[00:00:00] Speaker 01:
25-3024, Horakowski versus City of Lawrence.

[00:00:06] Speaker 01:
Council for Appellant, if you will make your appearance and then proceed.

[00:00:14] Speaker 02:
Good morning, Your Honors.

[00:00:16] Speaker 02:
Cheryl Pilot for Plaintiff Bobby Horakowski.

[00:00:24] Speaker 01:
Please, go ahead.

[00:00:26] Speaker 02:
Thank you.

[00:00:28] Speaker 02:
This case,

[00:00:30] Speaker 02:
stems from an investigation that began with a statement by a woman to police that she had been raped.

[00:00:43] Speaker 02:
It was a very, very brief conversation.

[00:00:47] Speaker 02:
She subsequently went to the hospital and had a same exam.

[00:00:54] Speaker 02:
The police, in the meantime, pressured her for her cell phone, promised her they would only look at text messages, and she reluctantly agreed to have her text messages looked at.

[00:01:09] Speaker 02:
During the time she was getting the ST exam, the messages were examined.

[00:01:15] Speaker 02:
By the time she was at the end of the ST exam, she decided

[00:01:20] Speaker 02:
She did not want to proceed with the police investigation that was conveyed to police.

[00:01:26] Speaker 02:
She went home from that date forward.

[00:01:29] Speaker 02:
She never indicated in a clear unequivocal fashion that she wanted to proceed with an investigation.

[00:01:38] Speaker 02:
What she did was instead proceed with a Title IX investigation.

[00:01:44] Speaker 02:
We'll get back to them when we discuss conspiracy briefly.

[00:01:48] Speaker 01:
But what I'd like to- Ms.

[00:01:50] Speaker 01:
Fowler, could I focus for a second?

[00:01:51] Speaker 01:
You alluded to your client not indicating that she wanted an investigation at that point, a criminal investigation, if I heard you correctly.

[00:02:02] Speaker 01:
I noted in your reply brief at least a reference to the idea that she didn't want to do that at the time because she didn't want to re-traumatize herself.

[00:02:14] Speaker 01:
Uh, I mean, in other words, that was the reason why she didn't want to go forward with the criminal investigation at that time.

[00:02:20] Speaker 01:
I guess two questions stem from that.

[00:02:22] Speaker 01:
One, uh, whether that was a, I don't recall that theory being expressed in your opening brief.

[00:02:29] Speaker 01:
Did you make that statement in your opening brief about retraumatization?

[00:02:33] Speaker 01:
And more to the point, is that in your complaint?

[00:02:37] Speaker 02:
Uh, your honor, the, the reason she,

[00:02:40] Speaker 02:
had the exam and then subsequently agreed to talk to the police, and that was at the end of their investigation.

[00:02:50] Speaker 02:
She had been the target of a ruse.

[00:02:54] Speaker 02:
She didn't know what they were doing, but her goal at all times was simply to preserve the evidence.

[00:03:03] Speaker 02:
At the point

[00:03:04] Speaker 02:
that she went in and had an interview with police, and that's when they already had their so-called false statement case worked up.

[00:03:16] Speaker 01:
I apologize.

[00:03:18] Speaker 01:
I may not have been clear.

[00:03:19] Speaker 01:
What I was getting at right now is the question of whether this line of

[00:03:26] Speaker 01:
argument or theory or fact, as you would have it, that she did not want to continue with the investigation because she did not want to be re-traumatized.

[00:03:40] Speaker 01:
My point is, was that in your complaint?

[00:03:47] Speaker 02:
To be perfectly candid, Your Honor, I don't recall

[00:03:51] Speaker 02:
if those words were used, but it certainly has been part of the case.

[00:03:57] Speaker 02:
She was very traumatized and suffered in that regard, but she felt a responsibility to preserve the evidence.

[00:04:08] Speaker 02:
And that's what she did in going to the hospital and in agreeing to talk to the police.

[00:04:15] Speaker 02:
She also made a Title IX complaint.

[00:04:18] Speaker 01:
The reason I asked that question is because one of the claims here, as I understand it, is that there was gender discrimination by virtue of the fact that they did not continue the investigation as related to the alleged rape.

[00:04:37] Speaker 01:
Well, if she repeatedly, and I think that word is in the complaint, if she repeatedly

[00:04:43] Speaker 01:
indicated she didn't want an investigation, then how can one infer from the facts that they didn't do an investigation of that rape that there was gender discrimination?

[00:04:56] Speaker 01:
Help me with that.

[00:04:58] Speaker 02:
Your Honor, what should have happened if she did not want to proceed with an investigation, then things are done.

[00:05:08] Speaker 02:
I mean, how do you

[00:05:10] Speaker 02:
How do you investigate a so-called false statement that someone lied about a rape without investigating whether a rape occurred?

[00:05:21] Speaker 02:
I mean, Charles Cotton Jim admitted repeatedly that he did not investigate the rape.

[00:05:32] Speaker 01:
I thought your theory of gender discrimination was, and maybe I need to be clear on it, that they did not pursue an investigation of the rape

[00:05:46] Speaker 01:
uh in in a manner that I'm in basically they shifted and pivoted to focusing on the false statement without in good faith pursuing the rape investigation and if that in fact is your theory and if it's not tell me what your theory is please but if that is your theory then how why isn't that undercut by the fact that your client kept telling them don't pursue the rape investigation that's the point i'm trying to get at well your your honor

[00:06:16] Speaker 02:
she had a choice about pursuing a rape investigation.

[00:06:20] Speaker 02:
That choice is available to rape victims.

[00:06:24] Speaker 02:
And it is traumatic, obviously, to go through one.

[00:06:28] Speaker 02:
And at every turn, the things that were going on that she couldn't necessarily see show that.

[00:06:35] Speaker 02:
But you cannot investigate a false statement saying she lied about being raped.

[00:06:44] Speaker 02:
without investigating whether there was a rape.

[00:06:48] Speaker 02:
What they could have done is gone to her and said, Ms.

[00:06:51] Speaker 02:
Horkovsky, we're concerned about your statements here.

[00:06:57] Speaker 02:
We'd like to see your medical records.

[00:06:59] Speaker 02:
Will you sign a release?

[00:07:01] Speaker 02:
The medical records would have conclusively answered that question.

[00:07:06] Speaker 01:
They would have answered the question that she had sex, right?

[00:07:09] Speaker 01:
I mean, how would they have conclusively answered the question that she is raped or not?

[00:07:14] Speaker 02:
She had bruises on all her extremities.

[00:07:17] Speaker 02:
She had a bruise on her neck and she had a vaginal tear and a vaginal bruise.

[00:07:24] Speaker 02:
Corey Green, the head SANE nurse at Lawrence Memorial has attested that her injuries are consistent with her account.

[00:07:36] Speaker 01:
And negated the fact that they would be consistent with consensual sex too?

[00:07:42] Speaker 02:
Your Honor, you know, that's a jury question.

[00:07:47] Speaker 01:
Let me shift to what is not a jury question.

[00:07:50] Speaker 01:
And what is not a jury question is, what is your theory of similar situation here?

[00:07:56] Speaker 01:
How is Miss Horakowsky similarly situated to Mr. Thompson?

[00:08:03] Speaker 02:
That's a wonderful question.

[00:08:06] Speaker 02:
And I'm glad.

[00:08:08] Speaker 02:
It's a wonderful question.

[00:08:10] Speaker 02:
In essence, you know, one is the

[00:08:15] Speaker 02:
The victim of a rape, which she ultimately decided she did not want to continue to have investigated.

[00:08:23] Speaker 02:
The other is a victim or claimed victim of a false statement.

[00:08:28] Speaker 02:
Yet they were treated very differently.

[00:08:31] Speaker 02:
You know, Joel Thompson is saying really grotesque things in his text messages.

[00:08:37] Speaker 02:
He is live texting at the bar about how drunk she is.

[00:08:41] Speaker 02:
She can't drive.

[00:08:43] Speaker 02:
He, you know, is gonna,

[00:08:45] Speaker 02:
F her.

[00:08:47] Speaker 02:
He's going to do it to show Kristen he can.

[00:08:51] Speaker 02:
He refers to her as Kristen's side piece.

[00:08:54] Speaker 01:
It's because they're similarly situated in the fact that they're crime victims.

[00:09:00] Speaker 01:
Is that what you're saying?

[00:09:01] Speaker 02:
You can view them as complainants or crime victims, yes.

[00:09:06] Speaker 02:
And so he

[00:09:10] Speaker 02:
He would be the victim of a false statement and without doing investigation into the the falsity or into the rate, he is protected they're worried about impact on his career.

[00:09:25] Speaker 02:
He's reassured, oh, if we can prove she lied, we're going to arrest her.

[00:09:30] Speaker 01:
Well, let me hit the pause button there.

[00:09:32] Speaker 01:
OK, so he is a victim under this theory of the false statement.

[00:09:38] Speaker 01:
She's a victim of the rape.

[00:09:41] Speaker 01:
OK, well, did he tell them to repeatedly not to investigate the false statement as your client did as it relates to the rape?

[00:09:53] Speaker 02:
I'm sure he very much wanted the false statement to be investigated.

[00:09:58] Speaker 01:
OK, well, that means that they are not similarly situated.

[00:10:03] Speaker 02:
Well, what I would say about that is Cotton Jim told Bobby that he was not going to investigate further, but he did keep up his investigation, albeit a very biased one.

[00:10:21] Speaker 02:
I don't know how

[00:10:22] Speaker 02:
you decide someone lied about a rape without getting their medical records, without speaking with their doctor.

[00:10:32] Speaker 02:
And there was also a lot of evidence that he had a hit list, that he had done this with other women.

[00:10:39] Speaker 02:
None of that was investigated.

[00:10:41] Speaker 02:
Her friend Courtney was never re-interviewed after a short initial contact at the hospital.

[00:10:47] Speaker 01:
If I may, I'm sorry to interrupt, but let me ask you.

[00:10:50] Speaker 01:
Um, just so I'm clear under the 1983 claim, the question is there was a constitutional right that was violated.

[00:10:58] Speaker 01:
It was clearly established.

[00:11:00] Speaker 01:
What is specifically the constitutional right that you're claiming here?

[00:11:06] Speaker 01:
And, and, and what is the clearly established law that would support that was you cite a district of Oregon case and clear, and surely that is not clearly established law for this situation.

[00:11:18] Speaker 02:
Your honor, there's a great deal of law in the time.

[00:11:22] Speaker 01:
I'm asking for specifics, not not great deal.

[00:11:25] Speaker 01:
What is it other than the District of Oregon?

[00:11:27] Speaker 02:
What's your best case?

[00:11:29] Speaker 02:
Provide a couple of names.

[00:11:31] Speaker 02:
There are cases that say that the more general the right is or the the offense is clear cut.

[00:11:45] Speaker 02:
You don't need something with factual precision on all fours.

[00:11:52] Speaker 02:
The worst the violation is,

[00:11:55] Speaker 02:
the more readily you can apply the broad constitutional precept.

[00:12:01] Speaker 01:
So you're relying on the egregious violation doctrine, that if it's so egregious, that therefore you don't need on-the-point authority.

[00:12:11] Speaker 01:
Is that the idea?

[00:12:13] Speaker 02:
Yes, Your Honor.

[00:12:13] Speaker 02:
And I believe Pierce v. Gilchrist mentions that.

[00:12:17] Speaker 02:
There's also a more recent 10th Circuit case, Sturtevant.

[00:12:22] Speaker 01:
And what is the right that we're talking about here to be clear?

[00:12:27] Speaker 01:
What is the right that is deemed to be clearly established?

[00:12:32] Speaker 02:
To be treated in a fair, equal and comparable manner in a police investigation.

[00:12:41] Speaker 02:
Nothing that Joelle Thompson said was questioned.

[00:12:46] Speaker 02:
Everything she said was seen through a lens of bias.

[00:12:52] Speaker 02:
She's a liar, she's a manipulator, she is dramatic.

[00:13:00] Speaker 02:
She's not someone who can be trusted.

[00:13:05] Speaker 02:
Over and over again, those kinds of things, she's manipulative.

[00:13:10] Speaker 02:
That's a real stereotype about women.

[00:13:13] Speaker 02:
Your Honor, if I may, I just have two minutes left, but if Your Honor would like to continue questioning, I'm happy to.

[00:13:22] Speaker 02:
answer questions.

[00:13:25] Speaker 01:
If my colleagues have any questions right now, I will defer.

[00:13:29] Speaker 04:
I have a few questions, Chief Judge Holmes.

[00:13:37] Speaker 04:
Chief Judge Holmes covered the ground on the equal protection claims that I was sort of interested in, but I wanted to talk to you a little bit about your malicious prosecution claim.

[00:13:46] Speaker 04:
The district judge seemed to acknowledge that if the facts that were not included in the affidavit had been included and some of the misrepresentations had been accurately stated that the affidavit might not meet the probable cause standard, but nonetheless tossed the case on the causation issue, basically saying, well, the district judge and the

[00:14:12] Speaker 04:
district attorney found probable cause to go forward with the claims.

[00:14:18] Speaker 04:
I didn't see anything in your brief on the causation point and I looked through the complaint trying to see if there were any factual allegations that would sort of address that issue.

[00:14:31] Speaker 04:
Can you talk a little bit about that?

[00:14:32] Speaker 02:
Well, a couple of things, Your Honor.

[00:14:35] Speaker 02:
Number one, the evidence that was presented at the probable cause hearing was the same.

[00:14:41] Speaker 02:
And remarkably, they relied on these text messages where the words were, quote, spelled correctly.

[00:14:48] Speaker 02:
But more importantly, that principle seems to derive from a law where

[00:14:58] Speaker 02:
you're talking about omissions.

[00:15:00] Speaker 02:
There are misrepresentations, which there were throughout the affidavit.

[00:15:06] Speaker 02:
In fact, I identified them.

[00:15:09] Speaker 02:
Paragraphs 107 and 108 talk about falsehoods and Cotton Jim's repeated use of unsupported beliefs.

[00:15:20] Speaker 02:
He uses the word belief 10 times or more in the probable cause affidavit.

[00:15:27] Speaker 02:
which reflects his gender biased view of this young woman.

[00:15:39] Speaker 04:
So I understand that, but I guess that doesn't address the causation issue that I think the district judge was relying on in granting the 12b6 motion.

[00:15:50] Speaker 04:
And so I guess I'm just trying to figure out how we address that.

[00:15:53] Speaker 04:
And you mentioned the Pierce versus Gilchrist case.

[00:15:57] Speaker 04:
That case, both the district court and the 10th Circuit found that the decision to go forward with the prosecution relied on expert evidence and expert testimony that was

[00:16:09] Speaker 04:
you know, baked into the analysis to go forward.

[00:16:12] Speaker 04:
Here, what you have is you don't have that same reliance on a specific piece of evidence which the judge or the district attorney couldn't consider.

[00:16:21] Speaker 04:
So I guess I'm just trying to figure out.

[00:16:25] Speaker 02:
Well, Your Honor, if I may, you know, there is reliance, I believe, by appellee on Taylor v. Meacham.

[00:16:36] Speaker 02:
And Taylor v. Meacham

[00:16:38] Speaker 02:
you know, stands for among many things that it puts forth that if you don't have a misrepresent, you know, it's an affirmative misrepresentation in essence that you need to, in that case, get past summary judgment.

[00:17:00] Speaker 02:
Meacham was a summary judgment case.

[00:17:02] Speaker 02:
This kind of issue

[00:17:07] Speaker 02:
chain of causation is more appropriately raised at the summary judgment stage when we can flush out the entire factual picture.

[00:17:19] Speaker 01:
Let me follow up for a moment on Judge Garcia's line of questions.

[00:17:23] Speaker 01:
I mean, it's my understanding first, I noted in your reply brief, you referred to this causation issue or at least what the DA did and what the judge did is irrelevant.

[00:17:34] Speaker 01:
I'm interested to see how that is.

[00:17:36] Speaker 01:
I mean, in a footnote, that was done.

[00:17:40] Speaker 01:
I mean, in this situation,

[00:17:42] Speaker 01:
the district court, the DA, did he not, I think it's maybe a he, didn't the DA have a full, the whole file when he made his determination and in fact charged, brought forth two additional charges to the charges that were there.

[00:18:01] Speaker 01:
And so if that's true, and I think it is, then how can one say that there was sort of unwitting reliance on the affidavit in making a probable cause determination?

[00:18:12] Speaker 02:
Your Honor, the the affidavit and the evidence sent over by the police department was limited.

[00:18:21] Speaker 02:
It was not the whole case, and it reflected the very biased view of the police department.

[00:18:28] Speaker 02:
Had they done a complete investigation and honestly sat down with Miss Horakowsky

[00:18:35] Speaker 02:
And when they talked to her in October and said, look, we're concerned about this.

[00:18:41] Speaker 02:
We feel like we can't figure out what happened here without some other information.

[00:18:46] Speaker 02:
Can we talk to your doctor?

[00:18:48] Speaker 02:
Because you said you were under continuing care.

[00:18:51] Speaker 02:
We'd like to talk to your doctor.

[00:18:52] Speaker 02:
Can we have your medical records?

[00:18:55] Speaker 01:
And I'm sorry, let's try the probable cause hearing.

[00:18:58] Speaker 01:
There was live testimony at the probable cause hearing that went beyond what was in the affidavit, was it not?

[00:19:04] Speaker 01:
Well, if there was, then why couldn't the probable cause hearing break causation, even if the DA's charges didn't?

[00:19:12] Speaker 02:
Your honor, not everything came in at the preliminary hearing.

[00:19:17] Speaker 02:
You know, there were some evidentiary rulings against us.

[00:19:21] Speaker 02:
Moreover, it's not up to defendant at that stage to present their whole defense, nor could we have.

[00:19:28] Speaker 02:
We were still awaiting additional discovery.

[00:19:31] Speaker 02:
So it was very much

[00:19:35] Speaker 02:
a minimal standard, as it always is.

[00:19:37] Speaker 02:
Probable cause is a minimal standard.

[00:19:40] Speaker 02:
And in this case, there was a lot of missing evidence.

[00:19:45] Speaker 01:
Probable cause is a minimal standard, perhaps, but probable cause will defeat causation on your malicious prosecution claim, right?

[00:19:53] Speaker 02:
Well, Your Honor, the motion to dismiss standard is very low.

[00:20:00] Speaker 02:
I mean, in terms of what is needed

[00:20:05] Speaker 02:
to survive a motion to dismiss is what we have.

[00:20:10] Speaker 02:
And we allege throughout our complaint, all the things they didn't do over and over again.

[00:20:18] Speaker 01:
OK, and I'm sorry.

[00:20:19] Speaker 01:
Let me stop you one quick second.

[00:20:21] Speaker 01:
I promise you a rebuttal time.

[00:20:24] Speaker 01:
I will give it to you.

[00:20:24] Speaker 01:
But Judge Garcia, do you have any more questions before we shift over?

[00:20:29] Speaker 04:
I guess it's really just where are the allegations and the complaints

[00:20:34] Speaker 04:
that you could point to that address both my questions and Chief Judge Holmes's questions with respect to causation.

[00:20:43] Speaker 04:
I understand that the contentions with respect to the affidavit and the information that the officers provided, but with respect to causation, what are the allegations in the complaint you can point to

[00:20:58] Speaker 04:
that would defeat the district court's finding, the causation is dispositive of your claims here.

[00:21:07] Speaker 02:
Your honor, there can be no legitimate chain of causation that defeats this claim because the entire case was burdened by

[00:21:20] Speaker 02:
the things that weren't investigated, but more importantly, Cotton Jim's beliefs, which were presented as evidence.

[00:21:29] Speaker 02:
He had this whole series of motivations based on his perception of why Bobby Horkovsky had done certain things and what she was motivated by.

[00:21:43] Speaker 02:
In fact, it was completely incorrect, but because he was not interviewing her,

[00:21:49] Speaker 02:
Uh, I guess, you know, uh, he decided that, uh, she was seeking revenge.

[00:21:57] Speaker 02:
Uh, first she was miss pilot.

[00:21:59] Speaker 01:
I've got, we're, we're considerably over and I, I'm sorry to cut you off and I will give you some rebuttal time, uh, consistent with the beginning statement, but, uh, we need to hear from the other side now.

[00:22:13] Speaker 02:
Thank you.

[00:22:14] Speaker 01:
Thank you.

[00:22:15] Speaker 01:
Please.

[00:22:17] Speaker 01:
Councillor Brad Belli, please proceed.

[00:22:19] Speaker 00:
Maybe lose the court.

[00:22:20] Speaker 00:
Michelle Stewart on behalf of the defendants, Charles Cotton, Jim Kimberley, Nicholson, and the city of Lawrence, Kansas.

[00:22:27] Speaker 00:
Your Honours, we're here today on multiple issues, all of which the district court correctly decided, the district court correctly denied or excuse me, granted

[00:22:38] Speaker 00:
The motion to dismiss at the 12 B, 6 stage on the military prosecution and conspiracy claim, because the facts of the 1st, amended complaint specifically paragraph 1, 27 affirmatively alleged that a probable cause decision was made by the district court.

[00:22:55] Speaker 00:
upholding the criminal charges brought against the plaintiff in this case.

[00:23:00] Speaker 00:
The district court also didn't abuse its discretion in denying plaintiff leave to amend or to file a third amended complaint because plaintiff failed to satisfy the good cause requirements under rule 16.

[00:23:11] Speaker 00:
And then finally, the district court correctly granted summary judgment on the 1983 equal protection claim based on qualified immunity, as well as the state law

[00:23:21] Speaker 00:
Kansas state law claims against the city for malicious prosecution, abusive process, intentional infliction of emotional distress and vicarious liability.

[00:23:29] Speaker 00:
The district court specifically reviewed the facts in light most favorable to the plaintiff and found no material facts, genuine issue of material facts existed and judgment as a matter of law was warranted.

[00:23:42] Speaker 01:
Focusing on the motion to dismiss, that motion seemed to have been resolved by the district court under sort of traditional Iqbal, Twombly standards of whether there was adequate pleading.

[00:23:56] Speaker 01:
I didn't see there really to be a role for qualified immunity and resolution of that motion.

[00:24:03] Speaker 01:
Am I correct on that?

[00:24:05] Speaker 00:
Your honor, the court found that there was, the pleadings did not sufficiently state a question to, not a question, but specifically stated facts that would allow proceeding forward on the claims for malicious prosecution and abusive process.

[00:24:25] Speaker 00:
And in the order, I believe he did reference qualified immunity in his order.

[00:24:33] Speaker 01:
Okay, so I mean,

[00:24:36] Speaker 01:
All right, well, I guess my question will go at Judge Hart.

[00:24:40] Speaker 03:
I just wanted to clarify one thing.

[00:24:43] Speaker 03:
The qualified immunity ruling was based on the first prong of qualified immunity, that there was no violation.

[00:24:49] Speaker 03:
There was no discussion clearly established law.

[00:24:52] Speaker 03:
Is that correct?

[00:24:53] Speaker 00:
That is correct, Your Honor.

[00:24:55] Speaker 01:
Sorry to interrupt.

[00:24:57] Speaker 01:
No, no, that's helpful.

[00:24:58] Speaker 01:
Thank you, Judge Hart.

[00:24:59] Speaker 00:
Yes, the complaint affirmatively pled that the district attorney charged the plaintiff with making false statements to law enforcement and that the district court... Can I jump in here?

[00:25:10] Speaker 04:
I'm sorry.

[00:25:10] Speaker 04:
Absolutely.

[00:25:11] Speaker 04:
Chief Judge Holmes was done.

[00:25:12] Speaker 04:
You mentioned paragraph 127.

[00:25:15] Speaker 00:
Yes.

[00:25:15] Speaker 04:
The allegation is that the district court found probable cause to support the charges, but everyone leaves out the clause that follows, which is relying largely on the correct spelling and Bobby's early morning text messages.

[00:25:28] Speaker 04:
And that's different than what the district court found.

[00:25:30] Speaker 04:
In its order, the district court said largely on the basis of plaintiff's own text messages.

[00:25:39] Speaker 04:
Isn't that a distinction with the difference?

[00:25:42] Speaker 04:
I mean, what the district court is saying is that its reading of Ms.

[00:25:48] Speaker 04:
Horakowsky's text messages supported

[00:25:53] Speaker 04:
the state district court's finding a probable cause, but that's not the allegations in the complaint.

[00:25:59] Speaker 04:
The allegations in the complaint are about spelling.

[00:26:03] Speaker 00:
Yeah, it relying largely on the correct spelling in Bobby's early morning texts while also failing to note certain errors.

[00:26:10] Speaker 00:
But what the district court also had in front of it and properly considered on the motion to dismiss was the actual affidavit from Charles Cotton Jim.

[00:26:19] Speaker 00:
And the court reviewed that and

[00:26:23] Speaker 04:
and found that it likely did not support probable cause.

[00:26:26] Speaker 04:
I mean, isn't that what the district court says?

[00:26:29] Speaker 00:
Yes, but what he also said was he said he wasn't going to make a decision on whether a probable cause existed based on the omitted evidence and considering that omitted evidence.

[00:26:39] Speaker 00:
But what the court did say is based on Taylor versus Meacham and the affirmative facts pled in the first amended complaint, the chain of causation was broken by the district attorney's charges

[00:26:51] Speaker 00:
as well as the district court's finding of probable cause at the hearing, a two-day preliminary hearing in which the court was able to hear evidence.

[00:27:00] Speaker 00:
So it wasn't the preliminary, the probable cause hearing was not based on the affidavit.

[00:27:07] Speaker 00:
It was based on the evidence submitted to the court during the same.

[00:27:10] Speaker 04:
Isn't all of what you're telling me factual questions that are better resolved at the summary judgment stage?

[00:27:16] Speaker 00:
Well, with the chain of causation, there was no ability for the district court to or the plaintiff to state a claim under Rule 12 B6.

[00:27:25] Speaker 04:
Well, we know that just because there's a finding by the state district court of probable cause, that's not just positive if that decision was based on evidence that was falsified or otherwise somehow tainted.

[00:27:37] Speaker 04:
I mean, that's what Pierce versus Gilchrist says, isn't it?

[00:27:41] Speaker 00:
It is, Your Honor.

[00:27:42] Speaker 00:
But in this case, the pleadings don't allege any falsifications.

[00:27:45] Speaker 00:
Simply omissions and what the district court found in deciding the motion to dismiss was that there was that based on the facts plan as well as review of the affidavit itself that the and the allegations were that plaintiff could not or that the district court independently considered.

[00:28:07] Speaker 00:
The testimony in the evidence.

[00:28:09] Speaker 00:
and found probable cause to exist.

[00:28:11] Speaker 00:
And that existence of probable cause negates any errors or omissions in the affidavit.

[00:28:17] Speaker 00:
There were no allegations in the complaint that there was any false testimony given at that preliminary hearing or that there was pressure made by either of the individual defendants on the district attorney to bring charges or to pursue charges.

[00:28:32] Speaker 00:
And so the affidavit included

[00:28:35] Speaker 00:
facts about actually included some of the admitted evidence that plaintiff discusses.

[00:28:42] Speaker 04:
If the standard is, though, that we take all of the allegations as true and draw all inferences in the plaintiff's favor,

[00:28:51] Speaker 04:
Hasn't Ms.

[00:28:51] Speaker 04:
Barakowsky stated a plausible claim for relief under malicious prosecution?

[00:28:56] Speaker 04:
I mean, she's saying she was raped and the officers not only didn't take her claim seriously, but then subsequently prosecuted her for reporting falsely to officers who were high-fiving, by the way,

[00:29:08] Speaker 04:
about how they had sort of gotten her on the reporting.

[00:29:12] Speaker 04:
It just seems to me she's stated a plausible claim for relief and you're asking her at this early stage of litigation to somehow plead out all possible contingencies for having her case dismissed but I don't think that's what the law requires.

[00:29:27] Speaker 00:
Well your honor the

[00:29:29] Speaker 00:
Just quickly, there was no evidence and no facts pledged that either Detective Cotton, Jim or Nicholson were part of a group high-fiving or were part of any of those allegations.

[00:29:41] Speaker 00:
But what is important at the motion to dismiss stage was that the district court reviewed the facts in the complaint that affirmatively stated a district attorney and a district judge

[00:29:55] Speaker 00:
considered evidence in a two-day preliminary hearing and were not relying solely on an affidavit or statements in an affidavit to render a decision that probable cause existed.

[00:30:06] Speaker 00:
And that negates a claim for malicious prosecution.

[00:30:10] Speaker 03:
Let me interrupt because the way you just phrased it, that negates a claim, makes it look like causation is an affirmative defense.

[00:30:23] Speaker 03:
And if it were affirmative defense, then the government probably wouldn't be able to prevail at the motion to dismiss state.

[00:30:34] Speaker 03:
But what we really have here is that causation is an element of the claim.

[00:30:40] Speaker 03:
And the complaint alleges both that the district attorney prosecuted this and the district court found probable cause.

[00:30:51] Speaker 03:
So given that, I think the question is, does the complaint plausibly allege facts that would undermine the raking causation caused by the district attorney prosecuting or the district court finding probable cause?

[00:31:11] Speaker 03:
And focus on that, if you would.

[00:31:16] Speaker 03:
It's not that you're defeating the claim by the breaking causation.

[00:31:23] Speaker 03:
It's that the plaintiff has to plead causation.

[00:31:26] Speaker 03:
And it's got to be a plausible claim.

[00:31:30] Speaker 03:
And that burden of being a plausible claim, I think, is heightened by the fact that there were important intervening actors, the district attorney and the judge.

[00:31:39] Speaker 03:
So from that perspective,

[00:31:42] Speaker 03:
Would you answer Judge Percy's question?

[00:31:46] Speaker 00:
Is there enough to make a plausible claim here?

[00:31:51] Speaker 00:
the assist on that because I sometimes because we've got two different.

[00:31:55] Speaker 03:
I was going to raise that even before you spoke.

[00:31:57] Speaker 03:
I wasn't trying to assist you.

[00:31:59] Speaker 03:
I'm trying to clarify this in my own mind.

[00:32:01] Speaker 01:
Right.

[00:32:01] Speaker 01:
And to clarify that, no, no, I think it's a wonderful clarification.

[00:32:08] Speaker 01:
But the thing I would want to underscore is this is your opportunity to help us if there are any

[00:32:14] Speaker 01:
of vermin that undermine causation to grapple with them.

[00:32:18] Speaker 01:
So tell us, are there any, and tell us what your best understanding of why they don't defeat, why they don't allow her to go forward.

[00:32:30] Speaker 00:
Yes, your honor.

[00:32:30] Speaker 00:
So the plaintiff is required to meet the elements of the malicious prosecution claim.

[00:32:35] Speaker 00:
And as Taylor versus Meacham is instructive and was relied on by the district court, when there has been a break in the chain, when there is no causal connection between the prosecution

[00:32:48] Speaker 00:
And the actions of the officer, there can be no claim going forward, but that you phrase that this is what's confusing.

[00:32:57] Speaker 03:
You phrase that as you would if this were an affirmative defense that there was a break in the causation.

[00:33:03] Speaker 03:
Am I wrong?

[00:33:04] Speaker 03:
Is it an affirmative?

[00:33:05] Speaker 03:
If it's an affirmative defense, I think you've got some problems.

[00:33:08] Speaker 00:
It's not, Your Honor, it is a burden, it is a pleading burden.

[00:33:11] Speaker 00:
There have to be facts alleged in the complaint that would show that, keep that chain together.

[00:33:18] Speaker 00:
The plaintiff is required to prove for malicious prosecution claim that the prosecution would move forward without probable cause.

[00:33:27] Speaker 00:
And here the allegations in the complaint affirmatively state probable cause existed to move forward as found by the district attorney and district court.

[00:33:38] Speaker 01:
And are there any allegations that undercut in the complaint undercut or undermine improving causation in establishing the causal link?

[00:33:49] Speaker 01:
Are there any allegations that undercut the fact that the judge in a two day hearing determined that probable cause existed?

[00:33:57] Speaker 00:
No, Your Honor, because the

[00:34:00] Speaker 00:
Pleadings do not have any allegations or the First Amendment complaint has no allegations that the officers offered false testimony at the preliminary hearing, that the officers pressured the district judge or district attorney into bringing the claims, they didn't perjure themselves.

[00:34:18] Speaker 03:
It's not just making a false statement, it's failing to inform the DA or the court

[00:34:28] Speaker 03:
about relevant information that might undermine the charge.

[00:34:35] Speaker 03:
What sort of allegations of that nature are there in the complaint?

[00:34:40] Speaker 00:
The allegations in the complaint were a list of things that, well, gosh, these things should have been included in the affidavit.

[00:34:48] Speaker 00:
There's no allegation that these weren't included in the investigative file, but that should have been included in the affidavit.

[00:34:55] Speaker 03:
Is there any allegation that they weren't

[00:34:58] Speaker 03:
elicited or that they were hidden in some way at the preliminary hearing?

[00:35:03] Speaker 00:
No, Your Honor.

[00:35:05] Speaker 00:
In fact, the First Amendment complaint contains no allegation that, for example, the same analysis was made before Detective Cotton Jim's affidavit, and then he suppressed the results.

[00:35:16] Speaker 00:
The evidence is that the same exam was not allowed to be released to the police department, and that was not available.

[00:35:23] Speaker 00:
what the affidavit did, what Detective Cotton-Jim did in his affidavit was noted there was a sane exam.

[00:35:30] Speaker 00:
And that way, if the results needed to be gathered, the district court or the district attorney could look at that.

[00:35:37] Speaker 00:
The First Amendment Complaint also didn't allege that Detective Cotton-Jim knew of but suppressed evidence showing that Mr. Thompson wanted to have a sexual relationship with the plaintiff.

[00:35:50] Speaker 00:
And the affidavit contained information that was noted that allowed the District Attorney and District Court to look further into that at the charging stage and at the preliminary hearing.

[00:36:04] Speaker 00:
In addition, the affidavit also specifically provides the information that was referenced by opposing counsel that, well, Detective Cotton-Jim lied to Ms.

[00:36:16] Speaker 00:
Horkovsky.

[00:36:17] Speaker 00:
Detective Cotton-Jim

[00:36:20] Speaker 00:
put set forth his beliefs he clearly said these are my you know a fire believes these are my beliefs based on the investigation I conducted he did not say.

[00:36:30] Speaker 00:
This is evidence of motive, and so the affidavit included information for the district attorney and district judge to consider.

[00:36:40] Speaker 00:
They did, and causation was not properly pled in the first amended complaint, which warranted an affirm warranted dismissal, and that decision should be affirmed by this court.

[00:36:53] Speaker 00:
Because the chain of causation was not pled and it was broken.

[00:36:57] Speaker 00:
As stated in the complaint.

[00:37:01] Speaker 01:
And let me shift to the summary judgment area for a quick second as it relates to that.

[00:37:09] Speaker 01:
There were some cases, at least as I saw them that

[00:37:13] Speaker 01:
the plaintiff put forward trying to compare in the equal protection context what went on here to cases involving domestic violence and how they were treated or not pursued.

[00:37:29] Speaker 01:
Is that a valid comparison in this context?

[00:37:33] Speaker 01:
One, and then I have a similar question to follow up on that.

[00:37:37] Speaker 00:
Your honor, I would submit that no, they are not similarly situated and the cases relied on are not persuasive.

[00:37:43] Speaker 00:
First of all, the plaintiff and Mr. Thompson are not similarly situated for an equal protection analysis.

[00:37:52] Speaker 00:
Mr. Thompson was not the victim of the crime of false reporting.

[00:37:56] Speaker 00:
Law enforcement was the victim of the crime of false reporting.

[00:37:59] Speaker 00:
And this this idea that they were victims was for the first time raised by the plaintiff on in her reply brief, but they are absolutely not victims.

[00:38:08] Speaker 00:
Mr Thompson never reported a crime.

[00:38:10] Speaker 00:
And like Miss Horkovsky did and Mr Thompson was not the victim of interference with law enforcement by falsely reporting a crime and the

[00:38:22] Speaker 00:
To the to the 2nd point, whether the cases are valid or not the dough case specifically.

[00:38:29] Speaker 00:
In that case, there wasn't a denial of police protected police protection in that case.

[00:38:36] Speaker 00:
No investigation was even done.

[00:38:39] Speaker 00:
First of all, Doe came years after the conduct in this case.

[00:38:46] Speaker 00:
And it's from a District of Oregon decision, which is not a clearly established law.

[00:38:52] Speaker 00:
But it also does not stand for any proposition that Mr. Thompson and Ms.

[00:38:56] Speaker 00:
Horkovsky are similarly situated, one being the victim and one being the assailant.

[00:39:02] Speaker 00:
There was no similarly situated comparator that was set forth

[00:39:10] Speaker 00:
you know, by the plaintiff that would establish, that meet the analysis for an equal protection claim.

[00:39:20] Speaker 00:
Your Honor, did you have a follow-up question?

[00:39:23] Speaker 01:
I looked at it, and I think that your answer sort of encompassed what I was getting at with my follow-up question, so I'm fine.

[00:39:29] Speaker 01:
Thank you for asking.

[00:39:33] Speaker 00:
I think that I'm out of time, so I'm happy to answer any questions, but the defendants would request that this court affirm the district court's decision on all three aspects of the appeal.

[00:39:44] Speaker 01:
Anything else from my colleagues before rebuttal?

[00:39:48] Speaker 01:
Permit you, Judge Nelson.

[00:39:50] Speaker 01:
Thank you.

[00:39:50] Speaker 01:
Okay.

[00:39:51] Speaker 01:
Thank you, counsel.

[00:39:54] Speaker 01:
Ms.

[00:39:54] Speaker 01:
Pilot, we'll give you a minute and a half, please, of rebuttal time if you want it.

[00:40:00] Speaker 01:
You don't have to have it.

[00:40:02] Speaker 02:
Yes, I would like it, Your Honor.

[00:40:04] Speaker 02:
Thank you.

[00:40:05] Speaker 02:
We do repeatedly allege intentional false statements.

[00:40:14] Speaker 02:
We allege falsifications, fraudulent statements.

[00:40:22] Speaker 02:
The words that were used over and over again were intentional, deliberate, and fraudulent.

[00:40:28] Speaker 03:
Well, following up on, go ahead, Judge Hart.

[00:40:31] Speaker 03:
I think we're going to use the same thing.

[00:40:33] Speaker 01:
Well, I was going to channel you.

[00:40:35] Speaker 03:
So go ahead and do it yourself.

[00:40:38] Speaker 03:
Well, those falsifications, the allegations of that was with respect to the affidavit, is that correct?

[00:40:47] Speaker 02:
Correct.

[00:40:48] Speaker 02:
Yeah.

[00:40:49] Speaker 02:
And the intro section, I guess you would call it before I did ABCDEF, paragraph 108,

[00:41:01] Speaker 02:
M107 referred to this.

[00:41:04] Speaker 02:
In fact, the heading on paragraph 107 puts it in bold.

[00:41:09] Speaker 02:
The affidavit reflects bias, reckless investigation, full of intentional falsehoods, omissions, and targeting of the victim.

[00:41:19] Speaker 01:
And are there any similar allegations undermining the integrity of the preliminary hearing?

[00:41:29] Speaker 02:
Your Honor,

[00:41:32] Speaker 02:
If I had it to do over again, I would include more of the district court's finding.

[00:41:38] Speaker 02:
But she said things that were flat wrong.

[00:41:41] Speaker 02:
She referred to the text messages as email.

[00:41:44] Speaker 02:
She talked about the use of italics and quote marks.

[00:41:48] Speaker 02:
Those weren't in there.

[00:41:49] Speaker 02:
She confused the standard for a false statement.

[00:41:57] Speaker 02:
Everything about it was wrong.

[00:42:00] Speaker 02:
But I want to point out Taylor V. Meacham is a summary judgment case.

[00:42:06] Speaker 02:
These are summary judgment issues.

[00:42:09] Speaker 01:
Okay.

[00:42:11] Speaker 01:
I think that's a nice point to punctuate unless there are any further questions from the panel.

[00:42:16] Speaker 01:
You're over time.

[00:42:18] Speaker 01:
All right.

[00:42:22] Speaker 01:
That is our only case this morning.

[00:42:24] Speaker 01:
Case is submitted.

[00:42:25] Speaker 01:
Thank you, counsel, for your fine arguments.