reserve decision but we'll get you get you a decision on this motion very quickly so that i'm howard miller from bunch and king king on behalf of dr eastwood this case has been going on against dr eastwood for eight years despite the fact that there is a videotape of the board meeting in question that shows the doctor he's would that absolutely nothing wrong in this case he did took no action whatsoever to deprive mr hofer of his constitutional rights even as the lower court laid out the facts what happened is that mr hofer came to the mike i think my concern starts before this argument and that is where you have standing i mean did the district court i thought that this court went out of its way to say that it was not the citing the issue of qualified immunity and then it went ahead and did anyway and well it's it talked about it but i'm not sure it ever decided it it held it actually does not entitle to the qualified immunity and we cited papers in our brief that even if the court had refused to rule on anyhow when he said i'm not from here so what happened was there was prior counsel who moved for summary judgment on the fourth amendment claim but did not move for summary judgment as well in the first amendment claim particularly representing d eastwood he was representing a whole group of defendants the case then settled mr holford got all the amount dr eastwood wouldn't sign the settlement agreement the case one follower we asked to file summary judgment the judge denied it but then the judge dismissed the case for a lack of bringing in on the calendar fast enough that was appealed to discord this court reversed we came back in the meantime there was a decision from the state court on the defamation claim we then said ok let us move for summary judgment now the lower courts the defamation with respect with with well that which i thought which ties into qualified immunity because it would be was a clearly established that when someone's going to come and read a statement that is defamatory at a public school board meaning is that constitutionally protected within that is the personal involvement of the judge said i'm not letting you brief personal involvement of dr eastwood even though it's clear from the videotape that he didn't do anything wrong we would say that that's an appealable order in and of itself because it but isn't as the only one of the statements was regarded as defamatory in the works that's correct one of the the rest was not defamatory that's correct but i would but again under this court's precedents if we were denied the right to to brief qualified immunity that would be a not withstanding that you added in some other things but you did not add in the qualified immunity clause we did a qualified immunity we qualified immunity to the lower court to the district court but they but the district court didn't and i would submit to you i'd think about what qualified immunity is designed to stop an official from having to stand trial unnecessarily here we have a videotape of a board meeting showing the superintendent of schools doing nothing and yet he's being sued it showed i haven't seen microphone the board president mr geiger says this is only for residents here then it shows dr eastwood taking one piece of paper a single sheet of paper passing it to his left some time later an entire pad comes from someone else who passes it to eastwood it's not the same note and there's no evidence of what that in the record of what that note says then it gets handed to geiger but geiger had already made the decision something we should be deciding now yet because it shows that it personal involvement is part of qualified immunity then even if the know had come from eastwood which had been but even if it did and the note said plead exclude hofer under this court's precedent in x versus levy dr eastwood can't be liable for that he can't be he cannot be liable for that under those court's clear holdings under twenty five a weight of the education law he's a non voting member of the board he has no authority to i mean why are we here he doesn't do anything he literally stays silent and again even if even if passing someone no else's no geiger and geiger said no it wasn't about hope for and hope for says i don't know what was on the no how is that a constitutional violation against mr holford and then again even if we were to speculate that somehow eastwood telepathically told giger not to allow him to speak again eastwood had no authority to do anything and then the statement hofer was going to read anyway under all the authorities we cited in our brief would not itself be constitutionally protected but his hope for hope for said here's the statement i want to read the the hoc decision can be made just to exclude somebody who's up and private citizen who wants to address the board in a portion of the meeting where the where the where the agenda written large usually has a time for the public t and the public and their policy does say to the agenda you are allowed to make comments about the agenda and his comics plainly we're not going to be about the agenda they were just a personal attack on dr eastwood let's let's hear from mr sussman who i'm sure will have a re to what you just said and then you reserve three minutes mr miller for rebuttal made please the court michael sussman representing mr hoover it's kind of hard to know where to begin but let me begin here the only appellate issues i understand this court's jurisprudence is qualified immunity as judge sacks pointed out correctly the district court made a determination in finally granting the leave to file a motion for s but that motion was predicated on a quote change of circumstance the change of circumstances argued by mr miller's firm was that there had been a determination by the second department ultimately that one of the four statements that was challenge defamatory so when they came to the district court they said that because it turned out later that one of the statements was the family tory that deprived missed a whole for of the right in a limited public forum during a public comment period to make a the district court said he would hear briefing on that specific subject and heard briefing on that specific subject there was no discussion in the district court at that time of quote qualified immunity or anything else they briefed that issue and extended the briefing is the court's pointed out into a number of different issues the district court considered primarily the issue that he drowned most had indicated could be heard based on a change of circumstance which was whether mr holford could have been prohibited from speaking sensually representative prior restraint based on what later was found out regarding his speech and the district court determined that under the precedents which were cited in his opinion correctly in my view that he could not be so prevent was the argument made at that time just help me with your sense i missed dr east was that he was entitled to qualify no it was not so basic as in the judge ramos his decision is was argument that he is protected by qualified immunity is all it's also outside of the permitted scope of what we're court ultimately yes no well at that time no at the at in other words when we all were together right i thought that's what you were referring to that i am it was not raised in that context and i don't recall it being raised at all the district court the district court delimited the motion the second summary judgment motion carefully to the issue which the district court indicated represented a change in circumstance which was their claim which was the decision of the appe qualified immunity how or where did that come up between when he said you can argue this and when he finally reached a decision on what had been argued was contrary to the scope of the permitted motion but since it was there there were several issues beyond the scope that's not the only issue they raised nine hours ago so he in with regard to all those issues a pint if you will that even if it were to apply and he explained that this is a limited public forum you cannot have viewpoint discrimination in a limited public forum you could have general content discrimination if you will and he distinguished the two correctly and he applied that distinction now here today mr miller is arguing what amounts to the summary judgment motion that was not before the district court as to whether his client had quote unquote personal involvement in the district court has already resolved that issue to this extent it's found there to be an open question as to whether has he said person involved and he is the person with the motivation at this gentleman up he's the person who passed the note the district court indicated that raised a question of fact as to why this gentleman was if you will shut up  and that's where we stand so my position is very simple qualified immunity does not apply as this court knows except on undisputed facts undisputed facts which facts are conce by the defendant for purposes of the argument for this court and if those facts would allow a determination as a matter of law which they would not i ask you to please probably the role of question first what happened with the defamation judge was a judgment ultimately but there was an agreement made before the appeal was taken on the defamation that a sum certain would be paid to  dr eastwood if any of the allegations of defamation were pell that some certain was deposited in my escrow account and when the second department issued its ruling that sum was transmitted to mr greenwald who was then just a ho for his attorney in the state proceeding and it was yes as mr nolan correctly indicates what happened with the settlement was in the spring of two thousand and thirteen all parties including hope for indicated and east would integrated agreement to a settlement came time to sign the settlement papers  eastwood repudiated the settlement of that wasn't exactly made known to us in a timely way but it finally became known to us when he reputed that and came clear that he would not sign and i was trying frankly to get him to sign it wouldn't sign it we went back to the district court and that's the subject of the prior order of this court judge rameau so ultimately in may of the next year said we weren't timely in trying to reinstitute the case in this court reversed that specific order which is what brought us back to judge ramos on the merits but yes the answer your question is the settlement was effectuated except as to this gentleman but it was what something was so everybody else's that is settled is that everybody is the other matter that your since you are asking about the procedure which obviously should be aware of there is this fourth amendment issue with regard to hold for an east my client was arrested he was taken into custody we believe the evidence is very clear that he was taken into custody by dint of the direction and order of dr eastwood the district court found originally on it's his first substantive decision in this case that that he eastwood was insulated from immunity for that he didn't see facts that showed that we've never appealed argued by way of qualified immunity did he did the argument of lack of personal participation get made before the district court no i mean if it let me put it this way i don't believe it go made but if it got made the district court said it was there were disputed issues of fact as to it in a could but not be resolved as a matter of law in his favor the district court took the position that there was evidence of eastwood's animosity involvement no one else had any motive to proceed against hope for there was no restriction on public speech by nonresidents in the policy is one of your honors pointed out earlier mr hope was invited back allegedly by the school board president after this to address the board th record found no policy which prohibited whole first speech and he felt that there was a real gem in fact issue i think he's right as to whether hopeful was restricted by dint of this hostility which was the only known hostility there was no non resident or anything else so that's where we stand i hope that answers your question yes or no are you seeking that we dismiss yes for our firm i mean we think this miss if there's a genuine disput material fact about the circumstances leading to qualified immunity which means that it could still be raised at trial or do we affirm this is qualified immunity wasn't really reached here is just any other kind of say the matter i mean the appeal yes thank you and i think that follows from the fact that qualified immunity does not obtain in other words that the appeal really is about things other than to somebody entertaining qualified immunity later i'm not frankly concerned about that because i think it's very clear that when the actions are all displayed is not going to be qualified immunity is going to be plain contravention of constitutional rights and those two can join thank you thank you mr miller thank you again the issue of qualified immunity was fully briefed to the district court including lack of participation the he would not allow us to brief participation which again we would argue under your precedents that that jurisdiction which again i think i'm that i misspoke and what i was trying to pose as a question by way of a statement which is sometimes how i do it but in the second go round where you were allowed to come back and and present a new argument based on the appellate division determination not only did you argue what the district court specifically said you could argue but you added additional argument yet we before because of jesus and if he's from us we go watch out for it but there's no evidence in the record that happened there's not one iota of evidence in the record that happened and geiger specifically said he didn't say that to me but the question is whether it's premature for us to address that again because it's qualified immunity it i don't think it's premature and again even if dr eastwood did say that it let's say we could speculate that dr yes would grab geiger x men and levy are binding and new information from the second department decision and we asked to raise it and if that it and again i would submit to you that judge ramos did decide it he didn't just say well you know i'm not going to he actually rode on it he invited hofer to show up but didn't tell anyone else he didn't tell anyone so it was again on the tape it's geiger who says you can't stop you have to stop talking it is solely geiger and geiger testified without any contradiction he didn't know who hold for wallace thank you mr miller thank you both will reserve decision united states versus