i've always thought it was a bad idea to argue to a jury just before lunch and so i'm glad that this panel isn't the jury at this time my name is mark comment i'm with the federal defender's office in fresno and i the district court sitting as an appellate court is really guided by the rules and those same rules coming with those rules we believe come the inherent powers of an  appeals court in whether or not it can issue its own reissue its own recall i mean yes right and we go through all the mechanical parts but we think that that brings us really to the same places if the same issue as it happened in this court and is looking at if if we don't have jurisdiction there we don't have it but and we're certainly not hanging on some construction we understand that those rules are very strict and marse view was somewhat harsh under certain circumstances but in this kind of a situation where this was the district co sitting as an appeals court we believe that this is fundamentally different and for the reasons that we set out in their reply brief did you represent the defendant prior to indictment yes i suppose we should begin by congratulating you on avoiding her being charged with assault while she was initially charged with assault and you've got it down yes ok well graduations the all of the facts of course including the supposed that assault were before the magistrate judge when he did impose a sentence in this case the issue that we're seeking to raise assuming we get past the jurisdiction alicia you and i can address any further questions of the court on that issue of the court has question but going to the the merits we feel by our view that this is this is really a question of the intersection between law enforcement and partners that there is when there is some sort of a protest urged and in this case although the we have the specific facts of this case we also have the testimony ranger hammon and this is an excerpt of record one fifty five one fifty six have you ever arrested other individuals who have torn up their citations and he answered yes i have and although  use cases are interesting involves somewhat of a culture clash ms eco kosher girl versus from berkeley in israel versus these very macho rangers up against some of the national park s for the purpose of the issue that we're raising on appeal we see that the specific facts are not terribly important instead what we see is a pattern that is important we have a technical violation a law in virtually every violation in a park such as you somebody would be paid if that's there's some sort of argument that generates behind us whether is reasonable or not a decision is made to by the ranger to issue a ticket up there called a our second or third arguments on the merits whether or not the ranger has the option we believe that there is the general statute that gives a ranger as a law enforcement officer right to arrest individuals for among other things the misdemeanors committed in his presence and we would concede that technically camping out of bounds would be a misdemeanor committed in his presence and so it would meet that threshold level when one of the things even if even if th that they don't have to care for this flight asian they don't have to like it they can say that they don't like what he's doing if if when i'm calmer ok he's supposed to come or pay eventually but not yet and that is also a key distinction that i would like to point out here if after this argument today and i'm driving back to fresno when i get stopped by the highway patrol for speeding and i'm headed to check and i'm asked to sign that take it and that is among other things i believe some sort of something i'm promising to do something the way these federal notice violations are constructed the individual is not required to sign anything they are simply served with this notice which puts them on notice money or to appear in court to make arrangements to appear in court and if she's angry or some other visitors angry on a day in question and tears up the ticket as a way of saying i don't like what you're doing i don't like the system or whatever that person is under no obligation to do anything particular with that ticket that their copy their ticket they can smoke at they can throw it away they can wrap their lunch and if they can do anything with that paper that's expressive conduct view and the officer who had already even if he had the statutory authority to arrest him for that type of a misdemeanor leaving aside the veil arguments in those things having had having made the decision to that this was the person to give a ticket to a notice to then to turn around and change that decision at that point from the notice citation instead to arresting the person on the spot and the officer in this case conceded that he did it only at the time that she tore the ticket out there's no question about that we can get into some esoteric philosophical issues about what went into his head at that point but that was the trigger and that having even if he had the statutory authority and we have some question about that for this kind of offense under the circumstances of so many ha in his sense of some philosophical sense that he was reading into it but she would see the paper she was served with this paper she had the obligation and by our view that was the end of the transaction what she did with the paper didn't matter her only next legal obligation was what she would do twenty one days later and instead for this expression because of that expression she was arrested and we believe that that is a punishment for her expression of her view of how the government was conducting itself at that point running afoul of the first amendment ok your overtime thank you for your argument here from the government you know i believe there are boxes that require that are required to be checked but her signature is not required and we have the form of the citation in the record i don't believe we do i think mr i meant might have referred to it but i don't think it's and i mean in any event the cases that we have started to we believe are on point there are no other applicable pieces other than foster versus metropolitan airports commission the cases we've cited to and donald he raped her him and exercised his lawful authority to arrest the ticket the issue was to the ticket is a non factor it's not a first amendment case that is our position