morning human versus berryhill first point i want to make is that without getting into what is it merely some fairly complicated federal law and complicated qualified immunity doctrine i don't think that it was ever shown that the simple elements of the statute were met and specifically the statute requires that the message be transmitted or delivered there was a prior case cited by coun which i distinguish because there was people versus mum the language had had changed somewhat and i think the broad interpretation that the district judge gave the statute is is not warranted by just the plain language of the statute why why why is that the case where i mean if someone writes an open letter to a newspaper that letter to the editor is that any different i totally agree or i was about to make the point that not only does the judge's interpretation plied any posts pretty much anywhere on the planet but any been any newspaper and why not a newspaper in australia i just don't think that that's within the meaning of the statute because it talks about transmitting or delivering a message and in fact i think it's very telling that suggest that that is transmitting a message under the statute i  just don't think it is and obviously the court will make that determination but i think it's just the plain i mean every statute has to be interpreted particularly criminal statute based on the plain language and i think it's just stretches those terms  delivered or transmitted i think this the plain english meaning of those words and obviously everybody has their own sort of sense about what they mean i'm just urging the court to find that to find that for the court to have found that any that an internet post to the gentleman wasn't even on the internet somebody had to like show it to him and in following the chief judges point really any newspaper and really any newspaper you know almost anywhere somehow that would violate aggravated harassment i think that would create tremendous problems for the first amendment because lots of nasty things are said about lots of people  newspapers and on the internet and i just there's there's no case that supports that other than the petrol case which did come before the court and i spent a considerable amount of time i don't normally read law review articles but that issue wasn't your honor and in fact i wanted to just call the court's attention to the to the record this is the decision of the court document thirty four and according page fourteen and i think it's very telling that that the district judge who was reaching the conclusion the opposite of what i'm arguing to the court but used the language pulling plaintive directed these communications that captain leo made may be maybe he did but he didn't transmit or deliver them and this is a criminal statute people who aren't lawyers or judges have to be able to read the statute and comply with that so i think that the court i think inadvertently made our argument for us just move on to another point to sort of cut to the chase and he says i understand that if you are going to avoid summary judgment on the free speech claim my understanding is that you have to have evidence showing either that the defendant the pendants silenced your client or that the defendant's actions had and the quoting from williams versus town of greenberg had some actual non speculative chilling effect on his speech and i've been trying to find any evidence  iraq to show that his or his his arrest had any real chilling effect on the speech from what we can see as he himself has boiler your client himself testify in his deposition he was he continued to post about the city and captain lee leo that printouts from his website show that  minimum there was a period of time there and he was incarcerated for a day or two whatever the record shows but it was it was more than de minimus booking and released and it's very difficult to speak freely when you're in the holding center so just as an arrest and i'm sure this court is held many times doesn't require like a long period of time to be a legal i don't know why a first amendment claim would would would say well you were you were prevented from speaking for two days but we don't that's not significant enough i don't think this court would would so hold getting back to the statue i know my time is running out but i also think that in for the rest of him yes the officers need to subject to the demonstrate his subjective intent to have probable cause for the rest of that statute i think it's an element of the statute your honor absolutely and his intent was clear he was speaking  he was criticizing government officials under the first amendment petition the petition clause the speech clause and everything but the i guess the he wasn't assembling religion but several kloster police officers objective test would objective police officer think that he had violated the statute even the intent part is not right i don't think so i think a police officer your honor is sworn to uphold the first amendment is charged with some basic knowledge of the first amendment or else all of our rights are in jeopardy and there's no way that this intent was not an intent to speak freely under the first amendment and just my final  as far as the free speech claim there's simply no case and qualified immunity which is a doctor and it gives me a headache over the years i try my best but there's simply no precedent cited anywhere that political speech is been prosecuted under this or other statute so i think that the court should take that consideration like you have to  we disagree with his position they have it hasn't been addressed regarding free speech because it's our position the at his postings on the internet are now pure political speech as both the underlying city court judge as well as the district court judge found the postings were actually directed to captain leo they were threatening kept him leo testified that he felt threatened harassed and it's our position as we set forth in our brief that this is not political speech it's targeted to this specific captain and we don't feel that he has any constitutional protection based on what he posted on the internet is it a problem for your argument that the facebook post that one of them that you rely on it seems somewhat heavily  were posts made after the arrest nineteen months after the arrest that is correct your honor however we were also relying on the testimony of the captain where these post brought to his attention so it is our position that there were similar posts we just didn't have the actual paper copies of them and there were similar threatening comments because those were the types of comments that detective lax go sit down with leo and looked at the at justified filing the charges what's your best your your your best statements from your point of view if you if you if you exclude the the statements that were made nineteen months after the arrest which statements would you have us look at that's a very good question your honor i don't believe in the record  the captain specifically stated what the statements were he did testify that he observed them with the detective and felt that they were threatening and it's my understanding that the statements were similar where he called them the derogatory names and threatened that he was going to go after his family what about in the information in the information specific statements in the information in the information sheet a one thirty four right you're right your honor they were did talk about you know their her harassing comments on the information she comment where he stated you know why don't you sell your house and you ain't seen nothing yet but i'm harassing him it's in there too right  right and he's saying i'm harassing him now and then he continued to state it he said all per poor captain pig fucker is crying and complaining i'm harassing him now why don't you sell your house and move you disgusting pig fucker you ain't seen nothing yet and then after that these charges were filed he just continued so in our opinion this is he wasn't picked up until april ryan right and the reason why he wasn't picked up in april we pointed out in our brief was that he was no longer residing a lock on it because he's a convicted sex offender and he was his home was by a school so he moved to a different jurisdiction and by the time they located him it was the other jurisdiction they had arrested him and then brought him to lock issued on the basis of this complaint in january correct correct and then he was arrested in april once he was located in an angle in new york so it was based upon this the officers felt he was still harassing him he actually was harassing them based upon the facebook postings we submitted and it was it was a prison their position that you know this is not free speech it's directed as to a specific individual officer he invited the public to go after this individual officer and we believe the facts show that this is not political speech and so with so with respect to th it's our position that the officers filing the complaint and the judges agreeing that this language appeared harassing justified in their entitle to qualified immunity in this particular situation were about under people the first is mine and we discussed this case which counsel felt wasn't relevant but they're held back in one nine hundred ninety nine they at the internet postings on the internet were sufficient communications and their case explained they have because the internet at that time use the telephone for access that it could be considered communications that would be encompassed under the statute and since the statute that the officers relied on talked about any form or written communication it was our it's our position that at the time they filed the charges they felt that the statute was they alledged that there were the written communications through the internet that went to the public it wasn't just directed to a small group of people as this court explained them barbosa we're not dealing with for example a situation where you have a website where you could just post complaints about a government this man specifically created his own website publish it out to the people and he did it on the internet and this is a written communication that was open to the public and that's how it came to the attention of the officer so we feel that the officers believe the statutes were valid detective locke's go testify that he has charged numerous people using this particular statute and the statute has always been upheld it's very common and domestic situations where people go against each other and they post how they feel during a divorce proceeding on the internet and charges have been brought under the aggravated harassment before it was declared unconstitutional known and has held up so the officers justifiably relied on what they believed was a bailiff statute based on the communications so the court has no other objections i'll rely on our brief ok  just a few quick points your honour's we did just and would distinguish uses communicates it's much broader and that's not the statute anymore this wasn't a domestic this was this was political i mean if you look at the times we live in everybody's attacking every putting personally and if you're going to say that's not part of the first amendment oh boy we're all in a lot of trouble in the newspapers and everybody on the internet because every all attacks on our personal in nature but doesn't mean they're they're political being who is there was no he had no personal relationship with this gentleman it was just the only gripe he had was because of his governmental activities so it's not personal and it is it is political and i do believe that the court erred in relying on post dated statements and i was reading court's decision this morning  believed that in more than one place the court relies on those statements so i think in that grounds alone a remand is required at least thank you thank you thank you both for your arguments the quite well reserve