conspiracy then he's entitled to absolute immunity for actions that occur later if he was a part of the pre probable cause conspiracy which is what the complaint alleges so even though there's only one thing that  because the complaint there's a set of facts that if they are if they turn out to be true then vanderbilt liable under that theory then we have sustained the cause of action against vanderbilt and so there's nothing for this court to dismiss you can't or a partial reversal finding that the district court should have dismissed in june not that i think we have a we have a constitutional tort for violation of due process against jim vanderbilt under count one i don't think that this court can partially dismiss count on i suppose that this court could say he's absolutely noone for acts that occurred it after i went on when she was working as a prosecutor but that's not initiation of criminal charges and buckley's three year incarceration in which he was tried there was a mistrial and then ten months later he was released that was the graben of the complaint that was the constitutional harm that buckley had suffered and in response to judge of the judicial system and simply because the judicial actor the prosecutor who is involved in that process is the same person fabricate the evidence that is not determinative of whether the prosecutors entitle to  that is a due process violation and in determining the absolute immunity for the prosecutor at this stage the profits you have to look at was the prosecutor working as a net as an investigator at the time of the misconduct account and it was not missed by the district court wouldn't be appropriate for this court to reverse that decision on that count yes that's exactly right prosecutor to proceed at least before november twelfth with a grand jury against floyd practice that's right and without the fabricated evidence they never been able to what mr vanderbilt was involved before that that's correct and that's the focus his conduct before that is the focus of your attention absolutely if there is other  i've got a question for you when you're getting started here so do you judge mchugh was asking your opposing counsel about this idea of maybe some a partial dismiss al based on absolute immunity isn't something that you you raised in your opening brief i believe it is discus in the manner that she that she was brought it up in terms of that even if there was something pre prosecutorial that in to the extent he alleges anything that happened in the prosecutorial function that that can be severed and dismissed i'm not sure it was put us finally is that it was focused more upon the nature of again the damages issue and also what functions were being involved at the time certainly the alternative theories did come up to play both in the both in the lower court and i think in our briefing that i think also creates intention given that as judge murphy pointed out the proceeded in the same count that those bendable either was involved in the conspiracy where what was going on or alternatively that he wasn't aware of the fabrication of evidence and see this error and he was merely the recipient who carry the ball for trial so i think there is some tension there that and i agree that approach would be