[00:00:00] Speaker 02:
And the next case for argument today is Crowler versus Carr, 23-8014.

[00:00:06] Speaker 02:
May I please support?

[00:00:11] Speaker 06:
My name is Rex Mann, and I'm here on behalf of Appellants Rosen and Crothers.

[00:00:18] Speaker 06:
brought civil constitutional claims against the appellees here for their overzealous actions as law enforcement officers and prosecutors in a small tight-knit community in Jackson Hole, Wyoming.

[00:00:31] Speaker 06:
The district court dismissed every claim on summary judgment, even some claims that weren't even raised that we'll discuss.

[00:00:38] Speaker 06:
And we asked this court to reverse the district court because, one, it stepped into the shoes as a fact-finder and improperly weighed the evidence against the non-movie

[00:00:49] Speaker 06:
So I want to give a brief, I'm answering questions obviously, but I first want to start by giving a brief high level overview of the facts.

[00:01:01] Speaker 06:
There's much more details in the briefing, but it really is a private and credible case that Rosen was a 17-year-old high school

[00:01:11] Speaker 06:
And he was wrongfully accused of sexual assault by two former romantic partners.

[00:01:17] Speaker 06:
The cases were so weak that the prosecutors eventually dropped them.

[00:01:22] Speaker 06:
But not before, based on the actions of some of the appellees, his name was drugged through the mud in the press.

[00:01:28] Speaker 06:
He had to leave high school.

[00:01:30] Speaker 06:
He under house arrest for four months.

[00:01:32] Speaker 06:
He didn't get to graduate on time.

[00:01:34] Speaker 06:
He didn't get to go to the colleges he wanted to.

[00:01:37] Speaker 06:
And these cases, based on the actions by certain of the appellees, shouldn't have been brought to begin with, but they're still impacting him to stay.

[00:01:45] Speaker 06:
At a high level, one of the cases related to MR had to be dropped when an exculpatory video came out that was provided by one of the eyewitnesses

[00:01:57] Speaker 06:
that the investigating officers decided not to interview, even though the prosecutors suggested they interviewed them.

[00:02:04] Speaker 06:
That person had a video that exonerated my client.

[00:02:09] Speaker 06:
As to IU, IU's phone had a hookup list on it, which listed her partners.

[00:02:18] Speaker 06:
And it describes the encounter with Rosen as one consensual

[00:02:25] Speaker 06:
Notably, Bomber had that for a couple months and didn't disclose it.

[00:02:30] Speaker 06:
It wasn't until the defense found it themselves and raised it that the prosecution finally had no choice but to drop that case as well.

[00:02:39] Speaker 06:
But what else was on IU's phone was sort of a chat or text message with someone who it outlines a pretty disgusting behavior by the PE teacher at her local high school who had been sexually assaulting her, forcing her to do various sexual acts with him.

[00:03:00] Speaker 06:
And in contrast to how they investigated Rosa and they immediately jumped on it and investigated, you know, talked to IU and MR.

[00:03:07] Speaker 06:
They didn't do anything with the PE teacher.

[00:03:11] Speaker 00:
Do the claims, your client's claims, your class of one equal protection claims, involving the PE teacher, do those claims against the peace officers travel together with the claims against the prosecutors?

[00:03:27] Speaker 06:
I guess I don't understand why your army traveled together.

[00:03:32] Speaker 00:
I mean, it doesn't seem to me that the district court addressed

[00:03:37] Speaker 00:
this claim against the prosecutors.

[00:03:40] Speaker 00:
Is that correct?

[00:03:41] Speaker 06:
Yes, Your Honor.

[00:03:42] Speaker 06:
I think I understand what you're asking.

[00:03:43] Speaker 06:
There are different facts at issue.

[00:03:45] Speaker 06:
There were things the prosecutor was doing versus the officers.

[00:03:49] Speaker 06:
Of course, we didn't put all the facts as the prosecutor.

[00:03:51] Speaker 02:
Well, in fact, your complaint lumps them all together almost always.

[00:03:56] Speaker 02:
I mean, if you go through the complaint, you can't tell when you're talking about the prosecutors, when you're talking about the officers.

[00:04:06] Speaker 02:
I have a little trouble with your argument that the court couldn't dismiss on summary judgment all of the claims because if anyone's responsible for mingling together, it seems to me the complaint does.

[00:04:23] Speaker 06:
introductions and things like that when you're speaking more high-level.

[00:04:26] Speaker 02:
Even in the allegations, it often just says the defendants.

[00:04:30] Speaker 06:
Well, Your Honor, I believe in the summary judgment briefing we were very specific.

[00:04:34] Speaker 06:
In the factual background, I believe even in the appellate briefing here, we were very specific as to who did what.

[00:04:40] Speaker 06:
Of course, complaints are sometimes made on information and belief.

[00:04:43] Speaker 06:
We knew there was coordination because we knew there were meetings between the prosecutor and the defendants.

[00:04:48] Speaker 06:
So certainly at a certain period of time,

[00:04:50] Speaker 06:
We thought more people were involved, and then once we went through discovery of the case and we got depositions and were able to identify the specific facts, we did include that in our summary judgment briefing.

[00:05:01] Speaker 06:
And I know that's a complaint they made, but I believe if you look at the briefs, we're pretty specific as to who did what in our factual section.

[00:05:08] Speaker 06:
The court certainly didn't have much of a problem with each cause of action.

[00:05:12] Speaker 06:
It had a footnote.

[00:05:16] Speaker 06:
with this person and it wasn't the same people all the time.

[00:05:19] Speaker 02:
So... Well, the district court dismissed claims, said, I've dismissed as to this group of defendants and that takes out this group of defendants too.

[00:05:31] Speaker 02:
And you object to that here on appeal.

[00:05:33] Speaker 02:
Yes, Your Honor.

[00:05:34] Speaker 02:
And our case law is pretty clear that in order for you to, you know, typically you give notice, but you have to have been prejudiced.

[00:05:43] Speaker 02:
And so you have to come forward and you have to tell us

[00:05:46] Speaker 02:
how the facts were different in a way that would have made your claims there survive when these claims failed.

[00:05:53] Speaker 02:
And none of your argument does that, even on appeal, arguing these claims.

[00:05:58] Speaker 06:
Your Honor, the struggle is we're here on a summary judgment motion, which it's the burden of the movement to explain why summary judgment should be granted.

[00:06:07] Speaker 06:
So it's really hard for us to guess as to why the prosecutor defendants would have said

[00:06:14] Speaker 06:
if they don't explain those reasons.

[00:06:16] Speaker 06:
And thus, we don't really know what they would have argued.

[00:06:19] Speaker 06:
Now, as for prejudice, what we can say is we were very upfront with the district board about this.

[00:06:23] Speaker 06:
I think we've mentioned on the first or second page of our briefing, it said that it wasn't raising those claims.

[00:06:31] Speaker 06:
And so we're not providing any specific argument or evidence on that.

[00:06:34] Speaker 06:
And because we had timelines, there were a lot of claims.

[00:06:36] Speaker 06:
We actually had three parties at the time.

[00:06:39] Speaker 06:
So it would have prejudiced us to try to guess what they were arguing.

[00:06:48] Speaker 00:
specifically in terms of the claims, because I'm a little bit confused.

[00:06:51] Speaker 00:
So we're talking here about counts four and five that the district court said, I dismiss.

[00:06:58] Speaker 00:
Well, count four wasn't right against the prosecutors, correct?

[00:07:01] Speaker 00:
That's right.

[00:07:02] Speaker 00:
OK.

[00:07:02] Speaker 00:
So she gets rid of four and five on summary judgment, even though the prosecutors don't bring that motion on those claims, correct?

[00:07:12] Speaker 00:
As to the class of one claim against the prosecutors,

[00:07:18] Speaker 00:
That was just not addressed in the district court order.

[00:07:20] Speaker 00:
Do you agree?

[00:07:21] Speaker 00:
Yes.

[00:07:21] Speaker 00:
OK.

[00:07:22] Speaker 00:
So back to the four and five, accounts four and five.

[00:07:27] Speaker 00:
To satisfy your obligations under our case law to show prejudice, I would think you'd have to say getting rid of the peace officers doesn't, as a matter of law, get rid of the prosecutors.

[00:07:39] Speaker 00:
And I'm not sure you can say that here.

[00:07:42] Speaker 06:
Your Honor, I would say that because the court's analysis

[00:07:45] Speaker 06:
on count four and five in the Fourth Amendment, it wasn't like there was some legal principle that barred our claim.

[00:07:54] Speaker 06:
It was a highly factional specific analysis as to those offers.

[00:07:58] Speaker 06:
And the court spent a couple of pages talking about what the officers did and what they didn't do, et cetera, and then said, my analysis applies also to the prosecutor defendants.

[00:08:07] Speaker 06:
But we didn't have the opportunity to understand

[00:08:10] Speaker 06:
what the prosecutor-defendants' issues were, what grounds they were even raising for summary judgment on that one.

[00:08:16] Speaker 06:
I mean, we would have to just presume that it's the same grounds as the officer-defendants, but of course, they have different obligations and duties, and prosecutors are starting to treat it different than officers.

[00:08:25] Speaker 06:
So that was the struggle, Your Honor.

[00:08:27] Speaker 02:
Well, on the due process, I mean, for me, it probably helps to break them out.

[00:08:32] Speaker 02:
But on your Fourth Amendment claim with respect to Mr. Crothers,

[00:08:39] Speaker 02:
The ruling was that he wasn't seized, as I understand it, and that therefore you can't prevail on a Fourth Amendment due process claim.

[00:08:53] Speaker 06:
Your Honor, we're not challenging the court.

[00:08:58] Speaker 06:
We're saying that the prosecutor and defendants didn't raise any issues as to Rosa.

[00:09:01] Speaker 06:
They did as to Krueger, so that wasn't an issue with that.

[00:09:05] Speaker 06:
your honor, so I would agree with you there except we're not saying that one was an issue.

[00:09:11] Speaker 00:
But since we're talking about that one, if I may, with respect to the malicious prosecution claim that Mr. Crothers is bringing, below you argued seizure not a requirement.

[00:09:23] Speaker 06:
Right?

[00:09:24] Speaker 06:
It was complicated.

[00:09:25] Speaker 00:
Did you argue that seizure was not a requirement?

[00:09:29] Speaker 06:
I can't recall if we said it like that.

[00:09:31] Speaker 06:
The issue was they raised this Becker case.

[00:09:34] Speaker 06:
And what we were saying was that that Becker case was talking about seizures in the context prior to trial.

[00:09:40] Speaker 06:
We just said that didn't apply.

[00:09:42] Speaker 06:
We should have more artfully said that there still would have been a seizure if he was at trial.

[00:09:48] Speaker 06:
But our point was that their argument was irrelevant because they didn't point to any law saying a seizure didn't occur when he went to trial.

[00:09:55] Speaker 00:
So you were arguing about the scope and implications of Becker.

[00:09:59] Speaker 00:
District court rejected that argument.

[00:10:01] Speaker 06:
Yes, Your Honor.

[00:10:01] Speaker 00:
Now you're making a different argument.

[00:10:04] Speaker 06:
Well, Your Honor, the court rejected it because the court said that was no seizure.

[00:10:08] Speaker 06:
And I think our point is that the seizure that's talked about in those cases is pre-trial.

[00:10:15] Speaker 06:
And so the case law here is different when it terms of pre-trial.

[00:10:19] Speaker 00:
But it doesn't seem that the argument, or maybe I'm misunderstanding your argument.

[00:10:23] Speaker 00:
It doesn't seem to me that the argument you're making to this court on seizure, that the

[00:10:28] Speaker 00:
The quality of the prosecution itself, having to stand trial, constitutes seizure.

[00:10:33] Speaker 00:
You did not make that argument in the district court.

[00:10:35] Speaker 00:
Is that correct?

[00:10:37] Speaker 06:
Your Honor, I can't entirely agree with that.

[00:10:39] Speaker 06:
I agree that we make it differently, certainly, because the way it was brought was that Becker applies, there was no arrest, such that there was no seizure.

[00:10:48] Speaker 06:
That was kind of the sequence of events.

[00:10:50] Speaker 06:
And what we said, well, no, Becker doesn't even apply, so you're wrong.

[00:10:54] Speaker 06:
And we didn't address whether a trial would

[00:10:59] Speaker 06:
Their motion is being, since there was no arrest, there was no seizure.

[00:11:03] Speaker 06:
And that's what we rebutted, Your Honor.

[00:11:04] Speaker 06:
So that's why it's argued a little differently.

[00:11:06] Speaker 06:
And then the court obviously analyzed the seizure element in a little more detail.

[00:11:10] Speaker 06:
And so we're trying to respond to that.

[00:11:13] Speaker 06:
Your Honor, if I may, I'd like to talk about Rosen's 14th Amendment claim for intentionally delaying the charge.

[00:11:20] Speaker 06:
There's complicated facts there.

[00:11:24] Speaker 02:
Yeah.

[00:11:24] Speaker 02:
And again, you've got a prejudice requirement on a due process.

[00:11:28] Speaker 02:
claim based on prosecutorial delay, you have to show that they did it intentionally to gain an advantage and that you were prejudiced at trial.

[00:11:44] Speaker 02:
Every single case talks about being prejudiced at trial.

[00:11:48] Speaker 02:
Your client never went to trial.

[00:11:50] Speaker 06:
Your Honor, the reason why our client didn't go to trial is because they dropped the case.

[00:11:56] Speaker 02:
Well, that may be, but you weren't prejudiced at trial.

[00:12:01] Speaker 06:
Your Honor, I'm not aware of the law saying you have to go to trial.

[00:12:04] Speaker 06:
If that's the case, that's the case.

[00:12:06] Speaker 06:
But the point of the prejudice, our prejudice argument in terms of due process was that he lost the ability and lost the confidentiality protections

[00:12:15] Speaker 06:
that would have been provided to him by June 4th.

[00:12:17] Speaker 02:
Well, yeah, you've conflated different due process arguments altogether in your brief, and I had to kind of pull them apart.

[00:12:26] Speaker 02:
The prosecutorial delay is the one we've just talked about, and now you want to switch to a different one, which is, I'm not sure if you're arguing deprivation of a liberty interest or

[00:12:40] Speaker 02:
a property right or exactly, I think you refer to it as a property right, but you would have to show that he had an absolute right with no discretion to be tried in the juvenile court, which I don't see under the state law how you can get there.

[00:13:03] Speaker 06:
Your Honor, I think Your Honor should look at that.

[00:13:06] Speaker 06:
I'm referring, Your Honor, to the Hyde Park case, because what that case says is,

[00:13:10] Speaker 06:
It's not that there's a property right because there's no discretion or that you're entitled to a particular result.

[00:13:16] Speaker 06:
There's a property right because you're entitled to the evaluation of a set of factors or a standard, and they're really because of that, whether you win or lose.

[00:13:27] Speaker 06:
And I mean, I can quote from the highest part.

[00:13:30] Speaker 00:
Before you do, may I just ask you to clarify?

[00:13:33] Speaker 00:
Is your argument that there is a property interest notwithstanding the discretion, is that

[00:13:39] Speaker 00:
a way that you are seeking to satisfy the actual prejudice component of your delayed prosecution argument, or is that like a whole different argument?

[00:13:51] Speaker 06:
They're related, but certainly the prejudice has to do... The property right is the right to a ruling or a particular result or an analysis based on the determined set of factors, and the rules may come from that.

[00:14:06] Speaker 06:
The prejudice relates to that, but because we weren't

[00:14:08] Speaker 06:
because they delayed and charged him as an adult because the consequences were more severe as they admitted and other things that they did.

[00:14:17] Speaker 06:
We weren't able to gain the benefits of that property right.

[00:14:20] Speaker 06:
So the president has to do with the loss of benefits from that property right.

[00:14:24] Speaker 06:
Your Honor, the last thing I'd like to note, because I think it's something I was looking at, is on Crother's 14th Amendment right to fair trial claim, one thing I want to point out

[00:14:40] Speaker 06:
Kelly's point to, are in the context of a post trial, generally whether there was a right to change in venue due to publicity.

[00:14:48] Speaker 06:
And there the court does it as a fact finder.

[00:14:51] Speaker 06:
And we believe that's really what the court did here is it sub-studied itself as a fact finder and applied a standard that's sort of beneficial to the state, which is a discretionary standard from the post trial context.

[00:15:03] Speaker 06:
When we're in almost the opposite procedural posture,

[00:15:06] Speaker 06:
We're here on summary judgment and wouldn't want to raise a jury admission material fact.

[00:15:10] Speaker 02:
And given the prosecutor admitted it was like a zoo in the case he says... Well, hasn't the Supreme Court pretty much said if you get a split verdict, you're not going to be able to meet the standard for showing an unfair trial?

[00:15:24] Speaker 06:
Not in this context, Your Honor.

[00:15:26] Speaker 06:
That's in the post-trial context when you're giving the district court, when you're under

[00:15:36] Speaker 06:
That's the opposite standard of what we're applying here, which is the standard of whether there's a material issue, judicial material fact.

[00:15:42] Speaker 06:
I see you don't have time.

[00:15:43] Speaker 02:
Well, I'm going to ask to hold you there for one more minute, because why can't we throw this whole appeal out under Heck versus Humphreys?

[00:15:52] Speaker 06:
Your Honor, we aren't trying to, if I recall that, we aren't trying to relitigate the criminal cases, if that's what we're calling that one.

[00:15:58] Speaker 02:
Well, if you win on your malicious prosecution case, you're going to set aside the conviction.

[00:16:07] Speaker 02:
14th Amendment due process, he would set aside the conviction.

[00:16:12] Speaker 02:
Anything that would interfere with his criminal conviction is covered by Heck versus Humphreys, isn't it?

[00:16:19] Speaker 06:
No, he can't possibly interfere with his conviction here because he's already done his time, he's already been convicted, everything's in the past.

[00:16:26] Speaker 02:
That's not how Heck versus Humphreys works.

[00:16:31] Speaker 02:
Even if he served his time, you would be, if you won,

[00:16:35] Speaker 02:
saying that that conviction is invalid.

[00:16:38] Speaker 06:
Well, Your Honor, for no reason, we aren't trying to set aside the conviction because what we're complaining about is the sexual battery charge which he was acquitted on.

[00:16:45] Speaker 06:
So it really wouldn't impact the criminal prosecution at all.

[00:16:48] Speaker 02:
Well, you can't do that.

[00:16:50] Speaker 02:
I mean, if the trial was unfair, the trial was unfair on every charge.

[00:16:56] Speaker 02:
You can't parse it out and say part of the trial was fair, but the rest of it was a zoo.

[00:17:03] Speaker 06:
Your honor, we have to look more into that.

[00:17:05] Speaker 06:
I mean, that's something we have to focus on with the court, but that's all the time I have.

[00:17:09] Speaker 06:
I'm happy to answer any further questions.

[00:17:10] Speaker 06:
Thank you.

[00:17:10] Speaker 06:
Thank you for your time.

[00:17:17] Speaker 05:
Good morning, your honors.

[00:17:18] Speaker 05:
Excuse me.

[00:17:22] Speaker ?:
My name is Jennifer Miller.

[00:17:24] Speaker 05:
I'm a senior assistant attorney general with the state of Wyoming, and I represent

[00:17:30] Speaker 05:
Sheriff Carr in his individual capacity, and deputies Bomber, Roundy, Platt, and Haunters in their individual capacities.

[00:17:41] Speaker 05:
With your permission, I want to yield the last three minutes to Mr. Bowers, who represents the prosecutors in this case, particularly since so many of the questions had to do with the prosecutor.

[00:17:55] Speaker 05:
All right.

[00:17:56] Speaker 05:
So we have two separate civil rights claims in this case by separate parties that involve entirely different incidents.

[00:18:02] Speaker 05:
And so you separate Rosen from Crothers.

[00:18:07] Speaker 05:
I want to start with Rosen.

[00:18:10] Speaker 05:
There is this astonishing void in the record, and we just heard it.

[00:18:14] Speaker 05:
We just heard from Capsule that Mr. Rosen was, quote, wrongly accused.

[00:18:20] Speaker 05:
What evidence in the record is there that he was wrongly accused?

[00:18:25] Speaker 05:
We don't have an affidavit from Mr. Rosen denying that he committed these sexual assaults.

[00:18:30] Speaker 05:
We don't have deposition testimony from Mr. Rosen that he committed these sexual assaults.

[00:18:35] Speaker 05:
They argue in their France argument that Deputy Hodges recklessly disregarded the truth, and they don't tell us what the truth is.

[00:18:45] Speaker 05:
The France claim fails because Rosen does not identify, does not attempt to identify

[00:18:55] Speaker 05:
That rejects the necessity of identifying a false statement or material omission in Deputy Hodge's probable cause affidavits.

[00:19:09] Speaker 05:
Without that, Brinks doesn't go anywhere.

[00:19:14] Speaker 05:
There are other failures too along the lines, but that's the most fundamental one.

[00:19:20] Speaker 05:
On the delay in charging,

[00:19:24] Speaker 05:
Yes, it is not a delay that prejudice rose in that trial because he was not tried.

[00:19:31] Speaker 05:
Even if you go to the theory that they go to, which is that he was prejudiced because he couldn't transfer from adult court to juvenile court, understanding that he could be charged when he was in adult court when he was 17.

[00:19:53] Speaker 05:
Their argument that he couldn't transfer is just wrong and they know it's wrong because they're the ones who established it.

[00:19:59] Speaker 05:
They filed a motion for Rosen in another case for transfer to the district court and the One Extreme Court affirms that they could do that.

[00:20:10] Speaker 05:
There is no actual prejudice and the court is absolutely right.

[00:20:13] Speaker 01:
Well, they could ask for it.

[00:20:16] Speaker 01:
They could request a transfer.

[00:20:18] Speaker 05:
They could request it, and that's a very good point.

[00:20:20] Speaker 05:
They did not have a right to a transfer.

[00:20:24] Speaker 05:
There were several discretionary factors, and the discretion is very broad.

[00:20:31] Speaker 05:
On the class of one clause, this argument is, Rosa makes the argument, gosh, this PE teacher should have been investigated more thoroughly.

[00:20:46] Speaker 05:
So what?

[00:20:48] Speaker 05:
Rosen has to show that he should not have been charged because the PE teacher was not charged.

[00:20:57] Speaker 05:
Well, obviously their situations are not similar in all material respects.

[00:21:05] Speaker 05:
The alleged victim of the PE teacher didn't want to participate in the investigation.

[00:21:12] Speaker 05:
And that also provides a rational basis viewed objectively, not to charge the PE teacher.

[00:21:22] Speaker 05:
So those are the three Rosen claims.

[00:21:24] Speaker 05:
Are there questions about the Rosen claims?

[00:21:29] Speaker 02:
Doesn't appear so.

[00:21:30] Speaker 05:
All right.

[00:21:30] Speaker 05:
Thank you.

[00:21:32] Speaker 05:
Going on to the Cruthers claims.

[00:21:34] Speaker 05:
The Cruthers claims, at least for my clients, are even easier.

[00:21:38] Speaker 05:
And Judge McHugh, you pointed out the problem.

[00:21:41] Speaker 05:
There is no evidence of individual participation by any of my clients in either of Mr. Crothers' claims.

[00:21:52] Speaker 05:
On the malicious prosecution claim, the only person who had any involvement is Deputy Roundy, and they point out Deputy Roundy did not charge Mr. Crothers with sexual battery, which is the basis of the malicious prosecution claim.

[00:22:13] Speaker 05:
The prosecutor added that charge, and they say it's because some plea negotiations fell through.

[00:22:19] Speaker 05:
All right.

[00:22:20] Speaker 05:
So Roundy isn't involved in the Cruthers malicious prosecution claim.

[00:22:24] Speaker 05:
They don't.

[00:22:25] Speaker 05:
The men in the evidence are even allegation that any of the other peace officers were involved.

[00:22:31] Speaker 05:
And then on your fair trial claim, again, they don't connect the dots.

[00:22:38] Speaker 05:
There isn't a wit of evidence that any of the peace officers were involved in this so-called zoo-like atmosphere.

[00:22:45] Speaker 05:
Maybe it was because a bunch of high school students were in a courtroom.

[00:22:48] Speaker 05:
I don't know.

[00:22:50] Speaker 05:
And it's undisputed that the peace officers had no contact with the media.

[00:22:55] Speaker 05:
OK, quickly.

[00:22:57] Speaker 05:
I mean, that dispenses with those claims from my clients.

[00:23:01] Speaker 05:
But yes, despite their efforts, Crothers did not argue.

[00:23:15] Speaker 05:
And he forfeited because he did not elect plain error in his opening brief.

[00:23:23] Speaker 05:
And the plain error would be to argue that sitting in a trial or being compelled to attend a trial is a seizure for malicious prosecution purposes, because this court is ruled that it is not.

[00:23:38] Speaker 00:
And where have we ruled that?

[00:23:42] Speaker 00:
Are you relying on Becker?

[00:23:43] Speaker 05:
Lewis versus Roth.

[00:23:46] Speaker 05:
which is an attendance decision, I recognize.

[00:23:48] Speaker 05:
In Becker, it doesn't say attendance trial.

[00:23:51] Speaker 05:
It does say being compelled to attend a trial is not a seizure.

[00:23:57] Speaker 05:
But in Lewis versus Roth, the plaintiffs have attendance, have been forced to attend two trials, and the court is showing a summary judgment.

[00:24:06] Speaker 02:
In a published decision?

[00:24:10] Speaker 05:
No, not in a published decision.

[00:24:16] Speaker 02:
So if we reached that issue on the merits, we don't have settled law on it yet.

[00:24:23] Speaker 05:
Yes.

[00:24:24] Speaker 05:
Yes.

[00:24:28] Speaker 05:
So in conclusion, I would say that based on the indisputed facts, Plainish, Appellant's claims fail as a matter of law, and so we ask that the summary judge

[00:24:55] Speaker 04:
Your Honor, my name is John Bowers.

[00:24:57] Speaker 04:
I represent the Aaron Weisman Clark Allen, the Teton County Prosecutor's Office, that may please the court.

[00:25:07] Speaker 04:
In the posture of this case, when I filed my motion for summary judgment, I believe that the strongest position that we had was Heck versus Humphreys.

[00:25:19] Speaker 04:
specifically with Mr. Crothers, and then absolute prosecutorial immunity, and then to a limited degree, if things didn't fall within their, perhaps the administration of the prosecution's office, then qualified immunity.

[00:25:37] Speaker 04:
On the equal protection, in hindsight, I wish that I'd spent more

[00:25:45] Speaker 04:
limitations, that was a decision I made.

[00:25:48] Speaker 04:
I would like to comment on that quickly because if you look at the court's opinion, which I know that all of you have, the court emphasized that the difference between the PE teacher and Mr. Rosen was that you had two alleged victims that were willing to come forward

[00:26:08] Speaker 04:
And with the PE teacher, you were not.

[00:26:11] Speaker 04:
And it doesn't matter if it's a claim against the law enforcement officers or against the prosecutors.

[00:26:17] Speaker 04:
There's no prejudice to the appellants because it's the same analysis and it was discussed.

[00:26:27] Speaker 04:
If I may, with Heck versus Humphreys, I think that's very, very clear.

[00:26:31] Speaker 04:
And I think if you look at the posture of this case, this was an effort to retry the criminal case.

[00:26:38] Speaker 04:
It was a situation where if the matter wasn't, if summary judgment wasn't granted, that it could and still could affect the outcome of Mr. Crothers and his conviction.

[00:26:52] Speaker 04:
It would call into question the unlawfulness

[00:26:55] Speaker 04:
Of the conviction or sentence and and to me that is what heck versus Humphrey stands for and that is very clear Is there a way to?

[00:27:06] Speaker 02:
Separate out the sexual assault claim from the claims that mr. Cuthers was actually convicted of in the case law that I reviewed your honor know because I think that as you pointed out in

[00:27:29] Speaker 04:
They've just looked at it and said, okay, unless the tribunal has came back and questioned the conviction or found that it was unlawful and removed that, that you cannot make a civil claim.

[00:27:46] Speaker 04:
And there's no piecemeal that goes on.

[00:27:50] Speaker 04:
I hope I answered that for you.

[00:27:52] Speaker 04:
With the prosecutorial absolute immunity, this court can affirm the decision in favor of the prosecutors on any basis.

[00:28:03] Speaker 04:
As I indicated, we argued that very heavily.

[00:28:06] Speaker 04:
If you look at everything in this case, every claim, whether it was publicity, whether it was the decision to charge, whether it was, in some degree, the administration over exculpatory

[00:28:20] Speaker 04:
material, whether it was the trial, preparation for the trial, all of that under the functional approach falls within the absolute immunity, prosecutorial immunity.

[00:28:34] Speaker 04:
So if I didn't argue appropriately the equal protection, I would ask the court to look at the absolute immunity, Heck versus Humphrey, and to a degree,

[00:28:48] Speaker 04:
if necessary, then qualified immunity.

[00:28:51] Speaker 04:
Because in that situation, these are all government employees.

[00:29:01] Speaker 04:
I think, at a minimum, when you look at the district court's opinion, their conduct did not violate any constitution or statutory right of the appellants.

[00:29:15] Speaker 04:
And in some regard, with some of their claims, even if they had reached that first prong, I'm not sure how they could get to the second prong.

[00:29:26] Speaker 04:
So with that, I guess it's green.

[00:29:31] Speaker 04:
So I guess that's good if you have any questions for me.

[00:29:35] Speaker 01:
Good.

[00:29:35] Speaker 01:
Thank you.

[00:29:36] Speaker 04:
Thank you so much for your time today.

[00:29:45] Speaker 03:
Good morning, Your Honors.

[00:29:46] Speaker 03:
My name is Tom Thompson, and I represent Sheriff Matt Carr in his official capacity.

[00:29:53] Speaker 03:
The two counts that I'll address this morning are count one, which was an alleged violation of constitutional rights for customs policies and practices against Teton County, and count two being violation of constitutional rights

[00:30:15] Speaker 03:
failure to train and supervise.

[00:30:18] Speaker 03:
The district court spent approximately three pages addressing the fact that if there was no constitutional harm, there can be no municipal liability.

[00:30:29] Speaker 03:
That law is clear in the 10th Circuit.

[00:30:31] Speaker 03:
And I would urge the court, regardless of how it may decide in regards to the individual or the individual claims against the sheriff's deputies, that the court still from

[00:30:45] Speaker 03:
can find that there was no custom policy or practice which is yet to be identified by the appellant in this case that caused the constitutional arm, that was enacted with deliberate indifference.

[00:31:01] Speaker 03:
There is absolutely nothing in the record to indicate that that exists.

[00:31:06] Speaker 03:
And in regards to the failure to train claim,

[00:31:09] Speaker 03:
The appellant likewise had presented no evidence in regards to that issue that Teton County Sheriff's deputies were not properly trained.

[00:31:20] Speaker 03:
The expert that the appellees presented in this case, Dr. John Peters, provided through his affidavit that the officers were, the deputies were in fact trained.

[00:31:36] Speaker 03:
There were certified peace officers in the state of Wyoming.

[00:31:39] Speaker 03:
their training records, which were part of that affidavit, showed that they were certified through the Wyoming Law Enforcement Academy and that they were trained once they were hired by the Teton County Sheriff's Office.

[00:31:55] Speaker 03:
So again, both in regards to the issues that apply to the official capacity defendant in this case, or Haleed,

[00:32:13] Speaker 03:
that these deputies were not properly trained and for those reasons I would ask the court to affirm in regards to the claims, monel claims concerning municipal liability.

[00:32:27] Speaker 02:
Thank you.

[00:32:29] Speaker 03:
Thank you.

[00:32:31] Speaker 02:
Do we have rebuttal?

[00:32:38] Speaker 02:
We'll take this matter under advisement and if