[00:00:02] Speaker 03:
Good morning, may it please the court, Lee Roystacker on behalf of the appellants.

[00:00:10] Speaker 03:
I'm going to reserve five minutes for rebuttal, and I will watch the clock.

[00:00:15] Speaker 03:
We're here today on an interlocutory appeal of the district court's order after remand denying the appellant's motion to dismiss on qualified immunity grounds.

[00:00:30] Speaker 03:
Based on the order that we got last week, I'm assuming the court would prefer me to start with the mootness issue as opposed to the merits.

[00:00:40] Speaker 04:
That's correct.

[00:00:40] Speaker 04:
Thank you, counsel.

[00:00:42] Speaker 03:
So as the court knows, we asked for the opportunity to brief this issue.

[00:00:50] Speaker 03:
But we're here today.

[00:00:51] Speaker 03:
So let me say a couple of things about at least our position on this.

[00:00:58] Speaker 03:
This issue was raised in the prior appeal and resolved.

[00:01:03] Speaker 03:
So that's the position that we believe is the correct one.

[00:01:09] Speaker 03:
The Fallot case or flat case was cited and discussed and analyzed before.

[00:01:18] Speaker 03:
And the prior panel held it, must have held that it didn't control.

[00:01:22] Speaker 03:
And because it's factually distinct from the circumstances that happened here.

[00:01:28] Speaker 03:
In our case, a notice of appeal is filed first and then an amended complaint.

[00:01:33] Speaker 01:
So Mr. Roystacker, is your position that when the second amended complaint was reportedly filed in the district court here, the one that would otherwise moot our review of the first amended complaint, the district court had been deprived of jurisdiction at that point because of the notice of appeal.

[00:01:52] Speaker 01:
So that second amended complaint is not actually superseding the one on review?

[00:01:57] Speaker 03:
At least with respect to the Section 1983 claims, because those were the ones that were on appeal.

[00:02:04] Speaker 03:
The second amendment of complaint had a Monell claim that wasn't automatically stayed because it wasn't part of the appeal.

[00:02:11] Speaker 03:
So it's a tricky, it's a very tricky procedural sort of situation because of those two things.

[00:02:22] Speaker 03:
So they had leave to amend to re-allege Monell,

[00:02:26] Speaker 03:
not section 1983 because Mr. Court denied the motion on those claims.

[00:02:33] Speaker 04:
That was denied, yes.

[00:02:34] Speaker 03:
Okay, I see.

[00:02:35] Speaker 03:
So that's sort of the, you know, and I'll acknowledge, I don't think phallic controls, but I'll acknowledge that there's no precedent from this court at least dealing with the kind of sequential issue that we have here.

[00:02:50] Speaker 03:
I mean, there are out of circuit cases.

[00:02:52] Speaker 03:
from the seventh and the fifth that are more closely aligned to our procedural posture.

[00:03:05] Speaker 01:
If we were to affirm, it's not what you're asking us to do, but what's your view of what happens next in the district court?

[00:03:22] Speaker 03:
Again, somewhat confusing and complex, because there's a second amended complaint.

[00:03:30] Speaker 01:
Part of which you would agree is still operative.

[00:03:34] Speaker 03:
Yeah, the Menell claim, and we actually moved to dismiss that claim way back when.

[00:03:40] Speaker 03:
Everything got stayed when the appeal got filed.

[00:03:44] Speaker 03:
The judicial court stayed the entire case.

[00:03:46] Speaker 02:
Well, I understand from what is it, footnote four of the court's order that he's gonna revisit that after the stay.

[00:03:53] Speaker 02:
That's what I understood.

[00:03:55] Speaker 03:
That's correct.

[00:03:56] Speaker 03:
But then the rub is that the plaintiff has filed a motion for leave to file a third amendment complaint.

[00:04:03] Speaker 02:
Well, but that's addressed in the footnote indicating that they will consider that at that time.

[00:04:09] Speaker 03:
Yeah, I guess the district court's probably going to, I think he's going to, I think the court's going to consider all of those sort of pending motions at one time.

[00:04:23] Speaker 02:
Do you want to move on to the merits?

[00:04:24] Speaker 03:
Yeah, if there aren't any other questions about the mootness.

[00:04:27] Speaker 03:
Again, I acknowledge that sort of a tricky issue and one of the reasons why we wanted to brief it, we recognize the sort of oddness of how this has played out.

[00:04:39] Speaker 02:
Council, I have on my notes procedural mess on the top of my notes.

[00:04:45] Speaker 03:
I have called it similar things, but perhaps worse.

[00:04:49] Speaker 03:
But yeah, it is a procedural mess.

[00:04:54] Speaker 03:
So I first want to start a little bit talking about qualified immunity because it sort of dovetails into where we believe that district court errors are.

[00:05:06] Speaker 03:
and then address a specific claim or two depending on the time I have left.

[00:05:11] Speaker 03:
So, start from the proposition that an officer is entitled to qualified immunity unless the plaintiff pleads under the relevant, it's called Plomley Pleading Standards, a constitutional claim, prong one.

[00:05:25] Speaker 03:
Prong two is that clearly established law existed at the time

[00:05:32] Speaker 03:
that is clear enough and particular enough that all reasonable officers would understand what they're doing at the time violated the law.

[00:05:41] Speaker 03:
A lot of ink has been spilled over the years on

[00:05:44] Speaker 03:
what exactly clearly established means, including in our briefing.

[00:05:48] Speaker 03:
We spent a lot of time on it.

[00:05:49] Speaker 03:
I'm not going to go over all of them.

[00:05:52] Speaker 02:
Well, specifically on fabrication of evidence, Long pleads that.

[00:05:57] Speaker 02:
And why isn't Pyle can clearly establish that?

[00:06:01] Speaker 03:
On the fabrication?

[00:06:02] Speaker 02:
Yes.

[00:06:02] Speaker 03:
Well, Long pleads fabrication.

[00:06:05] Speaker 03:
I mean, she pleads that things were fabricated.

[00:06:08] Speaker 03:
But from, so you're sort of, I think, asking me two separate questions.

[00:06:13] Speaker 03:
at least as I see it, one is an adequate claim pled, and then number two was a clearly established law.

[00:06:19] Speaker 04:
Okay, so before we, yes, she pleads fabrication of evidence, and don't we, in order to even review this, in order to even have jurisdiction over this question, don't we have to look at all the pleaded allegations in the light most favorable to the plaintiff, and then say, does it

[00:06:43] Speaker 04:
plausibly allege a violation and then determine whether it was a clearly established right.

[00:06:50] Speaker 03:
That's correct.

[00:06:51] Speaker 04:
Because otherwise we don't even have jurisdiction.

[00:06:53] Speaker 03:
Well, that's why you have jurisdiction over the factual content is because you can't get to the second question without first determining the first.

[00:07:02] Speaker 04:
Right, so we have to take it all in the light most favorable to her and she does plead fabrication of evidence.

[00:07:10] Speaker 03:
Yes, she pleads a circumstantial fabrication claim.

[00:07:13] Speaker 01:
I mean, which is circumstantial doesn't add much to that, as you know, for lawyers, particularly at the pleading stage.

[00:07:19] Speaker 01:
And we also don't consider news reports or the other articles or some of the things you're relying on, right?

[00:07:25] Speaker 01:
That would be beyond, we wouldn't have jurisdiction to go beyond the four corners of the complaint.

[00:07:32] Speaker 03:
Well, I don't think we're relying on anything outside the record, outside the complaint for fabrication, the fabrication claims, other than

[00:07:43] Speaker 03:
perhaps the trial transcripts that show the existence of what people testified to, which is the same thing that the plaintiff is claiming was fabricated.

[00:07:52] Speaker 03:
But the fabrication claims aren't necessarily all bound up in any traditionally noticeable material.

[00:07:58] Speaker 03:
The point to the fabrication claims is that what's alleged is coercive interviewing techniques on witnesses that somehow

[00:08:11] Speaker 03:
overcame their free will to tell what they wanted to tell and that we somehow coerced them into saying things that the witnesses themselves didn't think was true.

[00:08:27] Speaker 03:
So you have to look at, coercive is a conclusory statement.

[00:08:33] Speaker 03:
You have to look at what is alleged to demonstrate coercive conduct.

[00:08:37] Speaker 03:
And there's three witnesses,

[00:08:40] Speaker 03:
One group of witnesses and two individuals that are alleged to have been coerced.

[00:08:44] Speaker 03:
First is the neighborhood witnesses.

[00:08:47] Speaker 03:
If you look at what's alleged, Weeks did, with respect to neighborhood witnesses, you won't find anything, because there's nothing alleged.

[00:08:56] Speaker 03:
It merely says coerced.

[00:08:58] Speaker 03:
If you look at Jeff Dills, the allegation is that Weeks threatened him with prosecution.

[00:09:06] Speaker 03:
And if you look at Oscar Castaneda,

[00:09:10] Speaker 03:
The alleged coercion is telling him he needed to alibi his girlfriend because Long was pointing the finger at him.

[00:09:17] Speaker 03:
Telling somebody that they're threatening somebody with prosecution or telling them they need to alibi somebody, that's not coercive.

[00:09:28] Speaker 03:
That is not conduct that is so coercive and over the top that the person wouldn't be able to exercise their free will and feel compelled to say something else that wasn't true.

[00:09:42] Speaker 01:
Are you suggesting that our cases must clearly establish that those means of coercion are unconstitutional?

[00:09:54] Speaker 03:
I am.

[00:09:55] Speaker 01:
So I guess this is I think a theme throughout in terms of understanding the level of specificity.

[00:10:04] Speaker 01:
Don't we tend to require more specificity with respect to most notably with respect to excessive force claims because in many ways they're snap judgments and

[00:10:17] Speaker 01:
They're very fact-specific.

[00:10:20] Speaker 01:
But on the mill run of qualified immunity claims and the underlying constitutional claims, for example, deliberate indifference with respect to 14th Amendment claims for deprivation of family relations, those sorts of things, we still do review it at a pretty high level.

[00:10:44] Speaker 01:
And I guess what I'm wondering is,

[00:10:47] Speaker 01:
what's your authority that we should take kind of that very specific excessive force fact specific snap judgment claim uh... standard of specificity for qualified immunity and apply it in these kind of broader dupe general due process uh... questions i would say this uh... the specificity analysis is what the supreme court mandates we've all seen that the question is that whether it applies to other rights

[00:11:16] Speaker 03:
other than the Fourth Amendment, and the answer is yes.

[00:11:19] Speaker 03:
I mean, this Court has said that.

[00:11:21] Speaker 03:
In Rico v. Ducart, 980 F.

[00:11:24] Speaker 03:
3rd at 1299, the Court said, the highly fact-specific, highly contextualized nature of the inquiry does not depend on which particular constitutional right a given plaintiff claims officials have violated.

[00:11:41] Speaker 03:
In Hamby, which was a number of years before,

[00:11:46] Speaker 03:
821 F3 at 1091, this court said, not only has the Supreme Court never suggested any such distinction, but several cases affirmatively repudiated.

[00:11:56] Speaker 03:
And then it went on to cite several cases dealing with the First Amendment, the Eighth Amendment, the Eighth Amendment, First Amendment.

[00:12:04] Speaker 03:
So that's the answer to the question, I believe, is do we apply that highly specific contextualized factual analysis to

[00:12:16] Speaker 03:
Fourteenth Amendment claims and the answer according to the court Is yes, but but we don't in other areas of 14th Amendment claims.

[00:12:25] Speaker 01:
I don't think we do with respect to equal production claims I don't think we do with respect to due process claims again alleging deliberate indifference Or purpose to harm claims in excessive force cases I mean

[00:12:41] Speaker 03:
uh... i think that i think that it is done in portese amendment claims in excessive force cases i don't have the sites with me because that's not one of the cases that you know that's not an area that we're dealing with but i i don't think it's i don't think it's correct that this analysis is amendment or right-driven

[00:13:10] Speaker 03:
What happened, and we have two problems with the district court's errors.

[00:13:15] Speaker 03:
One is that the district court determined that the law didn't have to be settled.

[00:13:20] Speaker 03:
Okay, that's in the order.

[00:13:21] Speaker 03:
We know that's not true.

[00:13:22] Speaker 03:
The Supreme Court has told us the law has to be settled.

[00:13:24] Speaker 03:
And the second one is nowhere in the district court's order anywhere will you find an analysis of the allegations being made against my clients in the complaint.

[00:13:39] Speaker 03:
relating them to any facts of any of the underlying cases and I think You're arguing that there has to be a case squarely on point on the facts in the law Well, I mean I will concede now I will concede that it's true that there doesn't have to be a case directly on point But it's also true that close enough isn't good enough.

[00:14:03] Speaker 03:
I mean

[00:14:05] Speaker 03:
The Supreme Court has said, in white versus poly, essentially, we don't require a case directly on point, but an existing precedent must have placed the statutory constitutional question beyond debate.

[00:14:17] Speaker 04:
Isn't it beyond the debate that the police officers cannot fabricate evidence in order to win a conviction?

[00:14:26] Speaker 03:
As a general proposition,

[00:14:28] Speaker 03:
Yes, I agree with that.

[00:14:30] Speaker 04:
Wouldn't a reasonable police officer know that, that they're not supposed to make it up?

[00:14:35] Speaker 03:
Correct.

[00:14:36] Speaker 03:
But there's no allegation that Weeks made anything up.

[00:14:39] Speaker 03:
The allegation is he coerced witnesses by doing A, B, and C. To pursue a false prosecution.

[00:14:50] Speaker 03:
Again, well, that's the allegation.

[00:14:52] Speaker 04:
Right.

[00:14:52] Speaker 03:
But there are no facts establishing

[00:14:57] Speaker 03:
any coercive conduct.

[00:15:02] Speaker 04:
Your time is up, but I just want to ask you, would you make the same argument with respect to the suppression of exculpatory evidence, that is the blood-free jacket belonging to Long, which was suppressed?

[00:15:19] Speaker 03:
Well, I would, because that's what this case held in Korea.

[00:15:24] Speaker 03:
Set that and well-known well-established Brady violation Well, I I don't think I mean I think the the judicially noticeable material clearly establishes that one free jacket We're not supposed to be looking at facts at this point in disputing facts, but it's you can look at the trial transcript We can look at that, but I mean we can't take it as true What you can see though what you can take is true is that the jacket was discussed that that testimony occurred?

[00:15:55] Speaker 03:
that that.

[00:15:56] Speaker 03:
Event happened you don't have to take the testimony as true.

[00:15:59] Speaker 03:
I'm not sure we can do that We're supposed to be looking at the four corners of the complaint at this point if I might on the on your question I mean career says Exactly, even though it was clearly established at the time of the investigations that police officers were bound to disclose brady advance We must next consider whether every reasonable police officer would have understood the specific evidence allegedly withheld

[00:16:26] Speaker 03:
was clearly subject to Brady's disclosure requirements.

[00:16:30] Speaker 03:
And the jacket's just one part of the claim.

[00:16:33] Speaker 03:
I mean, the main part of that claim deals with officers' opinions and conclusions.

[00:16:41] Speaker 03:
But I'm a minute 40 over my time.

[00:16:45] Speaker 03:
I guess on my 10 minutes, so I still have some more time.

[00:16:48] Speaker 04:
I think.

[00:16:48] Speaker 04:
Not really.

[00:16:49] Speaker 03:
Not really?

[00:16:50] Speaker 03:
That was 15 minutes?

[00:16:51] Speaker 03:
Wow, that was fast.

[00:16:52] Speaker 03:
Yeah, that was fast.

[00:16:54] Speaker 03:
OK.

[00:16:54] Speaker 03:
Thank you.

[00:16:55] Speaker 04:
Thank you.

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

[00:17:06] Speaker 00:
May it please the court, I'm Steve Art for the plaintiff appellee Kim Long.

[00:17:10] Speaker 00:
Kim Long was wrongly convicted of a murder she didn't commit and spent years in prison because of police misconduct.

[00:17:17] Speaker 00:
Long's pleadings explain in detail how each of the five defendant officers violated her clearly established constitutional rights when they fabricated false evidence, when they suppressed material exculpatory evidence, and when they failed to preserve exculpatory physical evidence in bad faith.

[00:17:36] Speaker 00:
The district court has correctly denied qualified immunity on the pleadings twice now.

[00:17:41] Speaker 00:
And if this court reaches the merits, it should affirm easily.

[00:17:45] Speaker 00:
Unfortunately, this court lacks appellate jurisdiction for two reasons.

[00:17:50] Speaker 00:
First, because the defendant's entire presentation of the appeal is a factual dispute about what is pleaded in this case.

[00:17:59] Speaker 00:
And this often by reference to outside materials.

[00:18:02] Speaker 00:
And this court lacks appellate jurisdiction in a collateral order appeal considering qualified immunity to consider factual disputes.

[00:18:11] Speaker 00:
Second, the appeal is moot because the order being appealed and all of defendants' arguments focused on a first amended complaint that is no longer operative in the case.

[00:18:20] Speaker 01:
Why did the district court have jurisdiction to accept the filing of the second amended complaint to supersede the one on review?

[00:18:28] Speaker 00:
So that this court's precedence about

[00:18:32] Speaker 00:
Transfer of jurisdiction during appeal Suggest that if an amended complaint is filed during the pendency of an appeal It moots the appeal.

[00:18:42] Speaker 00:
That's what falch says That's what the cases we cited earlier this week in our submission say they talk about a complaint being filed during the pendency of an appeal but even if you accepted

[00:18:55] Speaker 00:
the defendant's view that jurisdiction at the moment the notice of appeal was filed transferred to this court.

[00:19:03] Speaker 00:
When this court issued its mandate and the case was remanded, the second amended complaint was certainly operative at that point in time.

[00:19:09] Speaker 00:
The district court continued to adjudicate the pleadings.

[00:19:12] Speaker 00:
We filed a third amended complaint saying to the district court,

[00:19:16] Speaker 00:
you should consider this third amended complaint and make the decision about qualified immunity based on that complaint.

[00:19:21] Speaker 00:
The other side opposed that effort and said, no, don't accept the third amended complaint.

[00:19:26] Speaker 00:
Don't look at the second amended complaint.

[00:19:28] Speaker 00:
Look at the first amended complaint.

[00:19:29] Speaker 00:
And that's how we ended up with a second decision denying qualified immunity.

[00:19:33] Speaker 01:
Mr. Art, I guess I'll tell you a broader concern I have.

[00:19:38] Speaker 01:
I'm not sure whether this case is it.

[00:19:41] Speaker 01:
The qualified immunity is immunity from suit.

[00:19:44] Speaker 01:
And this case is a bit of a mess procedurally as it comes to us.

[00:19:51] Speaker 01:
So what's under your theory, what's to prevent a plaintiff from

[00:19:58] Speaker 01:
essentially subjecting someone to an unreviewable on appeal suit that in a way that doesn't allow us to reach the qualified immunity issue that defendant is entitled to have us here.

[00:20:15] Speaker 00:
It absolutely needs to be considered at the earliest possible time.

[00:20:18] Speaker 00:
But in order to invoke this jurisdiction, a defendant who is appealing an order has to make sure of two things.

[00:20:23] Speaker 00:
One, that the order of the district court that is being appealed is a final order disposing of an operative complaint.

[00:20:31] Speaker 00:
And two, that when the case reaches this court, the-

[00:20:36] Speaker 01:
It doesn't have to be a final order for purposes of interlocutory appeal, right?

[00:20:41] Speaker 00:
Well, Your Honor, I think the entire idea of the collateral order doctrine is it is considered final to the extent that the district court has resolved the legal question, is there qualified immunity based on the plaintiff's facts or the plaintiff's pleadings, right?

[00:20:54] Speaker 00:
So the notion is that this qualifies as a final order under 1291 under the collateral order doctrine.

[00:21:01] Speaker 00:
even though it is interlocutory in nature as your honor is saying.

[00:21:05] Speaker 01:
But how do we know that?

[00:21:06] Speaker 01:
Must it always only arise from where it's a denial of a motion to dismiss?

[00:21:12] Speaker 01:
How can we tell?

[00:21:13] Speaker 00:
In the cases that we have litigated, like Miss Long's,

[00:21:20] Speaker 00:
Usually you have one order in the district court where there is an opinion saying here is the denial of qualified immunity and that order is appealed from and the defendants on appeal say we will assume the truth of the plaintiff's facts and clearly established law has not been violated.

[00:21:35] Speaker 00:
That is the normal course that happens in the extreme majority of these cases and allows the qualified immunity question to your honor's concern to be resolved at the first stage of the case.

[00:21:45] Speaker 00:
That hasn't happened here.

[00:21:46] Speaker 01:
but that hasn't happened because you filed a second complaint.

[00:21:51] Speaker 00:
We were ordered to do so by the district court.

[00:21:53] Speaker 00:
So the district court in December 2022

[00:21:56] Speaker 00:
denied the motion to dismiss the first amended complaint based on qualified immunity, and at the same time ordered us to file a second amended complaint, which we did on schedule.

[00:22:06] Speaker 00:
We filed that second amended complaint about three weeks after the first notice of appeal was filed.

[00:22:11] Speaker 00:
We argued in the first appeal that that mooted it and the court should dismiss the appeal.

[00:22:16] Speaker 00:
We filed a motion to dismiss and send it back for resolution of the qualified immunity issue on one complaint.

[00:22:24] Speaker 00:
The court looked past that mootness issue, reached the merits, remanded for further consideration of qualified immunity.

[00:22:31] Speaker 00:
At that point in time, we moved to file a third amended complaint to prevent this issue, right, so that there wasn't a decision being made on a defunct complaint.

[00:22:40] Speaker 00:
The defendant said no please decide based on the first amended complaint and that's why we have another appeal from an order.

[00:22:48] Speaker 01:
You're asking us to send this back down resulting in a third appeal on qualified immunity on that third complaint.

[00:22:57] Speaker 00:
If the court asks me what I think of

[00:22:59] Speaker 00:
The jurisdictional question in this case, I unfortunately think there is no jurisdiction.

[00:23:03] Speaker 00:
I want nothing more than an opinion on the merits affirming the denial of qualified immunity.

[00:23:09] Speaker 00:
The case has been delayed at the pleading stage for four years, almost four years.

[00:23:14] Speaker 00:
We haven't done any discovery that is extraordinarily prejudicial to my client, Ms.

[00:23:19] Speaker 00:
Long.

[00:23:20] Speaker 00:
Witnesses' memories fade, witnesses pass away, so of course we want this resolved.

[00:23:25] Speaker 00:
I would submit to the court that where a defendant does not follow the rules to obtain this court's jurisdiction, both by not making sure that they're appealing from an appealable order and by, in each of the appeals in this court, saying to this court, we're going to contest all of the facts.

[00:23:42] Speaker 00:
I mean, to be clear about the factual challenges,

[00:23:45] Speaker 00:
They start their brief by saying long suppression of evidence theory relating to the jacket is, quote unquote, untrue.

[00:23:52] Speaker 00:
And so we're not even going to discuss it.

[00:23:54] Speaker 00:
They contest whether they suppressed evidence, what their mental state was, whether they fabricated it.

[00:23:59] Speaker 01:
You're asking us to, it sounds like, I think you were asking us in your briefs at least, to dismiss the appeal for lack of jurisdiction.

[00:24:06] Speaker 01:
Isn't the better approach, and one we've taken, to simply disregard the factual disputes and decide what's on the complaint?

[00:24:15] Speaker 00:
So our view of that is that the defendants appealing an order that is not final are obligated to secure this court's jurisdiction by affirmatively agreeing that the plaintiff's facts are true and arguing there is no violation of clearly established law based on those facts.

[00:24:35] Speaker 00:
When the appealing party does not do that and instead contests the facts as a way of saying that the law is not clearly established,

[00:24:43] Speaker 00:
This court should hold that line and say a litigant in that posture has not done what it needs to do to satisfy the collateral order doctrine and to appeal a final and appealable issue under 1291.

[00:24:57] Speaker 00:
And the reason is because otherwise you get appeals like this in succession

[00:25:06] Speaker 00:
in constitutional cases where the issue is not is this court's and the Supreme Court's law clearly established, but instead can the court consider some sort of factual dispute?

[00:25:18] Speaker 04:
What do you think is the most speedy way to get this case resolved?

[00:25:23] Speaker 00:
our sort of ideal opinion given the jurisdictional issues in the case is to dismiss this appeal for lack of jurisdiction because the order appealed from is not operative and the appeal is moot and because the defendants raise nothing but factual

[00:25:42] Speaker 00:
contests to the allegations and to hold, Your Honor, that a third appeal should not be permitted at the pleading stage of this case.

[00:25:50] Speaker 00:
The Supreme Court in Barron's made very clear

[00:25:54] Speaker 00:
A qualified immunity appeal may be appropriate, both at the motion to dismiss stage of the case and at the summary judgment stage of the case.

[00:26:01] Speaker 00:
But the Supreme Court, in that opinion, discussed the concern about cases precisely like this one, where there are repeated appeals at one stage of the case.

[00:26:12] Speaker 04:
And in this case, we think- I just ask you, why do you continue to file amended complaints then?

[00:26:19] Speaker 04:
Why don't you just go with the first one?

[00:26:21] Speaker 00:
I wish that I had, Your Honor, to be frank.

[00:26:25] Speaker 00:
Our situation is we were ordered to file a second amended complaint.

[00:26:29] Speaker 00:
And so we followed that order and we did that.

[00:26:31] Speaker 00:
And then we asked the question, what jurisdictional effect does this have?

[00:26:36] Speaker 00:
And I think that the answer to that in candor is that it deprives the appellate court of jurisdiction because that first amended complaint and the decisions disposing of it are not operative.

[00:26:47] Speaker 00:
And so that is my frank answer.

[00:26:49] Speaker 00:
And then on remand,

[00:26:52] Speaker 00:
what i thought to myself was i'd better file a third amended complaint here to clean up all the allegations put them in one place and give the district court a single complaint on which it can evaluate qualified immunity so the next time we go up an appeal

[00:27:07] Speaker 00:
The court will have a final order that it can consider qualified immunity on with all of our allegations.

[00:27:13] Speaker 00:
And I advocated that in the district court.

[00:27:16] Speaker 00:
I said, please accept our third amended complaint.

[00:27:18] Speaker 00:
The defendant said, no, don't.

[00:27:20] Speaker 00:
You should make this judgment on the first amended complaint.

[00:27:23] Speaker 00:
And the district court agreed with the defendants and said, I'm not going to accept the third amended complaint.

[00:27:29] Speaker 00:
I'm going to decide it based on the first amended complaint.

[00:27:31] Speaker 00:
And here we are in this situation again.

[00:27:33] Speaker 04:
Is that the same district court judge throughout this

[00:27:36] Speaker 00:
The complaint was initially filed in front of a different judge who dismissed it.

[00:27:41] Speaker 04:
Right, because Judge Slaughter was recently appointed.

[00:27:44] Speaker 00:
Correct, Your Honor.

[00:27:44] Speaker 04:
And he came on and he inherited this case.

[00:27:46] Speaker 00:
Right, so he inherited it at the first amended complaint, ordered the filing of the second amended complaint, and didn't accept the third amended complaint on remand.

[00:27:55] Speaker 00:
And so, you know, we think that this case should be dismissed for lack of jurisdiction with an order that says to the defendants, you cannot appeal a third time at the pleading stage.

[00:28:03] Speaker 00:
On the merits,

[00:28:04] Speaker 00:
This is not a close case, if you look at our pleadings.

[00:28:09] Speaker 00:
This case pleads very deeply established constitutional claims.

[00:28:14] Speaker 00:
To address the court's questions about the level of specificity, this court in the Creel case and in the Tennyson case has made very clear that

[00:28:22] Speaker 00:
When the right in question is the right to exculpatory or impeachment evidence or the right not to be tried at a trial based on fabricated evidence, because the constitutional prescription is much more specific, you don't need a case exactly on point about precisely the type of evidence in question as you do in the Fourth Amendment context.

[00:28:42] Speaker 01:
Mr. Art, do we have enough to go on, I think in paragraph 40 of the complaint, that I guess about when the defendants allegedly decided to frame Ms.

[00:28:56] Speaker 01:
Long, it's quite abstract.

[00:29:01] Speaker 01:
It doesn't tell us

[00:29:02] Speaker 01:
whether it's before or after certain acts, it just says, defendant settled and built a case against her, but it doesn't give us any specificity about when they might have done that.

[00:29:12] Speaker 01:
Is that enough to go on?

[00:29:14] Speaker 00:
Maybe not on that paragraph alone, but drawing inferences from what is pleaded across the complaint, the allegation is that Long was selected as a suspect at the very moment that the five responding officers who are defendants in this case

[00:29:26] Speaker 00:
Appeared at her house and at that moment they decided that that she would be their suspect and that caused them to do several things that caused them not to collect.

[00:29:34] Speaker 00:
The jet blood free jacket as evidence and to make a report that that jacket have been discovered that way and suppress that report throughout criminal proceedings that caused them not to collect DNA and fingerprint evidence from the scene.

[00:29:46] Speaker 00:
And it caused them immediately, really in the first 24 hours, Defendant Weeks fabricated a story for Jeff Dills to tell, which was of profound effect in this case.

[00:29:58] Speaker 00:
And my colleague says that we don't allege that there was actual direct fabrication of evidence.

[00:30:04] Speaker 00:
We allege it was coercion.

[00:30:06] Speaker 00:
Not so.

[00:30:06] Speaker 00:
What we're alleging is that Dills, who was with Long,

[00:30:11] Speaker 00:
during the crime at issue and who dropped her off at her house minutes before 2.09 a.m.

[00:30:17] Speaker 00:
when she called 911.

[00:30:18] Speaker 00:
We allege that Dill told Weeks at the start the same story that Long had.

[00:30:24] Speaker 00:
Weeks was her only alibi witness, and instead of accepting that story, Weeks fabricated an account where Dills had dropped long off 40 minutes earlier, creating the opportunity for her to commit the crime.

[00:30:37] Speaker 00:
And as every single court who has reviewed this case in the criminal and post-conviction proceedings has recognized, Dills' testimony creating that opportunity

[00:30:46] Speaker 00:
for long to commit the crime was profoundly important in this case.

[00:30:50] Speaker 00:
And so the allegation is not that he coerced Dills.

[00:30:53] Speaker 00:
He certainly did.

[00:30:54] Speaker 00:
The allegation is Dills told him story A, and he said, no, Dills, you're going to tell story X. And that is direct fabrication of evidence.

[00:31:04] Speaker 00:
It is clearly prohibited by this court's decisions, including in Spencer against Peters.

[00:31:11] Speaker 00:
It shows that the police and the witnesses who were key in this case were lying.

[00:31:16] Speaker 00:
This court in Mellon made very, very clear that where investigating officers know that a witness has lied, it must disclose that evidence.

[00:31:27] Speaker 00:
And so the claims in this case are clearly established as unconstitutional.

[00:31:32] Speaker 00:
And if this court does not dismiss the case for lack of jurisdiction and hold that the defendants here cannot take a third appeal at the pleading stage, the court should affirm all the denial of qualified immunity on the constitutional claims.

[00:31:47] Speaker 04:
All right.

[00:31:47] Speaker 04:
Thank you, counsel.

[00:31:48] Speaker 04:
Thank you, your honor.

[00:31:53] Speaker 04:
Long versus Weeks will be submitted.

[00:31:54] Speaker 04:
This court will be in recess for the next

[00:31:57] Speaker 04:
Five minutes.