[00:00:00] Speaker 02:
Right.

[00:00:01] Speaker 02:
We will call the next case, Rogers versus Torres, number 242046.

[00:00:11] Speaker 00:
Good morning, may it please the court.

[00:00:13] Speaker 00:
My name is Blair Dunn, and I'm here on behalf of the appellant, Wes Rogers.

[00:00:20] Speaker 00:
I think that this is a fairly straightforward case and argument, and we can get there examining the case law, provided, of course,

[00:00:27] Speaker 00:
We don't take any questions regarding my views on the abrogation of the rule against perpetuities in Pennsylvania, which I am not prepared to address today.

[00:00:36] Speaker 00:
That's okay.

[00:00:36] Speaker 00:
Sorry, guys.

[00:00:38] Speaker 04:
So you're not taking a position either?

[00:00:39] Speaker 00:
I think that's safe.

[00:00:41] Speaker 04:
Okay.

[00:00:42] Speaker 04:
Where am I?

[00:00:43] Speaker 04:
I just happen to see it.

[00:00:46] Speaker 00:
So I would begin by addressing the court and addressing the chronology of the case law that the district court relied on to arrive at its conclusion.

[00:00:56] Speaker 00:
And I'd first point to, of course, the main case that the district court relies on, which is the Embler case, which is a 1976 case from the US Supreme Court.

[00:01:04] Speaker 00:
We move from there to, of course, Buckley in 1993.

[00:01:08] Speaker 00:
And then there's a series of cases, specifically from this circuit and from the Supreme Court after that, that deal with these types of malicious prosecutions or vindictive prosecutions.

[00:01:20] Speaker 00:
And I guess my major point is that

[00:01:22] Speaker 00:
What the district court didn't do was do the functional test from Buckley.

[00:01:27] Speaker 00:
And I think that was a big part of this.

[00:01:29] Speaker 00:
It also didn't rely at all on a part of the Mink decision from this court that deals with the policy reasons for prosecutorial immunity, which is, of course, something associated to the criminal process.

[00:01:44] Speaker 00:
And we highlighted that in our reply brief.

[00:01:49] Speaker 00:
policy implication for prosecutorial immunity, I don't think was successfully or appropriately weighed by the district court in evaluating whether or not the then district attorney, Raul Torres, was operating in a function associated to the criminal process.

[00:02:06] Speaker 00:
And I think instead, even though he says he's looking at what the nature of the action was that the district attorney took, he really more relied on that it was the district attorney, not that this was a criminal prosecution.

[00:02:20] Speaker 00:
And I think that's where this case largely went awry.

[00:02:27] Speaker 03:
Council, are you aware of any case, only in civil cases, or excluded from the possibility of prosecutorial immunity?

[00:02:37] Speaker 00:
I'm not quite sure I heard the court's question.

[00:02:40] Speaker 00:
Am I aware of any civil cases where there was prosecutorial?

[00:02:48] Speaker 03:
Where there was immunity denied?

[00:02:56] Speaker 00:
No, I'm not, Your Honor.

[00:02:59] Speaker 00:
I think that's probably...

[00:03:00] Speaker 00:
Part of the issue here is I think the district court stretched this into something that we haven't seen before.

[00:03:06] Speaker 04:
Just quickly, you would agree that this court has extended prosecutorial immunity in civil cases?

[00:03:15] Speaker 00:
It has.

[00:03:16] Speaker 00:
It has.

[00:03:18] Speaker 00:
But of course, there's also the cases, the Beatle case, the Sherrill case, and some of these others where you get into the point where

[00:03:24] Speaker 00:
And clearly from Hartman versus Moore, where you have a clear indication that, and this is where I think the district court in their footnote kind of put the cart before the horse, where you can have a case that is brought purely for retaliatory motive, as we are alleging was done in this case.

[00:03:40] Speaker 00:
And the district court skipped ahead and said, well, I just don't see it.

[00:03:44] Speaker 00:
And I basically weighed the evidence as we point out.

[00:03:46] Speaker 00:
I think that was incorrect.

[00:03:48] Speaker 00:
And that action by the district court, I think, is what allows him to fill in with Imbler behind that.

[00:03:54] Speaker 00:
and really get to this idea that, well, he's just doing this as a prosecutor to protect the health and safety of the community.

[00:04:00] Speaker 00:
Well, I don't know any government lawsuits that aren't supposed to be tied to protecting the health, safety, and welfare of the community.

[00:04:05] Speaker 00:
That's part of the actions of any government.

[00:04:07] Speaker 00:
It's supposed to be for those purposes.

[00:04:08] Speaker 00:
So I don't know that you can use that to override that test from Buckley.

[00:04:13] Speaker 04:
So what was the evidence that this was a retaliatory prosecution?

[00:04:17] Speaker 00:
So the only reason, and this is in the complaint, the only reason that we allege that Mr. Rogers was included in the civil lawsuit was because the district attorney assumed that he was a member of the New Mexico Civil Guard, the militia group that he was trying to enjoin.

[00:04:35] Speaker 00:
And he actually linked to this in their complaint because Mr. Rogers went on to a podcast of one of the Civil Guard's members or officers

[00:04:46] Speaker 00:
and discussed the district attorney's actions and discussed the issues.

[00:04:52] Speaker 00:
So he engaged in political speech on a podcast.

[00:04:56] Speaker 00:
And that was the reason that he was included in the lawsuit.

[00:05:00] Speaker 00:
That's the only reasons that are there, because he wasn't actually a member of the Civil Guard, as we pointed out in that district court proceeding.

[00:05:06] Speaker 00:
And that's putting aside all of the arguments, because that case isn't in front of this court at all.

[00:05:10] Speaker 00:
That was just in the state court about the right to assemble.

[00:05:17] Speaker 00:
Mr. Rogers said he had associated with them.

[00:05:19] Speaker 00:
So it's a First Amendment association, right, kind of wrapped up in that mess.

[00:05:24] Speaker 00:
So he says he associated with them on the podcast.

[00:05:28] Speaker 00:
And he supported them.

[00:05:29] Speaker 00:
And it was that speech.

[00:05:30] Speaker 00:
That's all that was in the complaint that was brought in district court going after him.

[00:05:34] Speaker 00:
And so that's why we say that's all the motive that the district attorney put on the record was that.

[00:05:42] Speaker 04:
OK, so did you have evidence?

[00:05:47] Speaker 04:
In this case, did you allege that there were other reasons why the district attorney included you?

[00:05:56] Speaker 00:
We alleged he was also politically motivated.

[00:06:01] Speaker 00:
Again, to chill a person of ordinary firmness, the district attorney Raul Torres, the district attorney at that time, was of course now the attorney general from New Mexico and was in the process of moving into that position or running for that position rather.

[00:06:15] Speaker 04:
In the state court lawsuit, how many people were included in the suit?

[00:06:27] Speaker 00:
I think it was eight, but there were some that came and went.

[00:06:32] Speaker 00:
Some fought it, some didn't and went along with it.

[00:06:36] Speaker 00:
But there was nobody that I recall.

[00:06:38] Speaker 00:
And I only took over Mr. Rogers' defense in that case.

[00:06:42] Speaker 00:
I didn't take over.

[00:06:43] Speaker 00:
the rest of the members or the defendants in that lawsuit or the organization itself.

[00:06:47] Speaker 04:
No, fair enough.

[00:06:48] Speaker 04:
I'm just curious, and here's why I'm asking.

[00:06:51] Speaker 04:
Does it help you or hurt you if the then district attorney included many people he believed were affiliated with the Civil Guard in the lawsuit?

[00:07:07] Speaker 00:
I think it helps, particularly in this case, because of all those people that were included in that other lawsuit, they all actually had some sort of formal affiliation to the Civil Guard.

[00:07:19] Speaker 00:
Mr. Rogers is the only one that did not, that professed he was not a member.

[00:07:25] Speaker 00:
And so, again, a prosecutor, if he'd taken this as a criminal prosecution, there would have been no evidence to support including bringing a criminal prosecution against Mr. Rogers either, other than, for instance, if he's affiliated with a group.

[00:07:39] Speaker 00:
And that's a really shaky reason to initiate a criminal prosecution, which is why I think the District Attorney didn't go that route in this deal, instead went this route of enjoining.

[00:07:49] Speaker 00:
I want to address as well, in that regard, the damage and the chilling of a person of ordinary firmness.

[00:07:56] Speaker 00:
Mr. Rogers ultimately had to pay me to defend him, to try to keep his associational rights and his speech rights at issue, and it did chill his speech.

[00:08:06] Speaker 00:
I think that that's an area from Shero that I sometimes grapple with, and I think that it's fair that this court would as well, because Shero and those cases where it's the idea that there has to be some sort of like

[00:08:21] Speaker 00:
punitive aspect to it, some sort of damages beyond just having to participate in a lawsuit for declaratory judgment.

[00:08:27] Speaker 00:
That's what Sheryl discusses.

[00:08:29] Speaker 03:
I think that in this situation... Well, wasn't, you know, wasn't the lawsuit, the underlying lawsuit, to simply enjoin them from operating as a private militia when they were not established or endorsed or had any official government backing?

[00:08:50] Speaker 00:
And Judge Kelly, that's... And Judge Kelly, that's about... Except that the injunction was to enjoin him.

[00:09:06] Speaker 00:
I guess that was part of my problem in the underlying lawsuit, and I think that gets directly to that point from Sherrill.

[00:09:13] Speaker 00:
Yes, it was a declaratory judgment action seeking an injunction against

[00:09:18] Speaker 00:
that organization assembling for that purpose.

[00:09:21] Speaker 00:
But it was also enjoining those.

[00:09:24] Speaker 00:
Right.

[00:09:25] Speaker 03:
That's right.

[00:09:32] Speaker 00:
It was to enjoin them from assembling as a group for that purpose.

[00:09:36] Speaker 00:
But if that's all you were doing, I don't know why.

[00:09:42] Speaker 00:
That's correct.

[00:09:43] Speaker 00:
I'm just saying that that's the purpose.

[00:09:45] Speaker 00:
Right.

[00:09:45] Speaker 00:
They were assembling as a group for that purpose.

[00:09:48] Speaker 00:
And I think that's the distinction here.

[00:09:50] Speaker 00:
Mr. Rogers was not part of that group.

[00:09:52] Speaker 00:
And so including him in that, there really was no evidence that he was a member of the group.

[00:09:59] Speaker 00:
He'd never signed a roster or a role or anything like that.

[00:10:03] Speaker 00:
Instead of just, we're just going to join all of these individuals against assembling as a militia for the purposes that they were, instead they went out and they

[00:10:12] Speaker 00:
They grabbed him because he had gone on a podcast and sported.

[00:10:14] Speaker 00:
So it was purely a retaliatory case, and it was purely to punish him for the speech he had made, the political speech he had made.

[00:10:22] Speaker 03:
Does that answer your question?

[00:10:25] Speaker 03:
What's the evidence of that?

[00:10:27] Speaker 00:
The evidence was what I alluded to to begin with, is that the only thing that's mentioned in the complaint is that he is a member when he wasn't, and that he had assembled.

[00:10:38] Speaker 00:
He was part of the group, which is still protected, and maybe the purpose was not.

[00:10:42] Speaker 00:
But he was assembling with the group.

[00:10:44] Speaker 00:
He'd gone to a meeting.

[00:10:45] Speaker 00:
And then they linked, in a footnote, the podcast that he went on and said, those are the reasons that he's included in this lawsuit.

[00:10:52] Speaker 00:
So that's the only reasons they gave.

[00:10:54] Speaker 00:
So I'm saying that's the only reasons they have, which is a politically motivated retaliation.

[00:10:58] Speaker 00:
So that's where we arrive at that.

[00:11:00] Speaker 00:
So if there are no further questions immediately, I'll reserve the remainder of my time.

[00:11:05] Speaker 01:
You may.

[00:11:07] Speaker 01:
Good morning, Your Honors.

[00:11:08] Speaker 01:
Good morning.

[00:11:08] Speaker 01:
Michelle Blake for APOLI.

[00:11:10] Speaker 01:
District Attorney Ravel Torres.

[00:11:13] Speaker 01:
I think the key to this case is that absolute immunity bars a suit if the official's actions were within the scope of the judicial process.

[00:11:28] Speaker 01:
And that's the key.

[00:11:29] Speaker 01:
That's where we start.

[00:11:31] Speaker 01:
And we heard counsel just acknowledge to a question that indeed there is no case law in this circuit

[00:11:37] Speaker 01:
that prohibits the extension of absolute immunity to a civil lawsuit.

[00:11:44] Speaker 01:
So what the court is tasked with is determining whether the district court was right or wrong when it determined that the scope of absolute immunity consumed the actions of District Attorney Torres in this matter.

[00:12:02] Speaker 01:
And we would posit to the court that the court was correct.

[00:12:05] Speaker 01:
and that the underlying decision should be affirmed.

[00:12:09] Speaker 01:
When we're looking at absolute immunity, you look at the function.

[00:12:13] Speaker 01:
What is the function of absolute immunity?

[00:12:16] Speaker 01:
It is to protect those officials that are acting in their judicial capacity proceeding with and advancing the cause and advocacy for the government.

[00:12:27] Speaker 01:
Is their action intimately tied with the judicial proceeding?

[00:12:32] Speaker 01:
In this case, yes.

[00:12:34] Speaker 01:
As the court has pointed out, Mr. Torres took action after this private militia group was involved in a protest in downtown Albuquerque.

[00:12:46] Speaker 01:
Raul Torres filed a declaratory and injunctive relief action trying to enjoin this particular group from meeting in public

[00:12:56] Speaker 01:
and presenting themselves as an entity with authority to keep the peace through their gear, through their combat fictiques, through their weaponry, through their positions.

[00:13:08] Speaker 01:
They wanted to enjoin them from presenting themselves as a peacekeeping militia or with authority to do so.

[00:13:16] Speaker 01:
Mr. Rogers was included in the declaratory judgment action.

[00:13:21] Speaker 01:
And to your question, Your Honor, there were 14, originally 14, individual defendants.

[00:13:27] Speaker 01:
Mr. Rogers was included not because of his speech, but because he self-identified as an associate of this group.

[00:13:35] Speaker 01:
That's why he was included.

[00:13:37] Speaker 01:
To enjoin the group itself, the New Mexico Civil Guard, has to include the members of associates of affiliates of that group,

[00:13:45] Speaker 01:
Or else one could just simply turn around if the injunction was just against the Civil Guard.

[00:13:51] Speaker 01:
A member could turn around and say, well, that injunction didn't apply to me.

[00:13:54] Speaker 01:
I'm going to go ahead and my three buddies here, we're going to, again, act as a private militia.

[00:14:00] Speaker 01:
Mr. Rogers was included based on his self-affirmation of association with the group and for no other purpose.

[00:14:09] Speaker 04:
So assume something.

[00:14:11] Speaker 04:
Assume that your client was wrong, that he was associated with, or affiliated with, or a member of the Civil Guard.

[00:14:21] Speaker 04:
Does that make any difference?

[00:14:22] Speaker 01:
No.

[00:14:23] Speaker 01:
And here's why.

[00:14:24] Speaker 01:
I think the court addressed that point somewhat in Embler and in the Sheo.

[00:14:30] Speaker 01:
And forgive me if I mispronounce him, named Sheo versus City of Grover.

[00:14:34] Speaker 01:
In Embler, the court correctly pointed out that,

[00:14:41] Speaker 01:
At times, there is no redress for someone being wronged.

[00:14:45] Speaker 01:
But the court would prefer that certain wrongs go unredressed in favor of the opposite being true, where individuals just trying to do their duties are forever hounded or under the threat of retaliation.

[00:15:01] Speaker 01:
And in the Sheo case, the court also said that in situations such as this, where there's a deck action, which this was,

[00:15:10] Speaker 01:
A deck action is not sufficient to chill someone of ordinary fortitude or prevent that person from exercising his or her constitutional rights to free speech.

[00:15:23] Speaker 01:
So going back to the scope of immunity, did Raul Torres as the district attorney have authority to act on behalf of the state?

[00:15:31] Speaker 01:
We know he did because there's a statute on point which was addressed in the briefing.

[00:15:35] Speaker 01:
which allows the district attorney to bring or defend lawsuits, civil or criminal, in which the state has an interest.

[00:15:43] Speaker 01:
The state clearly had an interest here because of two constitutional provisions and one statute.

[00:15:49] Speaker 01:
The constitutional provisions afford the governor exclusive authority

[00:15:55] Speaker 01:
to call or raise a militia.

[00:15:56] Speaker 04:
Let me stop you for a minute just on the chilling point.

[00:16:00] Speaker 04:
This was more than a deck action.

[00:16:02] Speaker 04:
The district attorney sought declaratory and injunctive relief.

[00:16:08] Speaker 04:
So he was more than just seeking a declaration that

[00:16:18] Speaker 04:
I'm terrible with names, but Mr. Rogers was part of this group.

[00:16:22] Speaker 04:
He was seeking affirmative relief to, to prohibit him from, from engaging in any further conduct.

[00:16:30] Speaker 01:
Prohibit.

[00:16:32] Speaker 01:
You're correct, Your Honor.

[00:16:32] Speaker 01:
Prohibiting him and the other members of the group and the group from this meeting in public, acting as a private militia.

[00:16:42] Speaker 01:
He wasn't seeking to enjoin him from going on a podcast and criticizing anyone.

[00:16:47] Speaker 01:
He wasn't seeking to enjoin his First Amendment rights to complain about the district attorney.

[00:16:54] Speaker 01:
He was just seeking to enjoin the group and the militia from meeting in public and usurping the powers of the government.

[00:17:03] Speaker 01:
So if we look at the function test again, we know that Raul Torres had authority to file the action and the statutory provisions and constitutional provisions that he was seeking to enforce.

[00:17:17] Speaker 01:
So what I think that Mr. Rogers has failed to do here is establish to the court any reason why absolute immunity wouldn't apply.

[00:17:26] Speaker 01:
We know from the case law that absolute prosecutorial immunity only does not apply in cases, perhaps, where there are administrative functions at issue or investigative functions at issue.

[00:17:41] Speaker 01:
Mr. Rogers didn't complain that either of those two caveats exist here.

[00:17:46] Speaker 02:
Well, counsel, can I just stop you there?

[00:17:49] Speaker 02:
So I guess it's your contention that a prosecutor who is given the authority to file criminal charges or bring civil lawsuits could bring any civil lawsuit, and that would receive absolute immunity.

[00:18:10] Speaker 02:
Or are you making a narrower

[00:18:13] Speaker 02:
contention that this civil lawsuit has to look or is somehow analogous to criminal prosecution.

[00:18:25] Speaker 02:
I'm trying to get at, is there, does there have to be a prosecutorial element to it to get immunity, prosecutorial immunity?

[00:18:35] Speaker 01:
Not according to the New Mexico statute 36-1-18.

[00:18:40] Speaker 01:
The statute says the district attorney has his or her part of their duties to bring or defend any lawsuit, civil or criminal, in which the state has an interest.

[00:18:51] Speaker 01:
It doesn't specifically say there has to be a prosecutorial verging on criminal element.

[00:18:57] Speaker 01:
And I think that that allowed, in this case, DA Torres to bring this in his role in

[00:19:10] Speaker 01:
as a judicial officer on behalf of the state to protect the state welfare, wind, or safety of the public.

[00:19:18] Speaker 01:
I think that element likely has to exist, because that is part of his charge, is to further the public safety and public welfare.

[00:19:27] Speaker 02:
Well, OK.

[00:19:28] Speaker 02:
So as long as you have that, you get prosecutorial immunity?

[00:19:35] Speaker 01:
Yes, Your Honor, according to the case law.

[00:19:37] Speaker 02:
Well, according to the statute is what you're saying.

[00:19:41] Speaker 02:
I guess I'm just getting at, we call it prosecutorial immunity, but your statute, apparently as you're reading it, is much broader than that, right?

[00:19:51] Speaker 02:
There has to be a public interest, but basically anything the DA does is going to get prosecutorial immunity.

[00:19:59] Speaker 02:
Is that your understanding?

[00:20:01] Speaker 01:
That is how I read the statute, Your Honor.

[00:20:03] Speaker 01:
I think New Mexico's statute is pretty broad.

[00:20:05] Speaker 01:
civil or criminal as long as the state interest is at heart of the issue.

[00:20:13] Speaker 02:
Okay, and whether or not you get prosecutorial immunity, is that purely a question of state law?

[00:20:21] Speaker 01:
No, Your Honor.

[00:20:23] Speaker 01:
I think that the prosecutorial immunity

[00:20:29] Speaker 01:
One, you have to have the state interest at heart, which I think is appropriate and seen in this instance.

[00:20:37] Speaker 01:
But you also have to be acting on behalf of the state within your judicial.

[00:20:44] Speaker 01:
Your actions have to be intimately associated with the judicial process.

[00:20:49] Speaker 01:
So it can't be a personal whim.

[00:20:52] Speaker 01:
It has to be on behalf of the state connected with the judicial process.

[00:20:58] Speaker 01:
That's fine.

[00:20:59] Speaker 01:
Thank you.

[00:20:59] Speaker 01:
Thank you.

[00:21:01] Speaker 04:
Let me ask you something.

[00:21:02] Speaker 04:
So I want you to assume that, um, the following evidence was in the record.

[00:21:10] Speaker 04:
And that is that the district attorney at the time said, I heard this guy Rogers on a podcast and he was criticizing me and I'm trying to run for further office.

[00:21:26] Speaker 04:
And I'd love to get that guy.

[00:21:28] Speaker 04:
And these civil groups are causing danger to the community.

[00:21:34] Speaker 04:
And we got to stop that, lest the citizens be hurt by them and their antics.

[00:21:40] Speaker 04:
So I'm going to file a deck action and I'm going to name Rogers and all the other members of this group.

[00:21:47] Speaker 04:
Where are you under that fact pattern?

[00:21:50] Speaker 01:
I think in the latter part of the fact pattern, that absolute immunity would apply.

[00:21:55] Speaker 01:
because the district attorney is operating on behalf of the public.

[00:21:59] Speaker 04:
Don't split up my facts.

[00:22:02] Speaker 04:
Take all the facts together.

[00:22:03] Speaker 01:
When there is a... I am concerned about the width of personal animus and personal retribution.

[00:22:15] Speaker 01:
However, I think we must rely on the Supreme Court case again in Embler that says we have to

[00:22:21] Speaker 01:
unfortunately, allow some of those wrongs to go unredressed in order to prevent the larger harm of having prosecutors be under the constant threat of retaliation.

[00:22:36] Speaker 01:
Right.

[00:22:37] Speaker 01:
Okay.

[00:22:39] Speaker 01:
And I would bring the court's attention also to the fact that although plaintiffs cited a morad of cases, First Amendment cases in the briefing,

[00:22:49] Speaker 01:
And this is to Judge Kelly's point.

[00:22:52] Speaker 01:
While there is no New Mexico case that disallows immunity in a civil case, many of those cases cited by plaintiff's counsel in the briefing specifically said, we are not going to address the issues of the prosecutor.

[00:23:09] Speaker 01:
The prosecutor's been dismissed.

[00:23:11] Speaker 01:
The prosecutor has absolute immunity.

[00:23:14] Speaker 01:
Those issues were addressed in Benavides.

[00:23:17] Speaker 01:
They were addressed in

[00:23:20] Speaker 01:
Becker, they were addressed in the Morris case.

[00:23:25] Speaker 01:
The issue was out of hand, not dealt with, because the court recognized absolute immunity existed.

[00:23:32] Speaker 01:
And I think in this case, although there's been some argument that Mr. Rogers criticized the DA in the podcast, there was no evidence in the record

[00:23:46] Speaker 01:
on the summary judgment record that there was actual criticism of the DA or of his political aspirations.

[00:23:53] Speaker 04:
Was the podcast itself either a link or the contents, a transcript or the contents of it included in the summary judgment record?

[00:24:05] Speaker 01:
The citation was, yes, Your Honor.

[00:24:09] Speaker 04:
As a matter of procedural law, would that be a sufficient inclusion of it in the summary judgment record if somebody could click on it and go listen to it?

[00:24:19] Speaker 01:
I would say yes, Your Honor.

[00:24:21] Speaker 01:
I think that's the purpose of providing the link to the podcast.

[00:24:26] Speaker 04:
OK.

[00:24:26] Speaker 04:
So I mean, I'll just.

[00:24:30] Speaker 04:
tell you I haven't listened to the podcast, but if I listen to it, are you telling me, have you listened to it?

[00:24:37] Speaker 01:
I have.

[00:24:38] Speaker 04:
Okay.

[00:24:38] Speaker 04:
Are you telling me that if we listen to it, that we're not going to have any criticism of the DA on there?

[00:24:43] Speaker 01:
Unfortunately, I listened to it over a year ago and I can't specifically recall.

[00:24:50] Speaker 01:
However, my recollection is I don't recall any specific criticisms of the district attorney and or Mr. Torres' campaign.

[00:25:01] Speaker 01:
towards the Attorney General.

[00:25:03] Speaker 01:
Although, Your Honor, I have to acknowledge that I don't specifically recall.

[00:25:06] Speaker 01:
Okay, fair enough.

[00:25:11] Speaker 01:
I think, Your Honor, that I would simply ask that the Court just look at the case law, look at the briefing, and uphold the underlying decision by the District Court as Judge Gonzalez was correct in his ruling that summary judgment was appropriate in this case based on absolute immunity.

[00:25:29] Speaker 01:
Thank you, Your Honor.

[00:25:31] Speaker 00:
I think this gets to the point that I began with, which is that Embroiderer says what it says.

[00:25:36] Speaker 00:
And I'm not disputing that it says what it says.

[00:25:38] Speaker 00:
But we have cases since then.

[00:25:41] Speaker 00:
Specifically, Mink, in 2007, relying on Buckley from 1993, says, prosecutors are absolutely immune for those activities intimately associated with the judicial phase of the criminal process.

[00:25:59] Speaker 00:
The of the criminal process part of mink was ignored by the district court and it was just ignored again by counsel when they cited to absolute immunity and what it is and the associated intimately associated with the judicial phase.

[00:26:15] Speaker 00:
That's true.

[00:26:16] Speaker 00:
But you can't leave off the rest of what this court said in Mink, which is the criminal process, because that is what drives the policy of prosecutorial immunity.

[00:26:27] Speaker 00:
And that's what's important, ultimately, is what is the policy behind the immunity?

[00:26:32] Speaker 00:
And here, our allegations standing as true in the complaint are that this was a retaliatory motive and that there is a strong policy in favor of allowing people to continue to speak and adjoining them from associating

[00:26:45] Speaker 00:
And from getting affirmative injunctive relief, as Judge Carson pointed out, is more than just a declaratory action.

[00:26:54] Speaker 00:
If Mr. Torres had just purely included Mr. Rogers in that case for a purely declaratory judgment to say, hey, you guys can't do this, there's probably not a claim that we would have been able to bring.

[00:27:06] Speaker 00:
But it was seeking the affirmative relief that actually does chill a person, and I think fits within Sherrill, and that's what I was trying to get to earlier.

[00:27:14] Speaker 00:
If there's other questions, I know I haven't used all my time, but I was taught, if you don't got nothing else to say, be quiet.

[00:27:21] Speaker 02:
Judge Kelly, do you have anything?

[00:27:24] Speaker 02:
Nothing further.

[00:27:25] Speaker 02:
Okay, thank you.

[00:27:26] Speaker 00:
Thank you.

[00:27:28] Speaker 02:
All right, the case has been submitted.

[00:27:31] Speaker 02:
Thank you for your arguments.