hellenes people against police violence were prevailing parties after being awarded a fees in this country are the exception rather than the rule there are two and two judicially stationed times when it is appropriate to award such fees the first is if you receive a judgment on the merits and the second is if there is a judicially enforced awarded was a limb an area was a plumbing area injunction that was followed either by that was either reversed dissolved or otherwise decided against the judgment in the same case but we don't have that here do we we have a preliminary injunction finding a an ordinance unconstitutional the court putting in place an injunction that set forth parameters for conduct and a complaint that remain pending and an eventual dismissal based upon the passage of a new ordinance how do we have a successful outcome correct not a adverse outcome for the plaintiffs well i would argue that that is a separate issue the interim relief that they received was a fan rule it was very similar to thirty first hero is it correct november twenty fifth i think we're talking about this issue which has all the then there's a motion made on february twenty fourth i think you ordinances repealed and it's repealed effective march ninth i'm literally i think the day or the day after that repeal you make a motion to dismiss the entire case and your motion is could hold a parade anywhere they wanted they didn't need any permission they could march around anywhere they wanted or that pittsburgh was still going to operate a permit system it's just they wouldn't have that ordinance anymore you now be operating a permit system with no handing notices to people about cost recovery required to do that and you the true hero not for what you were violating you admitted to deed your own attorney to represent pittsburgh said this doesn't look good for us and said that i you you consented to an injunction containing ordinance bells and whistles correct and did not pursue the motion to dismiss did not file any appeal but consented to the entry of an injunction try your honor there was in the interim of having found that sixty three was not so when we still had to have something in place that's why we agreed to the interim perming process which did not speak junction they put in place but your effort was at that point you tried to do was get the whole case thrown out in your brief even challenge the refusal of a court to do that you know you wanted the you wanted the case thrown it we have the evidence we have shown it was in january of zero six the ordinance the new ordinance was passed it's not correct i think they were operating under the court's order in the meantime and i worry twenty seven or or three years lease or years well now because they wish they said in other places the record that they were trying before this is a story before october two thousand and three they were trying sometime before that they talked about even going back to ninety constitution  ok i'm surprised that after the ordinance wasn't i mean it's one thing to say not a prevailing party and i think under the case law that's a that's tough but you can tell me different but but i'm surprised that there wasn't a contention here that after the repeal and the ordinance and the injunction that perhaps those fees would not be do that in fact there was no role for plaintiffs the to play but i don't see that contention in your in your brief did you make that argument well yes i believe your honor that counsel why what was fees awarded or gesture except in their prayer for relief they asked the court to afford what additional relief is necessary to protect their constitutional rights which would seem to me to include it please the court be told walczak from the american civil liberties union of pennsylvania on behalf of apple leads in this case first saw it i want to come back to the complaint and what this lawsuit is all about because i think it informs the other issues that this court has raised this was not a challenge to a narrow ordinance this was a challenge to the city of pittsburgh permit a process when you look at the complaint whether you start with the introduction you look at the details of the history of the application you look at the specific problems that we enunciated which is of extended advance application provision no specific turnaround time for the city all sorts of fees which were very  burdensome and no procedural due process at the end of the day after you get some kind of decision what we see is the city coming in and saying no we're not going to enforce that at all as as the court has pointed out and then the city continues to insist on various aspects of what they had been doing that we allege was unconstitutional one of the specific things that we talk about in that complaint it is in the prayer for relief not only do we ask the court to enjoin declare unconstitutional enjoying chapter six o three we say you can't charge what the city calls cost recovery right so that's lease and public works security fees that are somehow indexed to how much the city spends you cannot have these insurance requirements you cannot have the indemnification and if if the court looks at every transcript in the hearings the city continues to argue for that cost recovery and in fact at the february twenty seventh two thousand and four hearing the court has the little mini hearing within the bigger hearing and it is i think indignant is a fair term finds out that in fact the city has refused to give a permit to the anti abortion group that wants to hold the protest was refusing to give a permit to an anti war protesters because they didn't apply forty five days in advance when in fact the courts injunction said you can't require more than seven days and then somebody else who had applied that week the week of the february twenty seventh hearing who was given a letter saying you can't get a a permanent till you prepay all of the costs so i mean there is no question that you've got a case  controversy going throughout these proceedings and when you in fact look at the very end of this case you look at the status conference and august of two thousand and five the city comes in and says  so the city and i think what what happened is that the city isn't forcing many provisions which the plaintiffs said you know this is good you fix these problems from what you were doing before in terms of advance notice requirements but what we were still fighting over is some of the cost recovery provisions in the last provision in fact that we were fighting over was the city's insistence that they be allowed to assess insurance  in situations where the protesters are going to number more than five thousand so by this time they had dropped every other what we found to be constitutional objection i mean it wasn't until february of two thousand and six when they finally agreed that they were not going to assess insurance in any first amendment type of protest that we said good all right we think you now have a permit in process that has cured all of those constitute unconstitutional aspects that we raised in the complaint that embodied in order of there there is an ordinance and most of what we were negotiating over were regulations implementing regulations which are available on the website and if the court were to go and look at it i don't believe the actual ordinance in the regulations or in the record before the court all of these constitutional problems which we challenge in october of two thousand and three have now been cured but i'd in fact conceded that there was a merits determination made at one of the first two hearings certainly the first hearing she simply saying that's not a final determination i think as the court has noted that every circuit as hell you can't get  d correct as that as the court pointed out in seoul versus warner if if it is reversed on the merits i mean that in the courts of that is of controlling importance and in addition i mean the other aspect of prevailing party is did you win anything and solver says weiner they challenge the statute and at the end of the day the statute is still there it's still being enforced so not only did you have a reversal on the merits but they didn't actually win anything in that case which is very different from what we have here the third injunction on february twenty seventh in this case i mean if you could say it's a merits injunction we had a full day of testimony at the end of the day the city comes in and stipulates to it all right so then you're under the tru dail test and certainly we meet the forepart test of truesdale thereafter we are still fighting on the same issues that we raised in two thousand and three we  the complaint is still pending the controversy is the city going to continue to use or apply a permit process where they have some of these unconstitutional aspects that's still being negotiated apis it really does not apply if you look at just what happened from october thirty first to february twenty seventh all right you have the court enjoining are holding unconstitutional the existing no and what so what happens your honor is we have this injunction in place and the city keeps coming to us with new ordinances i mean we were invited by city council to come and discuss proposed ordinances and they say  this satisfy the injunction presumably you're trying to make a complaint go away you're trying to settle the complaint we are trying to help the city pass an ordinance that doesn't run afoul of all the unconstitutional provisions now your honor i know this is it may be unorthodox but it is in fact pretty much conventional in terms of dealing with systemic relief when you file an injunction to try to fix a housing authority when you try to fix a child welfare system it's not always good to send decree it is exactly like a consent decree and it's no different than if you look at pennsylvania versus delaware valley the supreme court case where you're dealing with trying to get the state to fix clean air so the court then superintended the process which is what happened here i mean i guess you're saying that ultimately there had to be an ordinance that there had to be an ordinance in place and even though there was an injunction that was the stopgap measure in the interim that isn't supposed to last forever that correct your honor and let me just point the court to an august sixth decision out of the seventh circuit which i think is directly on point third six forty nine seven circuit and in that case it did involve the consent decree in trying to fix discrimination and chicago's housing authority and in that case what what the seventh circuit looked at was that in deciding that they were prevailing parties and title to fees for activity that took place after the consent decree was implemented and they said the agency had filed a motion to lift the decree agency had gone to the plaintiffs in that case and asked for selective waivers of the decree which was operating as an injunction which is exactly the situation we have here with the three rivers regatta and the grand prix city came and said we have this injunction we can't get fees will you lift this and we looked at it and we said yeah you know this isn't a first amendment event it's a commercial kind of event of course you can collect fees you can you can assess insurance or there was a selective waiver and ultimately what the court at six fifty eight said that the chicago housing authority had to change its position to win plaintiffs approval of the waiver orders and what the consent decree did there was gave plaintiffs control to help steer the process where it's constitutional and the court said that is certainly relief that that the plaintiffs can recover and that they are prevailing parties and that in that situation is we came in we voluntarily said ok no six o three we voluntarily agreed to this interim to writing what was in an interim but again we don't know we only look at what the plaintiffs won we look at what point it is that they want this belief was granted at the t r o level the evidence of record was and this is even highlighted in their brief and when you look at the counter statement of facts in this there are sixty one twenty one of these go to the verify the remainder go pleadings and