rearrest claim in light of the fact that there was admitted probable cause based on his driving his bicycle the wrong way on one ways stop so you are conceding that there was probable cause to arrest him for driving a motorized vehicle of the roadway no your honor what probable cause is just butin with regard to everything the police actually charged mr  where there was probable cause was the fact that bicycles and low powered vehicles like what mr lund was driving are subject to the vehicle code and so technically driving a bicycle the wrong way on a one way street is a violation of the improper motive if there was probable cause to arrest him for driving this motorized vehicle the wrong way well it really depends on which claim you're talking about  i think that it would defeat a potential false arrest claim the fact that he wasn't charged riding the bicycle the wrong way on doesn't really matter it's an objective standard and if there was probable cause to arrest for riding a bicycle the wrong way then he can't have a a false arrest claim and that's conceded here we have an appeal being just reports rolling on that but with the amendment retaliation claim it's different here the defendant officers did something on the assumption that there was retaliation for speech probable cause defeats the claim there where our way well i think that secure not contesting the district court's conclusion that there was probable cause if we look at there's two ways to look at this st many retaliation claim st is unrelated to the arrest the other actions that were taken by the defendant officer is to punish mr one for his st amendment activity namely deliberately providing his name to the media in acquainted with paul against davis which says there is no constitutional rule against labeling somebody a frequent shoplifter constitution just doesn't cover defamation to your alleging defamation and paul against davis  there i'm trying to figure out what's in this case that hasn't already been raised and rejected by the supreme court your honor i think that in the context of a st amendment retaliation claim i don't think paul b davis would really cover this because what was done here was mr one's name was put on a list of people who were arrested during a prostitution sting it makes it look like he's listed or solicited a prostitute which he did not do and defendant trances admitted that if you go lund the st results for his name are prostitution arrests and most people seeing that would assume that he's listed as a prostitute so that is an independent basis here for the st amendment retaliation claim because it would deter a reasonable person from engaging in st and protected activities such as reporting on what the police are doing in a public place in the future but turning to the retaliatory arrest aspect of this i think there's two reasons that the district court's decision was  shifting framework for retaliatory arrest cases where there is potentially probable cause to arrest for something and the question is whether the st amendment protected activity and retaliation for that activity was tells us what the issue was your neighbors so i think that this case clearly fits into the category of cases the supreme court was talking about there where the objective evidence in the record is that this arrest never would have happened but for the reta right it's what the case was all about and i guess i mean i'm not sure i'm understanding why this is any different here that's exactly the problem if you bring in the th circuit a case that is every case is factually different from another but the supreme court's decision is not limited to neighbors we can agree on that i hope with the testimony was here though is that the defendant officers began that there was probable cause to arrest him for going the wrong way on a one way street only if you were engaged only him a lawful activity we would not be within the scope of neighbors that's the point here is that they only witnessed him going the wrong way on a bicycle after they'd chased him for several blocks to make an arrest in retaliation for his engagement in st amendment protected activity so at the time they decided to arrest him the testimony in the officer own testimony was that he was a block away from where the sting was happening and when they told him to leave he laughed but they decided to arrest him anyway so that that sounds like you're relying upon the kind of pretext language and need this right and that that kind of narrow window that's available there but that's not even if that's right if i understand your argument correctly you still have a timing problem don't you that's not clearly established in two thousand and sixte that the decision in need of us is completely consistent with this court's decision in fair but fair i mean i don't know if a fair recognize that the law in this area is unsettled and the settling came from the supreme court well it's our contention that they are set forth the framework that was established at the time this happened now the defendant officer and they are wise intitled to qualified immunity there because at that time it wasn't clear our contention is that they are cleared up whatever ambiguity there was and i see i've go i do think that the need his case is dispositive the court made it very clear in leave us that there is no st amendment right to be free from an attempt retaliatory arrest one probable cause in court didn't quite say that it  reserves the question what happens if someone is arrested for an offense that almost never gives rise to an arrest trip and what's interesting in this case is that the record contains evidence that the other man whose d just if there's an object to deal with that part of neatness one would have to figure out how often police arrest bicycle list for going the wrong way on one way streets i think any evidence in the record about that one way or another i'm just my only point judge is graphing the officers in the sting operation i would say no i don't think he was breaking the law by photographing the officers in the during the police sting i think that or on the internet i think that depends on the timing of when he posted the photos on the internet because that's how we sort of get into the in the eavis issue of when the commingled with the crime you know what the officers were talking about when they were deposed was the fact that you're you have this history with this gentleman of prior instances of obstruction this very f that he posted on facebook a few years earlier that was extremely profane and vulgar showed a great deal of animists towards the record police so the officers know that the officers know he's been riding around taking photographs when they ask him leave he rides away and their description is with in a very angry manner and clearly frustrated and then of course just like any of us where there was a dispute about everybody's perception about how this went down the officers perception was and mr lun conceded that he spoke in a very raised voice loud enough to be heard over a lawnmower engine which if any of us ever talk to a neighbor when they're more their one you know they've got to raise their voice pretty loudly to be heard good by officers in the direction of the two women who are posing as the prostitutes and when you take as the officers testified the totality of those circumstances they felt that at that moment now we've crossed the line into the point of obstruction of justice and they're concerned that he may be writing off because of his demeanor and his animus to go immediately post those photos on facebook and expose the officers who were conducting the sting the two women were unarmed have no body armor to a risk of injury in a very dangerous neighborhood in rockford and so i think when you calculate all of those circumstances together in the split nd that the officers have to do that which again is exactly what nevius was talking about when they make these decisions about whether to rest or  whether they have probable cause to arrest that's precisely what happened here so in many respects this case fits nevus like a t there is no evidence of what they try to you know that there were arrests that they don't normally arrest for the type of crimes that mr lund was arrested for the steps we know evidence of that whatsoever in the record as i pointed out before the only object of evidence in the record is that they did arrest somebody else for a traffic violation and obstructing that night so there appears to be some consistency  their approach here and you know even if you go you know that's the other question is if you just straight apply needs in this case or do you apply reichl and tear and just conclude on the qualified immunity position that it was unsettled  you know in my mind need supplies i think you know the laws retroactive i think all the it does is demonstrate what the law has always been but if you look at this i thought charging as well i thought your argument was that at a minimum need clarifies things so as to make clear that the law was not i think it does i mean it's to me that's the that was the that was the issue that in preparing for the argument that i sort of struggled was you try the law now which is neves or do you apply the law as it was and two thousand and fifteen at the time of the arrest at the time of the rest there's no question that the law was unsettled and you have they are recognizing that and i think the plaintiff's attorney taishan if there is is mistaken i mean what with they are talked about you know it  discusses the burden shifting approach but if you look at the cases that they are sites in that part of the decision those are the cases involving teachers who were fired they're not arrest cases they're not retell atory runs they're talking about the traditional burden shifting approach that might occur in a typical retaliatory st amendment case involving an employer and employee and that has nothing to do with this case and when you move through thayer in the next portion of the decision they start talking about right and they start talking about hartmann and the complications of how causation in retail it tory arrests cases is more complicated it's not as straightforward as it is in the cases involving teachers and so when they move through that discussion that's where they conclude this is unsettled we've never decided this question before neither has the supreme court so on that basis clearly there could not be the officers would have qualified immunity because the off the law wasn't so so i don't think you can fairly construe  as saying that there is a but for test in retaliatory arrest cases along the lines of what plaintiff is arguing here that's just a misreading if they are they are is really no different than reichl they came down in the same  were decided to change that clearly there was no clearly stated st amendment right to be free from a retaliatory arrest based on probable cause the officers have qualified immunity which is the path the district court took in this case worse leaves hadn't quite been decided yet when the district court decide this case you know but on the other hand my feeling is always been or my understanding of the laws that were supposed to apply that i mean judicial decisions are retroactive unless expressly made prospectors there's nothing about neves that says it's prospective only and so therefore it seems to me that needs are simply announcing what has always been the law but just hadn't been decided of until neves and so that means that the plaintiff was under the obligation to prove that there were circumstances where police officers would not arrest someone under the same or similar circumstances they arrested mr one and the plaintiff is a two step so we know evidence of that so no matter which do you approach it the law f the standpoint with the law was a two thousand and fifteen at the time of the arrest or currently the with the play of talk a little bit about this retaliatory publication and i just point there's two sides  the davis case the there's a factual problem with that argument the factual problem is that there's no evidence that the police published this or that they even gave it to the media there's no evidence as to how the media got this you know sergeant toward specifically testified that he always puts together a list of arrests which he gives to his lieutenant at the end of the day that's it he had no idea how this got to the media he testified he didn't give it to the media so there's no evidence of how this made it to the media and it sort of makes sense that if you're running a past prostitution sting you would give a list of the arrestees to your boss because you never know if you know city councilman was one of the arrestees who knows who's going to make inquiries about what happened that night and lieutenant should be in the chief should be prepared to respond to it but there's no evidence of how it got to the media for all we know the media just happened to be there and that's how they got the information so there's a complete causal disconnect here so the facts don't support that argument and there's also a forfeiture problem here because this argument about a retaliatory publication was never made in response to the summary judgment motion law and it wasn't made in the plaintiff's opening brief this is the st time this is coming up in the plaintiff's reply brief and i won't deny that they said that was part of the damage claim was not this is not raised in the opposition to the summary judgment motion and i didn't see it anywhere claims proof except as a description of one of the items at damage point or something so no one talked about malicious prosecution you know i don't i think it's pretty clear that for the nonce who by the prosecutor had there's absolutely no explanation as to why the case was not suited that's not a favorable terminations under illinois law or this board's decision with regard to the malicious prosecution claim i think it's important to note that the argument the defendant is making here would completely visser a to the ability of anyone to bring a malicious prosecution claim so long as the baseless charges  trial here the evidence in the record is that all of the claims against mr aligned were dismissed by the prosecution not as a result of a compromise or a plea agreement and the jury  entitled to look at all of the surrounding factors that went into why that happened including what the testimony of the parties was what the facts of the charges being brought before the fact that it's not lead is certainly consistent with my son's in a sense finally with regard to what counsel sad about consistent with but it's not in dick it's not necessarily indicative of i mean they may have they may have dropped these charges just think look we've got to move on we're not you know we're not going to take the time and expense on this there's a lot