[00:00:00] Speaker 02: I would like to say five minutes. [00:00:03] Speaker 02: May it please the court, James Bukele, for appellants. [00:00:07] Speaker 02: The most fundamental error of the district court was that it failed to follow the controlling precedent of the Kalina case concerning the misconduct of Deputy District Attorney Kalbaugh. [00:00:18] Speaker 02: Mr. Kalbaugh swore out two affidavits in support of arrest warrants, one for each independent plaintiff. [00:00:25] Speaker 02: He says, the information set forth below is true, as I verily believed. [00:00:30] Speaker 02: And both of these affidavits contained false statements about the plaintiffs. [00:00:34] Speaker 02: I want to emphasize the independence of the two plaintiffs, because it's clear that Appellant Schulz did absolutely nothing except stand around at a protest. [00:00:43] Speaker 02: Yet Mr. Kalbaugh swore that there was probable cause to arrest him, and falsely stated that he physically threatened members of the Antifa group. [00:00:51] Speaker 02: The district court did not give any individual analysis to Mr. Schulz's claim, even though in the first federal court action, the first 1983 action, [00:01:00] Speaker 02: the court there had expressed concern. [00:01:03] Speaker 02: And I quote, there's nothing that Mr. Schulz even did that's evident. [00:01:07] Speaker 02: Mr. Kalban made the same false accusation against Mr. Gibson and added two more. [00:01:12] Speaker 02: He said that Mr. Gibson was pushing a woman named Heather and Clark. [00:01:17] Speaker 02: In fact, Mr. Gibson was backing away as Ms. [00:01:20] Speaker 02: Clark was attacking him. [00:01:21] Speaker 02: And he said that Mr. Gibson repeatedly challenged members of Antifa to fight him, which was also false. [00:01:28] Speaker 02: There was never any such challenge. [00:01:30] Speaker 02: So under Rule 12, we take the facts in the light most favorable to plaintiffs, who squarely allege that all these statements are false. [00:01:39] Speaker 02: And they're not mere allegations here. [00:01:42] Speaker 02: These allegations are consistent with the findings or the remarks of a federal judge, two state court judges, and a state liquor investigator. [00:01:52] Speaker 02: Now, to make matters worse, [00:01:54] Speaker 02: Then, when we brought the first 1983 action, the DA's office refiled these false affidavits in federal court. [00:02:02] Speaker 02: And when the federal court expressed concern about prosecuting an innocent man, said, oh, well, there's more evidence that you haven't seen, which was also false, because there was no more evidence. [00:02:12] Speaker 02: The entire encounter was videotaped. [00:02:14] Speaker 01: Is it your position that the Kalina case also governs the affidavit that was filed in the first federal lawsuit? [00:02:20] Speaker 01: I'm sorry, I missed the last five words. [00:02:22] Speaker 01: Do you think that the Kalina precedent governs whether immunity applies to the declaration filed in the first federal lawsuit? [00:02:32] Speaker 02: I think that's worse than Kalina, because I don't think that's conduct intimately connected with the judicial criminal process at all. [00:02:40] Speaker 02: It's outside the criminal process. [00:02:42] Speaker 02: It's in a separate context where the federal court is trying to look into what happened here. [00:02:46] Speaker 01: I guess I'm not sure I follow that, because the first federal case tried to stop the state criminal proceedings, challenging those proceedings as illegitimate. [00:02:58] Speaker 01: And then the prosecutor appears [00:03:00] Speaker 01: to basically defend those criminal proceedings. [00:03:03] Speaker 01: So how is that not connected to the criminal proceedings when the purpose of the prosecutor's action was to defend the legitimacy of such proceeding? [00:03:13] Speaker 02: Our position is that mere connection [00:03:16] Speaker 02: or relation to the criminal proceedings is not enough. [00:03:19] Speaker 02: Our contention is that under Colina, it has to be intimately connected with the core function of presenting the state's case and acting as an advocate for the state once the probable cause has already been established by a neutral magistrate. [00:03:37] Speaker 02: That's our position, but if you are correct, and if, in fact, Kalina applies in the second case, it's still the same thing. [00:03:44] Speaker 01: The prosecutor should not... Well, I guess I'm questioning whether Kalina does apply. [00:03:47] Speaker 01: I mean, Kalina tells us, look at the function that the person is performing. [00:03:51] Speaker 01: Are they acting as a lawyer? [00:03:53] Speaker 01: Are they acting as a witness? [00:03:55] Speaker 01: It seems I understand the argument as to the arrest affidavit that that's a witness function and not a lawyer function. [00:04:04] Speaker 01: But I'm struggling to see how the analysis is the same for the declaration that's filed in the federal lawsuit, how that is a witness function and not a lawyer function. [00:04:15] Speaker 02: Well, all I would say is that when Deputy District Attorney Kalbass signs an affidavit saying, I certify the following is true under penalty of perjury, he is acting as a witness. [00:04:27] Speaker 02: He's not acting as a lawyer. [00:04:28] Speaker 02: And that function of acting like a witness is a function he performed in the federal criminal case and in the subsequent 1983 case. [00:04:39] Speaker 02: In any event, [00:04:41] Speaker 02: Well, moving past that, I just want to remark that the information that was in the affidavit is not, as the defendants claim, information that he was just relaying from the detective. [00:04:57] Speaker 06: One factual question, if I can interrupt. [00:05:02] Speaker 06: Mr. Gibson and Mr. Schultz, were they arrested after the arrest warrant came out, or was it after they were indicted? [00:05:12] Speaker 02: I believe, I'm not 100% sure when Schulz was arrested and Gibson turned himself in, but I believe it all happened after we learned, yeah, it was after the indictment. [00:05:28] Speaker 03: Okay. [00:05:28] Speaker 03: So it was after the grand jury issued the indictment? [00:05:32] Speaker 03: Yeah, because we learned... Does that change anything that it was after the indictment rather than after the information was filed? [00:05:38] Speaker 02: not under Kalina, because Kalina is holding the prosecutor responsible for his conduct, which was prior to the indictment, and for his conduct in connection with the factual support for the motion for arrest and convincing the magistrate that there was probable cause when, in fact, there was none. [00:06:00] Speaker 02: So anyway. [00:06:02] Speaker 02: I wanted to be a subtle point is was he just relaying information from the detective and he was not relaying information from the detective. [00:06:10] Speaker 02: He said in the affidavit it was what he knew or he learned and then later in the federal court he admitted that he had watched all these things. [00:06:18] Speaker 02: himself before executing the affidavit. [00:06:22] Speaker 02: So it was on personal knowledge. [00:06:25] Speaker 02: That is really irrelevant. [00:06:26] Speaker 02: We stumbled across an additional case, Olson versus Champaign County, 784 F3rd, 1093. [00:06:33] Speaker 02: a Seventh Circuit case. [00:06:35] Speaker 02: In that case, the prosecutor verified an information exclusively on the basis of information from the detectives, and the answer was Kalina still applies. [00:06:43] Speaker 02: You've stepped outside your lane, and there is no immunity. [00:06:47] Speaker 02: So we think the district court just employed the wrong standard. [00:06:51] Speaker 02: It asked whether this conduct was connected with the prosecutor's role or related to the role, but that's not the standard under Kalina. [00:06:58] Speaker 02: The standard under Kalina and Imbler versus Packman is [00:07:01] Speaker 02: intimately connected and acting as witnesses outside the lane. [00:07:08] Speaker 01: Can I switch gears? [00:07:09] Speaker 01: I have a couple of questions just about what is actually being pled in the complaint. [00:07:16] Speaker 01: So you are pleading a Section 1985 conspiracy claim. [00:07:21] Speaker 01: Are you pleading any other conspiracy theory or claim outside of the Section 1985? [00:07:28] Speaker 02: I believe the complaint can be construed to include a Section 1983 conspiracy claim and a Section 1985 conspiracy claim. [00:07:37] Speaker 01: Do you have authority that you can do a conspiracy claim under Section 1983? [00:07:41] Speaker 02: Sometime in the last 48 hours, I have read a case that says there are conspiracy claims under both sections, but I do not remember the name of the case. [00:07:52] Speaker 02: The important part, as far as I'm concerned, is that I believe [00:07:56] Speaker 02: we've established and factually pled in sufficient detail a conspiracy to misuse the criminal justice system to produce malicious prosecutions for the purpose of chilling political speech. [00:08:07] Speaker 02: And we've pleaded in detail how all the people were involved in that. [00:08:11] Speaker 02: And that is a direct violation of Section 1983 by the prosecutors, the malicious prosecution. [00:08:18] Speaker 02: And it is the conspiracy violation of 1983 and 1985 for the remaining defendants. [00:08:25] Speaker 03: Council, the district court said that your complaint could be dismissed on the basis of Rule 8. [00:08:31] Speaker 03: Isn't that an independent basis for dismissing this complaint without reaching the merits? [00:08:37] Speaker 02: I don't believe that is true in this case, Your Honor, because Rule 8 requires a short and plain statement of the claim showing that the pleader is entitled to relief. [00:08:46] Speaker 03: Let's turn to your first claim for relief, which is your 1983 claim. [00:08:50] Speaker 03: So paragraph 254 says, plaintiffs were deprived of rights guaranteed by defendants. [00:08:56] Speaker 03: Is that all of the defendants or just some of the defendants? [00:08:58] Speaker 02: It is all of the defendants. [00:08:59] Speaker 03: All of the defendants. [00:09:00] Speaker 03: So all of the defendants were deprived, your clients, of their rights of free speech and peaceable assembly? [00:09:05] Speaker 02: That is correct. [00:09:06] Speaker 03: OK. [00:09:06] Speaker 03: The institutions as well as the individuals? [00:09:11] Speaker 03: Yes. [00:09:11] Speaker 03: All in the same actions? [00:09:13] Speaker 02: Yes. [00:09:14] Speaker 02: That is what we plead, and that is what we establish through extraordinarily detailed factual pleading. [00:09:19] Speaker 03: Well, I will concede that you've got an extraordinarily detailed factual pleading. [00:09:24] Speaker 03: But you haven't related any of those facts to any of the defendants in any of your claims. [00:09:29] Speaker 03: And that's why the district court said you have violated rule 8. [00:09:33] Speaker 02: What I would say is that each of the claims reincorporates the foregoing allegations of fact. [00:09:39] Speaker 02: And in the foregoing allegations of fact, we plead in detail how the city in particular led this campaign of hate against these particular clients, that there developed this rally that was forming [00:09:54] Speaker 02: that they had high-level meetings among all the defendants to meet to decide what to do about this. [00:09:59] Speaker 02: They devised the plan of indicting these people. [00:10:03] Speaker 02: They did it afterwards. [00:10:04] Speaker 02: The mayor sent out the email to everyone else bragging that they had chilled the political expression in this case. [00:10:11] Speaker 02: And the conspiracy was a success and continued to be carried forward by all the members of the conspiracy whose role is pleaded in detail in the complaint. [00:10:20] Speaker 02: And that is how the defendants here [00:10:22] Speaker 02: They have no problem. [00:10:25] Speaker 02: We are in a notice pleading world. [00:10:27] Speaker 02: We are not in a code pleading world. [00:10:29] Speaker 02: And in a notice pleading world, the fundamental question under the federal rules of civil procedure is whether the defendants have had a fair chance to understand the allegations against them. [00:10:39] Speaker 02: And as section 1983 claims go, [00:10:41] Speaker 02: They have an extraordinarily fair chance to understand the allegations against them. [00:10:45] Speaker 02: They do understand the allegations against them. [00:10:47] Speaker 02: And they've raised very specific defenses about very specific issues that came up and were raised by the complaint. [00:10:55] Speaker 02: So I don't think in a context where the rules require a short and plain statement [00:11:01] Speaker 02: that to take these facts and then to repeat the entire set of facts in every single claim would make the complaint three times as long, and it would add nothing of value to litigants. [00:11:13] Speaker 02: They know what they are charged with. [00:11:16] Speaker 02: With that, I see that I'm already into my rebuttal time, and so I'll sit down unless there's particularly hot issues your honors want to cover. [00:11:25] Speaker 06: Great. [00:11:25] Speaker 06: Thank you. [00:11:26] Speaker 02: You're welcome. [00:11:39] Speaker 00: May it please the Court, Council, Kate Morrow on behalf of the District Attorney Defendants. [00:11:43] Speaker 00: I will be using six minutes of argument time and then the City and County Defendants will be handling the rest. [00:11:48] Speaker 00: Your honors, I'm going to start with the rule 8 issue. [00:11:51] Speaker 00: Rule 8 is an independent basis for affirming the decision of dismissal of the district court and the plaintiffs have not challenged the dismissal without leave to amend as to my clients in this case. [00:12:06] Speaker 00: Specifically, I want to [00:12:09] Speaker 00: Note for the record that the arrest warrant is not in the record, as far as we can tell in this case. [00:12:16] Speaker 00: And so the date of arrest is only in declarations, but the arrest warrant itself is not in there. [00:12:25] Speaker 00: As to the federal proceedings, the complaint says that Deputy District Attorney Kalbaugh submitted a false affidavit connected to his declaration in that federal case. [00:12:42] Speaker 00: The declaration that was submitted in that federal case explains what Deputy District Attorney Kalbaugh did in leading up to the prosecution and then for, and the affidavit in support of arrest was included, not necessarily for the truth of what it said, but for the fact that it had been filed in the criminal case. [00:13:05] Speaker 06: Did DA Kalbaugh look at the videos? [00:13:09] Speaker 00: The declaration filed in the federal case says that he reviewed the videos, yes. [00:13:15] Speaker 06: But the truth or- So he's not just transmitting it and he's saying this is true. [00:13:19] Speaker 06: I mean, obviously, if he thought it was false, he wouldn't have said that. [00:13:23] Speaker 00: Well, so I think that's where the document we're looking at matters. [00:13:26] Speaker 00: So for purposes of prosecutorial immunity for filing the affidavit in support of arrest in the state criminal case, [00:13:37] Speaker 00: explained that here are the facts he has learned and presented those facts to the court, complying with Oregon law, and then the magistrate determined that he had probable cause and issued an arrest warrant. [00:13:50] Speaker 00: In the federal case, the information that he relayed in a sworn statement was that he reviewed the videos, talked to the detective, and submitted in accordance with Oregon law the filings to establish probable cause for the arrest warrant. [00:14:07] Speaker 00: And so the prosecutorial immunity question really goes to the affidavit in support of arrest warrant, not the filings in the federal case. [00:14:19] Speaker 00: And I think this further demonstrates the rule eight problems with this pleading, is that it's not clear from the complaint itself what is being alleged as to the federal proceeding filings. [00:14:35] Speaker 01: I guess I don't understand that because I read the complaint as suggesting that both of the affidavits that were submitted by the district attorney were wrong. [00:14:44] Speaker 01: They had false information in them. [00:14:46] Speaker 01: How is that not clear from the complaint? [00:14:47] Speaker 00: The it's not clear what false information is in the declaration that was filed in the federal proceeding in Reviewing it the declaration says he reviewed the videos the declaration says he interviewed the detective but the Point well taken in terms of like the granular which exact fact in the declaration that the plaintiffs are saying is false but the fact that they are saying that the district attorney [00:15:15] Speaker 01: swore to false things. [00:15:17] Speaker 01: That seems pretty clear. [00:15:18] Speaker 01: And so if we come back to notice pleading, I'm struggling with why you can't understand what you need to do to defend your clients based on what the plaintiffs have said. [00:15:30] Speaker 00: So I guess as far as we can tell from the complaint, the allegations are that Deputy District Attorney Kalbaugh [00:15:41] Speaker 00: made a false affidavit and that was a violation of the plaintiff's rights. [00:15:48] Speaker 00: Beyond that, it's not clear to us what the deputy district attorney did. [00:15:59] Speaker 00: If this court agrees with plaintiffs and that the pleading is sufficient, then my client's position is that the prosecutorial immunity attaches to any statements that they made. [00:16:14] Speaker 00: And so regarding the affidavit in support of arrest warrant itself, [00:16:23] Speaker 00: That is really just a motion to the court. [00:16:26] Speaker 00: And as fact matching to the documents in Kalina, it was similar to the motion not to the certification of probable cause. [00:16:38] Speaker 00: And under Oregon law, the way it was presented is sufficient, unlike in Kalina, where the certification of probable cause was part of Washington law that was required. [00:16:48] Speaker 00: So because it was sufficient under Oregon law to establish probable cause the Deputy District Attorney Kalbaugh is shielded from suit in this case because he has prosecutorial immunity And I guess then you think we should resolve this on prosecutorial immunity and not reach the sovereign immunity question as to your clients [00:17:12] Speaker 00: That is certainly one option, your honor. [00:17:14] Speaker 00: However, if you disagree with our position on prosecutorial immunity as to Deputy District Attorney Kalbaugh, sovereign immunity does cover him and the office and the rest of the DAs and DDAs in this case. [00:17:30] Speaker 00: And so the 11th Amendment would be an alternative grounds for affirmance. [00:17:34] Speaker 00: And the district court did reach that. [00:17:35] Speaker 01: Well, the district court didn't reach our cone decision in handling that immunity question. [00:17:41] Speaker 01: And so do you think that we should reach it in the first instance or remand it to the if we got there or remand it to the district court and say apply cone? [00:17:47] Speaker 00: I see my time is up. [00:17:48] Speaker 00: May I answer your question and then I'll sit down. [00:17:50] Speaker 00: So the. [00:17:52] Speaker 00: in cone, this court resolved the factors as a matter of law. [00:17:57] Speaker 00: And so this court, in this case, if it doesn't think there's any factual issues to be resolved, could reach the cone factors on this record. [00:18:04] Speaker 00: However, if this court thinks it's best to remand it and allow the district court to reach the cone factors first, that is certainly an option. [00:18:12] Speaker 03: Is it clear under Oregon law, if the district attorney was found liable, who would pay the judgment? [00:18:20] Speaker 00: If the district attorney is liable, the state indemnifies the district attorneys. [00:18:26] Speaker 00: And if you need a site for that, I have one. [00:18:28] Speaker 00: Yeah. [00:18:28] Speaker 00: Would you give it? [00:18:30] Speaker 06: Is it just the district attorney? [00:18:31] Speaker 06: What if it's a deputy DA? [00:18:33] Speaker 06: Is there a distinction between the two? [00:18:36] Speaker 00: Our position is that the state has exposure for judgments against district attorneys and deputy district attorneys acting in their prosecutorial capacity. [00:18:48] Speaker 06: A follow-up question related to that is this Oregon law 180.060 says, quote, the attorney general shall consult with, advise, and direct the district attorneys in all criminal causes. [00:19:00] Speaker 06: Is that power ever actually exercised in that way? [00:19:03] Speaker 06: I've never heard of it. [00:19:05] Speaker 06: Maybe Oregon does. [00:19:06] Speaker 06: I mean, DAs are independently elected by their constituents. [00:19:09] Speaker 06: Does the attorney general tell local DAs what cases to prosecute or what not to prosecute in your experience? [00:19:16] Speaker 00: outside the record the Attorney General's office and the district attorneys work closely together and the Attorney General's office often will provide Will be appointed as special deputy district appoint attorneys to prosecute cases does the Attorney General's office view this provision as giving it power to [00:19:43] Speaker 06: indict someone or prosecute someone or not to prosecute someone, override the DA? [00:19:47] Speaker 06: I mean, it's a little bit vague. [00:19:48] Speaker 06: I'm not sure what it means, direct, consult with, advise, and direct. [00:19:52] Speaker 06: Maybe it's broad, but a little bit vague. [00:19:53] Speaker 06: I mean, is that the attorney general's position is they can direct the DA to charge someone or not charge someone? [00:20:00] Speaker 00: Yes. [00:20:01] Speaker 00: And there is an independent provision of Oregon law that allows the attorney general to convene a grand jury without consulting with the local DA. [00:20:09] Speaker 03: I think the question is just a little bit difficult. [00:20:11] Speaker 03: Can he overrule? [00:20:12] Speaker 03: Can he overrule a DA? [00:20:13] Speaker 00: As a matter of statutory interpretation, it's an open question. [00:20:19] Speaker 00: Our position is that the phrase directs the DA in criminal causes does allow that authority. [00:20:29] Speaker 01: Can you give me that site about the state cover indemnifies DA? [00:20:33] Speaker 00: Yes, that is Oregon Revised Statute 30.2857 and that is cited in the county brief, I believe. [00:20:44] Speaker 00: And if the court has no other question, I will cede my time. [00:20:47] Speaker 00: Thank you, Your Honor. [00:21:05] Speaker 04: May it please the court, Denis Vanier, appearing for the city defendants. [00:21:09] Speaker 04: The trial court correctly dismissed plaintiff's federal claims against city defendants as time barred, and it correctly concluded that plaintiffs had failed to plead a state law malicious prosecution claim against the city. [00:21:23] Speaker 04: Plaintiffs can't show otherwise, and this court should affirm. [00:21:26] Speaker 04: So first, the district court correctly concluded the federal claims against the city defendants were time barred. [00:21:33] Speaker 04: As we note in our brief, it's important to remember that plaintiff's federal claims against city defendants were not malicious prosecution claims. [00:21:41] Speaker 04: They were First Amendment retaliation, Fifth Amendment due process, a right to travel claim, a Fourteenth Amendment equal protection claim, and a defamation claim. [00:21:50] Speaker 04: And that's at ER 237. [00:21:53] Speaker 04: It's also well established that statute of limitations begin to run when the cause of action is complete with all its elements. [00:22:00] Speaker 04: In this case, the causes of action alleged against city defendants, the federal causes of actions, were complete. [00:22:09] Speaker 04: Well, did not require the conclusion an acquittal at a criminal trial like a malicious prosecution claim. [00:22:16] Speaker 04: And as the district court correctly noted, in this case, so as to Detective Traynor, the most recent allegation mentioned in the complaint was Detective Traynor's grand jury testimony that occurred in August of 2019, which is almost four years before the complaint was filed. [00:22:35] Speaker 01: I want to ask about conspiracy liability, this last overt act doctrine. [00:22:43] Speaker 01: So I mean, typically in conspiracy liability, when you're applying the last overt act doctrine, you're looking at the last overt act of any co-conspirator. [00:22:52] Speaker 01: So if that was applied here, then the discrete actions by the city actors may not be the trigger for time purposes. [00:23:00] Speaker 01: Would you agree with that? [00:23:06] Speaker 04: Yes and no, Your Honor. [00:23:07] Speaker 04: So I will explain. [00:23:08] Speaker 04: And so I think in this case, I would point this court to the Gibson case cited in our brief and the Klein case that is cited, is that as the court explained in Gibson, the injury and damages flow from the overt acts and not the mere continuance of the conspiracy. [00:23:27] Speaker 04: And so, you know, acts. [00:23:29] Speaker 01: I mean, doesn't that go to liability and less to triggering of a statute of limitations? [00:23:34] Speaker 04: No, Your Honor. [00:23:38] Speaker 04: As this court explained in Gibson, so in Gibson, for example, this court went really claim by claim and defendant by defendant, and same thing in Klein, and to really look what are the overt acts that are timely under the statute of limitations. [00:23:52] Speaker 04: And in the Gibson case, for example, I believe it was helicopter overflights. [00:23:56] Speaker 04: Those were timely, and those could give rise to liability. [00:23:59] Speaker 04: And therefore, the claim directed at those overflights was timely. [00:24:03] Speaker 04: But the other acts were not. [00:24:06] Speaker 04: In this case, again, there is nothing alleged against Detective Traynor or against the city within the limitations period, which is here. [00:24:14] Speaker 04: Again, there is no dispute that there is a two-year limitation period that apply. [00:24:18] Speaker 01: and i i understand that i think that you have a strong argument there that their their actions that are being alleged to have been a lot unlawful that fall outside the limitations period but my understanding of conspiracy liability generally is that it broadens [00:24:34] Speaker 01: the scope of things you can be responsible for when you're a co-conspirator. [00:24:37] Speaker 01: And so even if your particular actions couldn't give rise to liability, if co-conspirators did things and you're part of the same conspiracy, you can be responsible for their actions as well. [00:24:49] Speaker 01: And so if you have a situation where there are co-conspirators who are doing unlawful things within the limitations period, even if you directly didn't do something within the limitations period, you might still have a claim against you. [00:25:02] Speaker 04: I don't believe that's correct in the civil context, Your Honor. [00:25:06] Speaker 04: And again, I'm just going back to Gibson and Klein, and I will have this direct quote from Gibson, which is, quote, planists may recover only for the overt acts that they specifically alleged to have occurred within the two-year limitation period. [00:25:17] Speaker 04: And in this case, there's nothing alleged against the trainer or the city that occurred within the limitations period. [00:25:25] Speaker 04: And again, there is an interplay with the federal claims, because it's important, again, to remember that the federal claims against city defendants [00:25:32] Speaker 04: are not malicious prosecution claims. [00:25:36] Speaker 04: So those claims were complete when plaintiffs were aware of the elements of those causes of action. [00:25:48] Speaker 04: And those causes of actions alleged against city defendants did not require completion of the criminal proceedings in the plaintiff's favor. [00:25:57] Speaker 04: In any event, as we point out in our brief, [00:26:00] Speaker 04: Even if the claims were timely, they would fail in this case. [00:26:03] Speaker 04: So plaintiff's allegations against Detective Traynor stem from Detective Traynor's grand jury testimony, and he is absolutely immune from that. [00:26:11] Speaker 04: At the same time, the city also benefits from Detective Traynor's immunity to the extent that the claims against the city are based against the allegations against Detective Traynor. [00:26:22] Speaker 04: And that is the case in this case. [00:26:25] Speaker 04: So Detective Traynor, certainly the claims were properly dismissed as to him. [00:26:30] Speaker 01: Is there a claim against him for selective investigation? [00:26:37] Speaker 04: Not the way I read it. [00:26:39] Speaker 04: I think this gets to the Rule 8 issue. [00:26:41] Speaker 04: If your honor looks at the claims, again, alleged at ER-237, they're extremely generic, directed at all the defendants. [00:26:52] Speaker 04: And again, to the extent that there is any claim to that effect against the consecutive trainer, it would be untimely in any event. [00:27:00] Speaker 04: But we don't believe that the complaint can be read to allege such a claim. [00:27:04] Speaker 04: And I would point out that Detective Traynor's police reports are in the record. [00:27:09] Speaker 04: I believe they are at City SER 134 to... Oh, I'm sorry. [00:27:15] Speaker 04: They are at ER 115 to 128. [00:27:20] Speaker 04: And they speak for themselves in this case But the trial court correctly ruled for city defendants on a variety of alternative bases including untimeliness absolute immunity Qualified and qualified immunity could be reached as well. [00:27:34] Speaker 04: Even though the district court did not reach that issue I see I'm out of time and unless the court has any questions I would ask this court to affirm the judgment of the district court Great. [00:27:42] Speaker 04: Thank you. [00:27:43] Speaker 04: Thank you [00:27:52] Speaker 05: Good morning, your honors. [00:27:53] Speaker 05: May it please the court, Andrew Jones on behalf of Multnomah County. [00:27:58] Speaker 05: The district court correctly dismissed the claims against Multnomah County because the facts could not show that any county policy was the moving force behind a federal or constitutional deprivation. [00:28:09] Speaker 05: The core functions in this case involving the district attorney that the plaintiff appellants challenge the filing of an arrest warrant affidavit to the presentation to a grand jury in the prosecution of the criminal case. [00:28:20] Speaker 05: Those are all actions taken on behalf of and in the name of the state of Oregon. [00:28:25] Speaker 05: The district attorney's policies as a policy level on how and when to bring those charges, again, are taken on behalf of and in the name of the state of Oregon rather than the county, and that's why the county was correctly dismissed. [00:28:40] Speaker 03: And you agree with the state that any judgment against CalBot would be paid for by the state and not by the county? [00:28:47] Speaker 05: Yes, Your Honor, under 3285 sub 7. [00:28:50] Speaker 05: As this court knows, it looks to the forum state's law in determining whether a district attorney is serving a state or local function, looking to the specific function at issue in the case. [00:29:03] Speaker 05: Here, Oregon's legislature has defined prosecutors as acting on behalf of the state when bringing a criminal prosecution. [00:29:11] Speaker 06: Can you answer the question I asked the state's counsel, which is, under Oregon law, is it your view, the DA's view, that the state attorney general can tell the DA whether to prosecute a certain case or not prosecute a certain case? [00:29:24] Speaker 05: As I read the law, yes, Your Honor. [00:29:26] Speaker 05: At least with respect to the, my friend cited 180.060, and I think that's the statute the court cited as well. [00:29:34] Speaker 05: In addition, I'd point the court to 180.080, in which I think it describes the governor directing the attorney general. [00:29:43] Speaker 06: Are you aware of any instance, actual instance, in which the state attorney general [00:29:47] Speaker 06: told the DA, you must charge this case. [00:29:50] Speaker 06: Or the DA says, I'm going to charge this case. [00:29:51] Speaker 06: The attorney general comes in and says, no, you're not. [00:29:53] Speaker 05: Just drop the case. [00:29:54] Speaker 06: I'm sorry. [00:29:54] Speaker 06: I am not personally aware, Your Honor. [00:29:56] Speaker 05: Just as I read those provisions that Your Honor has cited, I think the attorney general does have, to the extent there is control, it lies with the attorney general. [00:30:04] Speaker 05: It certainly doesn't lie with the county. [00:30:05] Speaker 05: I wasn't able to find anything giving the county's governing body the authority to direct the district attorney on any of these actions. [00:30:17] Speaker 05: Yeah, I think i've cited in the brief and I don't want to restate things too much i'm sure your honors are familiar but All of the the provisions of chapter eight with the district attorney given the ability to direct and control set policy To discharge hire a fire deputy district attorneys lie with the district attorney And the function in this case as I said before all relate to The state is the named party. [00:30:42] Speaker 05: So for those reasons, I think the county was correctly dismissed without [00:30:46] Speaker 05: Without leave and I think the court can should and can't affirm on this record. [00:30:50] Speaker 01: So going back to the sovereign immunity question more than the sort of direct liability against the county itself. [00:30:58] Speaker 01: Does the county have like what what degree of any oversight does the county have over the DA's office. [00:31:04] Speaker 05: The only, I don't think there's any oversight, your honor, in terms of directing or controlling. [00:31:09] Speaker 05: There's statutory provisions that the county can provide salaries for a portion of the district attorney's salary in addition to the state paid amount, and then give salaries. [00:31:19] Speaker 01: The reality, right, is that most of the money comes from the county, not from the state. [00:31:23] Speaker 05: That's right, your honor, and all of the salaries for deputy district attorneys. [00:31:26] Speaker 05: But there isn't a concomit right to direct, control, or hire or fire those deputy district attorneys. [00:31:30] Speaker 05: That lies statutorily with the district attorney. [00:31:33] Speaker 01: So for example, like the HR department, is that county-based or is that state-based? [00:31:37] Speaker 05: I believe the county HR department is, that is county-based. [00:31:43] Speaker 05: The state has its own HR department, but the county does as well. [00:31:50] Speaker 06: Not the DA himself, but if the district attorney's office is held liable here, who would pay? [00:31:56] Speaker 06: Our position is it would be the state, your honor. [00:32:00] Speaker 06: And does the state agree with that? [00:32:01] Speaker 06: That's a question for the state, Your Honor. [00:32:03] Speaker 06: I think the state says the counties, their brief says the counties are liable. [00:32:08] Speaker 05: I'm sorry, Your Honor. [00:32:08] Speaker 05: As the county reads the Tort Claims Act, public body is the large term in which the state is encompassed. [00:32:15] Speaker 05: And as I read the statutes, the public body indemnification runs to the state in this instance, given it's a district attorney and deputy district attorney action. [00:32:23] Speaker 01: There certainly are functions that the district attorney's office performs that are more county functions. [00:32:28] Speaker 01: I know that DA's offices give legal advice to counties, for example, which would be sort of outside their prosecutorial role. [00:32:35] Speaker 05: That's actually called out in the statute, Your Honor, that that's a possibility. [00:32:38] Speaker 05: I think in reality, offices like mine, which are not district attorney's office, provide the legal advice to county workers, not the district attorney. [00:32:47] Speaker 01: So are there other things that are sort of county functions that the DA's office does? [00:32:51] Speaker 01: Because, of course, the lion's share of what they do is prosecute, but are there other things they do that are county-based functions? [00:32:57] Speaker 05: Well, for example, the county does, I think, [00:33:00] Speaker 05: I think the statute that carves out responsibility for paying any judgments only lists certain specific individuals in the district attorney's office. [00:33:10] Speaker 05: So for example, like an investigator or county staff or staff of the district attorney, I think they're probably county actors. [00:33:16] Speaker 05: So for purposes of liability, if that makes sense. [00:33:21] Speaker 05: OK. [00:33:21] Speaker 05: And I'm well over my time. [00:33:23] Speaker 05: So unless there are other questions, Your Honor, thank you. [00:33:24] Speaker 05: And I ask you to affirm. [00:33:25] Speaker 06: Great. [00:33:25] Speaker 06: Thank you. [00:33:37] Speaker 02: We have here a foundational claim of malicious prosecution by the DA's office, the two DA's. [00:33:43] Speaker 01: Can I stop you right there? [00:33:45] Speaker 01: Are you asserting a malicious prosecution claim in your 1983 action separate from your state malicious prosecution claim? [00:33:55] Speaker 02: Yes. [00:33:55] Speaker 01: Where? [00:33:56] Speaker 01: Can you point me to the language in the complaint that [00:33:59] Speaker 01: for the 1983 action that alleges malicious prosecution? [00:34:02] Speaker 02: My language says that based on the foregoing allegations, these defendants have deprived civil rights. [00:34:07] Speaker 02: Among the things alleged in the foregoing allegations is that they deprived my client civil rights by putting them through a malicious prosecution as innocent men. [00:34:15] Speaker 02: That malicious prosecution was the product of a complicated and extensive conspiracy at the highest level. [00:34:21] Speaker 01: I get the factual allegations, but you have a 1983 claim and it has some specifics under it in terms of what the legal theories are that you're asserting under 1983. [00:34:30] Speaker 01: The Supreme Court has said malicious prosecution arises under the Fourth Amendment. [00:34:35] Speaker 01: You have no reference to the Fourth Amendment. [00:34:36] Speaker 01: You have reference to the Fifth and the Fourteenth and the First. [00:34:41] Speaker 01: So where in your 1983 claim, statement of that claim, do I find malicious prosecution? [00:34:47] Speaker 02: You do not find the words malicious prosecution. [00:34:50] Speaker 02: You find that there was a violation of rights by reason of the foregoing conduct. [00:34:56] Speaker 02: Again, this is notice pleading. [00:34:58] Speaker 02: It is pleading of the facts giving rise to the violation. [00:35:04] Speaker 02: They violated the statute. [00:35:05] Speaker 02: They violated the statute in a number of ways, and the two ways, the overarching ways, a conspiracy to commit malicious prosecution and the malicious prosecution. [00:35:15] Speaker 01: I mean, I understand the thrust of what you're trying to say in this case. [00:35:18] Speaker 01: The thing that I'm left puzzled with is you took the time to specifically talk about the right to travel as a specific argument, but you didn't specifically identify malicious prosecution, which seems to be the overall thrust of your case. [00:35:33] Speaker 01: And I don't understand why. [00:35:35] Speaker 02: I guess I don't understand. [00:35:37] Speaker 02: I am required to identify, as I understand it by the precedent, the specific constitutional rights that were violated. [00:35:44] Speaker 02: And malicious prosecution invokes a violation of, in these circumstances, due process and equal protection. [00:35:51] Speaker 02: It is, in order to state a 1983 malicious prosecution claim, you have to show more than state law malicious prosecution. [00:35:59] Speaker 02: You have to show this malicious prosecution, which is motivated and specifically motivated by a desire to violate one of the other rights, in this case, the First Amendment. [00:36:09] Speaker 02: And all of that is pleaded in quite some detail. [00:36:12] Speaker 02: And the defendants have no trouble understanding it. [00:36:14] Speaker 02: So I guess we did the best that we can do [00:36:18] Speaker 02: and put the claims before the court, and the facts are there, and the law is there. [00:36:23] Speaker 02: And that's all I can say. [00:36:25] Speaker 02: The city defendants here, you raised a statement about selective investigation. [00:36:30] Speaker 02: That is also very specifically pleaded in the complaint about the involvement of Officer Traynor. [00:36:35] Speaker 02: Now, turning to the question of conspiracy and how that works, they seize upon the language in Gibson. [00:36:41] Speaker 03: Counsel, your selective prosecution is 225B. [00:36:47] Speaker 03: And trainer's not mentioned in there. [00:36:48] Speaker 03: You actually did mention defendants there. [00:36:50] Speaker 03: It's the one place in your first claim that you actually did mention defendants, and trainer is not mentioned. [00:36:58] Speaker 03: Trainer is not mentioned. [00:36:59] Speaker 03: Multnomah County, MCDA, Underhill, Schmidt, Kalbaugh, and Huey. [00:37:04] Speaker 03: Defamed plaintiffs, selectively prosecute plaintiffs, and abused prosecutorial discretion. [00:37:09] Speaker 02: That is true. [00:37:10] Speaker 02: And then later I say that all the defendants were involved in the conspiracy to achieve that as an object, which is what they were trying to do. [00:37:17] Speaker 02: They were all working together to immobilize these people for political purposes. [00:37:22] Speaker 02: That fairly leaps from the complaint. [00:37:25] Speaker 02: I'm running out of time. [00:37:26] Speaker 02: The thing that I most wanted to cover is that [00:37:30] Speaker 02: It's crystal clear from the DA's brief that they flat out admit that the state will pay any judgment in this action. [00:37:38] Speaker 02: That's on page 32 of their brief. [00:37:44] Speaker 02: It's a judicial admission. [00:37:45] Speaker 02: The statutes that they cite about how maybe somehow the state could pay, none of them say that. [00:37:51] Speaker 02: They talk about providing a defense to the district attorney himself because they wanted to prevent conflicts of interest between the DA and the county officials. [00:38:01] Speaker 02: And it's a narrow little provision. [00:38:03] Speaker 02: The fact is the state would pay none of these damages. [00:38:06] Speaker 02: The fact is this court has already decided [00:38:08] Speaker 02: that the state has no control over the DA or the DA's office of any magnitude whatsoever. [00:38:14] Speaker 02: All of the predicates for 11th Amendment immunity, the dignity of the state, the damages against the treasury, none of them apply at all. [00:38:22] Speaker 02: The only cone factor that's possibly arguably relevant is state intent. [00:38:26] Speaker 02: And we think that under the evolving Supreme Court authority that we cited in the Rule 28j letter, that states can't just immunize 1983 actions [00:38:36] Speaker 02: through their own intent. [00:38:37] Speaker 02: The question is congressional intent and what Congress intended to cover. [00:38:41] Speaker 02: And the plain language of 1983, the plain language of the 11th Amendment, make it clear that the county and its officials are liable under these circumstances. [00:38:53] Speaker 02: Now, the one last thing I'll say, if you'll let me since I'm even further over now, is that the Gibson case is an interesting case. [00:39:01] Speaker 02: It does say you can only recover for the last overt act. [00:39:06] Speaker 02: It seems clear to me that that's a rule of damages. [00:39:08] Speaker 02: In other words, we can't recover for damages that occurred from damages that flowed from a particular overt act before the statute of limitations. [00:39:20] Speaker 02: But we can recover for the primary damages here, which was the enormous cost of a trial that never should have happened. [00:39:27] Speaker 02: And the defendants who all engineered that together [00:39:30] Speaker 02: through all the roles we very specifically plead, should be required to repay these individuals their trial costs. [00:39:37] Speaker 02: That overt act is within the statute of limitations. [00:39:41] Speaker 02: And if there are no further questions, I will sit down. [00:39:46] Speaker 06: Great. [00:39:47] Speaker 06: Thank you all for the very helpful oral argument. [00:39:50] Speaker 06: The case has been submitted.